Colonial Law

COLONIAL LAW. - The moral and juridical aspect of the colonial question began to attract the attention of Catholic theorists as early as the 16th century, when the discovery of the New World, and the consequent occupation of those territories by the Spanish conquerors, imposed it not only on the meditation of the missionaries, who had moved to the lands beyond the ocean, but also on the theologians and moralists of the time. The deeds of Las Casas and his heroic struggle against the abuses of the colonizers, to which the other religious Orders associated themselves, the counter-maneuvers and the dissertations of court canonists, such as, for example, a Supelveda, aroused in Spain ardent controversies, through which little by little certain principles came to be clarified, which still today serve as the basis of colonial law.

The first and best-known forerunner of this was the Dominican Francisco de Vitoria, professor of theology at the University of Salamanca. In his Relectiones Theologicae, he had the great merit of setting out the question for the first time in a strictly scientific manner, freeing it from all the passionate influences that obscured its solution. The central problem with which he deals in the Relectio de Indis concerns the legitimacy of the Spanish conquest, but he treats it in such a way as to transcend the particular case to the eternal sphere of law.

For Vitoria, colonization, insofar as it is the conquest of new territories and the subjugation of peoples previously independent, is nothing other than an aspect of the problem of just war, and must therefore be resolved according to the moral and juridical principles that regulate relations among nations according to the law of nations. The fundamental ideas on which he bases his treatment of the particular case of colonial expansion are: the natural equality of all peoples, independently of their degree of civilization; the insufficiency of every social grouping to suffice for itself; the existence of a universal society extending to the whole inhabited world.

Supported by this idea, he does not absolutely condemn every territorial annexation, but, applying to the colonial case the general norms on which the justice and injustice of war rest, he admits only that which is supported by a just cause. He therefore distinguishes into two series the titles that can be alleged in favor of colonization: false ones, which he confutes and rejects, and true ones, which he admits, establishing their moral and juridical foundation.

The negative part of his treatise is not of great theoretical importance. Most of the arguments, adduced in their time in favor of the occupation of the newly discovered lands, were derived from special politico-juridical doctrines of the era and from prejudices and accidental facts. Some of them were, in fact, connected with political and religious prejudices, such as, for example, the dominion of the emperor over the whole world, the universal right of the Pope over all lands known and unknown, the refusal of the barbarians to accept the faith, sins against the natural law. Others were founded on a false presupposition, such as that which held the populations of the New World to be deprived of the right of property over the lands occupied by them and over the goods they possessed; others, finally, bore every appearance of truth, such as the title of discovery and the voluntary choice of the natives.

Vitoria rejects the first with a scornful phrase; with respect to the second, he states precisely that the backward populations were to be considered as true owners; in the third he distinguishes the abstract aspect from their application, or destroys their basis. In the abstract, he says, every people is free to unite itself to another by a contract of submission; in concrete terms, however, such a transaction between the barbarians and the Spaniards, had it occurred, could not have produced a juridical effect, since it lacked two of the presuppositions for the validity of every true contract: the full freedom of the contracting party and the awareness of the proximate and remote effects of the act. He then excludes the title of discovery, appealing to the principle of equality on which relations among independent peoples are founded. The Spaniards, he affirms, have as much right to occupy the lands discovered by them and to subject the related populations to their dominion as these would have had if they had discovered Spain.

Indirectly he thus succeeded in establishing certain general principles. The propagation of the faith and the intent to put an end to crimes against nature do not legitimize a colonial expansion; backward peoples enjoy a true right of property, which civilized nations must respect; the contract of submission is valid only in the case in which it is made in full freedom and with full awareness; the natives possess the same fundamental rights as other peoples.

This enduring part of his doctrine receives a magnificent integration in the discussion of the titles he regards as legitimate. According to Vitoria, a legitimate title can derive solely from a right that has been violated, and he therefore sets out in search of those universal rights whose violation can generate in the offended party the faculty to demand from the offender reparation and to inflict a penalty on him, in the extreme case, with the use of force, to the point of depriving him of his independence. Such universal rights are: free transit and free exchange, which he deduces from the natural human sociability, by virtue of which every man has the right to communicate with others, to travel in their territory and to establish domicile there, and from the original destination of the goods of the earth to the utility of the whole human race and the consequent obligation of peoples to exchange the products of the soil.

What should the Spaniards do, Vitoria asks, if the rights of free transit and domicile, of traffic and exchange were unjustly violated by the Indians? The Spaniards, he answers, should first demand reparation through persuasion; if, however, they should not succeed in obtaining it, they may use force, occupying the territory and dispossessing its possessors.

