Imperfect Cosmopolis. Georg Cavallar

Чтение книги онлайн.

СКАЧАТЬ community at the heart of his innovative theory. Antonio Gómez Robledo appreciates Vitoria as the prophet of contemporary ius cogens norms and legal cosmopolitanism. Roberto Irigoyen claims that popular sovereignty, equality, the liberty of the peoples or communities, and international solidarity are the cornerstones of Vitoria’s theory.¹²

      Not all Spanish authors are enthusiastic (and often uncritical) fans of Vitoria. Seeing parallels between Sepúlveda and Vitoria, José Antonio Maravall seems to have been one of the first who argued that Vitoria provided an ideology of colonialism and early capitalist interests.¹³ At the same time, Vitoria has been appreciated outside Spain (and the Catholic world). James Brown Scott, for instance, praised Vitoria as the founding father of international law: ‘The corner-stone of Vitoria’s system was equality of states, applicable not merely to the states of Christendom and of Europe but also to the barbarian principalities in the Western World of Columbus.’ According to Scott, there are no traces of Eurocentric bias, just an all-embracing cosmopolitan attitude. ‘The international community is not a superimposed state; it is coextensive with humanity – no longer merely with Christianity.’¹⁴ And finally, there are those who offer mild criticism, aiming at some middle ground between enthusiasm and condemnation. Fernández-Santamaria appreciates Vitoria’s postulate of an international order, but holds that his universe is still Christian, denying the Amerindian communities true equality.¹⁵

      Who is right? Is Vitoria the cosmopolitan founder of modern international law, or just a biased Eurocentric accomplice of Western colonialism? Or is this the wrong question? Should we embark on the famous search for the ‘third way’? The main problem with Vitoria is that his key lecture ‘On the American Indians’ falls into two sections which seem to be incompatible with each other. In the first part, he claims that the Spaniards had no right to invade and conquer the territories of the ‘barbarians’.¹⁶ In the second part, Vitoria argues that the Spaniards had several ‘just titles’ to do so. A favourable interpretation of Vitoria shows that he succeeded at least in part to develop a concept of thin justice as impartiality, forming an uneasy relationship with his Christian, thick conception of the good.

      In the second part of his lecture, Vitoria developed four substantial arguments in favour of Spanish invasion: 1) the right of humanitarian intervention, 2) the right of hospitality, 3) the right to missionize, and 4) the argument based on the mental incapacity of the natives. The first two titles were conditional. Intervention was justified if acts of human rights violations such as cannibalism had actually occurred and if Spanish intervention was limited to the goal of helping the victims. Hospitality rights implied that Spaniards were not violent or unjust when visiting the natives. As Vitoria puts it, the Spaniards were allowed to visit the natives, so long as it was done without trickery or fraud and without inventing excuses to make war on them. But on these grounds, if the barbarians allowed the Spaniards to carry on their business in peace among them, the Spaniards could make out no more just a case for seizing their goods than they could for seizing those of other Christians.¹⁷

      Vitoria’s title based on the mental incapacity of the natives has received most attention in recent years. Here we have to keep in mind that Vitoria’s reasoning is merely hypothetical. He asserts that he mentions this title merely ‘for the sake of the argument’. In addition, he reminds us that even if we should wish to endorse the title, it is (again) a conditional one, as everything would have to be done ‘for the benefit and good of the barbarians, and not merely for the profit of the Spaniards. But it is in this latter restriction that the whole pitfall to souls and salvation is found to lie.’¹⁸ Vitoria admits that some natives ‘seem to us insensate and slowwitted’, even ‘foolish’. However, he quickly adds that this can be attributed to their ‘evil and barbarous education’. Vitoria engages in a balancing act, arguing that they are ‘like us’, that is, human beings, but also different at the same time. The differences are seen as a matter of degree rather than kind, and explained by reference to contingent historical factors such as education. ‘Even amongst ourselves we see many peasants (rustici) who are little different from brute animals.’¹⁹

      Vitoria’s main aim is to evangelize the natives and bring salvation to the unbelievers, and this implied that gross injustices were avoided in the first place. His framework is theological, based on a thick, Christian definition of the good life. In this respect it is wrong to assume – with Robert Williams – that Vitoria’s thinking is secularized. Vitoria writes about the Native Americans that ‘belief in Christ and baptism is necessary for their own salvation’.²⁰ The Spanish obligation to missionize is central. The right of ambassadors is closely connected with the right to preach Christianity. But Vitoria sees that a thin conception of justice is the necessary condition of a successful mission. The natives should get a real chance to ‘listen to peaceful persuasion about religion’, which in turn requires that ‘the Christian faith is set before the barbarians in a probable fashion, that is with provable and rational arguments and accompanied by manners both decent and observant of the law of nature, such as are themselves a great argument for the truth of the faith’, and this should be done ‘not once or in a perfunctory way, but diligently and observantly’.²¹ Spanish injustices make any genuine Christian mission impossible. Vitoria claims that Spanish behaviour or manners must conform to the standards of the law of nature. A thick conception of the good is part and parcel of a more fundamental thin concept of justice.

      There is a tension in Vitoria’s third section on the ‘just titles’ of the Spaniards. It revolves around two conflicting propositions: if the Spaniards had injured the Amerindians, the latter were entitled to expel them. The Amerindians had waged a just war. On the other hand, if the Spaniards had not injured them, they were entitled to defend themselves and their natural right of hospitality. They could wage a just war.

      Vitoria writes: ‘Since these travels of the Spaniards are (as we may for the moment assume) neither harmful nor detrimental to the barbarians, they are lawful.’²² The decisive part of the sentence is the one in brackets. May we really assume this? The resolution of the above dilemma rests on our judgment of the situation; moral principles do not help here. Throughout the third section, Vitoria points out that some of the just titles enumerated are only ‘possible’, that they ‘might’ or ‘could’ be legitimate. It is important to bear in mind that Vitoria is very careful in his assessment. He does not state bluntly that the titles are inapplicable, but comes close to it: it ‘appears’ that this is the case and, if so, then ‘the barbarians gave no just cause for war’, with the consequence that ‘the whole Indian expedition and trade would cease, to the great loss of the Spaniards’. Vitoria’s conclusion is that the Spaniards should do what cannot be wrong, that is, using the right of hospitality as specified and trading with the natives as equal partners, who ‘have a surplus of many things which the Spaniards might exchange for things which they lack’.²³ Vitoria does not feel sure about all of his arguments, and concludes that trade and hospitality, based on reciprocity and fair exchange, are the best remedies in the given situation.

      Why was Vitoria not more outspoken? Perhaps Vitoria found it imprudent to condemn the policy of the emperor in a public lecture. On 10 November 1539, after Vitoria had delivered his second lecture on the Native Americans, de Soto, the prior of his convent, received a letter from Emperor Charles V, demanding that the theologians hand in all material on the Indian question and stop writing or lecturing on it.²⁴ However, Vitoria was very outspoken in a letter to Miguel de Arcos, and revealed his personal attitude. Commenting on the conquest of Peru by Pizarro (1533), Vitora writes in a very emotional way that he is shocked by the events, and that the news of the massacre at Cajamarca and the execution of the Inca Atahuallpa ‘freezes the blood in [his] veins’. He points at the difficulties he encounters when speaking his mind: the conquistadores or peruleros, if criticized, ‘lose their temper’ and accuse Vitoria of heresy or of condemning the emperor and his policy. Vitoria’s arguments are rather straightforward. As the Peruvians had apparently never injured the Spaniards, they did not ‘give them the least grounds for making war on them’. The conquest was ‘butchery’, the natives were ‘most СКАЧАТЬ