The Formation of Natural Law to Justify Colonialism, 1539-1689

As the nations of Western Europe began to colonize the Americas, they created a discourse to justify the activity, developed from the legal codes of the same classical past that provided the fictional model for the activity. The law was the ancient Roman ius gentium, which regulated commerce and contracts, dealt with relations between states, and was often a synonym for the vaguely philosophical ius naturale—normative precepts of “natural reason” valid for all peoples and places. The fiction was Virgil’s Aeneid, ¹ the story of the foundation of the Roman Empire by the Trojans. Still popularly regarded, at the dawn of the sixteenth century, as actual history, Virgil’s story had been retold often enough, and applied widely enough (from Britain to Bohemia, Iceland to Sicily), to make it “possible to elaborate the Trojan origin of every European people, to account for the dispersion of the arts and sciences, and to provide an etymology of illustrious antiquity for every place name.” ² The presumed history of Trojan descent did not merely “account for” the arts and sciences of Western civilization by deriving them from a single, long-destroyed source. It also defined what constitutes civilization itself (settled agriculture and cities: tilling the earth, building walls and towers on it) as opposed to its opposite, savagery (dispersed nomadism: hunting and gathering in forests). For all us speakers of what B. L. Whorf called Standard Average European languages, ³ which derive civility from the city (civitas), savagery from the woods (silvestris), and all forms of “culture” from the act of tilling the soil and dwelling in a fixed place (colo, cultum), Virgil’s epic is our founding legend.

What gets founded is an empire and its colonial outposts, which entails the bringing of culture to the indigenous inhabitants of the place where the empire builders will plant their fields and their metropolis. Virgil describes this mythic moment as it occurred on the seven hills of Rome:

These groves belonged to native Fauns and Nymphs And men from tree trunks born, from hardy oak, Who had no code of custom and no culture, And knew not how to yoke the ox, collect Or store the yield, but fed on branches’ fruits And victuals of toilsome hunting.

The culture-bringer to these aborigines was the god Saturn, who “Gathered in one place this ignorant race, / Scattered through mountain heights, and gave them laws” (A VIII.313–22). ⁴ This picture of the indigenes as, precisely, culture less—the definition of the “savage”—was the fiction that enabled both ancient and modern colonialism to proceed in fact as the transmission of empire and learning (translatio imperii et studii), of domination and tutelage, that came largely to constitute the modern history of the world.

The use of our founding legend in its most prestigious form, the epic of Virgil, to determine the fate of the indigenous populations in the new world is clearly visible in the modern formation of a special branch of law. This would eventually become international law, and was created expressly to deal with the accelerating conflicts among the major powers of Europe, due in large part to their competing claims over territory and trading privileges in the new world, and with the vexed question of the respective “rights” of the colonizers and the colonized.

The realities of the Spanish conquests and exploitation of the Americas had caused some Europeans to doubt whether it was “lawful” in any sense to plant colonies and Christianity by violence. The most tireless such objector in the sixteenth century was the great Dominican Bartholomé de las Casas, who devoted his life to criticizing and attempting to improve the Spanish treatment of the Indians in the new world. ⁵ But the earliest surviving formal effort to bring colonial invasion, dispossession, and enslavement before the bar of Christian moral law was that of a theology professor at Salamanca, who lectured his students on the subject in 1539 (their date was long mistaken ⁶ ). In these lectures, not published until 1557, Francisco de Victoria, in the dry late scholastic style of numbered...