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Nationhood and the Future of

Europe: Part I
The Meaning of National Sovereignty

Modern Europe stands on the threshold of defining her


future identity as it will exist for a long time to come. The shape
of the European Community will determine not only the future
course of European but also of world history. It would be no
exaggeration to state that the decisions made by the leaders of
Europe will be the most important, most decisive ones made
since the end of the Second World War. If Europe decides to
create a unified, federal geopolitical unit of her constituent
nations, she will constitute the most powerful “nation” the
world has ever seen.
I place the word “nation” in quotation marks because
such an attribution to this proposed super-state would be very
questionable. Europe constitutes a community of nations, not
a single nation. The question which should be at the focus of
the current debate concerning unification is: “Why are there
such nations anyway?” That Europe is composed of sovereign
nation-states constitutes probably the most salient
characteristic of her public history for the past 500 years.
Considering the prevalence of war, declared and undeclared,
armed or unarmed (e.g. economic), which has characterized
that history and culminated in the bloodiest wars in history,
World Wars I and II, one might very well wonder if Europe
ought continue under this same framework of sovereign
nation-states. One of the chief justifications for a
federal Europe is the elimination of just this system, based as
it is in the principle of “nationalism.”
Why are there nations indeed? An answer, rooted in
Biblical theology, is given in Jim Jordan’s essay elsewhere in
this issue of Symbiotica. For the purposes of this essay, with
respect to Europe and modern times, this question further
divides into a series of intimately related ones. The first is,
where did the nations of Europe come from? Another is,
What purpose did they originally serve? Finally, the question
remains, How have they deviated from that purpose, and
would restoration of that purpose also restore the legitimacy
of their existence? It is only through answers to these
questions that the other questions facing Europe, the
questions of community vs. federal unification, can be
appropriately dealt with.
The Origins of Europe

Europe owes its origins, inasmuch as they might be


attributed to one person, to the genius and capability of
Charlemagne.1 Through the creation of a single geopolitical
empire from the diverse tribes inhabiting the European
continent he determined the shape of Western Europe.
Nothwithstanding the element of conquest involved in its
formation, the basis of that union lay less in force than in a
1Cf.
Walter Ullmann, The Carolingian Renaissance and the Idea of Kingship
(London: Methuen & Co Ltd, 1969), passim.
Nationhood and Europe I 3

common religion: that of Western, Latin Christendom, with


Rome as spiritual leader. Charlemagne was anointed by the
Pope as “Emperor of Rome” on Christmas Day, 800 A.D.
Although he eschewed the title, preferring instead to be
considered the emperor of the Latin half of Christendom (and
thus on a par with the emperor of Greek Byzantium) this
linkage brought with it the revivification of Roman civilization.
But for all that it was no repetition of classical Rome which
Charlemagne managed to revive, but a new cultural, political,
and religious entity, composed of the tribes he had succeeded
in subduing or otherwise bringing into his Frankish kingdom.
The Carolingian Renaissance
Charlemagne was a lover of Roman Christian culture and
learning. By his sponsorship a cultural renewal was sparked,
the so-called Carolingian Renaissance, under the leadership of
the English monk Alcuin (whom Charlemagne had invited
over from England especially for this purpose). Here the
primacy of the Latin tradition was continued, preeminently
through the study of the works of the great bishop of Hippo,
Augustine. Charlemagne himself, in spite of a level of personal
morality which would belie the fact (he had many mistresses
and bore many illegitimate children), was wholly taken up with
Augustine, especially his City of God. That book inspired
Charlemagne as none other in his desire to extend the rule of
Christ on earth through his own imperial efforts. The vision of
Augustine inspired the establishment and further cultural
development of the Carolingian empire: Augustinianism
therefore lies at the very heart of European civilization.
The Rebirth of Rome
For all its vast size and (relatively speaking) splendor, the
Carolingian empire never constituted much more than an
ideal. After Charlemagne’s death the empire was divided
among successive generations of pretenders to the imperial
title. Germany and France came to be ruled by different
persons. But yet the title of Emperor, and the formal claim of
his universal rule, remained intact. For instance, the kings of
France (Louis) and Germany (Charles), at the Treaty of
Verdun (843 A.D.), acknowledged the imperial claims of their
Nationhood and Europe I 4

brother Lothar. Soon the Emperor began to claim universal


rule of the entire earth as the vicar of Christ. Thus began the
durable tradition of Empire in Europe with such a vast
separation between claims and practice, between de jure and de
facto situation.
Kingship at this time manifested a sacral and even
Christological character. The Emperor, who by the year 1000
was styling himself as the new Caesar and Emperor of Rome,
maintained this sacral typology more so than any other. He
exercised priestly powers and constituted in himself the bond
between heaven and earth. He also was the sovereign, the
lawmaker and judge of all creatures. He himself was a king and
a priest, claiming to be “after the order of Melchizedek,” being
the living representative of Christ on earth, and endowed with
His authority.2
Armed with this self-conception the Western emperors
began to make connections with their counterparts in
Byzantium to the east. This was a strategy pursued by the
Ottos, Otto I (the Great, d. 973), Otto II (d. 983), and Otto III
(d. 1002), to gain imperial substance for their claims to
universal dominion. Otto II married the Byzantine princess
Theophano, and Otto III was educated by her; through this
linkage Byzantine imperial-court customs and culture were
imported into the Western imperial court, stamping its life and
character. Byzantine emperor-centered ecclesiastical practice
and liturgy also became established, as trappings of imperial
authority, bolstering imperial claims to absolute authority in
both spiritual and temporal matters. Perhaps most significant
in this connection, at this time the Emperors began to draw
upon Byzantine law, and in particular the law books of
Justinian, to establish the source and the scope of imperial
authority.3
2See for example Kantorowicz’s description: The King’s Two Bodies: A
Study in Medieval Political Theology (Princeton, NJ: Princeton University Press,
1957), ch. III: “Christ-Centered Kingship.”
3“It would not be many decades before the full opulence of

Justinian’s Code was to be perceived in all its magnitude.” Walter Ullmann,


Nationhood and Europe I 5

The Papal Revolution


Therefore the program of Pope Gregory VII, the so-
called “Papal Revolution” (otherwise known as the Investiture
Crisis or the Gregorian Reform) carried out between the years
1054-1122, constituted a revolutionary break because it was
precisely this totalitarian character of the Emperor which was
denied. A separation of the sacred and the secular, of the
spiritual and the natural – something which had always figured
in the Augustinian theology – now for the first time became
something more than theory: it was established, solidified, in
the political structure. The Emperor was denied his position as
the vicar of Christ, in favor of the Pope. He was stripped of
divine status and liturgical focus; the church which he
heretofore had headed was removed from his purview; the
prelates which he was accustomed to put into office were
hereby taken out of his hands by the drastic measures of the
Gregorian Reform. The Emperor henceforth was relegated to
the status of temporal administrator of justice, the executor of
laws pertaining to the mundane affairs of secular life – laws
which themselves had to be stamped with the approval of the
now independent, assertive, seemingly omnipresent Church of
Rome.
From Empire to Community of Nations

The assertion of her jurisdiction over the realm of the


sacred, and her opposition to sacral empire, meant that the
Church established the conditions through which the separate
nations of Europe could obtain and maintain an independent
existence in their own right. As medieval historian Joseph
Strayer has noted, the Papal Revolution had several
consequences precipitous for the rise of territorial states:

1. The denial of imperial supremacy came the


recognition of territorial kings and princes as independent
sovereigns. “Each kingdom or principality had to be treated as

A History of Political Thought: The Middle Ages (Harmondsworth, Middlesex,


England: Penguin Books, 1965), p. 97.
Nationhood and Europe I 6

a separate entity; the foundations for a multi-state system had


been laid.”

