Do Barbarians Have Rights? Part I

We might expect a man of eighty-eight, one who has lived through the worst of the twentieth century, to have a certain gloomy angst about the future of humanity and a reasonable doubt about our essential goodness. Such is not the case of Ladislas Orsy, S.J., the world renown professor of law at Georgetown University, who is here at Oxford University this term delivering a series of lectures on Francisco de Vitoria and the origins of international law. Father Orsy, mind you, is no naive idealist either. He has spent much of his time in recent years contemplating the events of the sixteenth century, in particular the ferocious clash of European power and Amerindian civilization in the new-old world(s) of the Americas.

The conquistadors, according to Orsy, did not think of themselves as brutish or ungentlemanly. Their systematic conquest of the Amerindians, in their minds, had rock solid philosophical, legal and theological justifications. The gist of their excuses, of course, was that the Indians were neither rational nor responsible and were therefore not really people; they were no-ones. Since ‘no one’ owned the land, the Spanish imperialists felt justified in claiming for their King what they had 'discovered.’ That this action may have had a heavenly mandate, according to the conquistadors, only bolstered its legitimacy. (If this argument sounds familiar, it’s precisely because it is so very common in history: See variations in Rhodes, Tojo, and Lebensraum, just for starters).  

Francisco de Vitoria, the sixteenth century Dominican and professor of philosophy at the University of Salamanca, thought that all of the conquistadors’ justifications were just so much nonsense. "Vitoria," says Orsy, "affirmed that the Indians were no less rational and free human beings than the Spaniards and they were therefore protected by the jus gentium, the law of the nations." Vitoria "then elaborated on the norms and demands of such an international order, advocating universal freedom of religion, theoretical and practical separation between political and spiritual authorities, right of the citizens to choose their government" and the right of autonomy for all countries, with a corresponding duty to cooperate with one another.

For these reasons, Orsy explains, Vitoria is rightly regarded as one of the fathers of modern international law. In fact, when one takes a good look at the charter of the United Nations, or at Pope Benedict’s address to the General Assembly last year, one discovers some remarkable similarities with aspects of Vitorian doctrine. For example, during his New York remarks the pope enthusiastically endorsed the "duty to protect,” the doctrine that when a state has grievously failed to protect its citizens from some sufficiently grave natural or man-made evil, the international community, with several important restrictions, is permitted (indeed obligated according to the pope) to intervene. The pope’s conception of this duty is not far from Vitoria’s own understanding of the criteria, character and duration of such an intervention, including the requirement that circumstances be sufficiently grave to override the presumption against intervention and that the consequences of intervention not be worse than the cause.

Now that's all very interesting--fine and good--according to Orsy, but in addition to looking at what Vitoria taught, we must also look at how he reached his conclusions because his method reveals something very important. Vitoria began his work, according to Orsy, not with ethereal philosophical concepts, but with empirical observation. To borrow a phrase from Christology, Vitoria began his analysis ‘from below’; he looked first to the individual human person and then to the political community, and then, through rational reflection on both, he drew conclusions and formed concepts; for instance, that the Amerindians were both rational and responsible human beings, with corresponding rights and duties. What is important about this method, according to Orsy, is that Vitoria's analysis, even at its most conceptual, was never divorced from human experience, particularly the experience of those most closely affected by his doctrines. The Vitorian method, according to Orsy, "reflects an unusual combination of sharp reasoning and close attention to human suffering."

In Orsy's judgment, too many moderns use the inverse method. In other words, modern philosophers and legal scholars tend to philosophize ‘from above’ and in their pre-occupations with the internal coherence of their ideas, or the narrow grammatical exegesis of law, they lose sight of the very reason law exists in the first place: to safeguard the rights and dignity of the human person, not as he or she exists in some imagined platonic form, but in the real world. Orsy argues we must recover a Vitorian method of philosophizing from below, marrying reason to lived experience, in order to develop sensible, real and effective laws.

Here is where Orsy's mildly astonishing optimism shines through: In the face of staggering injustice and violence, Orsy, like Vitoria, still has some faith in the power of human reason, married to empathy, to formulate moral and just positive laws. In the main, I tend to share in this optimism, but it does invite an unsettling question: if we can do it, why so often do we not? And even when we are able to do it, what accounts for the monumental gap between our stated ideals and our ordinary behaviour? Big questions. I hope to stammer toward an answer in my next post.

Matt Malone, S.J.

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Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
Murali Karamchedu
8 years 11 months ago
I wish to thank you for this instructive article. These notions of pseudo-moral/pseudo-theological/pseudo-legal arguments as a social basis for defending the dehumanization and destruction of entire peoples seems to have had more recent echoes, even within the last 100 years; where pseudo-science replaced pseudo-theology, and biological determinism was the basis for rampant discrimination against entire ethnicities. The studies of Stephen Jay Gould, such as the 'Mismeasure of Man', shed light on how easy it is to press into service seemingly rational (and blatantly fraudulent) arguments when one is convinced of one's superiority.

-MMK

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