01 Apr A Tale of Three Vitorias
International law has famously “turned to history”. Since then, what I like to call the “foundational myth” of international law has been poked, prodded, re-evaluated and re-told in powerful, unsettling and insightful ways. The publicist’s relation with their own discipline is no longer the same, and the colonial, often violent, roots of the rules we rely on every day, are increasingly more exposed and open to discussion and deconstruction. This is, without a doubt, a positive development.
Like any Copernican shift, this transition from “celebratory” to “critical” history has come with controversy. To reference the title of Anne Orford’s upcoming and highly anticipated book, many argue that international law has become entangled in the politics of history, and that it is the publicist’s job to free it. These debates, therefore, engage with the complexity inherent to inter-disciplinarity and the different results obtained by different methodological choices.
Within this debate, it is these methodological choices that interest me most. How we tell a story and what lessons we obtain from it. In this post, I want to explore these choices in as much detail as a blog post can allow, and hopefully contribute to a better understanding of the role that history, and specifically, historical method, plays in a lawyer’s understanding of their own discipline. To do so, perhaps ironically, I will have to start with my own methodological choice.
As some of you may remember, I have a very particular approach to the history of international law, based, I assume, on the methodological choices and philosophical assumptions I make about how international law came to be. Grotius is not the “Father of International Law”. Neither is Suarez, nor Vitoria. But if I am going to tell the story of how method affects output, this is a conviction I will have to temporarily side-line. Let me thus take you on a trip through time, three times over. Let us get to know Francisco de Vitoria through three different methodologies.
Vitoria: Champion of Equality
I studied international law in Peru, a place Vitoria himself wrote extensively about. My first approach to Vitoria (in a country where most curricula are still far from decolonised) was that of a precursor to human rights and a defender of indigenous rights. As renowned Mexican jurist, Antonio Gómez Robledo, stated in his Fundadores del Derecho Internacional (“Founders of Interational Law”, 1989), Vitoria “summarily dispatches the ius inventionis [the right of discovery] as an evidently illegitimate title to conquest” (p. 20). In this now famous recollection, Vitoria protected the indigenous populations of America (the continent!) from conquest through res nullius.
The idea of Vitoria as a champion of equality comes from a methodological choice of seeing Vitoria as a man that was simply ahead of his time. In this conception of the history of international law, the narrator is aware of the end-result of his inquiry. The present, the latest stage of development, is one where human rights law exists, and where nations are no longer able to claim that a portion of the Earth is inhabited by “too backwards” a people – a world where res nullius is in full desuetude. So, our proverbial storyteller says, if there is a Spaniard monk claiming res nullius was not a just title to territory in the 1520s, well, then, he must be a visionary!
In the never-ending ladder of progress that history is made to be, Vitoria is, to quote US jurist and diplomat, James Brown Scott, “an internationalist and a humanitarian (…) destined to be regarded as the founder of the modern law of nations”; a man worthy of “homage”. Scott thus agrees with Gómez Robledo that Vitoria’s idea that “barbarians” could hold title to their “principalities” was revolutionary and an early example of the principle of sovereign equality, at a time when the very concept of sovereignty was, well, basically being invented. Vitoria, says Scott, “discloses in a single sentence his large and generous thought, stating simply and without argument that the Europeans discovering the Americans could not have greater rights because of their discovery than the Americans would have had if they had discovered the Spaniards and the French” (p. 106).
Scott and Gómez Robledo belong to a tradition that sees history as the story of how great men (and it is usually just men) stood in the shoulders of giants to produce a line of incremental progress, from past to present; from Vitoria to today.
Vitoria: Agent of Imperialism
As I mentioned above, international law’s turn to history was a Copernican shift, away from celebratory accounts like Scott’s and Gómez Robledo’s. In the pages of TWAIL and CLS scholars, international law was not a story of incremental progress anymore. Instead, the specific methodological choice of critical history was that of deconstruction – to topple the celebratory history to discover the broken pedestal upon which it rested, filled with violence, colonialism and empire. As Justin Desautels-Stein elegantly puts it, critical history consisted in “crawl[ing] the world over, pulling on those threads that have conventionally united our mythological visions of law’s place in society, pulling on those threads wherever they lead, until we just can’t pull any longer” (p. 552).
