Columbus and the Origins of International LawTHOMAS E. WOODS, JR.
When the four hundredth anniversary of Christopher Columbus’ discovery of America was observed in 1892, the atmosphere was one of celebration.
A century later, the prevailing mood was far more somber. Now Columbus was being accused of all kinds of terrible crimes, ranging from environmental devastation to cruelties that culminated in genocide. Author Kirkpatrick Sale described the events of 1492 as the "conquest of paradise," as peaceful, environmentally friendly peoples were violently displaced by avaricious European conquerors. At the very least, the emphasis was now on European mistreatment of native populations, and particularly on the employment of natives as forced laborers.
The debate over the significance of the original encounters between Europe and the New World, and whether the consequences of this meeting of cultures has on net been positive or negative, has remained contentious ever since. Those who would defend the Europeans in general and Columbus in particular have replied to the likes of Kirkpatrick Sale by suggesting that European crimes have been exaggerated, that the greatest toll on native lives came from disease (a non-volitional and therefore morally neutral source) rather than from exploitation or military force, that native populations were neither as peaceful nor as solicitous of environmental welfare as their modern-day admirers have suggested, and so on. Still others have pointed to Columbus’ profoundly spiritual motivations and his deep commitment to the Catholic faith, a fact that can scarcely be denied. Even Father Bartolomé de Las Casas, perhaps the most vocal critic of Spanish policy in the New World, spoke well of Columbus and directed his criticism primarily at those administrators who had come after him.
Such arguments are certainly not without merit, and deserve to be made. Here, however, I should like to consider the question from a different angle, and one that is frequently overlooked. Reports of Spanish mistreatment of the natives of the New World prompted a severe crisis of conscience among significant sectors of the Spanish population in the sixteenth century, not least among her philosophers and theologians. The issue provoked substantial discussion and debate within the Spanish intellectual community. This fact alone indicates that we are witnessing something historically unusual: nothing in the historical record suggests that Attila the Hun had any moral qualms about his conquests, and the large-scale human sacrifice that was so fundamental to Aztec civilization appears to have elicited no outpouring of self-criticism and philosophical reflection among that native people comparable to what European misbehavior provoked among Catholic theologians in sixteenth-century Spain.
It was in the course of that philosophical reflection that Spanish theologians achieved something rather substantial: the beginnings of modern international law. Thus the controversy surrounding the natives of America provided the occasion for the elucidation of general principles that states were morally bound to observe in their interactions with each other.
It was not that no one had ever before supposed that somewhere within the moral order there must exist laws to govern the interaction of states. But they had remained vague, and had never been articulated in any clear way. It was the circumstances that arose from the discovery of the New World that gave new impetus to the study and delineation of those laws. Naturally enough, students of international law have often looked to the sixteenth century, when theologians applied themselves to a serious reckoning with these issues, to find the origins of their discipline.
In the course of his own critique of Spanish policy, Father Francisco de Vitoria laid the groundwork for modern international law theory, and for that reason is sometimes called (with Hugo Grotius) "the father of international law" — a man who (in the words of historian Marcelo Sánchez-Sorondo) "proposed for the first time international law in modern terms." In support of his arguments Vitoria drew from arguments based on Scripture as well as from arguments based on reason. In so doing he "furnished the world of his day with its first masterpiece on the law of nations in peace as well as in war," writes James Brown Scott in The Spanish Origin of International Law (1928).
Who was Francisco de Vitoria? Born around 1483, he entered the Dominican order in 1504. He made his way to the University of Paris, where he completed his studies in the liberal arts and went on to the study of theology. He lectured at Paris until his departure in 1523, when he continued his theological lectures at Valladolid at the College of San Gregorio. Three years later he was elected to the Prime Chair of Theology at the University of Salamanca, where so much profound thought in so many areas would take place over the course of the sixteenth century. In 1532 he delivered a famous series of lectures that were later published as Relección de los Indios, usually rendered as Readings on the Indians and on the Law of War, which set forth important principles of international law in the context of a defense of the rights of the Indians. When this great thinker was invited to attend the Council of Trent, he indicated that he would more likely go to the other world, which he did in 1546.
But he was best known for his commentaries on Spanish colonialism in the New World. Vitoria and other Spanish theologians were concerned to examine the morality of Spanish behavior. Did the Spanish possess just title to lands in the Americas that had been claimed on behalf of the Crown? What were their obligations toward the natives in their interaction with them? Such issues inevitably prompted more general and universal questions. What behavior were states obligated to observe in their interactions with one another? Under what circumstances may a state justly go to war? These questions are obviously fundamental to modern international law theory.
With the space at my disposal here it is not possible to provide a systematic overview of Vitoria’s arguments (which I do provide in a book I am currently writing). But I can at least suggest some basic themes in Vitoria’s thought, followed by some brief considerations regarding why these ideas were of such historic importance.
