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Published online by Cambridge University Press:  16 March 2016

David M. Lantigua*
Assistant Professor of Moral Theology and Ethics, The Catholic University of America


The salience of rights talk in Western cultures has generated constructive responses from various religious traditions. This article contributes to this religious hermeneutic by turning to the first-generation Spanish theologians of the sixteenth-century School of Salamanca, Francisco de Vitoria and Domingo de Soto, as important resources for Christian rights talk. These late scholastic thinkers made the image of God doctrine, as transmitted by Thomas Aquinas, the basis for affirming the worth and human natural rights of Amerindian peoples. To highlight the contemporary relevance of the school, the article engages Nicholas Wolterstorff's recent work on rights and his twofold critique of a capacities approach to human dignity and a virtues approach to justice. The School of Salamanca not only addresses the important concerns raised by Wolterstorff but uniquely offers a view of rights inextricably linked to human capacities and Christian virtue that highlights both the patient and agential dimensions of justice. They provide a critical theological challenge to the dominant secular liberal view of rights in a way that Wolterstorff's account does not.

Copyright © Center for the Study of Law and Religion at Emory University 2016 

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1 John Witte has highlighted the historical significance of these thinkers: “the formulations of the Spanish neo-scholastics in the sixteenth century, most of them Dominicans, were of monumental importance to the evolution and expansion of Western rights talk.” John Witte, Christianity and Human Rights: An Introduction (New York: Cambridge University Press, 2010), 22. Despite such acknowledgement, no chapter in the volume is dedicated to tracing the important legacy of the Spanish scholastics.

2 Nicholas Wolterstorff, Justice: Rights and Wrongs (Princeton: Princeton University Press, 2008); Justice in Love (Grand Rapids: Wm. B. Eerdmans, 2011); The Mighty and the Almighty: An Essay in Political Theology (New York: Cambridge University Press, 2012); Understanding Liberal Democracy: Essays in Political Philosophy, ed. Terence Cuneo (Oxford: Oxford University Press, 2012); Journey toward Justice: Personal Encounters in the Global South (Grand Rapids: Baker Academic, 2013).

3 Christian critics of subjective rights language in liberal democracies include Joan Lockwood O'Donovan, “The Concept of Rights in Christian Moral Discourse,” in A Preserving Grace: Protestants, Catholics, and Natural Law, ed. Michael Cromartie (Grand Rapids: Wm. B. Eerdmans, 1997), 143–56, and Natural Law and Perfect Community: Contributions of Christian Platonism to Political Theory,Modern Theology 14, no. 1 (1998): 1942CrossRefGoogle Scholar; O'Donovan, Oliver, “The Language of Rights and Conceptual History,The Journal of Religious Ethics 37, no 2 (2009): 193207CrossRefGoogle Scholar; Milbank, John, “Against Human Rights: Liberty in the Western Tradition,Oxford Journal of Law and Religion 1, no. 1 (2012): 132CrossRefGoogle Scholar.

4 Wolterstorff distinguishes two conceptions of human flourishing in the task of pursuing justice: one conception is that of philosophical eudaimonism, which is encapsulated by the ancient traditions of Greece and Rome; the other biblical conception is described in terms of “shalom” or “eirenéism,” which upholds the view of divine peace found in the Hebrew and Christian scriptures. This biblical conception of flourishing covers a wider range of human relations that includes our relations to God, fellow human beings, ourselves, and creation in general. As I understand Wolterstorff, the main difference between a philosophical and a biblical conception of flourishing is that the latter goes beyond justice to include love for one's neighbor. Furthermore, the enjoyment of the goods to which we have rights (such as food and shelter) is not merely instrumental but constitutive of human flourishing, or a well-going life and history. See Wolterstorff, Justice: Rights and Wrongs, 222–26; Journey toward Justice, chapter 18.

5 Wolterstorff, Justice: Rights and Wrongs, 7–8. Wolterstorff describes the importance of rights talk further in Journey toward Justice, 53: “The language of rights, and its companion language of being wronged, is for bringing to speech the recipient- or patient-dimension of the moral order, the dimension of how we are done unto. In thinking about the moral order, the philosophical tradition has focused all of its attention on the agent dimension. Thereby it has, in my judgment, given us a seriously incomplete and distorted picture of the moral order as a whole.”

