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Dear Readers,

I am interested in transforming the talk below into an article, so I thank you in advance for your comments, questions, and suggestions. In addition to refining my argument, I would like to elaborate the deconstructive move at the end of the paper, where I want to suggest that the ideological creation of the Indian and first, modern colonial subject possesses negative or, at least, unforeseen consequences for the monarchs own extension of sovereignty and empire across the Atlantic. I look forward to our discussion.

Gerard Aching.

2 Just War Theory and the Creation of the Modern Colonial Subject

They do not carry arms or know them. For when I showed them swords, they took them by the edge and cut themselves out of ignorance. ---Christopher Columbus.

President Obamas record as commander-in-chief, specifically in the area of counterterrorism, is the subject of an article written by Jo Becker and Scott Shane that the New York Times featured in its A Measure of Change column on May 29, 2012. The title of the article reads, Secret Kill List Proves a Test of Obamas Principles and Will, and it captures the strange irony of a war against terrorism in which the so-called leader of the free world possesses a secret list of suspected terrorists who are subject to annihilation by U.S. drones. What does a kill list, we may want to ask, have to do with anyones principles? Becker and Shane describe the paradox: Mr. Obama is the liberal law professor who campaigned against the Iraq war and torture, and then insisted on approving every new name on an expanding kill list, poring over terrorist suspects biographies on what one official calls the macabre baseball cards of an unconventional war. When a rare opportunity for a drone strike at a top terrorist arises but his family is with him it is the president who has reserved to himself the final moral calculation. This image of the President, huddled over biographiesthe sensationalism of the baseball cards asideand conducting drone strikes from within the White House Situation Room, is startling. According to Becker and Shane, what most surprised the national security adviser, Thomas Donilon, was the extent to which the president is comfortable deploying force on behalf of the country. On one hand, the imagined scene is disconcerting, because it uncovers the brute realism of a lethal, U.S. counterterrorism

3 policy for which the President is ultimately and actively responsible; on the otherand despite the dirty realismimagining the president as a hands-on commander-in-chief accrued obvious political capital in an election year. What most interests me about Beckers and Shanes article is one of the primary rationales that the Presidents aides offer in order to explain his immersion in counterterrorism operations. According to them, the president considers himself a student of writings on war by Augustine and Thomas Aquinas [and] . . . believes that he should take moral responsibility for such actions. David Luban, a law professor at Georgetown University, quickly picked up on this explanation, and, in an article called What Would Augustine Do? that he published in the online Boston Review eight days later (June 6, 2012), he measures the Obama administrations operations against the just war tradition. Luban appreciates the sarcasm with which a Catholic web site scoffed at the image, in its words, of the wise, judicious philosopher-king consulting Aquinas and Augustine before sending a drone missile on a signature strike on a group of picnickers in Yemen or farmers in Pakistan; yet, Luban asserts, there is no reason to believe that Obamas aides are fabricating the explanation, even if it is difficult to verify how serious a student of just war theory the President is. In the just war tradition (jus ad bellum), going to war has always been an ethical option, so long as the decision meets certain criteria. Unlike two other rival approaches to war, namely realism and pacifism, just war theory aims to strike a balance between the ethical injunction of having to go to war and the premise that war should be a last resort, or that its ultimate goal should be to secure peace. Stated differently, just war thinkers place great value on human autonomy and regard the presumption against war as a basic