Besides these legitimate titles he admits two others, remaining however doubtful with respect to the validity of the second. The first consists in the salvation of the innocent, unjustly deprived of their natural rights and sacrificed in religious rites and barbarous customs, and it is supported, consistently with the general doctrine, by the wrong done to the life of the weak, for whose defense the order of nature charges one's neighbor, when these cannot defend it by themselves. He remains doubtful, on the other hand, with respect to the title that may be called that of civilization. He concedes a certain value to the argument, if the Indians were so barbarous as to be comparable to children incapable of governing themselves and of providing for their own needs. Nevertheless he cannot bring himself to concede to civilized peoples a strict right to use force, to make them accept civilization, and he inclines to appeal to a duty of charity, by virtue of which the civilized people could take the child people under its tutelage, in order to educate it: a tutelage to be exercised exclusively for the advantage of the savage population and in the strict measure of need. Thus Vitoria anticipated by some centuries one of the most modern institutions of international law, the mandate and trusteeship.

The principles set forth thus far do not change in the subsequent doctrinal elaboration. Only one advance is noted with respect to the title of civilization in Suárez, according to whom, for such a motive to be considered valid, it is not enough to judge a nation inferior in intellect and civilization, but it would have to be so wretched that its members live more in the manner of beasts than of men. To require such conditions for the validity of the title means in practice to deny them; but even on the speculative plane he acknowledges only some value in the supposition that among backward peoples there occur killings of innocent men and similar misdeeds.

In more recent times Taparelli adopted the same solution. In contrast with the opinion of Grotius, he maintains that enormous crimes against natural honesty cannot by themselves generate the title of intervention: he discusses the motive of civilization, taking occasion from the theory of Damiron, according to whom the wiser peoples would have the right to intervene in the life of childlike peoples, in order to teach them to govern themselves well. He rejects this theory sarcastically, relying on the already known principles of the natural equality of all independent peoples and of the absence, in the case contemplated, of a juridical foundation that would legitimize the use of force. Society defends order with force when it is a matter of strict justice; but when it is a matter of its own perfection, one is outside the field of strict justice, since individuals are not so rigorously obliged to perfection that they wrong others if they do not strive toward it.

As can be gathered from the schematic picture traced, Catholic doctrine from Vitoria to Taparelli continued to consider colonial expansion as an aspect of the more general problem of just war, and in conformity with this attitude of its own it went in search of the moral and juridical motives from which the legitimacy of the act of occupying another's territory could be deduced. After Taparelli the question remained dormant, although the 19th century raised it again urgently in France and in Belgium, where an attempt was made with new titles, unknown to or rejected by the preceding tradition, to find a juridical basis for the accomplished fact of colonial conquest carried out by the European nations. The titles to which reference is made can be reduced to three: economic necessity caused by industrial progress, expropriation on account of common utility, and the civilizing of savage peoples. The first two are new; the last had long since received a broad and careful treatment.

The supporters of the first title start from a twofold state of fact. On the one hand, the enormous need for raw materials in the industrialized nations and the consequent necessity of having commercial outlets; on the other, the immense natural reserves lying idle in countries inhabited by populations with a primitive economy. From this twofold fact arises the problem, resolved in the affirmative by some, whether peoples with a progressive economy may take possession of these sources of raw materials, in order to proceed to their adequate exploitation, for the benefit of humanity. The argument by which an attempt is made to found such an affirmative solution is derived from the principle, already established by Vitoria, of the original destination of the goods of the earth to the benefit of the whole human race, and from the concept deduced from it, that man would not be a true owner but a usufructuary. It has been pointed out, however, that the conclusion does not follow from the premises. In the first place, it is not accurate to define man as a simple usufructuary, since he has over the goods connected with his person and with his ends a true right of property, something different from usufruct; although its exercise remains subordinate to the prescriptions of the supreme master, God. Before God man is an administrator; before his equals he is a true owner, whose right cannot be infringed unless a higher and stronger right cancels it, restoring to the possessed good the nature of a common good, as it had originally. Now the right of nations with a progressive and strongly industrialized economy, even if it can be recognized as a right, is not such as to overcome the right of property of backward peoples, since the improvidence of such nations in allowing industrialism to develop beyond the limits permitted by their internal possibilities cannot be adduced as a sufficient reason for taking possession of the raw materials in the possession of others. Modern industrialism, moreover, rests upon an economic system intrinsically flawed, such as the capitalist one.