2. The definition and promulgation of law codes based


upon the distinction of the sacred and the secular, because the
kings were considered administrators of secular justice. “The
Gregorian reformers might believe that the Church defined
what justice was, but even they admitted that in normal
conditions it was the duty of secular rulers to see that justice
was dispensed to the people . . . . But if they were to enforce
justice, then codes of law must be developed and judicial
institutions improved.”

3. This strong emphasis on law meant that the


developing European nations would become “law-states,”
whose reason for being would be found in maintaining an
atmosphere of legal responsibility. “The state was based on law
and existed to enforce law . . . . In no other political system was
law so important; in no other society were lawyers to play such
an important role.”

4. More indirectly, the church also emphasized the


importance of an educated “civil service” to carry out policies;
university education, standard for clerics, became important
also for laymen, and secular government modelled itself on
church hierarchy and organization.4

The Papal Revolution was nothing if not a revolution in


5
law, and the Church pioneered the development of a new law-
order which encompassed the entirety of Western
Christendom, establishing the basis for the further growth of
that civilization. The growth of internal constitutions within
4Joseph R. Strayer, On the Medieval Origins of the Modern State
(Princeton, New Jersey: Princeton University Press, 1970), pp. 22ff .
5As Berman has emphasized: Harold Berman, Law and Revolution: the

Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University


Press, 1983).
Nationhood and Europe I 7

the various nations, of bodies of rights and liberties, was


mediated by the Church; concurrently, the mediation of
relationships between the nations was taken on by the Church,
particularly through the elaboration of canon law pertaining to
international relations.
The Legal Framework
The growth of legal science, necessary to the
development of a system of law capable of meeting the
challenge of the new situation, was the fruit of the Papal
Revolution. In this new legal science the main text used was
the Corpus Juris Civilis of the Roman emperor Justinian, of
which the Digest, or compilation of Roman lawyers’ legal
opinions, was the basic text for study in the developing
curriculum. But the nature of the influence of the Justinian law
books must not be misunderstood. This corpus was used as a
guide for systematizing, for categorizing, and for orientation in
the contemporary legal situation; but its content was not simply
taken over and applied. “What was important about the study
of Roman law was that it furnished a set of categories into
which new ideas could be fitted and a vocabulary by which they
could be described.”6 It was the canon law which, Berman
claims, was the model law code for the West: “the first modern
western legal system.”7
The history of the way in which the Roman law of
Justinian has been interpreted in the West is a crucially
important one. In fact, by taking note of how the Roman law
was being interpreted at any particular time one can can
determine what kind of constitutional and political regime was
being promoted, whether more or less constitutional, more or
less absolutist. The kind of interpretation given to the Roman
law is a touchstone for tracing the course of constitutional
development.
6Strayer, Medieval Origins, p. 25.
7As the subtitle of ch. 5 proclaims: Law and Revolution, p. 199. For
the relative influence of Roman law in the development of medieval legal
science, see particularly pp. 120ff . and 204f.
Nationhood and Europe I 8

During and immediately after the Papal Revolution the


Justinian law was interpreted by the imperial party in as strictly
a literal sense as possible, because such an interpretation lent
strong support to the imperial claims of absolute authority.
However, the yawning gap which existed between the kind of
society envisaged in Justinian’s law and that of contemporary
feudal Europe was too great for such an effort to make very
much headway. The Roman law was subjected to an intense
effort of reinterpretation by various schools: the so-called
“glossators” (so named because they “glossed” or attached a
running commentary to the given Roman law), the canon
lawyers of the Papal party, and, a bit later on, the “post-
Glossators” or Bartolists, beginning with the famed
fourteenth-century jurist Bartolus of Saxoferrato, who
reinterpreted the law in the light of republican liberties as were
possessed and defended by the prospering Italian cities.8
The upshot of this effort at reinterpretation was to create
a Roman law which stood at loggerheads with the original
version. And this reinterpretation was embodied within a larger
developing system of law and constitutional order expressing,
and giving substance and stability to, the new reality of a
European community of nations, itself forged through the
cooperation of Papacy and territorial state over against
Empire.
Jurisdiction and Sovereignty
One extremely important innovation involved the
reinterpretation of the Roman law concepts of imperium and
jurisdictio. In the original conception, jurisdictio referred to the
authority of a judge to render judgment; imperium, to the basis
for that authority, which lay in the Emperor. Thus, jurisdictio
was a creature of imperium and wholly dependent upon imperium
as the basis for its own authority. Imperium, in turn, was held
solely by the Emperor. He might delegate imperium to lesser
magistrates, but their imperium was entirely dependent upon his.
8Skinner gives an excellent summary of the Bartolist project:
Quentin Skinner, The Foundations of Modern Political Thought: Volume One: The
Renaissance (Cambridge et al: Cambridge University Press, 1978), pp. 9ff .
Nationhood and Europe I 9

The result is that all exercise of legitimate authority in society


is derived from the Emperor, and entirely dependent upon him
for its justification.
One of the great Roman lawyers of the Middle Ages,
Azo (1150-1230), reversed this understanding of authority.
Helped by the fact that nowhere in Justinian’s texts were these
concepts of imperium and jurisdictio explicitly spelled out (such
an understanding was clear, though, from the various relevant
texts when looked upon as a whole), Azo proceeded to classify
them in a manner exactly opposite to that described above. He
made imperium the creature of jurisdictio; furthermore, he
interpreted jurisdictio to be held by lesser magistrates as well as
the supreme magistrate (he yet acknowledged the Emperor to
be de jure the supreme magistrate), and that each level of
jurisdictio was independent from the level above it in the sense
that it possessed a legitimacy in its own right. “Involved in
Azo’s analysis is a recognition that the jurisdiction and
dominion – the sovereignty, as a later generation would say –
of kings, princes, heads of municipal governments, and other
magistrates are not derived from the jurisdiction and dominion
of the emperor.”9
Thus Azo provided a definition of political sovereignty
expressive of the new realities of post-Papal Revolution
Europe, capturing in this conception the decentralization of
political authority so characteristic of the medieval
constitution. Two other characteristics of this concept of
political sovereignty bear emphasizing. First, the emphasis in
sovereignty was placed upon the authority to adjudicate, to
pass judgment in terms of a received law. It is not conceived
as essentially the authority to legislate, as was the case both in
imperial Rome and later on became so, in modern times. The
law was considered received – given, not made – and the
sovereign was a judge who administered justice in terms of the
received law. Secondly, the ultimate basis of sovereignty was
considered to lay, not with the ruler, but with the people.
9Berman, Law and Revolution, p. 291.
Nationhood and Europe I 10

