Abstract
Chapter Two focuses on legal and philosophical reactions to the Americas. In the sixteenth century, a handful of authors framed the “question of the Indies”— influencing the types of references and theories used by jurists to determine the legitimacy of the Conquest and the extent of rights enjoyed by Indigenous Americans. Among those influential authors are Francisco Vitoria and his pupils at the School of Salamanca, Las Casas at Valladolid. Their texts and positions, studied here, show how old philosophical recipes, facing radical and alien novelty, lead to multiple impasses, concluding often against the violence and dehumanizing practices of conquistadors, but powerless in defending the humanity and rights of the “Indians.”
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Notes
- 1.
While much of Grotius’ other works (especially his theological and historical writings) had international political implications at the time, the works that have passed into the literature of international relations are all concerned primarily with the law of nations. They are De Jure Praedae (written c. 1604–1606, but published only in 1868), Mare (first published in 1609), and De Jure Belli ac Pacis (1625). Pufendorf’s main treatises of international law include his Elementa Jurisprudentiae Universalis, published in 1660, his major work of political theory, De Iure Naturali et Gentium, published in 1672. See Tuck, Richard. The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant. (Oxford: Oxford University Press, 2001. Oxford Scholarship Online, 2011); especially chapters on Grotius and Pufendorf.
- 2.
Anthony Pagden, The Fall of Natural Man: The American Indian and the Origins of Comparative Ethnology (Cambridge, UK; New York: Cambridge University Press, 1986), 2.
- 3.
Beate Jahn, The Cultural Construction of International Relations: The Invention of the State of Nature (New York: Palgrave, 2000), 117. In “‘Modern’ Theory of Natural Law” Richard Tuck makes very interesting observations on the potential modernity of Grotius’s take on property rights, his conception of the state of nature, and the status of American native populations. (pp. 199 & 203) He also compares Pufendorf’s position to that of Vitoria (p. 105). Tuck in Anthony Pagden, The Languages of Political Theory in Early-Modern Europe (Cambridge; New York: Cambridge University Press, 1987).
- 4.
For comments on the agriculturalist theses, see David Armitage, The Ideological Origins of the British Empire (Cambridge, New York: Cambridge University Press, 2004), 97: “The ‘natural right to replenish the whole earth’ as derived from the divine injunctions of Genesis could still provide a charter for settlement, but only if such settlement took place in ‘vacant places’ (as Purchas put it). This argument added a scriptural command to the agriculturalist justification for “colonisation” first propounded by Sir Thomas More in 1516, and repeated by Rowland White and the Smiths in Elizabethan Ulster. From the 1620s to the 1680s in Britain, and then in North America, Australia and Africa well into the nineteenth century, the argument from vacancy (vacuum domicilium) or absence of ownership (terra nullius) became a standard foundation for English and, later, British dispossession of indigenous peoples.”
- 5.
See Robert A. Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (New York; London, UK: Oxford University Press, 1992).
- 6.
Armitage, The Ideological Origins of the British Empire, 109: “Grotius’s work, a fragment of the larger treatise De Jure Prædæ (On the Law of Plunder), had been written as an apology for the capture in 1603 of the Portuguese carrack St Catharine by the Dutch East India Company.”
- 7.
Grotius, De Jure Belli ac Pacis, Book II, Ch. 20, para. 41 quoted in Kingsbury, Benedict and Adam Roberts. “Introduction: Grotian Thought in International Relations” in Hugo Grotius and International Relations. (Oxford; New York: Clarendon Press, 1990), p.47.
- 8.
For the description and analysis of Vitoria’s arguments and of the Valladolid controversy, I rely principally on the work of Anthony Pagden, who has used and analyzed these authors in many of his works: The Fall of Natural Man: The American Indian and the Origins of Comparative Ethnology (Cambridge; New York: Cambridge University Press, 1986); The Languages of Political Theory in Early-Modern Europe (Cambridge; New York: Cambridge University Press, 1987); European Encounters with the New World from Renaissance to Romanticism (New Haven, CT: Yale University Press, 1993); his introduction to the Political Writings of Vitoria, Francisco Vitoria, Political Writings (Cambridge; New York: Cambridge University Press, 1991).
- 9.
Pagden, The Languages of Political Theory, 79.
- 10.
