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How did European Powers in America employ concepts of natural law to justify their actions?

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How did the powers discussed in this course employ concepts of natural law to justify their actions?

        ‘The philosophical perspective of the just war tradition is constituted by two fundamental claims. The first is that in the pursuit of social justice and peace, it can be morally justifiable to resort to war.’[1] Natural law can be used to justify actions which may, otherwise, be seen as unjust or immoral, most notably on the course, the subjugation of a native population. Hobbes suggests that without society, man is nothing more than an animal:

Every man is Enemy to every man… wherein men live without other security, than what their own strength, and their own invention shall furnish them withal. In such condition, there is… no knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.[2]

 Vespucci confirmed that this was, indeed, the prominent Western opinion of the Native Americans: ‘a strange new world inhabited by a barbarous, flesh-eating peoples’ with ‘no laws, manners or civilised religion.’[3] As such, it was seen as a Christian duty to civilise these people: ‘Only Christian Europeans could offer the Indians a rationalised existence, which the Indians by the Law of Nations were obliged to accept.’[4] The desire to civilise those who are seen as barbarous and savage, however, caused debates in the ethics and meanings of natural law.

Juan Ginès de Sepúlveda and Bartolemé de le Casas represented the different sides of the debate: de Sepúlveda claims the natural order of things in the Aristotelian idea of the great chain of being: the coloniser above the uncivilised colonised:

It will always be just and in conformity with natural law that such people [the Indians] submit to the rule of more cultured and humane princes and nations. And if the latter reject such rule, it can be imposed upon them by force of arms. Such a war will be just according to natural law.[5]

De le Casas, on the other hand, advocates gentleness in dealing with the native population: ‘to conquer them first by war is contrary to the law, gentle yoke, light load and sweetness of Jesus Christ.’[6] He has been called the father of anti-imperialism and anti-racism, and seems far more concerned with spreading Christianity than with the gains of the coloniser.

War was not the only concern of natural law; indeed, even de Sepúlveda only advocates it as permissible and correct if the native people did not accept the civilised ways of the coloniser. This process of ‘civilizing’ was an important concept when it came to natural law. Antonio de Montesinos asked ‘on what authority have you waged a detestable war against these people, who dwelt quietly and peacefully on their own land?’[7] Locke claimed the use of land as justification:  he wonders whether ‘in the wild woods and uncultivated waste of America left to nature, without any improvement, tillage or husbandry, a thousand acres will yield… as many conveniences of life as ten acres of equally fertile land doe in Devonshire where they are cultivated.’[8] Locke views the natives as living somewhat too ‘peacefully’, and not taking advantage of the full value of the land. The itinerant nature of life for the Native Americans prevented them from leading what was seen as a civilised, or indeed, civilizable lifestyle. In the view of Locke, land was held in common by God, and only labour on that land would justify any sort of claim to ownership. As such, the Native Americans were not deserving of the ownership of the land. The same could be applied to other races of nomadic peoples, such as the Saami or the Irish in Europe.

The lack of a formal, settled, abode was seen as a lack of any civil quality, therefore necessitating a greater power to step in and bring the heathens into line with the cultured world. This was seen as something of a duty, giving the coloniser the right of God and the natural way of things to perform his colonising activities. It was ‘the natural-law right and duty to order their political and social lives by rational means.’[9] Vitoria claimed that ‘Spanish rights in the Americas could be based on a Christian nation's guardianship responsibility to civilize backward, barbarous peoples who could not comport themselves according to the rationalised norms of natural law.’[10] As such, this gave the Spanish, as Christian nation, the right to colonise in order to spread the Gospel, and to bring the American Indians into the civilization necessary to follow natural law.

The idea of spreading Christianity, and spreading the truth of the Gospel was also a driving factor in colonisation, indeed, ‘the official enquiries conducted in the new world focused on the Indians' capacity to comprehend the gospel and to order their lives according to 'civilized' Spanish norms of conduct.’[11] Civilization of the ‘savage’ was seen to be necessary to spreading Christianity, it being seen as a part of that civilized attitude: 'the habits and usages of civilization provided the ideal conditions for the reception of the Christian message’[12] Since a tenet of Christian law is the spreading of the Gospel, colonisation in order to do this was God’s law, and therefore, natural law. De Sepúlveda claims that ‘War against these barbarians can be justified not only on the basis of their paganism but even more so because of their abominable licentiousness’[13] and points out that ‘the evangelical law of the New Testament is more perfect and more gentle.’[14] As such, he justifies the just war, and the concept of natural law placing the Spaniards above the Native Americans by citing their pagan practices, which he insists should be replaced with the gentler Christianity; a statement that could be seen as somewhat contradictory. However, he justifies this by pointing out that this conversion is necessary and indeed beneficial to the natives:

What is more appropriate and beneficial for these barbarians than to become subject to the rule of those whose wisdom, virtue, and religion have converted them from barbarians into civilized men, from being torpid and licentious to becoming upright and moral, from being impious servants of the Devil to becoming believers in the true God?[15]

De le Casas, too, believes in the spreading of the Gospel, and so in colonisation, although his view was not as harsh as that held by de Sepúlveda. He states that the Spanish Kings should take care that ‘the Gospel of Jesus Christ may be preached to all men throughout the whole world’,[16] stating that ‘it is unlikely that anyone will resist the preaching of the Gospel and the Christian doctrine’[17]

The laws of nature were almost always thought to be on the side of the coloniser: even Pufendorf, who defended the rights of the Native Americans to peace and their own land, still held them ‘condemned by the very laws of nature.’ De le Casas, however, claims that ‘among the infidels who have distant kingdoms tat have never heard the tidings of Christ… there are true kings and princes. Their sovereignty, dignity and royal pre-eminence derive from natural law and the law of nations’,[18] and goes on to point out that the coming of Christianity to their lands does not remove these rights. His theory of natural law was that land and rights should not be taken from its owners, no matter the moral superiority of the potential coloniser.

Different theories of natural law and the situations in which it could be applied are used. Hugo Grotius uses the ‘theatre seat’ concept, in which land which seems unoccupied, and has no markers signifying that it may belong to somebody is open to conquest by anyone, leading to his ideal of mare liberum, or freedom of the seas. By using the ‘theatre seat’ theory, the sea had no way of being identified as belonging to any particular country, and therefore anything upon it could be claimed.

Samuel Pufendorf also had a theory of natural law, known as ‘fruit picking’. His view was very different to that of de Sepúlveda or Grotius, who believed in the natural right to subjugate the native population, and in the just war, should it be necessary to put the inhabitants into their proper place. Pufendorf, unlike Locke, viewed land as belonging to the natives, and therefore allowed the coloniser no right to take it away. He viewed the land as the orchard from which fruit may be picked: all that lay within the ‘orchard’ belonged to the owner, not to a passer by, as the coloniser might be seen. He does admit that natural law lies on the side of the civiliser, but does not agree that this gives them the right to suppress and rule over another: ‘thus we cannot agree… that sufficient cause for waging war upon the Americans can be found in the fact that they can be held condemned by the very laws of nature’[19]

De le Casas clearly did not agree that the Native Americans were ‘condemned by the very laws of nature’ as Pufendorf did, as he stated in his defence of the rights of the Native Americans that their kings and princes too, were rulers by natural law.[20] He cannot deny the rights given by the Church to the kings of Castile, stating that they have ‘the universal jurisdiction over all the Indies belong to them by the authority concession and donation of the Holy Apostolic See, and thus by divine authority.’[21] In accordance with this, he did claim that those natives who converted would be ‘obliged to recognise the kings of Castile as universal and sovereign lords’,[22] although he states that those who remain unbaptised may not be punished for refusing to accept this. The unbaptised could not be held to the laws of the Church.

Richard Eden suggested that the trade rotes opening up were supplanting the idea of the crusader with that of the merchant. ‘Economic, as opposed to military, penetration was privileged in Eden's text as the preferred instrument of European empire in America’[23] He viewed the conversion of the Native as complete, already undertaken by the Spanish: ‘Those Indians who could not be converted and brought to civility had been killed. Those who converted were saved.’[24] This trade was to be beneficial to the Native Americans as well as the settlers in the ideal situation, but the ideal was impossible, as the duties to uphold natural law were interpreted, as previously shown, are easily interpreted in both positive and negative manners:

European domination benefited the Indians by providing them with the civilizing doctrines of Christianity. In the bargain, the Indians gained freedom to travel (until they were forced onto reservations), to engage in commerce (until they were dispossessed of everything worth selling) and to go peacefully about their other 'civil pursuits' (until they were killed or imprisoned for resisting violations of their human rights).[25]

That which was supposed to be beneficial, the natural law duty to spread Christianity, and the civilized life of the West in many cases became a reason to subjugate a native population under the guise of helping and civilizing these people. ‘To refuse these benefits indicated delusion and a lack of reason, justifying an even sterner, more disciplined exercise of the Europeans' guardianship over the Indians and their New World.’[26]

