Francisco de Vitoria on the ius gentium and the American indios.

• Author: Salas, Victor M., Jr.

INTRODUCTION

In reading through the relections (1) of Francisco de Vitoria (c. 1483-1546), one easily conjures up the image of an author who is quintessentially Scholastic--an even-tempered and dispassionate intellectual who treats all questions with equanimity and is swayed only by the exigencies of reason itself. (2) Yet, in a letter sent to his religious superior that addresses the Spanish confiscation of Peruvian property, a clearly disgusted and horrified Vitoria reacts passionately against the Spaniards' actions and urges his superior, Miguel de Arcos, O.P., to have nothing to do with the matter. The calm and serene mood characteristic of Vitoria's relections is replaced with fury and outrage. "I must tell you, after a lifetime of studies and long experience," the Dominican writes, "that no business shocks me or embarrasses me more than the corrupt profits and affairs of the Indies. Their very mention freezes the blood in my veins." (3) Registering his contempt of the situation in the New World, Vitoria came to the defense of the American Indians in the only way he could, as a Scholastic, as an academic wielding the rich resources of the Catholic intellectual tradition in an effort to identify the intrinsic dignity of all peoples, a dignity that, in the territories of the New World, was being grossly and unjustly violated. Central to the Salamancan theologian's defense of the native peoples would be a theory of rights spelled out against the backdrop of the "natural law" and guaranteed to all persons according to the precepts of the "law of nations" or ius gentium. In this Article, I shall examine the picture of the ius gentium that emerges in Vitoria's relections and argue that, despite his appeal to traditional understandings or accounts of the ius gentium, Vitoria marks a significant development in human rights and international law as occasioned by the situation in the New World.

Perhaps the most salient works in which Vitoria's account of the ius gentium comes to light vis-a-vis the plight of the American Indians are his De Indis and De iure belli. In both works, Vitoria's arguments clearly come down on the side of the natives, highlighting their intrinsic dignity precisely as persons and consequently their right to dominium, that is, the right to self-governance, ownership of property, and moveable goods, etc. The first work, De Indis, develops an account of personal rights based on natural law that, by means of the law of nations, could be extended even to the Amerindians. These rights, as Vitoria understands them, follow upon the natives' human nature such that neither the Spanish crown nor the Papacy could suppress those rights except under the circumstances of a just war, and even then only with restraint and moderation. (4) The second work, De iure belli, picks up where the former relection leaves off and identifies the conditions under which a war could be justly waged, conditions that, relatively limited in themselves, are, according to Vitoria, wholly lacking in the Indies. In short, despite the subtlety and complexity of Vitoria's arguments, their conclusion is a relatively simple one: the Spanish conquest of the New World, at least as it was being realized at the time, was morally unjustifiable, and the evangelical counsel to "[g]o, therefore, and make disciples of all nations," (5) far from being advanced, was being egregiously compromised.

1. THE IUS GENTIUM: HISTORICAL BACKGROUND

   Interestingly--and perhaps somewhat ironically--the only justification to be had for a war against the American Indians, according to Vitoria, would be that provided by the ius gentium, the violation of which could be grounds for war. (6) What, then, is this ius gentium or "law of nations"? What are its precepts and contents? How is it derived, and what serves as its ground? In his relections, Vitoria is none too clear about any of these questions and, apart from frequent allusions to the "law of nations," he never articulates an explicit or fully worked out account of the ius gentium but instead, takes it as a given. Still, this is no great or even minor oversight on his part. If Vitoria does not answer the questions we now pose to him, it is because in actuality he is answering an entirely different set of questions arising from his own time, questions such as: how (if at all) can the ius gentium be deployed to address the situation in the New World, and what would such a deployment imply about personal rights?

   The questions that we are asking had already been answered in one form or another within the long tradition of legal theory that reached back through Thomas Aquinas, Gratian's Decretum, Isidore of Seville, Roman jurists such as Gaius, and even more remotely to Greek antiquity, a massive tradition to all of which Vitoria was heir. Considering Gaius, for instance, and his foundational Institutes, we find one of the great cornerstones of this tradition. Gaius opens the Institutes with a distinction that would run in one fashion or another throughout all medieval and scholastic accounts of law, namely, the distinction between the law of nations--taken in its broadest sense to refer also to ius naturale--and civil law. He writes:

   The rules established by a given state for its own members are peculiar to itself, and are called jus civile; the rules constituted by natural reason for all are observed by all nations alike, and are called jus gentium. (7) Important for our purposes, we see that Gaius identifies the ius gentium with reason's proper function in the realization of its own human nature, a nature that exists universally in every state or nation. As such, the ius gentium, on Gaius's view, is distinct from civil law since the latter responds only to the particularities of diverse customs and civic traditions. Though the headings under which the medievals located different forms of law would differ from Gaius, the basic division of law into that which follows from nature and...