4 threshold premise against which the decision to go to war must be calibrated. The conditions for just cause need to be such that the decision to engage in war is presented as the only alternative. In this essay, I do not intend to analyze U.S. counterterrorism operations. Rather, I pursue two aims. First, I want to demonstrate how just war theorization in mid-16th-century Spain was employed ideologically in order to create a specific kind of human being that I call the modern, colonial subject. The ideological composition of this colonial subject is paradoxical: on the one hand, the latter emerges from the context of the Spanish encounter with the Indians that gave rise, as Antony Anghie argues, to the creation of international law (15); on the other, the creation of this colonial subject provides evidence of the state of exception that Carl Schmitt and others after him have identified with the dawn of European colonialisms in the Western hemisphere. Of great relevance for my research project as a whole is both the purposeful and incidental restructuring of categories of knowledge and power that the emergence of the Indian in European intellectual and political life produced. Second, I focus on an epistemological sleight of hand in just war theorization that eliminates the practice of comparative justicea key principle within the just war tradition that would have recognized the autonomy and humanity of the indigenous adversaryand establishes a paradigm for the European administration of its colonial peoples that is both an attempt at legality and world order (sovereignty) and unjust (the illegal appropriation of the Indians territories). I want to argue that the diminution and eventual disappearance of comparative justice in the debates over whether there had been just cause to declare war against the indigenous peoples in the Americas generate a moral dilemma for imperial projects in ways that remain germane for our consideration today.

5 Creating the Indian

In his seminal study, The Fall of Natural Man: The American Indian and the Origins of Comparative Ethnology (1982), Anthony Pagden provides a detailed description of how the Indian came to be conceived as both a natural slave and yet free in order to justify the seizure and occupation of the newly discovered lands. How did this paradoxical representation of the Indian come into existence? The Spanish crown faced an unprecedented juridical and theological problem when it became clear that Columbus had not reached the Indies: for neither the Scriptures nor intellectuals of any sort (theologians, judges, or men of letters) could account for the unknown lands and peoples of the Western hemisphere. Deciding what the Indian was challenged the known categories for differentiating humans, which, at the time were not founded on race but on religion. Before the middle of the 16th century, jurists and theologians understood difference according to three categories of paganism: (1) pagans who lived outside the Church but on lands that had once been a part of the Roman empire; (2) pagans who live anywhere in the world but who are lawfully subject to the rule of a Christian prince; and, (3) pagans who are infidels, that is, people who live anywhere that had not been subject to Roman rule, nor subject to legitimate Christian rule. Pagans were subdivided further into two broad groups: the invincibly ignorant that is, those who through no fault of their own had never heard the Gospel and the vincibly ignorant, those like the Jews and Muslims who had heard the Gospel but refused to listen to it. Note the challenge that the indigenous peoples in the Americas presented. They did not live in a region of the world that had been subject to Roman rule, nor had they been subject to the rule of a Christian

6 Prince prior to 1492. But could they legitimately be called infidels? According to this schema, what qualified the Jews and Muslims as infidels was the supposition that they were familiar with the Gospel but rejected it. To be vincibly ignorant in this manner implies that Jews and Muslims could be won over or made to submit to Christian rule. The indigenous communities would have been invincibly ignorant because they had not been exposed to the Gospel and, therefore, could never have been in a position to reject it. Even so, this condition of so-called invincible ignorance still did not legitimize the seizure and occupation of lands belonging to the indigenous communities. The authoritative Spanish jurist and theologian, Francisco de Vitoria, arrived at this determination in 1539, much to the consternation of Charles V of Spain/ Charles I, the Holy Roman Emperor. Now, let us recall that the occupation of the new territories and the Crowns subsequent claims on others was a fait accompli and that it was the legal justification for these actions and claims that was being sought. A contentious debate about whether the Indian possessed a soul complicated the legal argument for just cause. As early as 1501, Queen Isabella decreed that the Indians should be well treated because she considered them her subjects and vassals (Pagden 33-34). Her insistence undoubtedly bolstered the case for evangelization. Even though the international law of the respublica Christiana, with its distinction between various types of enemies and wars, distinguished among humans and their status, theologians in 16th-century Europe considered non-Christians human. From the standpoint of what was to become the field of international law, Vitoria treated Christians and non-Christians as autonomous human subjects. It was commonly accepted at the time that barbarian princes held authority (jurisdictio) in barbarian lands

