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Chapter 8 - War and the Boundaries of Punitive Jurisdiction

from Part II - War

Published online by Cambridge University Press:  09 February 2019

Daniel Schwartz
Affiliation:
Hebrew University of Jerusalem
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Summary

For the late scholastics just war is the enforcement of a just ruling. The doctrine of probabilism, as applied to this judicial understanding of war, significantly expanded the occasions for just war. If a judge can rule a case based on probable opinions and two conflicting opinions can be probable simultaneously, it follows that two judges can simultaneously attempt to enforce two conflicting rulings about the same case. This upshot of probabilism created the need for rules limiting the king’s room for discretion and brought authors to discuss arbitration as an alternative to just war. Vázquez thought that the adjudication rules proposed by authors such as Navarrus and Suárez to deal with disputed cases were not exhaustive and that, as a consequence, these opened the way to contemplating the possibility of wars that are objectively just on both sides – a possibility that was deemed absurd. Vázquez, in the historical context of the polemics over the Portuguese succession, fundamentally revised the judicial war paradigm. For Vázquez, the king’s supremacy and jurisdiction reaches only as far as the boundaries of his realm. When the matter under dispute belongs to a different jurisdiction, the king acts not in the capacity of international judge but only as a private litigant.
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The Political Morality of the Late Scholastics
Civic Life, War and Conscience
, pp. 161 - 182
Publisher: Cambridge University Press
Print publication year: 2019

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