This is what Anthony Anghie famously did to Vitoria’s “foundational myth” in his seminal Imperialism, Sovereignty, and the Making of International Law. Chapter 1 of the book is a scathing criticism of Vitoria’s role in the promotion of empire and European colonialism, painting the Salamancan friar in a radically different, much more negative, light. In pulling on Vitoria’s conventional threads, Anghie argues that he, Vitoria, is far from approaching the Spanish-American encounter from the guise of sovereign equality. Vitoria was not, he says, ahead of his time; he was rather very much a product of his colonial, imperialistic, and fundamentally unfair, past. “Sovereign doctrine”, says Anghie, “was not already formulated and then simply applied by Vitoria to resolve the problem of creating order between different societies. Rather, for Vitoria, sovereignty doctrine emerges through his attempts to address the problem of cultural difference” (p. 16).
For Anghie, the idea that indigenous peoples could own title and property was a ruse. It was borne not out of a sense of humanitarianism, but out of a strategic effort to put the Spaniards in a better position, removing issues of international law from divine (Papal) jurisdiction and placing it under the secular control of natural law, and specifically, ius gentium (p. 20).
“It is precisely because of his insistence that the Indians are human beings that Victoria is lauded as a protector of native peoples against colonial exploitation”, he says, but such praise would be unwarranted. “The character of this natural law” – rather – “is illuminated in Vitoria’s argument that the Spanish have a right under jus gentium to travel and sojourn in the land of the Indians; and that providing the Spanish do not harm the Indians, the natives may not prevent them” (p. 20).
Vitoria’s trick, as Anghie would have it, was seeking to treat the indigenous peoples of the Americas as subjects within a body of rules arbitrarily described as universal, but that was essentially pro-European in its heart:
“While appearing to promote notions of equality and reciprocity between the Indians and the Spanish, Vitoria’s scheme must be understood in the context of the realities of the Spanish presence in the Indies. Seen in this way, Vitoria’s scheme finally endorses and legitimizes endless Spanish incursions into Indian society. Vitoria’s apparently innocuous enunciation of a right to ‘travel’ and ‘sojourn’ extends finally to the creation of a comprehensive, indeed inescapable system of norms which are inevitably violated by the Indians” (p. 20).
In other words, instead of promoting indigenous agency, Vitoria was providing a blueprint for a colonialist enterprise: travel through indigenous lands and gather and trade resources in their land; if they refuse you entry (as they logically will!) you are legally entitled to make war on them and conquer them in “self-defence”.
In Anghie and other critical scholars’ view, thus, Vitoria was not the first step in a ladder of incremental progress. He was the original push that plunged international law into a pit of incremental injustice. Indigenous people the world over are scattered and decimated, forced to live within arbitrary sovereign borders, with no right to external self-determination, because of Vitoria and the role he played in designing the broken structure of modern international law.
Vitoria: Catholic Theologian
While Anghie’s criticism of Vitoria is, without a doubt, trail-blazing and illuminating, it still shares one thing in common with Scott and Gómez Robledo, in that it sees Vitoria as the founder of something. For the latter, he created a Western civilisational wonder. For the former, he created an unjust system of oppression that extends to our days. The line of history can be critical or celebratory, but it is always a line.
There is, however, one final methodological choice to explore. One that starts by realising that history is, simply put, not a line at all. It is a web of interconnected utterances, each addressing the other in diverse ways. This is what the contextualist school of history believes. As I explained before, for contextualists:
“Past law/utterances are not steppingstones in the way to historical progress. There is no single line connecting Vitoria to Grotius to Vattel to the Lotus case. Rather, each utterance, each legal claim, is but one connection point in a complex mesh of conflicting ideas, arguments, debates and discussions, each having their own intent”.
In the context of Vitoria, therefore, a contextualist would ask not whether Vitoria contributed to advance justice or injustice, but rather, what argument/phenomenon/utterance was he actually addressing when he spoke of the European-American encounter. And within this methodological choice, one thing becomes clear: Vitoria was neither trying to create the modern international law, nor was he trying to promote a grand colonialist project. Rather, in context, Vitoria was a Catholic friar at a time of huge political and religious instability, known as the Protestant Reformation.