6 Richard Rorty, “Human Rights, Rationality, and Sentimentality,” in On Human Rights, ed. Stephen Shute and Susan Hurley (New York: Basic Books, 1993), 118–19.

7 Wolterstorff, Justice: Rights and Wrongs, 319–21, 391–93.

8 Ibid., 393 (emphasis added).

9 Ibid., 386. As Wolterstorff highlights in the epilogue, “we are appealing to a framework of justice that lies behind or above the rights conferred by legislation or social practice; we are appealing to a system of rights by reference to which those laws and social practices that confer rights can themselves be evaluated and by reference to which our departures from those laws and practices can be evaluated. Such rights are natural rights.” Ibid. (Wolterstorff's emphasis).

10 Ibid., 64.

11 Wolterstorff, Justice: Rights and Wrongs, part 1. Wolterstorff is especially indebted to Brian Tierney's pioneering work on subjective natural rights in the Latin West. See generally Brian Tierney, The Idea of Natural Rights (Grand Rapids: Wm. B. Eerdmans, 2001).

12 Wolterstorff, Justice: Rights and Wrongs, 68.

13 Ibid., 293.

14 Ulpian, as quoted in Justinian, Digest, 1.1.10, prologue (“Iustitia est constans et perpetua voluntas ius suum cuique tribuendi.”).

15 Wolterstorff, Justice: Rights and Wrongs, 22–26.

16 Ibid., 43 (“For the right order theorist, the violation of someone's natural rights is never, in itself and as such, the treating of a human being with less than due respect. It is always instead an indicator of the fact that some natural law of objective obligation has been disobeyed. A partisan of right order may point to the plight of the poor, he may say their rights are being violated. But pointing to the victims is for him a roundabout way of calling attention to the more fundamental fact that the powerful and well-to-do are not living up to their obligations.”).

17 Ibid., 28. With reference to Plato's classical view of justice, Wolterstorff says, “What makes a social order of that sort right and just is that it measures up to the objective norm for the right and just social order, that objective norm being understood by Plato as one among the Forms.” Ibid.

18 Wolterstorff, The Mighty and the Almighty, 101–2. Wolterstorff argues that Paul's view of political authority in Romans 13 contrasts with the classical view (in this specific instance Aristotle) in the following way: “These are two very different ways of thinking about the task of the state. One says that the task of the state is to promote virtue in the citizens. The other says that the God-given task of the state is to protect citizens from being wronged, this having the effect of encouraging a certain minimal virtue in the citizens. The former view is often called a perfectionist view of the task of the state; the latter might be called a protectionist view.” Ibid.

19 Ibid.; Wolterstorff, Understanding Liberal Democracy, chapter 13.

20 Wolterstorff, Justice: Rights and Wrongs, 29–30.

21 According to Oliver O'Donovan, under the modern view “right is a primitive endowment of power with which the subject first engages in society, not an enhancement which accrues to the subject from an ordered and politically formed society.” The Desire of the Nations: Rediscovering the Roots of Political Theology (Cambridge: Cambridge University Press, 1996), 262. The historical narrative of decline regarding rights among Christian theorists has been deeply influenced by Michel Villey and Leo Strauss, who viewed, respectively, William of Ockham and Thomas Hobbes as the “nominalist” and “modern” inventors of a rampant individualistic freedom spawning subjective rights according to personal desires.

22 Wolterstorff, Justice: Rights and Wrongs, 178.

23 Ibid.; Wolterstorff, Journey toward Justice, 60.

24 Wolterstorff, Justice: Rights and Wrongs, 309–10.

25 Immanuel Kant, Groundwork of the Metaphysics of Morals, trans. H. J. Paton (New York: Harper & Row, 1964), 95.

26 Wolterstorff, Understanding Liberal Democracy, 186.

27 Ibid., chapter 8. Elsewhere, Wolterstorff casts his critique of secular views of rights even wider when he points out that the legal philosophy of the late Ronald Dworkin “falls prey to the same difficulties that beset capacities accounts,” Justice: Rights and Wrongs, 334. Like Kant, Dworkin had “his eye on mature properly formed human beings: such beings are creative masterpieces of natural creation and self-creation.” Ibid.

28 James Griffin, On Human Rights (New York: Oxford University Press, 2008), 32.

29 Ibid., 45.

30 Griffin also draws attention to liberty and welfare along with autonomy for his trio of high-level values supporting his substantive account of human rights grounded in normative agency. See Ibid.