It was and is a commonplace among Christian thinkers that man enjoys a unique position within God’s creation. Having been created in God’s image and endowed with a rational nature, he possesses a dignity — a word that has been much abused in recent years but which is certainly apropos here — that all other creatures lack. It was on this basis that Vitoria continued the development of the idea that by virtue of his position within the Creation he was entitled to a degree of treatment from his fellow human beings that no other creature could claim.
Vitoria borrowed two important principles from St. Thomas Aquinas: (1) the divine law, which proceeds from grace, does not annul human law, which proceeds from natural reason; and (2) those things that are natural to man neither are to be taken from nor are to be given to him on account of sin. For example, no Catholic would argue that it is a less serious crime to murder a non-baptized person than a baptized one. This is what Vitoria meant: the treatment to which all human beings were entitled — e.g., not to be killed, expropriated, etc. — derives from their status as men rather than as members of the faithful in the state of grace. Father Domingo de Soto, Vitoria’s colleague at the University of Salamanca, stated the matter plainly: "Those who are in the grace of God are not a whit better off than the sinner or the pagan in what concerns natural rights."
It was by means of these principles adopted from St. Thomas that Vitoria argued that man was not deprived of civil dominion by mortal sin, and that the right to appropriate the things of nature for one’s own use (i.e., the institution of private property) belonged to all men regardless of their paganism or whatever barbarian vices they might possess. The Indians of the New World, by virtue of being men, were therefore equal to the Spaniards in matters pertaining to natural rights. They owned their lands by the same principles that the Spaniards owned theirs. As Vitoria wrote, "The upshot of all the preceding is, then, that the aborigines undoubtedly had true dominion in both public and private matters, just like Christians, and that neither their princes nor private persons could be despoiled of their property on the ground of their not being true owners."
Vitoria also argued, as did fellow scholastics Domingo de Soto and Luis de Molina, that pagan princes ruled legitimately. He pointed out that the well-known scriptural admonitions to be subject to the secular powers had all been made in the context of pagan rule. If a pagan king has committed no other crime, says Vitoria, he may not be deposed simply because he is a pagan. It was with this principle in mind that Christian Europe was to interact with the polities of the New World. "In the conception of the well-informed and well-balanced professor of Salamanca," writes a twentieth-century admirer, "States, irrespective of their size, their forms of government, their religion as well as that of their subjects, citizens, and inhabitants, their civilization, advanced or incipient, are equal in that system of law which he [Vitoria] professes." Each state has the same rights as any other, and is under an obligation to respect the rights of others.
Vitoria did believe that the peoples of the New World had an obligation to permit Catholic missionaries to preach the Gospel in their lands. But he absolutely insisted that rejection of the Gospel did not constitute grounds for a just war. Himself a Thomist, Vitoria recalled the argument of St. Thomas Aquinas whereby coercion was not to be applied in the conversion of pagans to the Faith, since (in St. Thomas’ words) "to believe depends upon the will," and therefore must involve a free act. Thus the Fourth Council of Toledo (633) had condemned the practice of compelling Jews to receive baptism.
Vitoria and his allies also believed that natural law existed not just among Christians but among all peoples. This did not mean that no society could pervert that law, or fail in its application of one of its precepts, or indeed simply be ignorant of its implications in a given area — for one thing, not every precept of the natural law was equally self-evident. Such difficulties aside, these Spanish theologians believed with St. Paul that the natural law was written on the human heart, and they therefore possessed a basis on which to establish international rules of conduct that could morally bind even those who had never heard (or had actually rejected) the Gospel. Such peoples were still thought to possess the basic sense of right and wrong, summed up in the Ten Commandments and the Golden Rule — both of which some theologians all but identified with the natural law itself — from which international obligations could be derived.
The difficulty of enforcing international law is a separate matter, but one regarding which a brief word may be necessary. The resolution of this problem is left more or less open in the work of the Spanish theologians. Vitoria’s answer appears to have been connected to the idea of the just war — that is, if a state had violated the norms of international law in its interaction with another state, the latter state may have grounds for waging a just war against it.
What we should not do is carelessly assume that the Spanish theologians would have supported an institution akin to the United Nations. Recall the original problem that a system of international law aims to solve. According to the seventeenth-century British philosopher Thomas Hobbes, in the absence of a government capable of functioning as an umpire over all men, human society is condemned to a state of chaos and civil war. The creation of a sovereign office whose primary function is to keep order and enforce obedience to the law is, in Hobbes’ view, the only mechanism by which we may escape the chronic insecurity and disorder of the so-called state of nature. In the same vein, it is sometimes said that in the absence of some kind of world government, the nations of the world are in the same situation vis-à-vis each other as are the individuals of a single nation before the creation of a government over them. Without the establishment of a sovereign to rule over the nations, Hobbesian analysis tells us that we can expect the same kind of conflict and disorder between nations as would exist, in the absence of civil government, between individual citizens.
