POLC71H3 Lecture Notes - Positive Law, Encomienda, Modern Defense

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Published on 15 Apr 2013
School
UTSC
Department
Political Science
Course
POLC71H3
Professor
LEC01
Key themes
Paradox of the state
How do you prevent the state from becoming despotic?
Limit government: rule of law and individual rights
Popular sovereignty
Balance of power
Why start with Franciscus de Victoria?
Theorized about the significance of the conquest of the Americas
Modernity begins in 1492
Founder of international law
Not found in broad view anthology
Writes about experience or events that mark the beginning of the new world
After 1492, we get a geographical sense of the entire globe
Why start with the conquest of the Americas?
Beginning of globalization
Turning point in the growth of European domination
Sparks debates about cultural difference and domination
Eurocentrism; All of our texts are created by Europeans; possible source of all knowledge
From Bartoleme de Las Casa, Bried Account of the Devastation of the Indies (1542)
Bloody conquest
Dominican monk
Owner of indigenous slaves
Come to realize that kind of slavery was immoral
Became one of the foremost critics for slavery
Had a legal fight to help protect Indians from slavery and exploitation by the Spanish crown in order to
influence, he wrote about what he saw about their exploitation and such
Talks about Christians because it was so hypocritical
Supposed to represent peace and love, but actually very brutal
Cannibalism or ritual sacrifice
Indigenous society are seen as uncivilized and barbaric
Spanish are said to be there to make them more civilized, but in reality, their role were switched
How could the conquest be justified?
Religion; the medieval concept of the universal Christian commonwealth
Based in scripture
These concepts of unity and hierarchy were used to justify papal authority
Pope had ultimate authority
Christianity was state religion in roman empire
Rome was under threat from invasions
Capital fled from rome
Military threat came from northern Europe
Pope stayed in rome
Continued to grow
Political authority vs. religious authority
Secular vs. religious
Different alliances in order to gain power
How could the pope‟s spiritual leadership come to justify military power against non-christians
The Crusades
Military campaigns to capture Jerusalem
Main justification is to defend the Pope‟s spiritual authority over the Christian community
Tradition in visiting religious sites
By going to middle east and taking over land, they would have the opportunity for economic improvement in life
Improving economy and lifestyle; modern idea
Limits on Papal Power
Social contract theory (hobbes, locke)
Natural law (St. Thomas Aquinas)
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Natural law is based on reason not scripture and therefore is accessible to all people and applies to
everyone
Universal sovereignty was threatened
Political theorists began to support doctrines to limit the power of popes and churches
People have to consent to their own government (social contract theory)
Drawing on cannon law
In order to limit it, they draw on natural law
Natural Law
Positive law, natural law, divine law
Do non-Christian societies have the right to choose their own leaders?
Positive law; convention of a specific society and can be made arbitrarily and it will be okay
Natural law; principles that derive from reason
Divine law; principles of conduct from scripture or through faith and personal revelation
Cannot kill the innocent
LEC02
Key terms/ Glossary
Encomienda; the system of granting Indians to Spanish settlers for forced labour
Requerimiento; declaration informing the Indians that they had to accept the authority of the pope or the
Spanish would wage war against them
Thomism; the philosophy of Aquinas, which synthesized Christian doctrine and the teachings of Aristotle
Positive law; the conventions of a specific society
Divine law; the principles of conduct that are revealed through scripture or faith
Natural law; the principles of conduct that are accessible to all men based on reason
Franciscus de Victoria
Dominican monk
Professor of theology in spain
Proponent of Thomism (the natural law theories of Aquinas)
Political consultant (asked by the holy roman emperor Charles V about the treatment of the indigenous
inhabitants of the indies)
Founder of international law
Early person in debate of just law theory
Influential because of his contribution of legitimacy
Involved with legal debates
The Debate Over the Conquest of the Americas
Conquistadores; Domination is necessary to Christianize the natives
Tax and tribute system
25 ducats of gold per quarter to the Spanish
if didn‟t, they would be imprisoned, killed, slaved, etc
Encomienda
constructed mines
system of forced labour
This period had a lot of concern with the legitimacy
ownership of things were questioned (ex. land)
What right did you have to take this land?
Popes were responsible (Christian commonwealth)
Indians had to be Christianized, and therefore was colonized