31 Ibid., 150.

32 Wolterstorff, Understanding Liberal Democracy, chapters 7–8.

33 Ibid., 184.

34 Thomas Aquinas, Summa theologiae 1a2ae, Prologue. All English translations of the Summa theologiae are taken from those by the Fathers of the English Dominican Province unless noted otherwise.

35 Wolterstorff, Understanding Liberal Democracy, 194 (“[W]hatever functions of personhood or capacities of agency are required to possess the image of God, some human beings do not yet have those, some no longer have them, and some never have them … If the image of God is understood in the traditional way, then some human beings lack the image of God.”).

36 Wolterstorff, Justice: Rights and Wrongs, 352.

37 Ibid.

38 The source of Wolterstorff's view here is twentieth-century Swiss Reformed theologian Karl Barth, who taught that “The will for fellowship [is God's] very being.” Church Dogmatics, vol. 2, The Doctrine of God, part 2 (cited in Wolterstorff, Understanding Liberal Democracy, 198n17).

39 Wolterstorff, Understanding Liberal Democracy, 199.

40 Ibid., 217. Regarding the legacy of Aquinas today for thinking about dignity, Wolterstorff says: “The idea that personhood consists in the capacity for normative or rational agency has a long and honorable pedigree; it goes back to Aristotle. Its most vocal present-day representatives tend to identify themselves as Thomistic Aristotelians.” Ibid. He does not mention any specific representatives here.

41 Wolterstorff, Journey toward Justice, 246–47.

42 “If anyone would reduce it [justice] to the proper form of a definition, he might say that justice is a habit whereby a man renders to each one his due by a constant and perpetual will: and this is about the same definition as that given by the Philosopher (Ethics V) who says that justice is a habit whereby a man is said to be capable of doing just actions in accordance with his choice.” Aquinas, Summa theologiae 2a2ae, q. 58. a. 1.

43 Ibid., 2a2ae, q. 63, a. 1.

44 Wolterstorff, Justice: Rights and Wrongs, 178.

45 Ibid., 42, 179.

46 For a helpful presentation of Aquinas on this point, as well as the other-regarding nature of the classical virtue of justice, see Josef Pieper, Justice, trans. Lawrence Lynch (New York: Pantheon Books, 1955).

47 Aquinas, Summa theologiae 1a, q. 21, a. 1. Aquinas refers here to the Divine Names (chapter 8, section 4) of Pseudo-Dionysius: “quod omnibus tribuit propria, secundum uniuscuiusque existentium dignitatem.” The Fathers of the English Dominican Province translate dignitatem as “condition,” though it is more suitable to translate it as “dignity” or “worth” to better account for the goodness ascribed to the divine effect.

48 Ibid., q. 21, a. 1 ad 3.

49 Ibid.

50 Ibid., 2a2ae, q. 66, a. 1.

51 Ibid., q. 66, a. 1 ad 1.

52 Ibid., 1a2ae, q. 16, a. 2.

53 For a concise overview of Aquinas's account of the image of God along these lines, see Joseph P. Wawrykow, The Westminster Handbook to Thomas Aquinas (Louisville: Westminster John Knox Press, 2005), 73–75.

54 Aquinas, Summa theologiae 1a, q. 93, a. 1.

55 “Faciamus hominem ad imaginem et similitudinem nostram” and “Et creavit Deus hominem ad imaginem suam.”

56 Jean-Pierre Torrell describes the dynamism of the divine image: “This man … is not considered in a static way, like inanimate matter. But, if it can be put this way, he is a being in the process of becoming.” St. Thomas Aquinas, vol. 2, Spiritual Master, trans. Robert Royal (Washington: Catholic University of America Press, 2003), 81.

57 Aquinas, Summa theologiae 1a, q. 35, a. 2 ad 3.

58 Aquinas reads this biblical verse through the glossa ordinaria, a standard biblical commentary used in the Middle Ages containing the interpretations of scripture according to church fathers. He later employs the verse to account for the inherence of natural law thus showing an important conceptual link between it and the image of God, Summa theologiae 1a2ae, q. 91, a. 2. Jaime Brufau Prats claims that this connection reveals an “inalienable natural right” in Aquinas understood in this qualified sense: “El hombre es su providencia, pero no en términos absolutos, sino en cuanto participa de la Providencia divina … Se trata de un dominio participado y, por tanto, con el carácter de limitación y dependencia.” Jaime Brufau Prats, La Escuela de Salamanca ante el descubrimiento del Nuevo Mundo (Salamanca: Editorial San Esteban, 1989), 36.