7 and that native inhabitants were the owners of their own soil (dominium) (105). Consequently, no Christian had the right to appropriate the land of non-Christian princes and peoples.1 Vitoria, one of the most respected juridical, theological, and philosophical minds on these matters, argues in De Indis [On the American Indians] (1537-38) that according to all of the laws regarding dominion (natural, divine, and human laws), the emperor has never been nor is the master of the world (Vitoria 253). Vitoria concludes that [e]ven those who attribute dominion of the whole world to the emperor do not claim that he has it by property (per proprietatem), but only that he has it by jurisdiction (per iurisdictionem) (258). Similarly, the theologian argues, the Popes status as the Churchs spiritual leader did not provide him with civil dominion over the whole world. Moreover, Vitoria asserts, even if the barbarians refuse to recognize any dominion (dominium) of the popes, war cannot on that account be declared on them, nor their goods seized (263). From a legal perspective, it became evident that the Spanish Crown did not have the authority to take possession of the newly discovered lands.2 A new approach would be needed if the emperor expected to legitimize his claim to the Americas. The new argumentation emerged around 1512 in Spain and became
1

Here are some of the questions that Vitoria approached [in De Indis (On the American Indians)], 153738] through a scholastic method: Whether these barbarians, before the arrival of the Spaniards, had true 2 Nevertheless, Vitoria did not claim outright that the conquista was unjust. Even though he was a theologian, who looked at specific claims to legal titles of the new lands (including the right of the pope and the emperor to the earth), his view of the conquista was mostly positive. How could this be? Well, through general and hypothetical arguments: (1) If barbarians opposed the right of free passage for evangelizing, the creation of missions, and free commerce, they would be violating existing rights of the Spanish according to jus gentium (a system of equity in cases between foreigners and [Roman] citizens; that is, any rule of law common to all nations must be valid); (2) If the peaceful requests of the Spaniards led nowhere, then there were grounds for a just war; note that this expectation of reciprocity means that the Indian is being theoretically regarded as an equal; (3) finally, intervention could take place on humanitarian grounds: the Spaniards could intercede on behalf of a people being suppressed by barbarians (i.e., Corts tactical befriending of indigenous communities that the Aztecs suppressed), in which the just cause of traditional just war theory could be argued. More generally, the Spaniards could intervene on behalf of those Indians who had been converted to Christianity.

8 more generalized in 1519 when the Scottish theologian, John Mair, began to argue from Paris that the inhabitants of the Antilles were slaves by nature. By the middle of the century, when Bartolom de Las Casas and the humanist philosopher and theologian, Juan Gins de Seplveda, were summoned to debate whether there was just cause to declare war against the Indian, the idea that the Indian was a natural slave lay at the center of the case that Seplveda built in favor of conquest. According to Pagden, Mairs assertion provided the ideological leverage that the advocates of just war required. Interestingly, it was from Aristotles discussion of the natural slave in book 1 of the Politics that the Scottish theologian drew in order to claim that the Indian was by nature a slave. Mair starts off by declaring that there had been sufficient exploration to show that the inhabitants of the Antilles lived like wild beasts and that he who conquers them justly rules over them because they are by nature slaves (cited in Pagden 38). He then cites Aristotle in order to assert that it is natural that some men should be slaves and others free and that the disposition toward being a slave portends benefits for the latter. Mair concludes this argument abiding by Aristotles statement that Greeks should be masters over barbarians because barbarians and slaves are the same. Now, why is Mairs intervention significant? There are two reasons that I would like to bring to the fore. First, pulling Aristotle into a theological and juridical discussion about the justice of conquest was contentiousin fact, Las Casas did all that he could to disqualify Aristotles ideas about the natural slave as paganism. Mair, as Pagden shows, was cautiously proposing that theology should begin to make use of moral philosophy, which was a branch of knowledge in which pagan writings (the secular wisdom of the ancients) abounded (Pagden 39-40). Second, Mairs thinking provided the

9 crown with the ideological sleight-of-hand that it sought in order to justify its claims on the new lands. In other words, in place of the moral dilemma that had ensued for almost half a century about the justice of declaring war against the Indians, Mairs assertion changed the nature of the question that was being posed: instead of asking, how could the emperor legitimize conquest of and sovereignty over the new territories, he could begin to ask what did the Indians need to be in order to make their lands appropriable.

