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"Open Borders" and the Conservative Tradition: The Salamanca Scholastics

By
Eric Giunta
|
October 23, 2019
In our time of mass democracy and the all-powerful administrative state, it is important to reflect on the contributions of the traditionalist Spanish Scholastics and their more balanced approached to the issue of immigration.
Society and Culture

"Open Borders" and the Conservative Tradition: The Salamanca Scholastics

By

Eric Giunta

|
October 23, 2019

In our time of mass democracy and the all-powerful administrative state, it is important to reflect on the contributions of the traditionalist Spanish Scholastics and their more balanced approached to the issue of immigration.

By natural law and the law of nations everyone has the freedom to move wherever they wish, as long as they are not enemies or causing harm.
— Domingo de Soto

The U.S. Supreme Court’s recent order, permitting the Trump administration to enforce its new rules preventing many Central American immigrants from seeking asylum in the United States, is an opportune moment to address an angle of the immigration debate which has received remarkably little commentary in conservative and Christian circles: namely, the historical, and eminently traditionalist, provenance of what is often derisively referred to as “open borders,” i.e., a strong moral presumption that every person has a natural right to leave or enter whatever nation he chooses, in much the same way that subjects of non-totalitarian polities enjoy a strong presumptive right to migrate between various jurisdictions within a state.

The series of essays inaugurated by the present entry is not directly concerned with the moral, practical, or other cases for open borders, or with addressing common arguments against the same. Rather, it is concerned with sharing the author’s impressions of the history of the concept and practice. The author makes no pretense to originality in what follows. He simply wishes to bring what is already well-known to specialists to a more popular appreciation, the better to enrich mainstream conservative commentary on the immigration debate.

In short, these essays will demonstrate that, whatever its merits, the modern Western regime of border controls is not a traditional “conservative” approach to immigration at all. From antiquity until well into the nineteenth century, every nation worthy of the name “civilized” enjoyed open borders with its neighbors. Ancient, medieval, and early modern Western polities did not have “immigration and naturalization services”: people were free to peacefully come and go between sovereign nations as they pleased, so long as they did not threaten to disturb the peace and were willing to obey the laws of whatever nation they resided in at a particular moment. The much-vaunted walls that surrounded many ancient and medieval cities were never constructed to control immigration, but to defend communities against literal invading armies. It was only in the nineteenth century that left-progressivist regimes began imposing border controls, inspired by varying combinations of eugenics and junk protectionist economics (and, in the United States, anti-Catholicism). Leftism being the world’s most successful religious ideology, its assumptions about the human person being a creature of the state have come to inform almost all mainstream discussion of public policy, even as the political Left, for varied tactical reasons, has adopted open borders advocacy in many nations today.

Our review of this history will begin with the father of modern international law, the great Rev. Francisco de Vitoria, the founder of Salamancan Scholasticism, the early modern Iberian philosophical school that nearly single-handedly restored the tradition of Aristotelian-Thomistic realism to Catholic philosophy, dealing the death knell to late medieval nominalism and exerting influence on later thinkers, including Protestants from Hugo Grotius (via the Flemish Jesuit Leonardus Lessius) and Adam Smith (via the German Samuel von Pufendorf).

Vitoria is, to this author’s knowledge, the first philosopher to have defended open borders in terms of a subjective natural right to immigrate, and this formulation was, naturally enough, not devised in an intellectual vacuum. Rather, his concern was to defend Spanish exploration and colonization of the New World while simultaneously defending the rights of natives to exercise political dominium and own property, their relative barbarism notwithstanding.

As Vincent Chetail notes in his 2017 article on the subject, in his treatise On the American Indians

Vitoria meticulously refuted the various grounds generally invoked for justifying the colonization of the New World, such as the universal authority of the emperor and the pope, the right of discovery, and the refusal of the Christian faith. He accordingly concluded that ‘the Spaniards, when they first sailed to the land of the barbarians, carried with them no right at all to occupy their countries,’ before inquiring into the legitimate grounds that could justify the Spanish conquest.