Sovereignty was popular, possessed by the people as a whole:


“the corpus, the universitas, the communitas.”10
Thus the new-found concept of national sovereignty was
based upon a constitutional understanding of sovereignty
whose ultimate basis lay in the people as a whole, and in each
people, each nation, particularly. Thus the nations of Europe
were, originally, constitutional monarchies. This is a historical
factor of the first importance.
The Establishment of Free Trade
Not only in politics did the Roman law receive a
thorough revision, but also in economics. Admittedly there
was not much explicit economic thought contained in the
Justinian corpus, but given the fact that imperial Rome was the
scene of a fairly complex trading and commercial network,
many laws were developed which addressed the problems that
did arise. The Roman solutions formed the basis for the future
development of commercial law.11
The concept of the just price was of Roman law
provenance. It came out of the idea of laesio enormis (“great
injury”). Laesio enormis was done to the seller, whenever he
stood to receive less than half of the just price [justum pretium]
for the offered good or service; it meant that he could refuse
to fulfill the terms of the contract until he was assured of full
payment by the buyer. The justum pretium was, however, never
really defined by the Roman law, but it could be inferred from
various texts, which generally stated that whatever the buyer
and seller agreed to was the just price. In fact, texts were rather
explicit in stating it was totally up to the individuals concerned,
and that one could sell as dear and buy as cheap as one could
get away with.12
10For this example of Azo’s interpretation of imperium and jurisdictio,

cf. Berman, Law and Revolution, pp. 289-292.


11Barry Gordon, Economic Analysis before Adam Smith: Hesiod to Lessius

(London: The Macmillan Press Ltd, 1975), pp. 122f.


12Kenneth Sheldon Cahn, Roman and Frankish Origins of the Just Price

of Medieval Roman and Canon Law (unpublished Ph. D. Thesis, The City
University of New York, 1973), pp. 36f.
Nationhood and Europe I 11

The medieval commentators, while adopting the term


justum pretium, were unsatisfied with its given definition. But, as
John Gilchrist in his admirable The Church and Economic Activity
in the Middle Ages remarks, “In adopting the term, did they reject
the civilists’ sense and apply it to the `cost of production plus
. . . a moderate profit’ notion as asserted by Troeltsch and
others? They did not.”13 Rather, they adopted as the standard
for any particular transaction the price which could be fetched
on the open market. They thus adopted a subjective theory of value,
which has only made a comeback in modern times with the rise
of the Austrian school of economics.14

This conception of the just price frees the medieval Church from
many of the charges brought against it. Economic growth was not impeded
by bad teaching or price regulation. Utility and need were the fundamental
determinants of price. The system did not protect the inefficient merchant
or crafstman: he sold at a loss, or not at all. The efficient producer was not
penalized. Nor did membership of a guild `ensure the individual craftsman
a non-competitive local market’. There was always foreign competition,
substitute goods and materials, and, in the last resort, consumer resistance.
15

The market-oriented approach evident in this concept of


the just price was part of the larger movement to provide a
legal-juridical basis to the transformations underway in post-
Papal Revolution society. A shift in attitudes brought a positive
evaluation of the role played by trade and commerce in society.
Engagement in trade had traditionally been considered
something useless, and profiting from it, sinful, since the trader
13(London: Macmillan & Co Ltd, 1969), p. 59.
14The definitive statement concerning the medieval doctrine of the
just price is John W. Baldwin, The Medieval Theories of the Just Price: Romanists,
Canonists and Theologians in the Twelfth and Thirteenth Centuries (Transactions
Amer. Philos. Soc. NS XLIX no. 4: Philadelphia, 1959). For a
contemporary exposition of the subjective theory of value, see Gary North,
The Dominion Covenant: Genesis (Tyler, TX: Institute for Christian Economics,
1982), ch. 4.
15Gilchrist, Church and Economic Activity, p. 60; the quote is from E.E.

Hirshler, “Medieval Economic Competition,” Journal of Economic History


XIV (1954), p. 58.
Nationhood and Europe I 12

was not adding anything to what he sold but was simply buying
in order to sell again (this, the “no one loves a middleman”
mentality). But now the positive benefits of trade came to be
understood, and commentators began extolling those benefits.
This was especially important in the light of the developing
international order of nations which made up the European
corpus Christianum; for it was at the international level that this
bias toward the desirability for free trade relationships was
developed. Here is the way Gilles le Muisit, canon of Tournai,
expressed the new ideal (at the beginning of the fourteenth
century):

For itself no country can provide;


For that merchants travel far and wide;
Their work and toil feeds the nation
So refrain from baseless fulmination.
Merchants cross the seas and back
To bring each nation what it lacks
No good merchant would reap blame
But love, honor, and a just good name.
They contribute to the love of nations
Thus their wealth is cause for jubilations
A good trader’s ruin is cause for pity
May their souls see the light of the Heavenly City.16

In fact, at the level of the municipalities the guilds were


in continual conflict with the Church (and often with
municipal authorities where the guilds did not control those
authorities) over the doctrine of freedom of trade. The guilds
continually pressed for monopoly privileges, and the Church
never ceased opposing their monopolist agenda. De Roover
notes that “In theory, the guilds were supposed to prevent
unfair practices, to supervise quality, to make apprenticeship
rules, etc., but not to put monopolistic restrictions on trade.
16Quoted in Jacques Le Goff , Time, Work, & Culture in the Middle

Ages [trans. Arthur Goldhammer] (Chicago, IL: University of Chicago Press,


1980), p. 66.
Nationhood and Europe I 13

Humanity being what it is, the practice was often different.”17


Monopolies, according to the Church, acted against the
principles of justice by causing things to be sold for more than
they were worth; monopolies were exploitative and therefore
violated principles of charity and brotherly love; monopolies
were injurious to the common good because they increased
prices and also withheld needed goods and created artificial
scarcity.18
In combatting this form of obstruction the Church was
establishing a framework of necessary and practicable
relationships between the multiple political jurisdictions. “The
general tenor of scholastic pricing policy then, was for the
establishment of just terms of trade between town and country,
and the achievement of a free flow of goods uninhibited by
private monopolies and by speculative activity of a type which
was designed to bring about the very circumstances which the
speculator intended to exploit for his own gain.”19 Intervention
in market operations for the sake of the common good was
never denied by the canonists. They did conceive that in
emergencies the ruler should intervene to ensure the safety and
welfare of subjects and citizens. But this was the exception and
not the rule. The market was considered, under normal
conditions, to provide the just and fair means through which
goods and services ought be distributed.
The Modern Law of Nations