The Modern Colonial Subject

I would like to argue that the sleight-of-hand that shifted the discussion about the justice of war and conquest from a theological and legal framework to a reflection on the nature and psychology of the Indian, that is, from the conquerors recognition of the enemys autonomy to an essentialist representation of the Indian as a natural slave, initiates the paradigm of the modern, colonial subject in a particular way. I want to give a brief sense of this claim before turning my attention to the related issue of how the ideological sleight-of-hand that I mentioned above jettisons the just war traditions principle of comparative justice. My use of the term modern is only secondarily a reference to a specific historical period. I employ the qualifier to call attention to the very ideological fabrication of a human type through bio-power, which, according to Foucault, refers to the set of mechanisms through which the basic biological features of the human species became the object of a political strategy, of a general strategy of power (1). 3 Even though
3

In the same sentence, Foucault also identifies bio-power with an eighteenth century when Western societies began to recognize that human beings are a species. This definition of bio-power privileges the

10 colonialism is not Agambens area of inquiry, the ideological construction of the Indian as politicized bare life still marks what he might call the decisive event of modernity and a radical transformation of the political-philosophical categories of classical thought (Agamben 4). When he defines the natural slave, Aristotle makes an assertion about the latters ability to reason and then offers differentiated bodies as evidence of his claim. The Greek philosopher refers to a things nature in the Politics as the character it has when its coming-into-being has been completed (Aristotle 3). Accordingly, the natural slaves use of reason is a priori limited to someone who shares reason to the extent of understanding it, but does not have it himself (9). Aristotle posits this distinction between those who share and others who possess reason as a natural phenomenon with consequences for political life: Nature tends, then, to make the bodies of slaves and free people different too, the former strong enough to be used for necessities, the latter useless for that sort of work, but upright in posture and possessing all the other qualities needed for political lifequalities divided into those needed for war and those for peace (9). It seems ironic that Mair and other humanists who wished to have theologians make use of the moral philosophies of pagan thinkers, such as Aristotle, should dehumanize the Indian by insisting that he was a slave by nature and a barbarian. Whether or not this dehumanization was conscious, it still provides a vivid illustration of the ideological mechanisms of bio-power. Equally relevant for these advocates of conquest is the Greek philosophers assertion that the qualities that were necessary for war and peace should belong only to a class of free men who were unfit for

consequences of the rise of biology in that century. Yet Aristotles attention to the natural slaves body and Mairs subsequent incorporation of these ideas to identify the Indians as natural slaves for the purposes of conquest and the Empires need for labor suggest that Foucaults notion of bio-power possessed traceable precedents.

11 strenuous labor yet endowed with sufficient reason to make decisions about war and peace. In short, the incorporation of certain humanist arguments in the dispute over just cause served to invent the Indian, not as a worthy opponent in war, which was a status that the Muslim infidel on the Iberian peninsular often enjoyed, but a priori as an inferior human being. In the contemporary period, and especially after the intensity of 19th-century chattel slavery and the promulgation of discourses of scientific racism, the representation of the colonial subject as subhuman might seem mundane. Yet, as we know, Bartolom de Las Casas and Francisco de Vitoria were two influential defenders of the rights of indigenous communities to possess their lands, property, and freedom. Las Casas contributed abundant empirical data about the natives of the Western hemisphere to the deliberations; although he structured his arguments about the ecological and human devastation of the Indies along Manichaean lines (the Spaniards as wolves and the Indians as lambs), the knowledge that he introduced represented the beginnings of an ethnological writing in which there was an attempt to describe the indigenous population as organized communities. Vitoria, by contrast, approached the disputes regarding just cause not as a defense of the Indian per se but as the need to establish legally substantiated relations between Europeans and Indians as well as to eliminate a reasonable doubt about the extension of sovereignty to the other side of the Atlantic. In De Indis, he writes: These things which have both good and bad on both sides are like many kinds of contracts, sales, and other transactions; if undertaken without due deliberation, on the mere assumption that they are lawful, they may lead a man into unpardonable wrongdoing (235). This recognition that both sides might have legitimate claims is a fundamental