For Vitoria (as for the rest of the Salamanca Scholastics), the presumptive right of the Native Americans to rule their domains and to own property followed from their nature as rational animals, i.e., human beings, their humanity being

self-evident, because they have some order in their affairs: They have properly organized cities, proper marriages, magistrates and overlords, laws, industries, and commerce, all of which require the use of reason. They likewise have a form of religion and they correctly apprehend things which are evident to other men, which indicates the use of reason.
Question 1, Article 6, §23

Yet, while the natives’ right to rule their lands did entail a right to defend it from invaders (including the Spanish conquistadors), it did not usurp the equally natural rights of Spaniards — especially missionaries — to migrate to the New World and reside peacefully therein: “The Spaniards have the right to travel and dwell in those countries so long as they do no harm to the barbarians, and cannot be prevented by them from doing so.” {Question 3, Article 1, §1}

Vitoria adduces fourteen proofs for this thesis, which are most instructive:

The first proof comes from the law of nations, which either is or derives from natural law, as defined by [Saint Justinian I]: ‘What natural reason has established among all nations is called the law of nations.’ Amongst all nations it is considered inhuman to treat strangers and travelers badly without some special cause, humane and dutiful to behave hospitably to strangers. This would not be the case if travelers were doing something evil by visiting foreign nations.
Second, in the beginning of the world, when all things were held in common, everyone was allowed to visit and travel through any land he wished. This right was clearly not taken away by the division of property; it was never the intention of nations to prevent men’s free mutual intercourse with one another by this division. . . .
Third, all things which are not prohibited or otherwise to the harm and detriment of others are lawful. Since these travels of the Spaniards are [per se] neither harmful nor detrimental to the barbarians, they are lawful.
Fourth, it would not be lawful for the French to prohibit Spaniards from travelling or even living in France, or vice versa, so long as it caused no sort of harm to themselves; therefore it is not lawful for the barbarians either.
Fifth, exile is counted amongst the punishments for capital crimes, and therefore it is not lawful to banish visitors who are innocent of any crime.
Sixth, it is an act of war to bar those considered as enemies from entering a city or country, or to expel them if they are already in it. But since the barbarians have no just war against the Spaniards, assuming they are doing no harm, it is not lawful for them to bar them from their homeland.
Question 3, Article 1, §2

Note that, whatever one makes of the merits of these arguments, Vitoria is presupposing what is already well-known to his readers: that open borders is the civilizational norm, and that only serious crimes justify prohibiting migrants from travelling to, or residing in, a particular nation. Vitoria may have been the first to describe this in terms of a subjective natural right — “the right of natural partnership and communication” {Question 3, Article 1, §2} — but this original formulation is a mere explication of the immemorial customary duty to show hospitality toward (real or perceived) strangers. Vitoria’s proofs in this part of the treatise are so cursorily stated because the thesis he’s defending in this particular section would have been the least controversial to his readers.

(For example, twelve centuries earlier Saint Augustine of Hippo had matter-of-factly observed that the Amorites’ refusal to allow the Isaelites peaceful passage through Amorite territory {Numbers 21:21-25} was a just cause for war, since land which is governed, but unowned, “by the law of human society ought to be accessible most equally,” a principle later affirmed ver baitem by the twelfth-century jurist Gratian in his Decretum.)

Vitoria’s first six proofs (and several of the remainder) are arguments from reason and universal customary law. His remaining proofs are arguments from tradition and from divine revelation. For instance, the seventh proof is a citation of a passage from Virgil, where the Trojan Ilioneus announces before the Carthaginian queen Dido his indignation at the apparently hostile reception he and his fellow refugees have received from her subjects:

What race of men is this? What primitive state could sanction this behavior? Even on beaches we are denied a landing, harried by outcry and attack, forbidden to set foot on the outskirts of your country. If you care nothing for humanity and merely mortal arms, respect the gods who are mindful of good actions and of evil!
Aeneid I:731-38

Vitoria’s eighth proof is Sirach 13:15-16 (“Every creature loves its like, and every person his neighbor; all living beings associate by species, and a man clings to one like himself.”), “which show[s] that amity between men is part of natural law, and that it is against nature to shun the company of harmless men.” His ninth proof is Matthew 25:43 (“I was a stranger, and you did not welcome Me.”), “from which it is clear that, since it is a law of nature to welcome strangers, this judgment of Christ is to be decreed amongst all men.” {Question 3, Article 1, §2}

Vitoria’s remaining proofs are as follows:

And a tenth, [Justinian I’s] determination that by natural law running water and the open sea, rivers, and ports are the common property of all, and by the law of nations ships from any country may lawfully put in anywhere; by this token these things are clearly public property from which no one may lawfully be barred, so that it follows that the barbarians would do wrong to the Spaniards if they were to bar them from their lands.
Eleventh, the barbarians themselves admit all sorts of other barbarians from elsewhere, and would therefore do wrong if they did not admit the Spaniards.
Twelfth, if the Spaniards were not allowed to travel amongst them, this would be either by natural, divine, or human law. But they are certainly allowed to do so by divine and natural law. But if there were a human enactment which barred them without any foundation in divine or natural law, it would be inhumane and unreasonable, and therefore without the force of law.
Thirteenth, either the Spaniards are their subjects, or they are not. If they are not their subjects, the barbarians cannot enjoin prohibitions on them; if they are their subjects, then the barbarians ought to treat them fairly.
And fourteenth, the Spaniards are the barbarians’ neighbors, as shown by the parable of the [Good] Samaritan; and the barbarians are obliged to love their neighbors as themselves, and may not lawfully bar them from their homeland without due cause. As Saint Augustine says, “When one says ‘Love your neighbor,’ it is clear that every man is your neighbor.”

In other words, the right to travel and immigrate to and from different nations derives from the traditional duty of hospitality as a principle of customary international law grounded on the natural sociability of human beings, a traditional duty knowable through reason but also confirmed by divine revelation. (A future installment in this series will delve deeper still into the tradition of open borders presupposed and solemnly reaffirmed in one particular ancient Near Eastern context, Biblical Israel.)

Of course, the right to travel and immigrate to and from nations is not absolute. As we have seen, Vitoria is equally clear this right can be compromised by the commission of serious crime or by criminal intent on the part of migrants. The duty of hospitality does not extend to “travelers [who are] doing something evil by visiting foreign nations.” Spanish migration to the New World must be “neither harmful nor detrimental to the barbarians.” Otherwise, “it is not lawful to banish visitors who are innocent of any crime.” Indeed, so sacrosanct is the presumptive right to migrate that “it is an act of war to bar those [wrongly] considered as enemies from entering a city or country, or to expel them if they are already in it.”

(Chetail notes that Vitoria’s “right of communication” “was not limited to the right to travel and the duty of hospitality. It was a much broader principle that also included free trade, freedom of navigation, and ius soli [i.e., birthright citizenship],” subjects beyond the scope of this essay.)

There’s a lot more to the Salamanca School than Francisco de Vitoria, but his take on open borders appears to be representative of the tradition, and is neatly summarized elsewhere by his contemporary fellow-scholastic, The Rev. Domingo de Soto — confessor to Charles V, Holy Roman Emperor, and his representative at the Council of Trent — who, criticizing certain anti-vagrancy laws which had been lately introduced in some Spanish jurisdictions, observed:

No one may be expelled from any place unless he has committed an offense or crime. And the reason for this is that by natural law and the law of nations everyone has the freedom to move wherever they wish, as long as they are not enemies or causing harm; and even though expelling someone from a city and sending him back to his native land is not formally exile, he would be being deprived of his right, which cannot be taken away from him unless an offense is committed.

As future installments will demonstrate even further, a robust, presumptive bias in favor of open borders is not left-liberal at all, but is deeply grounded in the conservative intellectual and political tradition. For their part, the Salamanca Scholastics, though little known among Republican politicians and right-wing pundits who believe traditionalist “conservatism” begins and ends with Rush Limbaugh, are not fringe thinkers of our tradition, but are among that tradition’s intellectual godfathers. (See, for instance, The Salamanca School, by André A. Alves and Jose Moreira; volume nine of Bloomsbury Academi’s “Major Conservative and Libertarian Thinkers” series.)

Anti-immigrationism, or immigration-as-state-privilege, simply is not “traditional,” at least not to any tradition to which today’s conservatives are typically keen to attach themselves.

Recommended Reading:

André A. Alves and José M. Moreira, The Salamanca School (2013).

Beatriz E. Salamanca, Domingo de Soto and the Vagueness of Vagrancy: The Wickedness of Itinerant Lives, Tropos , 4 (1) , Article 5, 2017.

Francisco de Vitoria, On the American Indians, in Anthony Pagden and Jeremy Lawrance (eds), Francisco de Vitoria: Political Writings (1992).

Vincent Chetail, “Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel,” European Journal of International Law, Volume 27, Issue 4, 1 November 2016, Pages 901–22.

About the author

Eric Giunta is an attorney based in Tallahassee. He can be reached at esgiunta@yahoo.com. He blogs sundry thoughts on theology, philosophy, politics, history, literature, and anything else apt to offend modern sensibilities at ericsgiunta.wordpress.com.

from the editor's blog