The Spanish Polemic on Colonisation
Part three: Bartolomé de Las Casas and Revolutionary Theocracy (5)
Vitoria and Carl Schmitt
What is one to say about this perplexing performance?
“Vitoria had not quite argued his emperor out of the larger portion of his empire; but he had come perilously close to it”, according to Pagden and Lawrence. (21) Not so, according to Jean Dumont: in important respects Vitoria was now making concessions and acknowledging the validity of the empire, which earlier he had more or less condemned. Dumont refers to a section of the lectures On Dietary Laws, where Vitoria allegedly said or implied that America should be given back to the natives. (22) But, assuming that Pagden and Lawrence have not completely mistranslated this section of the lectures, (23) I think no such thing is implied there. The lectures on dietary laws do not seem to have disconcerted Charles V. In contrast, there are clear indications that he was alarmed when Vitoria demolished the Papal donation. (24) One can fairly assume that this would always have been the Emperor’s first answer if asked by what right he had supplanted Montezuama and Atahualpa.
Theoretically, theologically, Christianly, the Emperor might have been wrong. But it isn’t at all clear that he was wrong politically and historically. What Pope Alexander VI thought the Pope could do was not necessarily the same as what Professor Vitoria thought the Pope could do. Some light is shed upon this in an interesting commentary by Carl Schmitt.
“The first impression that the present-day reader gets from (Vitoria’s) lectures is of a quite extraordinary impartiality, objectivity and neutrality. The argumentation accordingly seems no longer medieval but 'modern'.” (25)
Nevertheless, it is important to note that this is theological reasoning, abstract and not directly applicable to practical politics.
“The theses touch only the argumentation in dispute and their conclusions do not go directly to the concrete historical case... [Vitoria’s structure of thought] concerns only the rightness of the argumentation, but not the concrete state of affairs and practical conclusions involving that.” (26)
Schmitt has to emphasise this point for a very good reason, which is this: “The Papal entrustment of a mission was in fact the legal basis of the conquest”. (27) The monarchs of Spain, no less than the Popes, had always acknowledged this. Such entrustment was nothing new. The Pope had always had the right to call for crusades and to entrust missions in heathen lands to Christian monarchs. “The seizure of America through the crown of Castile corresponds in its first stage, the stage which lies at the basis of Vitoria’s argumentation, entirely to this law of nations, involving the ordering of space, of the Christian Middle Ages. It is even its high point, though equally its end... The Spanish conquest is a continuation of the spatial ordering concepts of the Respublica Christiana of the Christian Middle Ages.” (28)
In saying this, Schmitt – like Pope Alexander VI – obliterates the important distinctions that Vitoria was at pains to make. Nonetheless, his assessment of Vitoria is worth considering. “It would be a gross misinterpretation of Vitoria to think that he had declared the great Spanish conquest to be an injustice. It is admittedly a widely-diffused error..” (29) As he sees it, Vitoria’s judgment is ultimately “thoroughly positive” for the Spanish conquest. “Above all, for him the fait accompli of the already extensively realised Christianisation is by no means to be left out of account.” (30)
(And just as the American conquest is the last great event in the Christian-medieval ordering of space, for Schmitt Vitoria is the last great medieval jurist. He is not really modern, despite appearances. (31) True, he influenced the founders of modern international law – or more precisely, in the case of Hugo Grotius, he gave them rich materials which they ruthlessly exploited and abused. But he himself remains medieval in two key respects. He still thinks about law as a theologian; and he still holds onto the notion of a justa causa, “just cause” of war, rather than, like Gentile and Grotius, building upon the modern idea of justi hostes, “legitimate enemies”.)
Finally, I think it is worth citing a robust contemporary assessment of Vitoria, written by Bartolomé de Las Casas in 1550 or shortly thereafter.
“In support of his impious opinion, Sepúlveda says that the most learned Father Francisco de Vitoria expressed approval of war against the Indians. So as not to be deprived of his personal glory, Sepúlveda adds that the most learned Father did not formulate the principal arguments which he himself adduces. Now then, everyone who reads the two parts of this most learned man’s First Relectio will easily see that in the first part Vitoria sets out, and in a Catholic manner refutes, the seven titles by which war against the Indians may seem just. Nonetheless, in the second part he introduces eight titles, by virtue of which (or some of which) the Indians could be subjected to the jurisdiction of the Spaniards. In these titles he presumes certain things that are, for the most part, thoroughly false, which had been related to him by those plunderers who, without the slightest compunction, sow destruction throughout the world. Nevertheless, Vitoria showed signs of a certain unease in relation to some of those titles, even while wishing to moderate what he had expressed, as it seemed to the Emperor’s men, with a certain harshness. Even though for lovers of truth there is no harshness in all that he expounds in the first part; that is to say, it was not just real and truthful in the past, but today also it is Catholic thinking and profoundly true. Vitoria himself lets us sense this when he speaks in the conditional form (in the second part), for fear of supposing or stating falsehoods in the guise of truths. Now then, since the circumstances which this most learned Father supposes are false, and given that he says some things with a certain timidity, Sepúlveda should by no means have adduced against me the opinion of Vitoria based on false reports.” (32)
Las Casas arguably had reason for thinking that Vitoria was trying to reduce the shock of his own harsh logic. Of the seven legitimate or possibly legitimate titles that he presents, two (Nos. 4 and 6) are pure sophistry, unrelated to anything that has ever happened or is in the least likely to happen. It is hard not to feel that, having demolished seven false titles, Vitoria thought he had better find as many possibly true ones, so as not to show negative disposition towards the secular power of Spain. As for the eighth title, “not affirmed or completely rejected”, it is indeed put forward rather timidly, and this might reflect Vitoria’s doubts about the information he had been given. And yet, while Las Casas ably highlights and affirms “his own side” of Victoria, he cannot deny that Sepúlveda’s side is there also. The two sides of Vitoria, as Capdevila says, faced each other in the dispute at Valladolid.