In the development of these positions, a common law


cutting across the multiple political jurisdictions was being
developed; as these laws crystallized into a general body of law,
there came a transformation in the original Roman law concept
of international law itself. The umbrella-term under which
these changes could be summarized is the jus gentium, the law
17Raymond de Roover, “Monopoly Theory Prior to Adam Smith,”
in Julius Kirshner (ed.), Business, Banking, and Economic Thought in Late
Medieval and Early Modern Europe: Selected Studies of Raymond de Roover (Chicago
and London: University of Chicago Press, 1974), p. 283 n. 1.
18De Roover, “Monopoly Theory,” pp. 278-279.
19Gordon, Economic Analysis, p. 220.
Nationhood and Europe I 14

of nations. The Roman imperial concept of international law


thereby received fundamental reorientation, being revamped
to embrace the political and the economic innovations being
achieved in the new Europe.
The jus gentium had been originally developed by the
Romans to deal with the nations they had conquered. Since
they had to administer justice within these nations, they had
recourse to the customary laws of each particular nation, and
additionally developed a set of general principles from out of
their own law to deal with relationships between the nations.
This general law was also called the ius commune, or the common
law of the realm. It was, of course, enforced by the central
Roman authority, eventually the Caesars.
Imperial Law and Natural Law
An important outgrowth of this development was the
idea of natural law. The Stoics, the philosophers of Rome,
developed from the idea of the jus gentium the idea of a natural
law which embraced all mankind in absolute equality. They
extrapolated from the factual situation, of a Roman empire
which embraced all the world of which they cared, and
postulated a kosmos in which the like situation obtained: a law
embracing all, making all equal, enforced by an absolute
sovereign. Thus the Stoic idea of natural law was simply the
abstracted and universalist version of the very real situation
obtaining in imperial Rome.
Now in the developing civilization of Western Europe
this idea of a universal jus gentium expressive of a cosmic natural
law exerted a powerful attraction. But its foundation, as
originally conceived, was removed: with the Augustinian-
inspired Papal Revolution the absolute sovereignty of the
Emperor was denied. What happened was that the Emperor
remained a theoretical component of the jus gentium – his
position de jure, in law, as the absolute sovereign of the world
was yet acknowledged – but the actual situation was one
analogous to that of today’s parliamentary democracies, in
which a king or queen is officially sovereign but actually wields
zero authority.
Nationhood and Europe I 15

As with the Emperor, so with the law. As natural law


became more and more to be equated with the will of the
personal yet transcendent God of Christianity, the jus gentium
became understood not as the expression of the will of a
human sovereign, whose imperium embraced mankind as a
whole, but as a universal law expressive of the will of God for
all nations, all peoples, and above the decrees of a human
sovereign. It transcended and determined the laws of all human
polities, and also ruled the relationships between those polities.
In short, it relativized human sovereignty.
Two elements of the new understanding of jus gentium are
of fundamental importance. Firstly, the legitimacy of human
empire is denied. No nation has the right to conquer and rule
over another nation. The right of self-determination is an
undeniable one. Sovereignty in the political sense must remain
in the hands of nations as such. Secondly, the rights accruing
to sovereignty are limited ones. Nations have no right to act as
a law unto themselves. They are not free to make treaties and
alliances with other nations for any purpose they like, for
instance. What they can and cannot do as sovereign nations is
strictly limited.
Essentially, as already stated, sovereignty simply defines
who the proper authorities are, not what they are permitted to
do. Laws of superior origin determine that. This understanding
is especially important in determining rights of trade and
communication between the nations. As originally conceived
in the Christian concept of international law and international
relations, these were fundamental rights which political
sovereigns could not infringe.
These basic principles would be developed into a
coherent synthesis in the sixteenth and seventeenth centuries.
That synthesis, that legacy, is today largely a forgotten one. We
turn now to examine its concrete content as it found
expression in the work of the Catholic Dominican Francisco
de Vitoria, and the Protestant Calvinist Johannes Althusius.
Nationhood and Europe I 16

Nationhood and the Future of Europe: Part II


Vitoria and Althusius

Through the Papal Revolution the Church in Western Europe brought the community of
European nations into being. By its resistance to the imperial ideal the Papacy provided the shelter
within which the developing nation-states might become firmly established. Canon and civil lawyers
gave shape to this new order by redefining legal and jurisdictional categories in its favor.
Almost as if it could not endure the novelty, the Papacy turned against the new reality which
itself owed so much to the Papacy for its very existence. Contrary to the original ideal of the Papal
Revolution, later Popes began to arrogate to themselves the same imperial attributes they had denied
to the emperors. Rome began to consider itself the material as well as spiritual, the secular as well as
sacred, head of Europe. The Papacy became a centralizing bureaucracy which strove to gain material
control of the life of Europe as a whole. The Papacy itself became a model bureaucratic state; in fact
it might be considered the first modern state.20
The demise of medieval civilization and the onset of Renaissance power politics and warfare
between the nations of Europe can be attributed to the failure of the Papacy to recognize and reside
within the spiritual boundaries of the jurisdiction of the Church. The Papacy centralized control of
ecclesiastical institutions, in violation of the national boundaries of church jurisdiction; in addition to
that, it strove to lord it over secular kings and princes in secular affairs. This twofold denial of legitimate
jurisdiction discredited the Church in the eyes of laymen and made the Church just one more political
actor in a field of antagonists. The Pope became simply one more Renaissance prince. With no
recognized intermediary, the emerging nation-states of Europe acted as laws unto themselves. The
ministry of the Church reached a nadir during this time prior to the Reformation (14th-15th centuries).
Out of this milieu arose reformation, both through Martin Luther and the the other
Reformers, whose churches broke away from Rome, and through the efforts of churchmen who
stayed loyal to Rome but nevertheless strove to purify it from within and return it to its true spiritual
mission. Chief among the latter, and a true pioneer in the revival of Augustinianism which
characterized reformers both within and without the Roman church, was the Dominican friar
Francisco de Vitoria (c. 1485-1546).
The Vitorian Contribution

Vitoria was instrumental in the resurgence of Thomism, the via antiqua or “old way” in the
Roman church over against the predominant nominalism of the so-called via moderna or “new way”
which had held sway throughout the fifteenth century in the universities. Vitoria was no blind
doctrinarian, however; he blended the teaching of Thomas Aquinas with later theological and
philosophical developments and adapted these to the exigencies of the 16th century. In so doing he laid
the foundations for both Catholic and Protestant thought in many areas. Chief among these areas were
church/state relations, constitutional theory, and international law. These subjects were blended
together into a new, Christian evaluation of nationality.

20Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard

University Press, 1983), pp. 113ff .