59 Aquinas, Summa theologiae 1a, q. 93, a. 2 ad 3. The source of this teaching linking the image of God directly with a capacity for the highest good (or God) was St. Augustine and his work On the Trinity. Augustine taught that despite the soul's corruptibility, it “is a great nature … because it is capable of the highest nature and can be a sharer in it.” See Augustine, On the Trinity, ed. Gareth Matthews (Cambridge: Cambridge University Press, 2002), book 14, chapter 4.

60 Ibid., 3a, q. 1, a. 2.

61 Ibid., q. 4, a. 1.

62 Ibid., q. 4, a. 1 ad 2 (“The likeness of image is found in human nature, forasmuch as it is capable of God, viz. by attaining to Him through its own operation of knowledge and love.”).

63 Ibid., 1a2ae, q. 113, a. 10.

64 For more on the connection between Aquinas and the School of Salamanca regarding the image of God doctrine and dominium, see Brufau Prats, La Escuela de Salamanca ante el descubrimiento del Nuevo Mundo, chapter 1.

65 Juan Belda Plans, La Escuela de Salamanca y la renovación de la teología en el siglo XVI (Madrid: Biblioteca Autores Cristianos, 2000), 157.

66 Vitoria learned this from his Dominican teacher Peter Crockaert at the Collège of Saint-Jacques during his studies in Paris.

67 Simona Langella, La Ciencia Teológica de Francisco de Vitoria y la “Summa Theologiae” de Santo Tomás de Aquino en el siglo XVI a la luz de textos inéditos (Salamanca: San Esteban, 2013), 72–73.

68 Seed, Patricia, “‘Are These Not Also Men?’: The Indians' Humanity and Capacity for Spanish Civilization,Journal of Latin American Studies 25, no. 3 (1993): 640CrossRefGoogle Scholar. Though an otherwise illuminating article, Seed's revisionist history inaccurately projects imperial domination into the Spanish Dominicans, thereby overlooking their rich discourse of natural rights. Ibid.

69 For a translation of the text, see W. Eugene Shiels, King and Church: The Rise and Fall of the Patronato Real (Chicago: Loyola University Press, 1961), 78–81.

70 It is worth noting that not all Spanish Dominicans shared such a positive view of Amerindian capacities. Seed, “‘Are These Not Also Men?,’” 642–45.

71 Hernández, Ramón, “Primeros dominicos del convento de San Esteban en América,Ciencia Tomista 113, no. 2 (1986): 317–42Google Scholar.

72 Lawrence A. Clayton, Bartolomé de las Casas and the Conquest of the Americas (Malden: Wiley-Blackwell, 2011), 42.

73 Ibid., 65–66.

74 Vitoria and Soto delivered some twenty-five relectiones between 1526 and 1554 at the University of Salamanca.

75 Melchor Cano, “De dominio indorum,” in Juan de la Peña, De bello contra insulanos: Intervención de España en América. Escuela Española de la Paz, segunda generación, 1560–1585, ed. Luciano Pereña et al., Corpus Hispanorum de Pace 9 (Madrid: Consejo Superior de Investigaciones Científicas, 1982), 559 (“Cum tamen illi non sint stulti, sed habent mediocrem usum rationis, quoniam leges suas habent et susceptibiles sunt evangelicae doctrinae, ergo habent dominium iurisdictionis.”). All Latin translations of Salmantine thinkers are the author's own unless noted otherwise.

76 My analysis is indebted to the thorough and nuanced treatment comparing and distinguishing Vitoria's and Soto's respective accounts of subjective rights in the work of Annabel S. Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (Cambridge: Cambridge University Press, 1997), 124–64. I also benefit from Tierney's superb narrative and his identification of subjective right in Vitoria with permissive law, or “a license to act within the framework of law.” Idea of Natural Rights, 259.

77 Tierney, Idea of Natural Rights, 258–65; Brett, Liberty, Right and Nature, 126–32.

78 Francisco de Vitoria, Comentarios a la Secunda secundae de Santo Tomás, ed. Vicente Beltrán de Heredia, 6 vols. (Salamanca, 1932–52), 62.1, §11; Domingo de Soto, De dominio, in Relecciones y opusculos, trans. Jaime Brufau Prats (Salamanca: San Esteban, 1995), §§10–11.