Standing here for King Ferdinand II of Aragon and Queen Isabella I of Castile.
- 11.
Pagden, The Languages of Political Theory, 82. Pagden, “Introduction” in Francisco de Vitoria, Political Writings, ed. Jeremy Larwrance (Cambridge; New York: Cambridge University Press, 1991), xiii.
- 12.
Pagden, The Fall of Natural Man, 28.
- 13.
“A deliberative or administrative council or committee.” From Oxford English Dictionary online.
- 14.
Vitoria quoted in Pagden, The Fall of Natural Man, 65.
- 15.
Pagden, “Dispossessing the Barbarian: the Language of Spanish Thomism and the Debate over the Property Rights of the American Indians,” in The Languages of Political Theory, 80.
- 16.
Pagden, The Fall of Natural Man, 29–30, 60–61.
- 17.
Definition: “As legally defined in 1503, an encomienda (from encomendar, “to entrust”) consisted of a grant by the crown to a conquistador, soldier, official, or others of a specified number of Indians living in a particular area. The receiver of the grant, the encomendero, could exact tribute from the Indians in gold, in kind, or in labor and was required to protect them and instruct them in the Christian faith. The encomienda did not include a grant of land, but in practice the encomenderos gained control of the Indians’ lands and failed to fulfill their obligations to the Indian population. The crown’s attempts to end the severe abuses of the system with the Laws of Burgos (1512–1513) and the New Law of the Indies (1542) failed in the face of colonial opposition and, in fact, a revised form of the repartimiento system was revived after 1550.” From Encyclopædia Britannica. http://www.britannica.com/EBchecked/topic/186567/encomienda
- 18.
Pagden, The Languages of Political Theory, 81.
- 19.
Vitoria, Political Writings, 240.
- 20.
Psychological refers here to the nature of the psyche and the level of reason of diverse human beings.
- 21.
Aristotle, The Politics (London: Penguin, 1992), 57. See also 1255 in Aristotle’s Politics on the usage of the term “slave” for non-Greeks.
- 22.
Pagden, The Fall of Natural Man, 27.
- 23.
Pagden, The Fall of Natural Man, 39, 47–48.
- 24.
Pagden, The Fall of Natural Man, 94–97.
- 25.
Pagden, The Fall of Natural Man, 82.
- 26.
Regarding the debates in Spain over “the nature of Indians,” Elliott writes: “Although the words ‘beast’ and ‘bestial’ figured predominantly in the debate, the critical point at issue was not the humanity of the Indians per se, but the exact degree of humanity with which they could be credited. Could the Indians really be regarded as men, in the full sense of the word as understood by sixteenth-century Europeans, or were they in some, or indeed in all, respects defective human beings—sub-men perhaps, requiring special treatment appropriate to their status?” Elliott, John Huxtable. “The Discovery of America and the Discovery of Man.” In Facing Each Other: The World’s Perception of Europe and Europe’s Perception of the World, ed. Anthony Pagden (Aldershot; Burlington, VT: Ashgate Publishing Limited, 2000), 165; my own emphasis.
- 27.
Pagden, The Fall of Natural Man, 165.
- 28.
Pagden, The Languages of Political Theory, 85.
- 29.
Anthony Pagden, “The Savage Critic: Some European Images of the Primitive,” The Yearbook of English Studies 13 (1983): 39.
- 30.
Pagden, The Fall of Natural Man, 85.
- 31.
Pagden, The Languages of Political Theory, 90. On Sepúlveda’s disagreement with Vitoria, see Daniel R. Brunstetter, “Sepúlveda, Las Casas, and the Other: Exploring the Tension between Moral Universalism and Alterity,” The Review of Politics 72 (2010): 417: “Sepúlveda was aware of arguments circulating about the dominium of the Indians, such as those articulated by Vitoria. As Leopold asks: ‘how could it be that other theologians of great renown deny … the theory of subduing under their authority those pagans living in regions where neither the Roman Empire nor the name of Christ ever penetrated … [because] being an infidel is not a sufficient cause to wage war at the limits of injustice and to deprive the infidels of their goods?’ Sepúlveda does not necessarily disagree with this argument, but he insists that those who violate the natural law differ from ordinary pagans. In the margin of the Codice A of the Democratus Secundus attributed to Sepúlveda’s hand, Sepúlveda makes a note referring to the ‘mistaken’ arguments of Vitoria regarding the dominium of the ‘irrational’ barbarians.”
