COLONIAL, LAW. — The moral and juridical aspect of the colonial question began to attract the attention of Catholic theorists as early as the sixteenth century, when the discovery of the New World and the consequent occupation of those territories by the Spanish conquerors imposed it not only upon the meditation of the missionaries who had transferred themselves to lands overseas, but also upon 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 joined themselves, together with the counter-manoeuvres and dissertations of court canonists, such as, for example, Supelveda, aroused heated controversies in Spain, through which certain principles were gradually clarified that still serve as the basis of colonial law.
Its first and best-known forerunner was the Dominican Francisco de Vitoria, professor of theology at the University of Salamanca. In his Relectiones Theologica, he had the great merit of framing 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 and enter the eternal sphere of law.
For Vitoria, colonization, insofar as it involves the conquest of new territories and the subjugation of peoples who had previously been independent, is merely an aspect of the problem of just war, and must therefore be resolved according to the moral and juridical principles governing relations among nations under the law of nations. The fundamental ideas upon 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 inability of every social grouping to suffice unto itself; and the existence of a universal society extending over the entire inhabited world.
Relying on this idea, he does not absolutely condemn every territorial annexation; rather, applying to the colonial case the general norms upon which the justice and injustice of war rest, he admits only that which is supported by a just cause. He therefore divides into two series the titles that may be alleged in favor of colonization: false titles, which he refutes and rejects, and true titles, which he accepts, establishing their moral and juridical foundation.
The negative part of his treatise has little theoretical importance. Most of the arguments advanced at the time in favor of occupying the recently discovered lands were derived from special political and juridical doctrines of the period, as well as from prejudices and accidental circumstances. Some of them were in fact connected with political and religious prejudices, such as, for example, the emperor’s dominion over the whole world, the Pope’s universal right over all known and unknown lands, the barbarians’ refusal to accept the faith, and sins against the natural law. Others rested on a false presupposition, such as the belief that the populations of the New World had no right of ownership over the lands they occupied and the goods they possessed. Others, finally, bore every appearance of truth, such as the title of discovery and the voluntary choice of the indigenous peoples.
Vitoria rejects the first with a contemptuous phrase; with regard to the second, he specifies that backward populations were to be regarded as true owners; and in the third he distinguishes their abstract aspect from their application, or destroys their basis. In the abstract, he says, every people is free to unite with another through a contract of submission; in practice, however, such a transaction between the barbarians and the Spaniards, had it taken place, could not have produced juridical effects, since two of the conditions required for the validity of any genuine contract were lacking: the full freedom of the contracting party and awareness of the immediate and remote effects of the act. He then excludes the title of discovery, appealing to the principle of equality upon which relations among independent peoples are founded. The Spaniards, he asserts, have as much right to occupy the lands they discovered and to subject the corresponding populations to their rule as those populations would have had if they had discovered Spain.
In this indirect manner he thus succeeded in establishing certain general principles. The propagation of the faith and the intention of putting an end to crimes against nature do not legitimize colonial expansion; backward peoples enjoy a genuine right of ownership, which civilized nations must respect; a contract of submission is valid only when concluded in full freedom and with full awareness; and indigenous peoples possess the same fundamental rights as other peoples.
This enduring part of his doctrine receives a magnificent complement in the discussion of the titles he regards as legitimate. According to Vitoria, a legitimate title can derive only from a violated right, and he therefore proceeds to seek those universal rights whose violation may give the injured party the power to demand reparation from the offender and, in the extreme case, to inflict punishment upon him by the use of force, even to the point of depriving him of his independence. These universal rights are free transit and free exchange, which he deduces from natural human sociability, by virtue of which every person has the right to communicate with others, to travel through their territory and establish domicile there, and from the original destination of the goods of the earth for the benefit of the whole human race, together with 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 trade and exchange, were unjustly violated by the Indians? The Spaniards, he replies, should first seek redress through persuasion; if, however, they failed to obtain it, they could use force, occupying their territory and dispossessing its owners.