79 This terminology is from Brett, Liberty, Right and Nature, 150.

80 Soto, De dominio, §10 (“Nullus est dominus alicuius rei nisi sit in potestate sua ea uti et non uti; sed solus homo inter creaturas habet hanc potestatem per liberum arbitrium; ergo.”). It is worth mentioning that the biblical teaching on lordship over the earth in Genesis 1:28 supplied the hermeneutical starting point (or locus relegendus) of Soto's theological treatment of dominium in this relectio.

81 Ibid., §11 (“fundamentum dominio est imago Dei ad quam solus homo creatus est”).

82 One important point of contrast worth mentioning is that for Vitoria dominium is coterminous with subjective right whereas for Soto dominia are a species of right, which means the latter is a wider and more expansive notion that does not necessarily imply the former. Soto gives the example of children and legal slaves who, though they do not have superior power (dominium) over their parents or masters, still have a right to be protected and nourished by them. Ibid., §2.

83 Vitoria, Comentarios, 62.1, §13 (“quia nulla fuit nec est gens tam barbara quae non credat ese licitum homini uti rebus”).

84 Ibid. (“[Q]uia Deus et natura nihil faciunt frustra. Cum ergo Deus omnia alia fecerit, dicendum est quod illa fecit propter hominis conservationem. Ergo habet jus utendi ominibus illis.”).

85 Ibid., §16 (“[P]osset uti qualibet re et etiam abuti pro libito suo, dummodo non noceret aliis hominibus vel sibi.”).

86 Ibid., §28 (“[Q]uod christiani non possunt occupare terras infidelium … cum ergo illi sint veri domini, si ipsi nolunt illas nobis dare, sequitur quod non possumus illas retinere et capere. Sicut de istis indis certe nullus posset capere terras ab eis. Item, quia nullus princeps christianus est superior ad illos. Item, nec papa est superior ad illos in temporalibus nec in spiritualibus, si non sunt baptizati.”). While it is true that Vitoria goes on to say that it might be lawful to wage war in self-defense against Amerindians if they obstruct preachers, he appeals here to the law of nations (iure gentium), which is formally applicable to either Europeans or Amerindians. Ibid. He makes virtually the same argument in Relectio de Indis on the basis of the right of travel (ius pereginandi) but only as a matter of possible debate about, rather than certainty over, war. See Vitoria, “On the American Indians,” in Political Writings, ed. Anthony Pagden and Jeremy Lawrence (Cambridge: Cambridge University Press, 1991), 278–86.

87 The legal document was read aloud by the Spaniards before conquest and it “required” natives to recognize the alleged sovereignty of the Spanish crown granted by the papacy or risk being subjugated through war and enslavement. For a helpful discussion of the Requirement (or Requerimiento) within its political and theological context, see Luis Rivera Pagán, A Violent Evangelism (Louisville: Westminster/John Knox Press, 1992), 32–41.

88 Soto, De dominio, §32 (“Imperator ad terras infidelium nullum ius habet nec dominium … ex eo enim quod sunt infideles non amittunt bona sua nec dominium quod habent iurisdictionis, sicut non amittitur ob maiora peccata.”). Notably, Soto cited Aquinas as an authority to make this point about infidel dominium. He referred to the Summa theologiae 2a2ae, q. 10, a. 10 to make an important scholastic political point: “dominium and authority are institutions of human law, while the distinction between faithful and unbelievers arises from the Divine law. Now the Divine law which is the law of grace, does not do away with human law which is the law of natural reason.” For more on Soto's application of this scholastic teaching on natural law (as well as Bartolomé de las Casas) to address the affair of the Indies, see the author's “The Freedom of the Gospel: Aquinas, Subversive Natural Law, and the Spanish Wars of Religion,” Modern Theology 31, no. 2 (2015): 312–37.

89 Ibid., §34 (“[A]ccipere ultra hoc bona illorum aut subiicere imperio nostro, non video unde habeamus tale ius.”).

90 Roger Ruston, Human Rights and the Image of God (London: SCM Press, 2004), 85–86. Ruston identifies the political significance of this teaching in Vitoria: “If we must deny that non-human creatures have rights and a capacity for dominion (freedom over their acts), then the corollary of this is that we must attribute it to all humans. Vitoria, in arguing the case for the Indians, is the first to make this connection clear, and establish the idea of rights belonging to human beings as such. It was a significant conclusion because it rescued the concept of natural rights—which had been around for a long time in the writings of scholastics and lawyers—from being a general term which applied to every nature in the universe and focused it on human beings, allowing it to become a politically useful concept.” Ibid, 86.