- 32.
The four categories are: (1) an individual having temporarily lost his reason; (2) a community whose language is insufficient for establishing community and social organization; (3) the barbarian simpliciter, a rare monstrous creature; (4) non-Christians. Las Casas spends a significant amount of time on the second criteria: although the autochthonous languages were indeed seen as lacking, the “Indians” were still “in full possession of a rational soul” and thus, able to live socially. The fourth type would apply, yet, the Native Americans can become Christians, Las Casas consider them as a “younger race” in need of evangelization. Being barbarian in the sense of non-Christian does not allow the waiving of their rights. (Chapters CCLXIV and CCLXV in the Apologetic History of the Indies commented for instance in Chapter 7 in Pagden, The Fall of Natural Man, 119–145, and in Brunstetter, “Sepúlveda, Las Casas, and the Other,” 422–423.)
- 33.
Neither Vitoria’s nor Las Casas’ “defenses” of the Indians should be misinterpreted as a general respect for fellow human beings, indiscriminately of race, religion or social status. While both authors refused to characterize as barbarous Indigenous Americans, they had no problem doing so for Africans or the “Mahometans.” Las Casas went as far as advocating the importation of African slaves to ease the burdens of the Indians. Pagden, The Fall of Natural Man, 32.
- 34.
Pagden, European Encounters with the New World, 79.
- 35.
Brunstetter, “Sepúlveda, Las Casas, and the Other,” 413.
- 36.
Pagden, The Fall of Natural Man, 92.
- 37.
Idem.
- 38.
Montaigne’s essay On Cannibals is the first and archetypical use of the “savage critique” in its American version—the expression is used by Anthony Pagden to study the figure of the savage in eighteenth-century literature. Pagden, “The Savage Critic: Some European Images of the Primitive,” 32–45. Michel de Montaigne, Les Essais, Vol. I (Paris: Gallimard, 2006), 300–314.
- 39.
Montesinos was a Dominican priest who, in 1511, delivered a sermon to the Spanish population of Hispaniola denouncing them for their treatment of the Indians and warning them, that if they did not mend their ways, they would no more be saved than the Moors or the Turks. Pagden, The Fall of Natural Man, 31.
- 40.
Pagden, The Fall of Natural Man, 107.
- 41.
Pagden, The Fall of Natural Man, 27.
- 42.
Charles Taylor, Modern Social Imaginaries (Durham, NC: Duke University Press, 2004), 23; my own emphasis.
- 43.
Taylor, Modern Social Imaginaries, 25.
- 44.
Taylor, Modern Social Imaginaries, 22.
- 45.
Idem.
- 46.
Taylor compares his “extended” notion of social imaginary to that of “background” (Dreyfus, Searle) and goes on: “it is in fact that largely unstructured and inarticulate understanding of our whole situation (…)” Taylor, Modern Social Imaginaries, 25.
- 47.
Taylor, Modern Social Imaginaries, 26. Taylor is always concerned with the way minority positions and elite practices and views spread to the rest of society (see A Secular Age). These issues of diffusion are not as apparent in other authors; Michel Foucault, in his analyses of discourse and genealogies, may be falling pray to a more traditional model of domination (at least in this precise area). On the other hand, Taylor might be overestimating the primacy and influence of elites. One question that is not explicitly dealt with by Taylor is as follows: why would elites desire to spread their ways of life and moral commitments to the rest of society? Is it purely instrumental—the fostering of nascent capitalism? Is it material—the social broadening of the elite? Or is it stemming from a novel sense of community, relying on the homogenizing figure of Man—going back to Foucault here? An elite, by definition, should desire, after all, to be “special” and constantly seek increased differentiation. What would the behavior of the commoners affect them whatsoever? Taylor attempts to answer this type of questions in relation to religious practices in his much larger opus A Secular Age (Cambridge, MA: Harvard University Press, 2007).
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Martens, S.B. (2016). Unsettling New World: Scholastic Approaches to the Americas. In: The Americas in Early Modern Political Theory. Palgrave Macmillan, New York. https://doi.org/10.1057/978-1-137-51999-3_3
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