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 Spanish conquerors imposed it not only upon the meditation of the missionaries who had transferred 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, joined by the other religious Orders, the counter-movements and dissertations of the court canonists, such as, for example, Sepúlveda, aroused heated controversies in Spain, through which certain principles gradually became clarified, principles which still today serve as the basis of colonial law.
The first and best-known forerunner in this field was the Dominican Francisco de Vitoria, professor of theology at the University of Salamanca. In his *Reflectiones Theologicae*, he earned the great merit of addressing 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 involves the conquest of new territories and the subjugation of previously independent peoples, 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 govern relations between nations according to 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, regardless of their degree of civilization; the inadequacy of any social grouping to suffice unto itself; and the existence of a universal society that extends to the entire inhabited world.
Grounded in this idea, he does not absolutely condemn every territorial annexation, but, applying to the colonial case the general norms upon which the justice or injustice of war rests, he admits only that which is supported by a just cause. Thus he distinguishes in a twofold series the titles that may be alleged in favor of colonization: false titles, which he refutes and rejects; and true titles, 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 advanced at the time in favor of the occupation of newly discovered lands were drawn from the special politico-juridical doctrines of the era and from accidental prejudices and facts. Some of these were tainted by 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 known and unknown lands, the refusal of barbarians to accept the faith, and sins against the natural law. Others were based on a false premise, such as the belief that the populations of the New World lacked the right of property over the lands they occupied and the goods they possessed; still others had the appearance of truth, such as the title of discovery and the voluntary submission of the natives.
Vitoria dismisses the first group with a scornful phrase, precisely addresses the second by affirming that backward populations were to be considered true owners, and distinguishes in the third group the abstract aspect from their application or undermines their basis. In the abstract, he says, every people is free to unite with another through a contract of submission; in concreto, however, such a transaction between barbarians and Spaniards, if it had occurred, could not have had legal effect, lacking two of the prerequisites for the validity of any true contract: the full freedom of the contracting party and the 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 between independent peoples are founded. The Spaniards, he asserts, have no more right to occupy the lands they discovered and to subject the native populations to their dominion than these latter would have had if they had discovered Spain.
In this way, he indirectly established some general principles. The propagation of the faith and the intention to put an end to crimes against nature do not legitimate colonial expansion; backward peoples enjoy a true right of property, which civilized nations must respect; the contract of submission is valid only when made with full freedom and full awareness; and natives 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 considered legitimate. According to Vitoria, a legitimate title can derive only from a violated right, and thus he proceeds to investigate those universal rights whose violation may grant the offended party the faculty to demand reparation from the offender and, in the extreme case, to inflict punishment upon him, even to the point of depriving him of his independence. These universal rights are: free transit and free trade, which he deduces from the natural sociability of man, 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 earthly goods for the utility of all mankind, and the consequent obligation of peoples to exchange the products of the soil.
What, then, should the Spaniards do, Vitoria asks, if the rights of free transit, domicile, trade, and exchange were unjustly denied them by the Indians? The Spaniards, he replies, must first seek reparation through persuasion; if, however, they fail to obtain it, they may resort to force, occupying the territory and displacing its possessors.
In addition to these legitimate titles, he admits two others, though remaining doubtful about the validity of the second. The first consists in the protection of the innocent, unjustly deprived of their natural rights and sacrificed in religious rites and barbarous customs, and is supported, consistently with his general doctrine, by the wrong done to the lives of the weak, whose defense the order of nature entrusts to their neighbors when they cannot defend their own heads. He remains, however, doubtful about the title that may be called one of civilization. He grants the argument a certain value if the Indians were so barbarous as to be comparable to children incapable of governing themselves and providing for their own needs. Nevertheless, he does not concede to civilized peoples a strict right to use force to impose civilization upon them, and inclines toward appealing to a duty of charity, by virtue of which a civilized people might take a childlike people under its tutelage for their education: a tutelage to be exercised solely for the benefit of the savage population and strictly to the extent of necessity. Thus Vitoria anticipated by several centuries one of the most modern institutions of international law, the mandate and the trusteeship.
The principles so far expounded do not change in the subsequent doctrinal elaboration. Only one advance is 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 intellect and civilization, but it should be so wretched that its members live rather like beasts than like men. To require such conditions for the validity of the title is in practice to deny it; yet even in speculative terms he acknowledges only some value to the supposition that among backward peoples there occur killings of innocent men and similar crimes.
In more recent times TAPARELLI adopted the same solution. In contrast to 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 which the more prudent peoples would have the right to intervene in the life of infant peoples, to teach them to govern themselves well. He rejects this theory in a sarcastic manner, appealing to the principles already known of the natural equality of all independent peoples and of the absence, in the case under consideration, of any juridical foundation that would legitimate 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, it is outside the field of strict justice, since individuals are not so rigorously obliged to perfection as to wrong others if they do not strive for II.
As may be gathered from the schematic outline, Catholic doctrine from VITORIA to TAPARELLI continued to regard colonial expansion as an aspect of the more general problem of just war, and in conformity with this attitude it sought the moral and juridical motives from which the legitimacy of the act of occupying another’s territory might be deduced. After TAPARELLI the question fell dormant, though the 19th century revived it urgently in France and Belgium, where new titles, unknown or rejected by the previous tradition, were tried in order 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 may be reduced to three: economic necessity caused by industrial progress, expropriation on account of common utility, and the civilization of savage peoples. The first two are new; the last had long received ample and careful treatment.
