Steven Newcomb

Theologian Francisco de Vitoria and International Law

In his groundbreaking work Imperialism, Sovereignty, and the Making of International Law (Cambridge, 2004), law professor Antony Anghie provides a detailed analysis of the ideas of theologian Francisco de Vitoria, who lectured at Salamanca University in the mid-1500’s, and whom some scholars have called “the father” of modern international law.

In the chapter “Francisco de Vitoria and International Law” Anghie points out that Vitoria dealt with such topics as divine and natural law, sovereignty and culture, particularism and universalism. With these elements Vitoria conceptualized an international jurisprudence, and in the context of that thinking Vitoria treated idealized Spanish practices as “universally binding,” and hence binding on the Indians.

Anghie says that “Indians are excluded [by Vitoria] from the realm of sovereignty, and Indian resistance to Spanish incursions becomes aggression which justifies the waging of a limitless war by a sovereign Spain against non-sovereign Indians.“ The “crucial issue,” according to Anghie, is the basis of the decision that the Indians were not sovereign: “Vitoria bases his conclusions that the Indians are not sovereign on the simple assertion that they are pagans.” In other words, Vitoria’s judgment was that the Indians were not sovereign because they were not Christians.

At one point, Professor Anghie refers to Vitoria’s thinking as “insidious.” At the outset of his lectures, Vitoria had refused to accept as valid the argument that the Indians were lacking of certain rights under divine law “because they are heathens.” However, Vitoria then switched to a framework of jus gentium, which he equated with the cultural, religious, and economic practices of the Spanish. Within the framework of jus gentium, Vitoria used the exact religiously based argument he had rejected within a framework of divine law.

On the basis of the jus gentium, argued Vitoria, war could be waged against the Indians for resisting Christian evangelization. “War is the means,” notes Anghie, “by which Indians and their territory are converted into Spaniards and Spanish territory, [war is] the agency by which the Indians thus achieve their full human potential.”

After arguing that the Indians had the capacity of human reasoning, and were therefore capable of understanding the jus gentium, Vitoria could then demonstrate that because the Indians do not follow Spanish norms they, as Anghie puts it, “inevitably and invariably violate jus gentium.” Vitoria concluded that the Indians were thus “denied the status of the all-powerful sovereign who administers this law [of jus gentium].”

Where does this analysis leave us? The judgment that the Indian world “was not sovereign” resulted in the ability of the Christian European world to create for itself…the grand redeeming project of…civilizing the uncivilized.” It created for itself, in other words, the grand project of dominating the un-dominated.

Anghie envisions the possibility of one day developing “an alternative history” that “may be written by adopting a different framework and posing a different set of questions.” In my view, that alternative framework is the structure of domination and subordination. Anghie seems to be zeroing in on the same target for he asks:

How did a limited set of ideas which originated in Europe present themselves as universally applicable? How, armed with these concepts, did European empires proceed to conquer and dominate non-European territories? [Emphasis added.] How does resistance to colonialism…become a further justification for imperialism?

What Anghie calls “the great civilizing mission” is what I prefer to call the great dominating mission. What our Original Nations of this hemisphere have been contending with for centuries is the great mission of domination and its corollary dehumanization.

On what basis did it first come to be assumed that the free and independent world of our Original Nations was subject to the judgments and interpretations of Christian European thinkers such as Vitoria, or in other words that our free ancestors were supposedly subject to Christian European mental constructs? One answer is, “because our ancestors were neither Christians nor Europeans.”

A further answer is that through the centuries the Christian Europeans have cleverly woven the presumption of their own superiority into narratives and ‘legal’ opinions that have continuously constructed and maintained the perpetual assumption of their own superiority (dominance).

An example is a key sentence from the 1823 U.S. Supreme Court ruling Johnson v. M’Intosh ruling. To paraphrase: “The character and religion of” the Indians provided a basis for considering them to be “a people over whom the superior genius of Europe might claim an ascendency [a dominating position of supremacy]. “

Our next step is to powerfully develop and express the view that the original Christian European claim of a right of domination was never legitimate to begin with, and thus provides no legitimate basis today for claiming authority or “plenary power” over the Originally Free Nations of Turtle Island.

Steven Newcomb, Shawnee/Lenape, is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008).

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Theologian Francisco de Vitoria and International Law

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