Nationhood and Europe I 17

The Rights of Nations


For Vitoria, the nations were the primary integers in political life. The nations had specific rights
which were crucial to the functioning of society and to the fulfillment of the purpose of mankind on
earth.
In the first place, with respect to secular matters the nations were sovereign. Each nation by
divine right had the authority to administer its own secular affairs without interference from other
earthly powers. Thus for Vitoria the Holy Roman Emperor possessed no jurisdiction over any nation
except his own, viz. Germany. Every other nation, such as France, England, and Spain, possessed its
own sovereignty and had the right to act in independence of the dictates of the Emperor. The Emperor
held jurisdiction in Germany because the German princes swore fealty to him: this definitive act of
subjection formed his only legal claim to sovereignty. The Emperor possessed no a priori universal
dominion, such as his own proponents claimed for him.
Neither did the Pope possess jurisdiction over the nations in anything except spiritual matters.
Here Vitoria accepted the jurisdiction of the Pope over the Church International, but he restricted that
jurisdiction to spiritual matters. Nevertheless, he attributed to the Pope the right to intervene in secular
affairs when such affairs touched directly upon spiritual matters, such as war and peace. Where the
destiny of the soul was concerned, Vitoria held, the Pope had the right and duty to intervene for the
good of those involved. Nevertheless, such a right of intervention was severely restricted by Vitoria
when one compares his position with the proponents of papal absolutism.
Sovereignty and the Community of Nations
Vitoria pioneered the idea of a community of nations in which no earthly institution held
sovereignty, either de facto or de jure. In place of this he argued that the nations themselves, in
cooperative effort, needed to recognize and enforce the jus gentium, the common law of nations, which
was common to them all and which indelibly bound them together. This community of nations could
even be considered as one republic in the sense that it legislated and enforced laws which bound the
world-community. Totus orbis, the entire world, through mutual accord and common consent had the
power to enact and enforce just and useful laws, laws which made up the jus gentium. The right to
enforce these laws produced the doctrine of the just war.
Important to understanding the position Vitoria was advocating is to consider his concept of
sovereignty. Actually the juridical concept of sovereignty was yet to be elaborated: Jean Bodin would
do so in his Six Books of a Commonweal published in 1576. Vitoria’s writing possessed the actuality of
the concept while leaving it unnamed. He wrote of the nation as a societas perfecta, a “perfect
community,” by which he meant that the nation held supreme political authority within its boundaries
while recognizing no political superior outside of itself. In this manner, nations were self-sufficient
entities. Additionally, this sovereignty was held by the nation as a whole: the people which made up
the nation held the sovereignty jointly.
Sovereignty: A Relative Concept
The emphasis Vitoria places on the integral unity possessed, at least in principle, by the world-
community might lead one to believe that he advocated the establishment of a world-government
which would mediate the relationships between the nations.21 But this is precisely what Vitoria is
arguing against when he terms individual peoples and nations the sovereigns: the jus gentium, “law of
peoples,” is therefore a law of sovereigns, i.e. a law respected and enforced by the authority of a

21As does Urdanoz in his otherwise excellent exposition of the Vitorian doctrine. Urdanoz seems to see Vitoria as
an early protagonist for the United Nations, actually not the United Nations Organization as it presently exists but rather
the one often dreamed of by one-worlders, which would actually possess political and military power over the nations. To
view Vitoria in this light is really to miss the entire point of what he is arguing for. Cf. Teófilo Urdanoz, O.P., Obras de
Francisco de Vitoria [Works of F. de V.] (Madrid: Biblioteca de Autores Cristianos, 1960), pp. 575-578, 580ff .
Nationhood and Europe I 18

community of sovereigns. One overarching earthly sovereign is expressly denied;22 this is the
significance of Vitoria’s denial of universal jurisdiction to either Pope or Emperor. He is arguing for
another kind of supreme authority altogether: that of the transcendent, provident God whose absolute
sovereignty is maintained through denying it to any earthly institution. That the community of nations
possesses a joint “sovereignty” is the direct corollary to this position: in effect, the possibility of that
sovereignty being localized in a single institution is denied.
This view of sovereignty complements the view of law which Vitoria argues for. The jus gentium
which provides the standard of righteousness for all the nations is none other than the law of God
expressed in natural law. For Vitoria the idea of natural law was not vague and lacking in substance; it
was grounded firmly in divine revelation. Vitoria’s brand of “Neoscholastic political thinking . . . is
firmly rooted in the assumption that the validity of the Old Covenant – in reality, as these publicists
readily admit, nothing more than the Hebrew version of natural law – is eternal, and that for the
purposes of political affairs . . . the coming of Christ made no difference whatsoever.”23 For this reason
Vitoria’s treatises are studded with references to the Old and New Testaments.
Divine Sovereignty and Higher Law
The dependence upon divine revelation to give content to the natural law reflects that Vitoria
understood divine sovereignty to be the corollary to his concept of the community of nations. For
Vitoria, international law was first and foremost a part of the natural law and thus unchangeable by the
will of man. The community of nations could legislate and enforce universally binding laws, but they
could only do so in terms of this unchanging “primary” law of nations. When one considers the content
Vitoria actually gives to this category of law, one realizes just how firmly he believed in an unchanging
divinely-established and -controlled universal order. Vitoria recognized another category of
international law, a “secondary” law of nations which was derived from human will. These two
categories of law were intimately related: the “primary” category gave the general, binding principles
good for all times and places, while the “secondary” category constituted adaptation to specific
circumstances through the enactment of human positive law. Thus “secondary” laws were simply
derivations of the “primary” laws. As has been stated, this man-made law was made either as accepted
custom or in the form of treaties.
Content of the Law of Nations
Within the category of the “standing” or unchanging law of nations, Vitoria recognized two sub-
categories, natural and spiritual; the natural dealt with temporal or material things, the things of this
life, while the spiritual dealt with eternal things. He grouped these categories further in terms of rights
of communication: things which all peoples had the right and duty to communicate, i.e. distribute or
share, amongst themselves.
First among the rights of natural communication was the jus peregrinandi, the right of passage.
This right entailed that no nation had the right to bar foreigners from passing through its boundaries,
or keep them from spending time within them. Because all men are united by duties of fraternity, of
hospitality, and by the law of charity, the good that can be done one’s neighbor by allowing him free
passage through one’s own land ought not be denied him, except where such might bring damage or
harm along with it.
A complementary right of communication is that to passage on the high seas. The seas, being
common to all nations, are open for all to travel upon. No nation had the right to monopolize any
portion of waters, even though it might lie adjacent to it and derive much of its livelihood from it.

22As Reibstein correctly points out: Ernst Reibstein, Volkssouveränität und Freiheitsrecht I (Freiburg/München: Verlag

Karl Alber GmbH, 1972), p. 108.


23J.A. Fernández-Santamaria, The State, War, and Peace: Spanish Political Thought in the Renaissance, 1516-1559

(Cambridge, England: Cambridge Univ. Press, 1977), p. 122.