Power of the crown is derived from the popes authority
Critics
Conversion must be voluntary
Forced labour does not teach the natives to love the Christian religion
Moreover, conquest is a violation of both Christianity and natural law
Inner subjective feeling of faith is what Christianity is based on
System of coercion didn‟t necessarily mean that they adopted the faith
Came in a hostile manner, does not make you love the religion
Cannot teach doctrine of Christianity by the way that they treat them (exploitation)
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“On The Indians, Lately Discovered”
Part of a series of university lectures on theology
Indians have natural rights
The pope could not give the Americas to spain since he did not have any right to dominion
Dominion; both ownership of property, or governance/ jurisdiction
Conquest might be justified if the Indians violate the universally binding law of nations
Christian rights were being violated, so the Christian nations could come into their defense
They were on the land that was being run by muslims
Native peoples are going to be judged by the same standards
Decided on by the Europeans (Spanish)
What is universal?
Colonial expansion; ability to take the norms and apply them/ force them on the rest of the world
Structure of the Essay
Section1; non believers (including Indians) have natural rights
Section2; critique of the doctrine of Papal sovereignty
Section3; on the lawful titles whereby the aborgines of America could have come into the power of Spain
Section1; Non-believers (including Indians) have natural rights
Non believers have natural right
Indians are not „slaves by nature‟- Aristotle
Slavery is only acceptable when slaves are not mentally capable
There is a mutual benefit
Dominion is dependent on race?
Do you have to be Christian to own property?
Victoria says no
Roman law, scripture, philosophy, legal debates from the crusades
Section2; Rejection of Papal Title
Requerimiento; legal document that was to be read out loud before the Spanish could invade native village
(requirement)
When they see Spanish coming, they are either prepared to fight or flee
Victoria recognizes the absurdity and coercive character of this requirement
Disagree with what the Spanish are doing
The only way you can actually convert people is by interacting witht hem so that they can be presented by
proofs of the positive actions of Christianity
Victoria believes that the natives should allow missionaries to preach, but it should not mean that they must
submit to the Spanish government
This way of getting there is very different from how the Spanish are actually doing it
Even when Christianity has been proposed to them with never so much sufficiency of proof and they will not
accept it, this does not render it lawful to make war on them and despoil them of their possessions
Event if you turn down Christianity, you should not make war on them and take their possessions
If you use coercion, there is a lower chance of them in believing
They will pretend to have religious views that they do not have
Christian princes cannot, event on the authority of the pope, restrain these aborigines from sins against the law
of nature or punish them therefore
Seems to contradict what is said in section three
He is saying that it I not acceptable to use it as a justification, but in section 3, it says that it was the only
reason to do so
Natives had the right to have possessions, but if they were to not accept the Christians, then they would be
defying natural law
Victoria disagrees with the precedent
Main argument; insists that the church can pass judgements on believers and not non believers
pope is not allowed to punish people that think they have broken natural law
unmoral sexual actions
does not have jurisdiction over royalty; should not be allowed to have power over others
Anyone based on reason should not have to go by those laws
Easy to prove that Christ is the son of God, than it is to prove fornication
Cannot claim by reason that you must avoid it
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Document Summary

Limit government: rule of law and individual rights. Theorized about the significance of the conquest of the americas. Writes about experience or events that mark the beginning of the new world. After 1492, we get a geographical sense of the entire globe. Turning point in the growth of european domination. Eurocentrism; all of our texts are created by europeans; possible source of all knowledge. From bartoleme de las casa, bried account of the devastation of the indies (1542) Became one of the foremost critics for slavery. Had a legal fight to help protect indians from slavery and exploitation by the spanish crown in order to influence, he wrote about what he saw about their exploitation and such. Talks about christians because it was so hypocritical. Come to realize that kind of slavery was immoral. Supposed to represent peace and love, but actually very brutal.

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