91 Alejandro Guzmán Brito, El derecho como facultad en la neoescolástica Española del siglo XVI (Madrid: Iustel, 2009), 52–53. Although Guzmán Brito acknowledges the novelty of Vitoria's turn to the capacity for injury as a way of establishing the natural rights of humans, he does not think the theologian provided sufficient explanation of the concept. This article's focus on the imago Dei in Vitoria and Soto offers at least one explanation.

92 Domingo de Soto, De iustitia et iure (Madrid: Instituto de Estudios Politicos, 1967), book 4, question 2, article 1 (“Nam quatenus homo, corporeus est, debentur illi ea quae ad vitam eius sunt necessaria. Haec enim ratione collegit Aristoteles, omnia corporea esse facta propter hominem. Itaque quem admodum licet Deus per miraculum creavenit homines nihilominus membra et potentiae naturales naturae suae debita sunt: sic illa collatio dominii rerum fuit explicatio quedam naturalis iuris, veluti debiti humanae naturae, supposita eius existentia, quam ei per creationem gratis contulerat.”).

93 Aquinas, Summa theologiae 2a2ae, q. 64, a. 6.

94 Vitoria, Reflection on Homicide and Commentary on “Summa Theologiae” II–II Q.64, trans. John P. Doyle (Milwaukee: Marquette University Press, 2008), 187.

95 Letter to Miguel de Arcos, O.P. (1534), Appendix A, in Political Writings, 331.

96 Ibid., 332.

97 Ibid., 333.

98 Michael Rosen provides this citation from Aquinas's commentary on the Sentences in Dignity: Its History and Meaning (Cambridge: Harvard University Press, 2012), 16–17 (“quia dignitas significat bonitatem alicujus propter seipsum”).

99 See Brett's attention to this important concept in Soto in Liberty, Right and Nature, 158–59.

100 Aquinas, Summa theologiae 3a, q. 25, a. 3 ad 3 (“quod creaturae rationali debetur reverentia propter seipsam”).

101 Ibid., 2a2ae q. 103, a. 3 ad 3.

102 Vitoria, Commentary on “Summa theologiae” IIII Q.64, 121. None of this denies the possibility that non-human creatures can be harmed, even according to a violation of natural right. However, the understanding of right is not a human natural right grounded in the imago Dei and the intrinsic worth of the human being existing propter seipsum. Soto, for example, leaves open such a possibility since right is not coterminous with human dominium thus allowing for a wider range of applicability. On this distinction, see Brett, Liberty, Right and Nature, 154.

103 Brett, Liberty, Right and Nature, 160–61.

104 Soto, De iustitia et iure, book 5, question 1, article 7. See also Vitoria's discussion of innocent unbelievers in his commentary on Aquinas's treatise on law: “A king may on no account, and for no considerations of utility to the commonwealth, enact laws stipulating the death of innocents, even against unbelievers, since this is against the express precept of the natural law. Those who execute the innocent are simple murderers. Only God is the master of life and death.” Ibid., “On Law,” 204.

105 Ibid., De iustitia et iure, book 4, question 1, article 2 (“Quicunque; dominium habet cuius libet rei, iniuria afficitur dum illi auferetur. Bruta autem animalia neque; iustitiae capaces sunt, neque, iniuriae, neque quam non cognoscunt felicitatis.10.Ethico.cap.8. Cuius ratio est quod cum non sint libera, non sunt sui iuris.”).

106 Ibid., book 4, question 1, article 1; question 2, article 2.

107 Ruston, Human Rights, 111; Brufau Prats, La Escuela de Salamanca, 115.

108 Vitoria's follow-up relectio on just war makes the crucial claim that the grave injury or harm of innocent persons is the only valid cause for war. See Vitoria, “On the Law of War,” in Political Writings, 303.

109 Vitoria, “On the American Indians,” in Political Writings, 238. For Latin references to Vitoria's Relectio de Indis I rely on Obras de Francisco de Vitoria, ed. Teofilo Urdanoz (Madrid: Biblioteca de Autores Cristianos, 1960).