12 premise in comparative justice and marks the emergence of an area of inquiry and adjudication that we know as international law. However, neither Las Casas nor Vitoria would ever argue that Spaniards should return to Europe. Vitoria, in fact, achieved a subtle line of reasoning that would allow him to claim just cause on the basis of a general argument of the right to war without discriminating against barbarians or non-Christians as less than human (122). 4 Vitoria, in the final analysis, deprives the Indian of sovereignty. But let us return to the secular thinking that frees the Indian from divine law but determines the limits of his humanity. The natural slavea being that was purportedly predestined to share but not possess reasonwas necessarily a human invention. The acquisition of virtue, one of the primary aims of the evangelical undertaking in the new territories, required the use of reason. Consequently, the Indian would need to be, as Anghie asserts, schizophrenic, both alike and unlike the Spaniard: The gap between the Indian and the Spaniard . . . is now internalized; the ideal, universal Indian possesses the capacity of reason and therefore the potential to achieve perfection. This potential can only be realized, however, by the adoption or the imposition of the universally applicable practices of the Spanish. The discrepancy between the ontologically universal Indian and the socially, historically, particular Indian must be remedied by the imposition of sanctions which effect the necessary transformation. (22) By some measure, therefore, the Indian would also need to be free. But what degree of freedom could a natural slave be expected to enjoy?
By contrast, the present theory of unjust war aims to discriminate against the opponent who wages unjust war (Schmitt 122). War becomes an offense and the aggressor a criminal (war ceases to be a matter of international law) (124). The injustice of aggression [in the present theory] lies not in establishing guilt but in aggression as such.
4

13 I have already mentioned the just cause advocates instrumentalization of Aristotles thinking on natural slavery as the emergence of a kind of pagan secularization or, at least, of a challenge to theology as the sole arbiter of moral conduct. In the second chapter of Politics, the philosopher articulates a power relation that he holds as self-evident: For if something is capable of rational foresight, it is a natural ruler and master, whereas whatever can use its body to labor is ruled and is a natural slave (2). There is in this formulaic distinction that privileges reason over emotion, virtue over vice, and the soul over the body a moral argument in defense of one communitys right to enslave another. However, because Aristotle posits the natural slaves body as subject to the limited agency of sharing but not possessing reasonthat is to say, of comprehending but not giving ordershe relativizes the static relation between master and slave that I cited earlier. He writes that a slave is a sort of part of his mastera sort of living but separate part of his body. Hence, there is a certain mutual benefit and mutual friendship for such masters and slaves as deserve to be by nature so related (11). Aristotle thus opens an area of ambivalent agency (or schizophrenia, as Anghie might put it) that has subsequently led to productive reflections from Hegels master-slave dialectic, for instance, to Agambens relation of exception, which the latter defines as an extreme relation by which something is included solely through its exclusion (18). In Aristotles formulation the broadest conception of the natural slaves freedom is physical and entirely embedded in labor. The natural slave, therefore, is free to think and work but not exit or transcend the relation with the master to which he is subject. I would not go so far as to say that the philosophers theory of natural slavery was the intellectual inspiration for the Encomienda system, but the very complaint by the

14 clergy in Hispaniola that the Spanish settlers were not holding to the contract by which their laborers should receive religious instruction uncovers the ambivalent and unstable relationship between the Indians freedom of movement within labor and his or her uncontrolledor, for the clergyuntutored use of reason.

