Paulo de BRITO
Richard Tuck rightly affirms that by the early sixteenth century scepticism regarding the European colonization of America was already integral to the Dominican tradition, of which Francisco de Vitoria and Bartolomé de las Casas were notable examples. In this study I shall focus on the former and only incidentally point out any relevant differences between the two. I will base myself on the work of Antony Anghie on Vitoria, complemented in some aspects by some of Jose-Manuel Barreto’s thoughts on the subject.
Let us then examine some of the major ambiguities of this “extremely complex figure”, using the words of Anghie about Vitoria. In De Indis, Vitoria discusses whether the Amerindians had indeed a true right to occupy their lands before the arrival of the Spaniards. Could the Amerindians, as heathens, be regarded as legitimate owners of the territories they occupied? Vitoria presents a set of arguments which do not legitimate Castilian power. For the sake of brevity, I will only mention but a few. As unbelievers, the Indians could not for that particular reason be deprived of their property. If, within Europe, heresy cannot prevent a heretic from being an owner by virtue of such status, the same would apply in relation to the Amerindians. And the same would also apply in regards to sinners. One could argue the barbarians would have no territorial rights since the sovereignty over the land belongs to the imperator mundi. However, Vitoria contends that nothing has been set up by God concerning sovereignty of the whole world. One could claim the Pope, as a representative of God, would hold that power. Vitoria contends again that his authority is strictly spiritual. Therefore, at least as a principle, there is nothing that prevents the Indians from being the legitimate owners of their territories. At first sight, could we then regard Vitoria as a defender of the oppressed native Americans? The question, however, deserves more thoughtful consideration. Vitoria also postulates de titulis legitimis, which, in turn, might be seen to justify Spanish domination. There are seventeen such postulations in total, but again I will not examine them all.
If the barbarians would like to prevent the Spaniards of what they are entitled to under jus gentium, such as the right to travel and sojourn, one should first have it explained to them the latter will not cause any harm. If, in spite of this, the Indians would not accept it and resort to violence, the Spanish could then defend themselves and repel of the use force with force. The premise of this so called just war does not apply to the above example only. War could also be waged in cases where the Amerindians hindered trade and the missionary work. The underlying concept of jus gentium mentioned above needs some explanation. Vitoria presents a new concept of jus gentium understood as that which natural reason has established among all nations, that is, a “universal natural law system”. This system may be ascertained by the use of reason. And this begs the question: do the Indians have the use of reason? Vitoria answers they do, and regarding them as human is then important for their being subjected to jus gentium. By having the faculty of reason they are able to therefore understand jus gentium, which is universally binding. As Anghie puts it “it is precisely because the Indians possess reason that they are bound by jus gentium”. As Barreto rightly points out, “the impulse behind the recognition of the capacity of reason of the Indians is not that of the humanistic acknowledgement of the natives as members of the same species, but rather one of the validation of the authority of the emperor over his subjects under the principles of international law...For the Native Americans becoming subjects under the jurisdiction of natural law became a trap.”
Richard Tuck rightly affirms that by the early sixteenth century scepticism regarding the European colonization of America was already integral to the Dominican tradition, of which Francisco de Vitoria and Bartolomé de las Casas were notable examples. In this study I shall focus on the former and only incidentally point out any relevant differences between the two. I will base myself on the work of Antony Anghie on Vitoria, complemented in some aspects by some of Jose-Manuel Barreto’s thoughts on the subject.
Let us then examine some of the major ambiguities of this “extremely complex figure”, using the words of Anghie about Vitoria. In De Indis, Vitoria discusses whether the Amerindians had indeed a true right to occupy their lands before the arrival of the Spaniards. Could the Amerindians, as heathens, be regarded as legitimate owners of the territories they occupied? Vitoria presents a set of arguments which do not legitimate Castilian power. For the sake of brevity, I will only mention but a few. As unbelievers, the Indians could not for that particular reason be deprived of their property. If, within Europe, heresy cannot prevent a heretic from being an owner by virtue of such status, the same would apply in relation to the Amerindians. And the same would also apply in regards to sinners. One could argue the barbarians would have no territorial rights since the sovereignty over the land belongs to the imperator mundi. However, Vitoria contends that nothing has been set up by God concerning sovereignty of the whole world. One could claim the Pope, as a representative of God, would hold that power. Vitoria contends again that his authority is strictly spiritual. Therefore, at least as a principle, there is nothing that prevents the Indians from being the legitimate owners of their territories. At first sight, could we then regard Vitoria as a defender of the oppressed native Americans? The question, however, deserves more thoughtful consideration. Vitoria also postulates de titulis legitimis, which, in turn, might be seen to justify Spanish domination. There are seventeen such postulations in total, but again I will not examine them all.