In addition to these legitimate titles, he admits two others, although he remains doubtful about the validity of the second. The first consists in the salvation of innocent persons who have been unjustly deprived of their natural rights and sacrificed in religious rites and barbarous customs. This is supported, consistently with his general doctrine, by the wrong inflicted upon the lives of the weak, whose defense the natural order entrusts to their fellow human beings when they cannot defend themselves. He remains doubtful, however, regarding the title that may be called the title of civilization. He grants the argument a certain validity if the Indians were so barbarous that they could be compared to children incapable of governing themselves and providing for their own needs. Nevertheless, he cannot bring himself to grant civilized peoples a strict right to use force in order to make them accept civilization, and he inclines instead to invoke a duty of charity, by virtue of which the civilized people could take the childlike people under its protection in order to educate them—a protection to be exercised exclusively for the benefit of the savage population and strictly to the extent required by necessity. Thus Vitoria anticipated by several centuries one of the most modern institutions of international law: the mandate and trusteeship administration.
The principles set forth above do not change in the subsequent doctrinal development. Only one advance may be noted with regard 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 intelligence and civilization; rather, it would have to be so wretched that its members lived more like beasts than human beings. To require such conditions for the validity of the title is, in practice, to deny it; but even on the speculative level he recognizes some validity only in the supposition that the killing of innocent people and similar crimes occur among backward peoples.
In more recent times Taparelli adopted the same solution. In opposition to Grotius’s opinion, he maintains that heinous crimes against natural morality cannot, by themselves, generate a title to intervention. He discusses the motive of civilization, taking as his point of departure Damiron’s theory, according to which the wiser peoples would have the right to intervene in the life of childlike peoples in order to teach them to conduct themselves properly. He rejects this theory sarcastically, relying on the already familiar principles of the natural equality of all independent peoples and the absence, in the case under consideration, of a juridical foundation legitimizing the use of force. Society defends order by force when strict justice is at issue; but when its own perfection is concerned, one is outside the domain of strict justice, since individuals are not so rigorously obliged to perfection that they wrong others if they do not strive toward II.
As may be gathered from the schematic outline given here, Catholic doctrine, from Vitoria to Taparelli, continued to regard colonial expansion as an aspect of the more general problem of just war, and, consistently with this attitude, sought the moral and juridical grounds from which the legitimacy of the occupation of another’s territory might be deduced. After Taparelli the question was left
dormant, although in the 19th century it was urgently revived in France and Belgium, where attempts were made, by means of 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 referred to may be reduced to three: the economic necessity caused by industrial progress, expropriation on grounds of common utility, and the civilization of savage peoples. The first two were new; the last had long since received extensive and careful treatment.
Those who support the first title begin from a twofold state of affairs. On the one hand, there is the enormous need for raw materials in industrialized nations and the consequent necessity of finding commercial outlets; on the other, the immense natural reserves lying unused in countries inhabited by populations with primitive economies. From this twofold fact arises the question, answered affirmatively by some, whether peoples with advanced economies may seize these sources of raw materials in order to exploit them appropriately, for the benefit of humanity. The argument on which this positive solution is based derives from the principle, already established by Vitoria, that the goods of the earth were originally destined for the benefit of the whole human race, and from the concept deduced therefrom that man would not be a true owner but an usufructuary. It has nevertheless been pointed out that the conclusion does not follow from the premises. First of all, it is not correct to define man as a mere usufructuary, since he possesses a true right of ownership over goods connected with his person and his ends, 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 impaired unless a superior and stronger right nullifies it, restoring to the good possessed the nature of a common good, as it originally had. Now, the right of nations with advanced and highly industrialized economies, even if it can be recognized as a right, is not such as to overcome the right of ownership of backward peoples, since the imprudence of such nations in allowing industrialism to develop beyond the limits permitted by their internal resources cannot be advanced as a sufficient reason for seizing raw materials in the possession of others. Modern industrialism, moreover, rests upon an intrinsically defective economic system, namely the capitalist one.