The Hobbesian diagnosis is seriously flawed for a great many reasons, but for our purposes it shall suffice to consider only one. The establishment of government does not solve the problem that Hobbes describes; it merely shifts that problem to another level. To be sure, the people are no longer in a state of nature vis-à-vis each other, in that they now have a common umpire to rule over them. Theoretically, that single authority — namely, government — can enforce peace and prevent injustice among the people it rules. But the people are now in a state of nature vis-à-vis government itself, since there is no common umpire that stands above both government and people. If the government possesses the sovereign authority that Hobbes recommends, it must have the last word on the extent of its own powers, on right and wrong, and even on the adjudication of disputes between individual citizens and itself. Even if Hobbes believed in democracy, mere voting can hardly be expected to restrain such an institution. If a power above both government and people were established in order to ensure that government did not abuse its powers, it would only push the problem to yet another level, for there would now be no umpire above this new power.
This is just one problem with the idea of an international institution with coercive powers to enforce international law. Proponents of such an idea contend that such an authority would liberate the nations of the world from the Hobbesian state of nature in which they find themselves. But with the creation of such an authority, the problem of insecurity still exists: the nations of the world would now be in a state of nature vis-à-vis this new authority, whose behavior they would be unable to restrain.
The enforcement of international law, therefore, is no simple matter, and the establishment of a global institution for the purpose only shifts the Hobbesian problem rather than solving it. Yet other options remain. After all, the advanced nations managed to observe the rules of so-called civilized warfare for two centuries following the Thirty Years War (1618-48). The threat of ostracism of an offending nation can have very real deterrent effects.
Whatever the practical difficulties of its enforcement, however, the idea of international law, which emerged in inchoate form as a result of the philosophical discussion prompted by the discovery of America, is supremely important. It suggests that each nation is not a moral universe unto itself, but is morally bound in its behavior by basic principles on which civilized peoples can agree. The state, in other words, is not morally autonomous.
In the early sixteenth century, Nicolò Machiavelli had presaged the arrival of the modern state with his short book The Prince (1513). For Machiavelli, the state was indeed a morally autonomous institution, whose behavior on behalf of its own preservation could be judged against no external standard, whether the decrees of a Pope or any code of moral principle. No wonder the Church ultimately placed The Prince on the Index of Prohibited Books: it was precisely this view that the great Catholic theologians of Spain so emphatically denied. The state, according to them, could indeed be judged according to principles external to itself, and could not act on the basis of mere expedience or narrow advantage if moral principles were trampled in the process.
Let us, finally, return to the main line of our investigation. In sum, Spanish theologians of the sixteenth century held the behavior of their own civilization up to critical scrutiny and found it wanting. They proposed that in matters of natural right the other peoples of the world were their equals, and that the commonwealths of pagan peoples were entitled to the same treatment that the nations of Christian Europe accorded to one another. (It is for this reason that Lewis Hanke could title his book on the subject The Spanish Struggle for Justice in the Conquest of America.) If we consider the Age of Discovery in the light of sound historical judgment, we must conclude that the Spaniards’ ability to look objectively at these foreign peoples and recognize their common humanity was no small accomplishment, particularly when measured against the parochialism that has so often colored one people’s conception of another.
Such impartiality could not have been expected to develop out of American Indian cultures. "The Indians of the same region or language group did not even have a common name for themselves," explains Harvard historian Samuel Eliot Morison. "Each tribe called itself something like ‘We, the People,’ and referred to its neighbors by a word that meant ‘the Barbarians,’ ‘Sons of She-Dog,’ or something equally insulting." The conception of an international order of states large and small, of varying levels of civilization and refinement, operating on a principle of equality one toward the other, could not have found fertile soil amid such narrow chauvinism. The Catholic conception of the fundamental unity of the human race, on the other hand, informed the deliberations of the great sixteenth-century Spanish theologians who insisted on universal principles that must govern the interaction of states. If we criticize Spanish excesses in the New World, therefore, it is only with the moral tools provided by the Catholic theologians of Spain itself that we are able to do so.
That injustices were committed in the conquest of the New World no serious person will deny, and holy priests at the time chronicled and condemned them. But it is natural that we should wish to find some silver lining, some mitigating factor, amid the demographic tragedy that struck the peoples of the New World during the Age of Discovery.
The encounters between these peoples provided an especially opportune moment for moralists to discuss and develop the fundamental principles that must govern the interaction of peoples. This task was carried out by the painstaking moral analysis of Catholic theologians teaching in Spanish universities. As Professor Hanke rightly concludes, "The ideals which some Spaniards sought to put into practice as they opened up the New World will never lose their shining brightness as long as men believe that other peoples have a right to live, that just methods may be found for the conduct of relations between peoples, and that essentially all the peoples of the world are men."
Thomas E. Woods, Jr. "Columbus and Conquest." LewRockwell.com (October 4, 2003).
Reprinted by permission of Thomas E. Woods, Jr.
Copyright © 2003 LewRockwell.com
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