The supporters of the first title proceed from a twofold state of fact. On the one hand, the immense need of raw materials in industrialized nations and the consequent necessity of having commercial outlets; on the other, the immense natural resources lying idle in countries inhabited by peoples of primitive economy. From this double fact arises the problem, resolved positively by some, whether peoples of advanced economy may seize these sources of raw materials in order to proceed to their adequate exploitation for the benefit of humanity. The argument on which this positive solution is sought to be founded is derived from the principle, already established by VITORIA, of the original destination of earthly goods for the benefit of all mankind, and from the concept deduced from it, that man would not be a true owner but a usufructuary. It has however been pointed out that the conclusion does not follow from the premises. In the first place, it is not accurate to define man as a mere usufructuary, since he has over goods connected with his person and his ends a true right of property, different from usufruct, though its exercise remains subject to the prescriptions of the supreme Lord, God. Before God man is an administrator; before his equals he is a true owner, whose right cannot be infringed unless a superior and stronger right eliminates it, restoring to the possessed good the nature of a common good as it had originally. Now the right of advanced and strongly industrialized nations, even if it can be recognized as a right, is not such as to prevail over the property right of backward peoples, since the improvidence of such nations in allowing industrialism to develop beyond the limits permitted by their internal possibilities cannot be adopted as a sufficient reason for seizing the raw materials possessed by others. Moreover, modern industrialism is based on an economic system intrinsically vitiated, such as the capitalist system.
No more solid is the second title, which applies to international relations the principle of expropriation on account of public utility. The main error into which its supporters fall consists in the illegitimate transfer of a norm valid in an organic society to that which is inorganic, such as the international one. Within the State public necessity legitimizes the intervention of constituted authority in private property and even expropriation; in international society, however, there being no central authority, States stand before one another as equal subjects bound only by duties deriving from commutative justice and not from legal justice, which does not exist. Just as it would be absurd to affirm that one 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
COLONIAL LAW – COLONIZATION
an equivocation. It is supposed that such goods, once expropriated, will benefit humanity. The abstraction of this supposition is evident, since colonial wealth goes solely to benefit the nation that holds dominion over it, and not to benefit hypothetical humanity, unless one wishes to identify humanity with this or that civilized nation.
Greater support today is given to the title of the civilization of backward peoples, though strong opposition is not lacking. All agree in admitting that there exists among advanced nations the duty to offer help to barbarian peoples, so that they may rise to a higher degree of civilization. The disagreement becomes irreconcilable when it comes to determining the nature of this duty, which some regard as a pure duty of charity, in conformity with the previous tradition, while others connect it with a strict right. Those who continue to hold that civilized nations have only a duty of social benevolence deny the existence of the right to use force in order to break down the barriers that might obstruct the spread of civilization. Those, on the other hand, who attribute to such nations a strict right not only admit the legitimacy of the use of force but must also slide towards recognizing its obligatoriness in 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.
A good number of theorists today adhere to this second opinion. To overcome the difficulty that would arise if colonization were still considered an aspect of the problem of just war, they incline to innovate upon traditional doctrine by conceiving it as an expansion of good carried out by individual nations on behalf of and by mandate of the international community. Yet it must be observed that while colonization in its second phase may be regarded as an expansion of good, it is difficult to conceive of it as such in its first phase, which consists in the violent conquest of another’s territory, and it is therefore impossible to detach it, as some would wish, from the general problem of just war. In this regard, the ancient theologians and moralists saw more clearly; they moreover deserve credit for not being misled by apparently luminous but in reality unsound arguments. Such, for instance, is the supposition that attributes colonization to a mandate received from the solidaristic society of nations. This is a fictitious conception so long as such a society remains in an organic state, and dangerous because it ultimately abandons the interpretation of the non-existent universal will of the international community to the subjective estimation of each people.
However this may be, since the attempt to break away from tradition proves vain, the question reduces to whether backward peoples have or do not have a strict duty to progress, to which there would correspond in civilized nations a true right that could be deemed valid if those peoples fail to provide for their own advancement. Framed in these terms, the negative solution seems the most 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 claim that could give rise to an offense upon which one might in some way base the faculty of using force, even to the point of depriving the transgressor of his independence.
A final title, still debated, is that based on extreme necessity of life, arising from an excess of population over the alimentary and productive resources of an overpopulated country that cannot adequately feed its children or provide them with sufficient work to earn the indispensable means of subsistence. Speculatively, the argument does not seem devoid of value. Just as in individual relations extreme necessity gives the indigent a right to take the goods indispensable for overcoming it, so in international relations, if one admits all the extremes of extreme necessity of life, the indigent people would a fortiori have the same right, inasmuch as the life of a community is objectively more important than individual physical life. Yet this right, certainly valid in speculation, is 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 to the case of vital necessity caused by population excess should not be sought in colonial expansion but in emigration, a very convenient valve for allowing the aliquots that the country cannot feed to drain away. But this objection does not seem solid, since to be such it would have to demonstrate the obligation of the overpopulated nation to choose the means of emigration, with the losses it entails, whereas there exist sparsely populated lands and natural resources unexploited for lack of labor.
From what has been briefly outlined, it appears that the subject is still in a fluid state, the theorists not yet having succeeded in agreeing on some essential points for constructing an organic system of colonial law. The partial abandonment of the moral and juridical tradition that extends from the time of VITTORIA to that of TAPPARELLI has been a cause of bewilderment. The right path may perhaps be found 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.