The second title, which applies to international relations the principle of expropriation on account of public utility, does not present itself as any better founded than the preceding one. The principal error into which whoever supports it falls consists in the illegitimate transfer of a norm valid in organic society to inorganic society, such as the international one. Within the State, public necessity legitimizes the intervention of the constituted authority in private property and even expropriation; in international society, however, since no central authority exists, States stand facing one another as equal subjects bound by duties that derive solely from commutative justice and not from legal justice, which does not exist. Just as it would be absurd to affirm that an individual may despoil another of his goods because he leaves them idle, so it would be absurd to maintain that civilized peoples have the faculty to expropriate barbarian peoples of the territories they do not exploit. To weaken still further the force of the argument there is added an equivocation. It is supposed that such goods, once expropriated, will benefit humanity. The abstractness of such a supposition is evident, since colonial wealth goes solely to the benefit of the nation that holds dominion over it, and not to the benefit of the hypothetical humanity, unless indeed one wishes to identify humanity with this or that civilized nation.

Greater consensus is won today by the title of the civilizing of backward peoples, although strong oppositions are not lacking. All agree in admitting that there exists among progressive nations the duty of offering help to barbarian peoples, so that they may raise themselves to a higher degree of civilization. The disagreement manifests itself as irreconcilable when one passes to the determination of the nature of this duty, held by some to be a pure duty of charity, in conformity with the preceding tradition, and by others instead connected with a strict right. Whoever continues to hold that civilized nations have only a duty of social benevolence denies the existence of the right to employ force in order to break down the barriers that might stand in the way of the expansion of civilization. Whoever, on the other hand, attributes to such nations a strict right admits not only the legitimacy of the use of force, but must also slide toward the recognition of its obligatory character, in the case of unreasonable and unjustified resistance on the part of the peoples to whom it is intended to bring the benefit of a higher degree of culture.

To this second opinion a good number of theorists adhere today. To overcome, however, the difficulty that would arise if colonization continued to be considered as an aspect of the problem of just war, they incline to innovate in this matter upon traditional doctrine, conceiving it as a dilation of good, carried out by individual nations in the name and on behalf of international society. But it must be observed that, if colonization in its second moment can be regarded as a dilation of good, it is difficult to conceive it simply as such in its first moment, which consists in the violent conquest of another's territory, and it is therefore impossible to detach it, as is wished, from the general problem of just war. In this the ancient theologians and moralists saw better, and they moreover had the merit of not allowing themselves to be led astray by reasons that are apparently luminous but in reality unsound. Such is, for example, the supposition that attributes colonization to a mandate received from the solidary society of peoples. A fictitious conception, so long as such a society remains in an organic state, and dangerous because in the final analysis it abandons to the subjective estimation of each people the interpretation of the nonexistent universal will of international society.

Be that as it may, since the attempt to depart from the furrow of tradition proves vain, the question reduces to seeing whether backward peoples have or have not a strict duty to progress, to which there would correspond in civilized nations a true right, which could be considered violated if those peoples do not provide for their own progress. Once the question is posed in these terms, the negative solution seems the more probable. The duty to attain a certain degree of perfection, not having by its nature a bilateral reflection, does not enter the field reserved to justice, and for that very reason does not generate in others a right of demand, which could give rise to an offense upon which the faculty of using force could in some way be founded, in order to punish the transgressor, even to the point of depriving him of his independence.

One last title still under discussion is that which is founded on the extreme necessity of life, determined by the excess of population over the food and productive resources of an overpopulated country, which is unable to feed its children adequately or to procure for them sufficient work to earn the means indispensable to existence. Speculatively, it does not seem that the value of the argument can be denied. Just as in individual relations extreme necessity confers upon the indigent the right to take the good that is indispensable to him to overcome it, so in international relations, if ever all the conditions of extreme necessity of life were to be realized, the indigent people would a fortiori have the same right, inasmuch as the life of a collectivity is in the objective order more important than the physical life of an individual. Nevertheless such a right, certainly valid on the speculative plane, remains surrounded by so many and such limitations that in practice it proves more abstract than concrete. Against its validity it has been objected that the solution of a case of vital necessity, caused by an excess of population, should not be resolved by colonial expansion, but by emigration, a very convenient valve for allowing the portions that the country cannot feed to flow out. But the objection does not seem sound, since for it to be valid it would have to be demonstrated that the overpopulated nation is obliged to choose the means of emigration, with the losses that it entails, whereas there exist sparsely populated lands and natural resources unexploited for lack of hands.

From what has been summarily set forth it appears how the matter is still in a fluid state, the theorists not yet having succeeded in reaching agreement on certain essential points, in order to construct an organic system of colonial law. The partial abandonment of the moral and juridical tradition, which extends from the time of Vitoria to Taparelli, has been a cause of bewilderment. Perhaps the right path may be entered by returning to the principles already laid down by the theologians and moralists of the 16th century, to whom belongs the great merit of having founded modern international law.

Antonio Messineo