Nationhood and Europe I 19

Trade routes may not be considered any nation’s property, either, even if discovered and developed
by a particular nation. The right to exploit fisheries may also not be infringed by any one nation’s
pretended monopoly.
Freedom of trade Vitoria also includes among these rights of natural communication. This is
quite noteworthy: remember, these rights belong to the “primary” law of nations and as such may
never be denied! National governments may infringe the right of neither their own nor of foreign
private citizens and subjects to freely engage in trade, so long as trade and business may be carried on
without prejudicing the health and safety of the community.
Foreigners had the right to travel through, abide in, and carry on trade with any lands they
desired. They even had the right to take up residence and become citizens of other lands, to work and
to own property there. They had the right not to be expelled except upon just cause.
Such constituted the rights of natural communication, but Vitoria did not stop there. He went
on to describe rights of spiritual communication, the right to preach the gospel, send missionaries into
foreign lands, and the rights of the gospel message and its professors to be protected against all violence
and hindrance from either private citizens or public authorities. Thus, the church has the right to
extend herself throughout the world under the aegis of the civil authority. The rights of the gospel
stem directly from Christ’s charge to the disciples in Matthew – the Great Commission.24 And they
constitute as much a part of the “natural law” as do the rights of natural communication. “It is a right
which in terms of subject matter above all is divine-positive, or connatural with a Christian social order;
but which to infidels comes clothed in the natural right to express and promulgate all of the truth,
above all the religious truth necessary to salvation.”25
Right of Intervention
For violations of these rights of communication either natural or spiritual, nations could go to
war. A just war, in fact, was one fought in fulfillment of the duties of nations to enforce the jus gentium
common to them all. Here Vitoria again innovated in formulating his doctrine of the right of just
intervention.26 Because for Vitoria the sovereignty of nations was not an absolute but a relative
sovereignty, a sovereignty bounded by higher law. Thus subjects being tyrannically oppressed may be
liberated through the intervention of foreign powers. Barbaric treatment, such as cannibalism or
human sacrifice, might be put an end to by armed intervention. Persecution of the church is just cause
for armed intervention as well.

The Church and the Nations


Vitoria’s concept of a community of nations comprising totus orbis, the whole world, was
complemented by a concept of the community of Christian nations which together made up the
Church International. He considered this a veritable respublica christiana, a Christian republic, “one body
formed by the spiritual Church and the Christian nations as true members of the mystical Body.” With
respect to the rights of spiritual communication, which at any rate held precedent over those of natural
communication, the Church exercised leadership over this body of Christian nations. Since the rights
of spiritual and natural communication are complementary rather than contradictory, the secular and
the spiritual power act harmoniously and in cooperation to ensure the well-being of the international
community. “In Vitoria and in all sane jurisprudence the Church and the international community are
to be harmonized . . . . The tight collaboration of both powers will always issue supremely efficacious
to the peace and order of peoples.” This idea of the Church International is what made the idea of a
community of nations possible: national sovereignty must be relativized, and it is relativized by the

24See“Vitoria’s New World Order,” p. 1ff. above.


25Urdanoz, Obras, p. 616.
26Urdanoz, Obras, p. 614.
Nationhood and Europe I 20

spiritual and not a supreme temporal power. Vitoria’s concept is theocratic to the core: it is what makes
the “open society” for which he argues possible.27
Vitoria laid the groundwork for all future efforts in the development of international law. The
School of Salamanca, to which he gave foundations and an international reputation which would last
into the seventeenth century, became one of the leading universities of Europe insofar as jurisprudence
was concerned. Luminaries such as Domingo de Soto, Diego de Covarrubias, Fernando Vásquez y
Menchaca, and Francisco Suarez either studied or taught there (or both). Salamanca was also a center
of free-market economic thought.28 The influence of this school is difficult to overestimate: both
Catholic and Protestant writers considered its authority to be preeminent, as is evidenced from the
frequency with which their writings were cited.29
The Althusian Contribution

One important writer of the later 16th and early 17th centuries who drew extensively upon the
writings of this school was the German Calvinist Johannes Althusius (1557-1638).30 Althusius was a
convinced proponent of the Reformation, especially the Calvinistic version, and produced works on
politics, law, and constitutionalism which typefied and epitomized political Calvinism in its maturity.
Importantly, Althusius continued the tradition of Salamanca, especially as represented in the writings
of Vitoria; just as importantly, he brought this body of thought into a fuller maturity in terms of Biblical
teaching.
Popular Sovereignty
Althusius took over and amplified the Vitorian framework of a community of sovereign nations.
In his work he emphasized both the nature of sovereignty and the concept of the “people” who jointly
possessed that sovereignty. Remember, Vitoria had developed the idea of popular sovereignty in
tandem with his idea of a community of nations. Jean Bodin would later define sovereignty in the
juridical sense, as an absolute and indivisible law-making power which recognized no earthly superior.
Althusius accepted Bodin’s definition; but where Bodin argued that this sovereignty must be attributed
to one supreme institution in society (such as the king), Althusius argued that sovereignty is always a
possession of the people as a whole, the associated body of the realm.
Althusius’ doctrine of popular sovereignty is thoroughgoing and conclusive. For Althusius, the
“people” who possessed the sovereignty were not individual citizens considered either in isolation or
en masse; they were, rather, the whole community as an organized body of lesser associations,
hierarchically arranged and ordered in a constitutional framework. Or as he puts it: “the members of
a realm . . . are not, I say, individual men, families, or collegia, as in a private or a particular public
association. Instead, members are many cities, provinces, and regions agreeing among themselves on
a single body constituted by mutual union and communication.” Individuals took their places in the
realm by virtue of membership in these lesser associations. “Individual persons from these group
members are called natives, inhabitants of the realm, and sons and daughters of the realm.” To make
the point clear Althusius draws upon an apt metaphor: “It can be said that individual citizens, families,
and collegia are not members of a realm, just as boards, nails, and pegs are not considered parts of a
ship, nor rocks, beams, and cement parts of a house. On the other hand, cities, urban communities,

27Urdanoz, pp. 625ff.


28See Marjorie Grice-Hutchinson, Early Economic Thought in Spain, 1177-1740 (London: Allen & Unwin, 1975);
Alejandro A. Chafuen, Christians for Freedom: Late-Scholastic Economics (San Francisco: Ignatius Press, 1986).
29Reibstein emphasizes this in his Johannes Althusius als Fortsetzer der Schule von Salamanca (Karlsruhe: Verlag C.F.

Müller, 1955).
30See ibid., passim.
Nationhood and Europe I 21

and provinces are members of a realm, just as prow, stern, and keel are members of a ship, and roof,
walls, and floor are essential parts of a house.”31
A Society of Associations: Constitutionalism
Althusius’s social order is one in which every higher level of society is made up of the
associations existing on the next lower level. The basic association is the family, in which all individuals
find a place; Althusius terms this the private natural association. Private voluntary associations also
find a place at this basic level of society. Public associations are composed of a composite of private
associations, natural and voluntary, which come together on the basis of consent and trust, through
covenants. The particular public associations are towns and cities together with their surrounding
agricultural “watersheds;” these come together to form provinces. A union of provinces forms a
universal as opposed to a particular public association, the commonwealth or republic, which alone is
vested with rights of sovereignty.
This associational body exhibits a fundamentally constitutional character. Althusius is careful to
specify that at every level, in every form of association, strong rule is necessary: there must be
leadership, there must be authority, for social life to survive. Nevertheless he places just as much
emphasis upon the need for institutional limitations on authority. From the family on up to the
commonwealth, the authority of the head is bounded by higher law and by the constitutional authority
of the association, which remains greater than its head. As he put it, “The inferior, or subject, is one
who carries on the business of the social life according to the will of his chief, or prefect, and arranges
his life and actions submissively, provided his chief does not rule impiously or unjustly.”
In the higher public associations of the province and the commonwealth, this constitutionalism
is instituted in bodies of estates which represent all the lesser bodies in society. Typically the estates
are three-fold: nobility, clergy, and commons (burgers and yeomen-farmers). These, according to
Althusius, were protectors of the rights of the realm and exercised an oversight over the king or prince.
The king was not an absolute master, and Althusius polemicized with Bodin for asserting the contrary.
The estates had every right to call a wayward king to account for his actions; in fact, it was their God-
given duty to do so.