The second title, which applies to international relations the principle of expropriation on grounds of public utility, is no better founded than the preceding one. The principal error committed by those who support it consists in the illegitimate transfer of a norm valid in organic society to inorganic society, which is what international society is. 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 before one another as equal subjects bound by duties deriving solely from commutative justice and not from legal justice, which does not exist. Just as it would be absurd to claim that one individual may strip another of his goods because he leaves them unused, so it would be absurd to maintain that civilized peoples have the power to expropriate barbarous peoples of territories they do not exploit. The force of the argument is weakened still further by an ambiguity. It is assumed that such goods, once expropriated, will benefit humanity. The abstraction involved in this supposition is evident, since colonial wealth benefits only the nation that controls it, and not the hypothetical humanity—unless, indeed, one wishes to identify humanity with this or that civilized nation.
The title of civilizing backward peoples now receives greater assent, although strong opposition is not lacking. All agree in admitting that advanced nations have a duty to assist barbarous peoples so that they may rise to a higher degree of civilization. Disagreement becomes irreconcilable when one proceeds to determine the nature of this duty: some regard it as a purely charitable duty, in conformity with the earlier tradition, while others connect it with a strict right. Those who continue to maintain that civilized nations have only a duty of social benevolence deny the existence of a right to use force in order to break through the barriers obstructing the expansion of civilization. Those, on the other hand, who attribute a strict right to such nations admit not only the legitimacy of the use of force, but must also move toward recognizing its obligatory character in the event of unreasonable and unjustified resistance by the peoples to whom the benefit of a higher degree of culture is intended to be brought.
This second opinion is today embraced by a considerable number of theorists. To overcome the difficulty that would arise if colonization continued to be regarded as an aspect of the problem of just war, they are inclined to modify traditional doctrine in this respect, conceiving of it as an expansion of the good, carried out by individual nations in the name and on behalf of international society. It must be observed, however, that, if colonization in its second phase may be regarded as an expansion of the good, it is difficult to conceive it simply in those terms in its first phase, which consists in the violent conquest of another’s territory, and it is therefore impossible to detach it, as is desired, from the general problem of just war. In this, the ancient theologians and moralists saw more clearly; they also had the merit of not allowing themselves to be misled by reasons that were apparently illuminating but in reality unsound. Such, for example, is the supposition that attributes colonization to a mandate received from the community of nations. This is a fictitious conception so long as that society remains in an organic state, and a dangerous one because it ultimately leaves to the subjective judgment of each people the interpretation of the nonexistent universal will of international society.
Be that as it may, given that the attempt to depart from the traditional path proves futile, the question is reduced to determining whether backward peoples do or do not have a strict duty to progress, corresponding to which civilized nations possess a genuine right, which may be considered violated if the former fail to 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, since by its nature it has no bilateral counterpart, does not enter the sphere reserved to justice, and therefore does not generate in others a right of claim that could give rise to an offense on which one might in some way base the power to use
force, in order to punish the transgressor, even to the point of depriving him of his independence.
Another still-debated title is that based 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 adequately to feed its children or to provide them with sufficient work to earn the means indispensable for existence. From a speculative standpoint, the argument does not seem to be capable of being denied validity. Just as in individual relations extreme necessity gives the indigent the right to take the good indispensable to overcoming it, so in international relations, if all the conditions of an extreme necessity of life were ever to occur, the indigent people would have, a fortiori, the same right, insofar as the life of a community is, in the objective order, more important than an individual’s physical life. Nevertheless, although this right certainly exists in theory, it remains surrounded by so many and such significant limitations that in practice it proves more abstract than concrete. Against its validity it has been argued that a situation of vital necessity caused by excess population should not be resolved through colonial expansion, but through emigration, a very convenient safety valve for allowing the quotas that the country cannot feed to flow out. But the objection does not seem sound, since, for it to be such, one would have to demonstrate the obligation of the overpopulated nation to choose emigration, with the losses that it entails, whereas there are sparsely populated lands and natural resources left unexploited for lack of labor.
From what has been briefly set out, it appears that the subject is still in a fluid state, since theorists have not yet succeeded in reaching agreement on certain essential points in order to construct an organic system of d. c. The partial abandonment of the moral and juridical tradition extending from the time of Vitoria to Taparelli has been a cause of disorientation. Perhaps the right path may be found by returning to the principles already established by the theologians and moralists of the sixteenth century, to whom belongs the great merit of having founded modern international law.