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53 3 CIVILIZATION AND EMPIRE Francisco de Vitoria and Hugo Grotius No sooner had they [the Amerindians] been granted the status of human beings than the privileges and protections of such a classification were abrogated....they had lost the right to ethical treatment that would normally be afforded to human beings, or more precisely to morally adequate, civilized human beings. —Sankar Muthu, Enlightenment against Empire The period between the late fifteenth and seventeenth centuries was a tumultuous time of discovery, conquest, travel, and transformation.As one commentator noted, “even more than other history the Age of Discovery is men come upon strangeness and traveling it mostly in dream.”1 Yet, although this period is often referred to as the Age of Discovery, it would perhaps be more aptly named the Age of Colonization. This period encompasses the colonization and conquest of the Americas and Africa, the expansion of commerce and trade, and the nascent theorizing of sovereignty within a network of slowly individuating states. Significantly , the Peace of Westphalia in 1648 formally ended the religious wars between Catholics and Protestants. Within the disciplines of international relations and international law, the conventional interpretations of the Peace of Westphalia hold that it marked the origin of an international system of independent sovereign and equal states, and augured the end of vagaries of religious rule. During this period, in which war was as endemic as the plague, there were revolutionary changes in the size, discipline, and organization of Western European militaries. The details of this transformation and the exact timing of what is termed the military revolution are not the topics of this book; nevertheless, the consequences are notable for the several reasons. First, from the start of the sixteenth century to the end of the eighteenth century, rapid growth in the size of armies funded by and in the service of the state sparked questions about moral and military discipline, loyalty, and professional and personal training that had hitherto been answered by the social distinctions of the feudal order, the code of chivalry, and the traditions of nobility. Specifically, an increasing reliance on 54 CHAPTER 3 selective conscription, native troops, and the use of infantry, as well as the spread of brutal wars, created a surge in military service of commoners who were unfamiliar with the noble traditions of conduct in combat. Not only did the membership and professionalization of early modern European state armies change, so too did the methods of combat, which became arguably more indiscriminate, deadly, and comprehensive in range. Second, these military and social transformations in membership, weaponry, and discipline spurred publicists and practitioners to assess the reasons for and restraints on war. Publicists and philosophers recognized it was “necessary and possible to imagine a ‘law of war and peace’ as a compendium of the minimal conditions of coexistence,”and commanders and kings imagined a more regular, rational science of war.2 Thus, and third, the laws of war continued to reflect as well as inflect the practice of war. Notably, the concept of the just war, a complicated and debated set of protocols by which war was proclaimed and fought, became more elaborate. These protocols of conduct multiplied, with highly detailed military manuals becoming more common. Paralleling this trend, these manuals also shifted in emphasis, with the putative universalism of natural law replacing the particular aristocratic codes as the fount of both moral and legal reasoning about war. Wilhelm Grewe comments on this sedimentation of rules and reasoning, noting that it “drew on the intellectual tradition of the Christian Middle Ages and a natural law which was firmly anchored in the divine world order, and which was always either the basis, or at least the final legitimation, of the law of nations and the binding force of its rules.”3 Because the laws of war were one of the common means of justifying imperial expansion, commerce, and aggression, these laws had to account for not only wars waged within Europe, among European peoples, but also wars undertaken in the New World and against its inhabitants. Thus, to understand the laws of war, and the relationship of civilian and civilization, the history of European imperialism and the grant of immunity conceptualized therein must be addressed. I contend that immunity is an expression of charity and mercy—an indulgence of sorts—granted by individuals and states invested with sovereignty through discourses of civilization. In highlighting the discourses of civilization, however, I do not minimize the importance of the discourses...

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