The subjective right according to Francisco de Vitoria

Abstract

This essay shows how important is today the concept of the subjective right, according to Francisco de Vitoria, in relation to the question of Human Rights. The philosophical-juridical notion of subjective right and domain-faculty, in its historical evolution probably dates back to the canonists of the s. XII and XIII, who later became part of the Franciscan philosophy of the s. XIV, and unfolds in the s. XV by the theologians of the University of Paris, Gerson, Summenhart and Mair. Vitoria received from these theologians and rescued the notion of the right-domain and the right-faculty of the philosophical-theological field and transported it to the juridical sphere of private law, secularizing the concept of domain, which is the center of its model of private law. Thus defines the subjective right: «The right is the power or faculty that suits someone according to the laws», that is to say it has its source in the law. It distinguishes three formes of domain: a) domain of superiority (dominium jurisdictionis), b) dominion of property (dominium proprietatis), and c) domain of self (dominium sui juris). Francisco de Vitoria can be considered as a precedent of the doctrine of human rights, precisely because it has established its philosophicaljuridical bases, just as it is considered to be the founder of modern international law.