It was the view of those such as de Sepúlveda that the natural hierarchy, the great chain of being, placed the civilized, western man above the native. It was his view that the coloniser had a natural right over the colonised. Locke believed that it was the land which gave the coloniser power, as he could use it more effectively. Others employed the idea of natural law in order to try to benefit the coloniser in a more economic sense, as was Vitoria’s idea of the Law of Nations, in order to spread the ‘vision of truth’[27], although he too, advocated harsh treatment of the Native Americans should they ‘prevent Spanish merchants from making their profits’[28]

The concept of natural law was generally employed to provide a viable reason for the benefits felt by the coloniser, often in the sense of trade and economic gain, or, in the case of some, such as de le Casas, in the drive to promote Christianity. In either case, the idea of the barbarian aided the view of the Native Americans as in need of civilization, colonisation, and the help of the western world.

Word Count: 2,414

Bibliography

Campbell, Courtney, ‘Dirt Greed and Blood: Just War and the Colonization of the New World’ http://oregonstate.edu/cla/philosophy/sites/default/files/JUSTWAR_VIC.pdf (accessed 10th march 2009)

De le Casas, Bartolemé, ‘Aqui se continen treinita proposiciones muy juridicas’ in Culture and Belief in Europe 1450-1600, Englander et al (Oxford: Blackwell, 1990) pp324-9

De Sepúlveda, Juan Ginès ‘On the Reasons for the Just war against the Indians’ in Culture and Belief in Europe 1450-1600, Englander et al (Oxford: Blackwell, 1990) pp321-3

Hobbes, Thomas, Leviathan, (Oxford: Oxford World Classics, 1988)

Locke, John, Two treatises of government (Cambridge: Cambridge University Press, 1964)

Pufendorf, Samuel, On the Law of Nature and Nations, (Oxford: Lichfield, 1703), book VIII, chapter VI, http://oll.libertyfund.org/option=com_staticxt&staticfile=show.php%3Fperson=115&Itemid=28 (accessed 12th March 2009)

Williams, Robert A., The American Indian in Western Legal Thought, (Oxford: Oxford University Press, 1990)


[1] Courtney Campbell, ‘Dirt Greed and Blood: Just War and the Colonization of the New World’ http://oregonstate.edu/cla/philosophy/sites/default/files/JUSTWAR_VIC.pdf  (accessed 10th march 2009)

[2] Thomas Hobbes, Leviathan, (Oxford: Oxford World Classics, 1988) p84

[3] Robert A. Williams, The American Indian in Western Legal Thought, (Oxford: Oxford University Press, 1990) p.127

[4]The American Indian in Western Legal Thought, p106

[5] Juan Ginès de Sepúlveda, ‘On the Reasons for the Just war against the Indians’  in Culture and Belief in Europe 1450-1600, Englander et al (Oxford: Blackwell, 1990) pp321-3, p321

[6] Bartolemé de le Casas, ‘Aqui se continen treinita proposiciones muy juridicas’ in Culture and Belief in Europe 1450-1600, Englander et al (Oxford: Blackwell, 1990) pp324-9, p328

[7] ‘Dirt Greed and Blood: Just War and the Colonization of the New World’

[8] John Locke, Two treatises of government (Cambridge: Cambridge University Press, 1964) p37

[9]The American Indian in Western Legal Thought, p93

[10]The American Indian in Western Legal Thought, p104

[11]The American Indian in Western Legal Thought, p94

[12]The American Indian in Western Legal Thought, p94

[13] ‘On the Reasons for the Just war against the Indians’ p323

[14] ‘On the Reasons for the Just war against the Indians’ p323

[15] ‘On the Reasons for the Just war against the Indians’ p323

[16] ‘Aqui se continen treinita proposiciones muy juridicas’ p324

[17] ‘Aqui se continen treinita proposiciones muy juridicas’ p324

[18] ‘Aqui se continen treinita proposiciones muy juridicas’ p325

[19] Samuel Pufendorf, On the Law of Nature and Nations, (Oxford: Lichfield, 1703), book VIII, ch.VI, http://oll.libertyfund.org/option=com_staticxt&staticfile=show.php%3Fperson=115&Itemid=28 (accessed 12th March 2009)

[20] ‘Aqui se continen treinita proposiciones muy juridicas’ p325

[21] Aqui se continen treinita proposiciones muy juridicas’ p327

[22] Aqui se continen treinita proposiciones muy juridicas’ p327

[23]The American Indian in Western Legal Thought, p130

[24]The American Indian in Western Legal Thought, p130

[25]The American Indian in Western Legal Thought, p106

[26]The American Indian in Western Legal Thought, p106

[27]The American Indian in Western Legal Thought, p108

[28]The American Indian in Western Legal Thought, p108

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