110 This point is underappreciated by scholars who overstate Vitoria's controversial eighth possible title to rule based on the mental incapacity of subjects. He proposed the title merely “for the sake of argument” having already established earlier in the relectio that the Amerindians exhibit use of reason in their social life. Vitoria, “On the American Indians,” 237.

111 Ibid., 242.

112 Ruston makes the relevant point: “[T]he image of God in terms of the possession of reason does not put human beings on some kind of sliding scale by which some can be reckoned more rational than others and thus claim more rights.” Human Rights, 87.

113 Vitoria, “On the American Indians,” 249.

114 “Videtur adhuc quod possint esse domini quia possunt pati iniuriam. Ergo habent ius.” Obras, 664.

115 Simona Langella, Teología y ley natural: estudios sobre las lecciones de Francisco de Vitoria, trans. Juan Montero Aparicio (Madrid: Biblioteca de Autores Cristianos, 2011), 155.

116 Vitoria, “On the American Indians,” 249 (“puer non est propter alium sed propter se”).

117 Jean Porter, Ministers of the Law: A Natural Law Theory of Legal Authority (Grand Rapids: Wm. B. Eerdmans, 2010), 333. For Porter's own theological account of the image of God and its relationship to subjective natural rights indebted to the scholastic tradition, see 328–39.

118 Soto, De iustitia et iure, book 5, question 1, article 2. Cf. Aquinas, Summa theologiae 2a2ae, q. 64, a. 2 ad 3.

119 See Annabel S. Brett, Changes of State: Nature and the Limits of the City in Early Modern Natural Law (Princeton: Princeton University Press, 2011), 35–36, where the author contrasts Soto's account with John Locke's less salubrious view of a violent criminal in the Second Treatise of Government.

120 Soto, De iustitia et iure, book 5, question 1, article 7: (“iniquissima etiam peccatoris natura, quatenus Dei figmentum, diligenda est”).

121 Thomas D. Williams, Who Is My Neighbor? Personalism and the Foundations of Human Rights (Washington: Catholic University of American Press, 2005), 156.

122 Soto, De iustitia et iure, book 5, question 1, article 3 (“Est enim contra ius naturae ut contra inauditam partem, indictaque causa, sententia feratur.”).

123 This expression comes from Jeremy Waldron, “The Image of God: Rights, Reason, and Order,” in Witte, Christianity and Human Rights, 225.

124 Wolterstorff's philosophical limit may have to do with his desire to present an ecumenical theistic grounding for rights that can be supported by Jews and Muslims. Nevertheless, I think there is a way to affirm an ecumenical ground for rights through a virtues approach open to non-theists and all people of good will according to an incarnational or Trinitarian logic. Wolterstorff seems very much attracted to this prospect of high Christology as the following comment indicates, but he never theoretically pursues the stronger implications of this additional grounding: “To each of us the Second Person of the Trinity pays the honor of assuming our nature, thereby sharing our nature with us. We each have no greater dignity than that.” See Journey toward Justice, 139.

125 I wish to thank the individual who brought this important distinction to my attention at the 2014 annual meeting of the Society of Christian Ethics in Seattle, Washington. Unfortunately, I did not catch her name, but her point, I hope, has been duly noted.

126 Wolterstorff, Justice in Love, 54; Journey toward Justice, 22–23.

127 Wolterstorff, Justice: Rights and Wrongs, 106.

128 Aquinas, Summa theologiae 2a2ae, q. 26, a. 5.

129 Vitoria, On Homicide, 95.

130 Annabel Brett identifies the mendicant view of Aquinas on this point from his De perfectione spiritualis vitae. The dominium that is freedom of one's own actions is a kind of spiritual reflexivity that is constitutive of humanity as such. To relinquish it is to deny one's own humanity. See Liberty, Right and Nature, 13–14.

131 Vitoria, On Homicide, 97.

132 Ibid.

133 Ibid, 199 (emphasis added).

134 Soto, De iustitia et iure, book 5, question 1, article 8 (“[I]us habet invasus quisque defendendi se: nihilominus ei liberum est propter charitatem iuri eiusmodi renuntiare.”).

135 “Es mejor renunciar al propio derecho que violentar el ajeno.” This classic statement in Spanish is taken from Vitoria's Relectio de Indis.