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

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.’ 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.’ 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.’ 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’ 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’ and points out that ‘the evangelical law of the New Testament is more perfect and more gentle.’ 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?

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’, stating that ‘it is unlikely that anyone will resist the preaching of the Gospel and the Christian doctrine’

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’, 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’

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. 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.’ 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’, 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’ 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.’ 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).

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.’ 

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’, although he too, advocated harsh treatment of the Native Americans should they ‘prevent Spanish merchants from making their profits’

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)

---