Sovereignty as Non-transferable, Inalienable


But even the estates had to give account to the people whom they represented. The people, the
organized associated body of the realm, always retained the rights of sovereignty and only delegated
authority to the magistracy. The people could no more transfer or alienate their sovereignty to the
magistrate than a person could cease breathing and go on living. An extended quotation from
Althusius’ preface to the third edition of the Politics illustrates just how crucial this doctrine is to his
overall scheme:

I have attributed the rights of sovereignty, as they are called, not to the supreme magistrate, but to the
commonwealth or universal association. Many jurists and political scientists assign them as proper only to the prince and
supreme magistrate to the extent that if these rights are granted and communicated to the people or commonwealth, they
thereby perish and are no more. A few others and I hold to the contrary, namely, that they are proper to the symbiotic
body of the universal association to such an extent that they give it spirit, soul, and heart. And this body, as I have said,
perishes if they are taken away from it. I recognize the prince as the administrator, overseer, and governor of these rights
of sovereignty. But the owner and usufructuary of sovereignty is none other than the total people associated in one
symbiotic body from many smaller associations. These rights of sovereignty are so proper to this association, in my
judgment, that even if it wishes to renounce them, to transfer them to another, and to alienate them, it would by no means
be able to do so, any more than a man is able to give the life he enjoys to another. For these rights of sovereignty constitute
and conserve the universal association.

31Frederick S. Carney (trans. and ed.), The Politics of Johannes Althusius (London: Eyre & Spottiswoode, 1965), p. 62.
Nationhood and Europe I 22

32

Thus for Althusius sovereignty is not an optional appendage, and it is not negotiable. A people
if it is to be a people must possess these rights of sovereignty: otherwise it cannot exist. Sovereignty
cannot be alienated or transferred: not to a king or prince or ruling body within the nation, much less
to one outside or above the nation. Sovereignty is an incommunicable attribute of a people per se.
Protestantism and the Church International
In his involved, detailed, and convincing account of nationhood and sovereignty Althusius was
furthering the development of the Vitorian schema. There is one point, however, where he makes a
decisive break with his Romanist predecessor, and that comes precisely at the point where one would
expect it: with the doctrine of the Church. Vitoria followed Thomas Aquinas in conceiving of church
and state as two distinct “perfect societies:” the church was a spiritual societas perfecta, whose head was
the Pope, while the state was a secular societas perfecta headed by the prince. Vitoria extended this notion,
attributing to each individual nation the status of societas perfecta, explicitly recognizing the independent
status of each nation; but the Church he yet regarded as one international body with one head, the
Pope. This conceptualization remains Roman Catholic dogma to this day. It signifies that for Rome
two entirely different justifications for authority exist for the sacred and secular powers: for the state,
it is immediately the community and ultimately God – God establishes states through the community
– while for the church, it is immediately God in Christ from whom the Pope and the entire ecclesiastical
hierarchy directly derive their authority.
For Althusius as a Protestant such a notion was of course unacceptable. He was convinced that
sovereignty was given by God to the community, and this sovereignty was exercised in both
ecclesiastical and secular affairs. In fact, the chapter in which he begins his discussion of sovereignty,
in which he argues for its inalienably popular (i.e. vested in the people) nature, is entitled “Of
Ecclesiastical Sovereignty,” and goes on to divide sovereignty into ecclesiastical and secular halves,
discussing the ecclesiastical side first. What comes out of this is that ecclesiastical sovereignty is
grounded in the people just as much as secular sovereignty is, and it is exercised through a presbyterian-
parochial church polity. Each nation has its own ecclesiastical establishment (which is not necessarily
mono-denominational) which recognizes no earthly juridical superior, in the same way that the secular
establishment recognizes no earthly superior.
What place does the Church International have in such an arrangement? Althusius does not
explicitly discuss the matter. Nevertheless one can get an idea of what he would have said by taking a
look at another Calvinistic document which Althusius gladly claimed as seminal to his own work: the
Vindiciae contra Tyrannos (The Defense of Liberty against Tyrants) published pseudonymously by
Stephanus Junius Brutus in 1579.33 The fourth chapter (in a book of four chapters) is devoted to the
question of whether a prince has the right to intervene in the domestic struggles of another land. The
author argues in the affirmative, if done in order either to protect and defend the true religion from
oppression and persecution, or to preserve justice by overthrowing tyrannical oppressors of the people.
Althusius was entirely in agreement with this work, and refers to it repeatedly in his own discussions
of the right of resistance. What is important in this context is to consider the concept of the Church
International contained therein.
“First, all accord in this, that there is only one Church, whereof Jesus Christ is the head, the
members whereof are so united and conjoined together, that if the least of them be offended or

32Politics,
p. 10.
33Junius Brutus, The Defence of Liberty against Tyrants trans. William Walker (repr. Edmonton, Ontario, Canada: Still
Waters Revival Books, 1989). The original author is considered by modern scholars to have been the French Huguenot
Philip du Plessis-Mornay.
Nationhood and Europe I 23

wronged, they all participate both in the harm and sorrow, as throughout Holy Scripture plainly
appears: wherefore the church is compared to a body.”34 This body has many members, each of which
is given to the charge of particular princes since each is composed of the peoples of different nations.
What touches on one member of the body touches them all; what harms one member harms them all.
Therefore none can leave off the duty of intervening if in order to prevent the injury or procure the
welfare of the body of Christ. “As this church is one, so is she recommended and given in charge to
all Christian princes in general, and to every one of them in particular; for so much as it was dangerous
to leave the care to one alone, and the unity of it would not by any means permit that she should be
divided into pieces, and every portion assigned unto one particular; God has committed it all entire to
particulars, and all the parts of it to all in general, not only to preserve and defend it, but also to amplify
and increase it as much as might be.”35 Although these Protestants did not acknowledge a single
governing institution in the Church International, they were far from denying the existence of such a
body, nor were they denying its place in the lives of the nations. Calvinists of the stamp of du Plessis-
Mornay and Althusius were far from subordinating the church to the nation-state, or from privatizing
the church. Rather, the community of Christian nations was a model for the community of nations on
the secular plane. In this light, the further Protestant development of the Vitorian schema can be seen
as its fulfillment.
Just Causes for War
That Althusius stood squarely in this Vitorian tradition is confirmed by consulting the criteria he
puts forward for the right of just war and just intervention. A nation had the right to go to war for the
following reasons:

1. recovery of things taken away, through force, by another people;


2. defense against and repulsion of violence committed against the people;
3. preservation of liberty, privileges, rights, peace, and tranquility, and defense of the true
religion;
4. denial by a foreign people of peaceful transit through its territory without good reason
(thus Althusius defends open borders);
5. suppress rebellion against legitimate authority;
6. contumacy of a prince or another in authority against the courts of justice;
7. when agreements are not kept, especially when a king becomes a tyrant.

