The status of the enemy – “Balthasar de Ayala,” Encyclopedia of Renaissance Philosophy (Springer 2016)

David Lloyd Dusenbury, “Balthasar de Ayala”, Encyclopedia of Renaissance Philosophy, ed. Marco Sgarbi (Springer 2016). [In press.] Several excerpts from the author’s typescript are copied below:


Balthasar de Ayala, shortly before his death


Balthasar de Ayala was born in 1548 in Antwerp. His mother, Agnès de Renialme, belonged to the Hispano-Flemish nobility. His father, Diego de Ayala—a native of Burgos, Spain—was a citizen of Antwerp and a prosperous merchant. Nothing is known of his childhood.

At the age of seventeen, Ayala matriculated in the Faculty of Law at the University of Louvain. His inscription is dated 17 August 1565. There is no further record of his time in Louvain, and it is not known when he became a licentiate in the laws (licentiatus iuris). It is likely, however, that his period in Louvain roughly coincided with that of Cornelius Grotius, later professor of law at the University of Leiden and uncle of Hugo Grotius.

Ayala’s parents died in 1579, and were buried in Antwerp. In May 1580, at the age of thirty-two, he was appointed advocate-general of the army of King Philip II in the Netherlands. This made him the highest military judge in the counter-insurgency apparatus of Alexander Farnese, the Duke of Parma, who then held concurrently the offices of governor-general and captain-general of the Netherlands. In August 1580, two military prosecutors and an executioner were added to Ayala’s personal retinue.

In 1581, during Farnese’s siege of the rebel-held city of Tournai, Ayala finished his only book, On the Law of War, and on the Duties Connected with War, and on Military Discipline (De iure et officiis bellicis et disciplina militari). The book’s dedication—to Farnese—is dated 31 October 1581, and signed in “the camp before Tournai.” It appeared in 1582 with a printing-house at Douay. …

Heritage and rupture with the tradition

Ayala’s treatise reflects the intellectual culture of Louvain in the mid sixteenth century. A scholastic influence seems to have predominated, but Gabriel van der Muyden and Jacob Reyvaert had introduced humanist jurisprudence in the decades before his arrival as a student (Lesaffer 2009). Both styles of jurisprudence shape Ayala’s legal reasoning in On the Law of War, and on the Duties Connected with War, and on Military Discipline.

Ayala’s text is replete with classical citations, the most numerous being of Livy, Valerius Maximus, Plutarch, Tacitus, Appian, and above all, Cicero. Augustine of Hippo is his special patristic authority. The corpora of Roman law—civil and canon—are comprehensively referenced. Ayala’s knowledge of the glossators seems to be thorough. Of the medieval scholastics, he favours Thomas Aquinas. Of the Renaissance scholastics, he draws most explicitly from Domingo de Soto and Diego de Covarrubias y Leyva, both of whom took part in the Council of Trent.

A less visible influence is that of a Piedmontese legist, Pierino Belli, whose Treatise on Military Matters and Warfare (De re militari et bello tractatus, 1563) is a clear precursor to Ayala’s. Despite the fact that Ayala seems virtually to have had Belli’s Treatise laid out “in front of him when composing his own work” (Knight 1921), he only cites Belli twice. …

Impact and legacy

Ayala’s treatise enjoyed a “vogue in its day” (Knight 1921), and saw four editions before 1800, with the last appearing in Madrid in 1793. Commentaries and commonplace books show that it served jurists as an authority throughout the seventeenth and eighteenth centuries (Bechtoldus 1654; González Téllez 1715). Of particular interest is a critical engagement by the Jesuit master-thinker, Francisco Suárez (Schnepf 2003).

In The Rights of War and Peace (De jure belli ac pacis libri tres, 1625), Hugo Grotius cites Ayala more than once as an authority on his topic. The study of Ayala in the late nineteenth century is largely due to this commendation (Nys 1882; Rivier 1883). So is the 1912 reissue of Ayala’s treatise—in facsimile, and in English translation—by The Carnegie Institution of Washington.

In recent decades, historians have “attributed to Ayala a higher rank and influence which [is] not exclusively based in Grotius’ judgment” (Grewe 2000). The most notable is Carl Schmitt, for whom Ayala signals a new epoch in European legal history by stating with singular clarity the modern “concept of the enemy”. …

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