During these tumultuous times, Europe existed in what was called a respublica christiana – a society of like-minded nations that all recognised the Pope as their divine arbiter. The theological earthquake caused by the nailing of the 95 theses in the door of the Castle Church of Wittenberg consisted precisely in the claim that the Church of Rome was not this divine arbiter, but merely a congregatio fidelio – a gathering of the faithful, not the final interpreter of the word of God. For Luther, if a Christian wanted to know how to be a good follower of Christ, they did not need to ask the Pope. They needed to ask sola scripta, scripture alone.
In the respublica christiana, kings and princes owed their standing to God. This meant that, following the Thomist tradition of Vitoria and his followers, “all rights (iura) were natural and the consequence of God’s law, not of God’s grace” (Pagden & Lawrence, p, xvi). In other words, subjects could not simply change their ruler at will. Luther, predictably, disagreed. In the Lutheran tradition, individuals cannot know the will of the Deus Absconditus – the Hidden God (see Skinner, p. 139). Rulers were not necessarily godly or God-sent just by the sheer fact of being rulers. If, say, Protestant subjects felt they were ruled by an ungodly Catholic man who did not follow their interpretation of sola scripta, they could simply revolt and replace him.
Contextualists would say it was this political-theological point that inspired most of Vitoria’s writings, not the quest for a just or unjust international law. Vitoria, in fact, would not even be able to understand the concept in any way different than the ius gentium of his time and he would not have been able to know in advance that he was playing a role in its history.
In fact, Vitoria makes his ire against the Lutherans quite clear: “It is hardly surprising that these men, who have already apostatized from God and his church corrupted by their vicious ambition and pride” – Vitoria protests – “should also stir up sedition against our rulers”. For Vitoria, it was clear to “all right-minded men” that “kingly power is not only just and legitimate, but also that sovereigns have their power by natural law and divine law, not from the commonwealth or from men”.
It is in this context, contextualists would say, that Vitoria’s writings about the indigenous peoples of the Americas should be read. The ideas of res nullius and ius inventionis that were beginning to gain traction in Europe were a threat to Vitoria’s theology. If the indigenous Americans were not people for the purposes of the ius gentium, but were rather “slaves by nature”, then their rulers could not hold true dominion over their lands and could be replaced instead by a Spanish viceroy. This was unacceptable to Vitoria, as it lent support to the Lutheran idea that an ungodly ruler could be replaced.
This is the reason why Vitoria discards the ius inventionis and finds just title not on discovery but in a ius gentium right to defend a right to sojourn and trade, under a traditional just war paradigm. This is not the same as saying, therefore, that Vitoria was creating a blueprint to colonisation. Vitoria not only never states the indigenous peoples were in fact preventing trade, but he even limited the right to self defence so that the just side was not allowed “to go further than the correction of the wrongful conduct that had justified the war” (Neff, p. 117). In fact, as far as the colonial enterprise went, Vitoria had little appreciation for the work of those he called peruleros (Spanish conquistadors returning from Peru filled with riches). In a letter written in the aftermath of Pizarro’s assassination of the Inca Atahualpa, Vitoria “points at the difficulties he encounters when speaking his mind”, because “the conquistadors or peruleros, if criticized, lose their temper and accuse Vitoria of heresy or of condemning the emperor and his policy” (quoted in Cavallar, p. 191). For Vitoria, “the conquest was butchery, the natives were most certainly innocents in this war, and Spanish conduct apparently motivated by greed, amounted to sheer robbery” (Id.). Hardly the words of an anti-indigenous imperialist.
Under this methodological choice, understanding Vitoria himself would be much less important to gain uptake of the colonial project than understanding how Vitoria was read and applied in later years and centuries by scholars like Scott and those who placed him as one of the Founders of modern international law.
So Now What?
Attentive readers may have picked up which choice is my own. It is not my intention here to defend that choice – I am limited by the blog format itself, and this one is already a long post. I will leave that for another day (and an upcoming paper). My intention with this post is simply to show how varied a discipline legal history can be, and to raise awareness to the fact that, perhaps much too often, we – as lawyers – are oblivious to the methodological choices the sources we pick to inform ourselves make for us.
In any case, allow me to finish this post by expressing my academic excitement at the fact that this next June will bring us not only Anne Orford’s new book International Law and the Politics of History, but Martti Koskenniemi’s To the Uttermost Parts of the Earth, as well. We are thus guaranteed many an excellent discussion on the history of international law, and I can’t wait to engage with them!