Althusius’ position on monopoly likewise follows that of Vitoria and the Spanish theorists.
Monopoly is allowable only under the most restricted conditions, such as during periods of famine or
political crisis. It is never allowable as a policy of course, in which the political authority may grant
privileges to a merchant or groups of merchants in exchange for services rendered. Such actions were
considered anathema by most church-oriented (i.e. theocratic) political theorists and jurists, Protestant
and Catholic alike. Althusius considered especially odious the machinations of guilds to establish public
monopolies.36
Law of Nations and Biblical Law
Althusius’ understanding of the jus gentium is likewise consonant to that of Vitoria’s: he speaks
of it as the expression of the natural law and thus unchangeable by the will of man. Now for Althusius
the natural law has a markedly Biblical-law content: in fact, he speaks much more often of Biblical law
34Defence, p. 150.
35
Defence, p. 151.
36On this point see Raymond de Roover, “Monopoly Theory Prior to Adam Smith,” in Julius Kirshner (ed.), Business,

Banking, and Economic Thought in Late Medieval and Early Modern Europe: Selected Studies of Raymond de Roover (Chicago and
London: University of Chicago Press, 1974).
Nationhood and Europe I 24

than natural law. “It is noteworthy that Althusius did not present natural law at any point in the Politica
independent of the Biblical notions that informed it.”37 Such an understanding of natural law is
consistent with the Vitorian high view of Biblical law, but even surpasses it in that the Calvinistic
philosophy of natural law was, to this author’s mind, much more consistently Biblical than was the
Thomistic.

The Theocratic Heritage of International Law

We have before us represented in the work of these two thinkers a Christian vision for the
nations of the highest order. It is informed by two considerations: that the relationships between the
nations be free and open, maintained through the diligent oversight of and swift punishment of
transgressions against the law of nations; and that the truth of the gospel and the spread of the church
throughout the world be unhindered, in fulfillment of the Great Commission. The one informs the
other; in fact, the one cannot be fulfilled without the other, for the gospel must have a concrete context
in which to be fleshed out, and indeed Christ died that the world itself might be saved, in all its created
fulness (John 3:16-17); and the material welfare and prosperity of man is meaningless and perverse, a
stumbling block in the way of salvation, if it is pursued in isolation from its Provider.
The law of nations has been created and put in force by God Himself, and it cannot be set aside.
This law in the first place maintains that always and everywhere, political sovereignty is vested in the
community. This is not an abstract entity but a people, rooted in time and place, as every real-world
people is. The world is made up of these peoples: “And He has made all nations of men of one blood
to dwell on all the face of the earth, ordaining fore-appointed seasons and boundaries of their dwelling,
to seek the Lord, if perhaps they might feel after Him and find Him, though indeed He is not far from
each one of us” (Acts 17: 26-27, MKJV).
The sovereignty they possess is not one by which they pretend to define their own terms, make
their own rules, shape their environments as they see fit. It is rather an authority to ensure the
recognition and fulfillment of the law of God, both within the nation and between the nations. By the
authority of this law nations may defend themselves and defend others against imperialist aggression
of whatever form. They must also defend and promote the interests of the Church. And they must
ensure that rights of spiritual and natural communication remain inviolable.
The nations today fall far short of adhering to the law of nations as divinely ordained. They
rather make up the rules for themselves as they see fit because they deny any higher law and have
redefined sovereignty to mean the right to do just this: make up your own rules. Popular sovereignty
has become perverted to the point that it justifies this kind of law-creating as the legitimate expression
of the will of the people. But the people never had the right to make up the rules: they only had the
right to enforce them. Nor have they ever had the right to make treaties among themselves in violation
of either the rights of sovereignty of other nations, or of the rights of natural and spiritual
communication. Both imperialism and isolationism are violations of the divinely-ordained law of
nations. And it is a foolish people indeed who would give up its rights of sovereignty because otherwise
it cannot keep from abusing them. If the excuse for the European Community is the avoidance of the
evils of “nationalism,” perhaps the member nations might rather learn obedience to the divine law-
order than submit to a yoke of Euro-slavery.

37 Frederick Carney, The Associational Theory of Johannes Althusius: A Study in Calvinist Constitutionalism (unpublished Ph.

D. thesis, University of Chicago, 1960), p. 165. He also remarks that for every reference to natural law there are three or
four references to Biblical law (p. 164). Carney’s discussion of Althusius’ use of Biblical law, as well as his entire approach
to constitutionalism, is simply outstanding.
Nationhood and Europe I 25

Thus, politically speaking and only politically speaking, the nations are sovereign and the peoples
are the possessors of this sovereignty. The community of sovereign nations finds its unity not in an
earthly institution but in the God who created it. He rules on earth, and has given this rule into the
hand of His Son: “And Jesus came and spoke to them, saying, All authority is given to Me in Heaven
and in earth” (Matthew 28:16). This means that the law which binds the nations together is a law given
and enforced by God in Christ. It is not a law which can be changed, but rather one which is adapted
to the needs of time and place. It is a law which the nations need in order to maintain their own
independent existence: apart from it, the law of empire must come into force.
Now this Christ, who rules the entire world because He sits now at the right hand of the Father,
extends His rule through His Church: “And He has put all [things] under His feet and gave Him to be
Head over all [things] to the church, which is His body, the fullness of Him who fills all in all”
(Ephesians 1:22-23). The Church exercises this rule on earth, this rule of a Kingdom not of this world,
this spiritual rule. It is this rule which unites the nations and enables the peace to be kept between them;
where the Church falters in maintaining this rule, antagonism, conflict, and warfare come quickly on
the scene.
The pursuit of a “New World Order” apart from this Lord and His instituted means is a pursuit
after the Tower of Babel. The choice, indeed, is between Jerusalem or Babel; or, to exchange examples,
between Jerusalem and Rome. For if the nations of the world do not choose Mount Zion, which is the
City of the living God and the New Jerusalem, as their capital city, they will get Rome, or the modern
equivalent of it (wherever it might be), as their capital city, ruling from above in the interests of the
elite and of the masses, destroying liberty that license may prevail, enslaving a rootless proletariat in
the name of efficiency and progress. A community of nations cannot long exist without a capital city,
and that city must be either a spiritual one or a material one. Empire had been the order of the day for
the nations of the world from the time of the Tower of Babel up until the time of Vitoria. The drift in
our day towards so-called “trading blocs” is nothing less than a drift away from the community of
nations. And that is because only the Church International can sustain the existence of a community
of nations. Vitoria and Althusius lived in a time when men yet believed that; until they recover such
faith, they will yet see their fondest hopes and dreams of world peace disintegrate.