If the barbarians would like to prevent the Spaniards of what they are entitled to under jus gentium, such as the right to travel and sojourn, one should first have it explained to them the latter will not cause any harm. If, in spite of this, the Indians would not accept it and resort to violence, the Spanish could then defend themselves and repel of the use force with force. The premise of this so called just war does not apply to the above example only. War could also be waged in cases where the Amerindians hindered trade and the missionary work. The underlying concept of jus gentium mentioned above needs some explanation. Vitoria presents a new concept of jus gentium understood as that which natural reason has established among all nations, that is, a “universal natural law system”. This system may be ascertained by the use of reason. And this begs the question: do the Indians have the use of reason? Vitoria answers they do, and regarding them as human is then important for their being subjected to jus gentium. By having the faculty of reason they are able to therefore understand jus gentium, which is universally binding. As Anghie puts it “it is precisely because the Indians possess reason that they are bound by jus gentium”. As Barreto rightly points out, “the impulse behind the recognition of the capacity of reason of the Indians is not that of the humanistic acknowledgement of the natives as members of the same species, but rather one of the validation of the authority of the emperor over his subjects under the principles of international law...For the Native Americans becoming subjects under the jurisdiction of natural law became a trap.”
As we have seen, Vitoria elaborated a theory of universal law based on the assumed rationality of all men (thereby including the Indians), emphasizing, though, the rights to travel, trade and do missionary work to which the Spaniards in America were naturally entitled. Unlike him, las Casas stressed the right to liberty as a foundation for the right to self-determination of the Amerindians, and that clearly put into question the whole process of colonisation. As Barreto writes “The idea of self-determination, defended four hundred years before by Las Casas as a principle of natural right, became positive international law when the struggle for decolonisation triumphed in the ambit of international human rights law.”
Returning to just war, Vitoria conceived it as a right to deprive the Indians of their possessions, keeping them in captivity and setting up new overlords. In the way it existed in Vitoria’s time, international law was not provided with the legal apparatus required to justify the occupation of the “new world” and resolve the question of Spanish-Indian relationship. As Barreto correctly states “The ‘emergence’ of a whole continent triggered immediately a search for a legal solution to the problem of justifying the conquest of the new territories and their expropriation.” With this novel problem in mind, Vitoria reconceptualized the existing doctrines, giving rise to the concept of modern international law based on the institution of natural law. For Vitoria “As the law of nations is dictated by natural reason, the guiding principles of international law that best serve the interest of just relations between peoples cannot be other than those of natural law.” Thus, Vitoria and las Casas brought natural law into the ambit of international law as far back as the sixteenth century. However, the classic problem of international law regarding how order is established among sovereign states was not fully addressed by Vitoria. As Anghie points out, he did not, in effect, address the question of order among sovereign states, but rather that found among societies belonging to different cultural settings. And that is also reaffirmed by Anthony Carty quoting Bartelson: “the question (addressed by Vitoria) was not how to solve a conflict between sovereigns...but how to relate concentric circles of resembling laws ranging from divine law down to natural and positive law.”
Though in his lifetime Vitoria did come to acknowledge certain rights to the aborigines, he also resorted to the premise of a just war in particular circumstances, which seemed to justify the colonial presence. Therein lies his main contradiction. Thus, as Anghie and Barreto respectively put it, Vitoria “may also be seen as an apologist for imperialism” and “is to be remembered more as a champion of the Conquest rather than as a defender of the dignity of the Indians”.
The present text is inspired by the communication presented by Paulo de Brito, Professor at the Universidade Lusófona do Porto (Faculty of Law), on 15 September 2012, in Stockholm, in the stream “International Law, Genocide and Imperialism” of the Critical Legal Conference 2012.
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