The Erasure of Comparative Justice

Just war is not a theory per se. Rather, the term designates a traditional body of thinking about past events that can serve, as Michael Walzer argues, for political and moral theory (xxii). In the just war tradition, comparative justice means that in addition to having just cause, the claims of the aggrieved part must be so great as to override the presumption against war.5 Comparative justice, therefore, provides an opportunity for reflecting on and determining the relations between autonomous opponents before and during their engagement in war. At its most rudimentary, comparative justice can be theorized as a realm of political relations, a realm of collective human relations in crisis in which both sides in a conflict can lay claim to just cause, so that some determination must be made about whose cause is more just. To speak, then, of a just cause on each side of a conflict introduces comparative values whereby it is possible to hold that while both sides enjoy similar degrees of autonomy, one side is relatively just and the other

In addition to comparative justice, the principles that constitute the just war tradition include just cause (the defense of the innocent against attack, the recovery of persons or property taken; self-defense); right intention (the motivation must be just, the disposition must be just); competent authority (the decision to go to war must be declared by the highest authority); last resort (war must be proven to be the only path); public declaration (must be given to ensure all other options have been exhausted); reasonable probability of success (a war in other circumstances would not be morally justifiable); proportionality (the moral good that comes out of the war must outweigh the evils of war); and peace as the ultimate object (the goal should be a just and lasting peace).

15 relatively unjust.6 Comparative justice is further complicated by the assumption that informs it that the more just cause is determinable by law (divine or manmade) or by those in possession of moral authority. According to Frederick Russell (The Just War in the Middle Ages, 1975), comparative justice produces an impasse in which the acceptance that there are just causes on both sides may be imagined and defended morally, but this position from a juridical (and realist) standpoint is inoperable (Mattox 51). In the field of international relations, Edward Keene has asserted that the English Schools theorization of the international order emerged from Europes historical experience of nation formation and global dominance, whereby states established agreements that respected their common interest in mutual independence (22). The mutual toleration of territorial sovereignty lay at the heart of this modern view of world order. Significantly, Keene also makes a convincing case for the existence and importance of a second pattern of international order that was predicated, not on toleration of difference, but on the promotion of civilization in the extra-European world. Keenes argument implicitly acknowledges that treating the colonial world as exempted from mutual toleration creates what Carl Schmitt described as sites of exception. Similarly, the military politicization of the Indians bare lifethe conception of his or body as an appropriate and pliable body for labor and the extension of European sovereignty in the Americasstrips this ideologically constructed Indian of the autonomy and potential for mutual recognition that comparative justice requires. Stated differently, the Indian emerges as a body that is invincibly ignorant, for not ever having heard the Gospel and, therefore, in need of tutelage.
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As John Mattox notes in his study of Augustine on just war theory, this relativism is theological in origin since absolute justice is humanly unattainable.

16 Yet there is something singular about the initial juridical and ideological construction of this subject in the western hemisphere that speaks to subsequent experiences of colonialism: namely, the shift from employing comparative justice in order to engage in discussions about human political relations (reciprocity, ethical responsibilities, the determination of the more just cause) in favor of arguments for defining the nature of the colonial subject. The paradox of the Indian as simultaneously enslaved and free is also the paradox of the monarchs sovereignty, which, in attempting to define its place in the world internalizes the demands of labor and of the soul within the same colonizing effort. In this sense, the sleight-of-hand that created the Indian by shifting the discussion from moral engagement with (as in comparative justice) to the nature or ontological status of the indigenous native subject also generated the tense and often hostile relations between the military and spiritual goals of the empire. This failure to reconcile both goals within the same imperial enterprise provides evidence of a sovereignty that paradoxically sought to impose juridical order on lands and peoples that it excluded as exceptions to the mutual tolerance that constituted European relations at home.

Gerard Aching Cornell University November 2012.

17 Works Cited

Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. Trans. Daniel HellerRoazen. Stanford: Stanford UP, 1998. Anghie, Antony. Imperialism, Sovereignty and the Making of International Law. Cambridge: Cambridge UP, 2004. Aristotle. Politics. Trans. C.D.C. Reeve. Indianapolis: Hackett, 1998. Foucault, Michel. Security, Territory, Population: Lectures at the Collge de France, 1977-1978. Ed. Michel Senellart. Trans. Graham Burchell. New York: Picador, 2007. Keene, Edward. Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics. Cambridge: Cambridge UP, 2002. Mattox, John Mark. Saint Augustine and the Theory of Just War. London: Continuum, 2006. Pagden, Anthony. The Fall of Natural Man: The American Indian and the origins of Comparative Ethnology. Cambridge: Cambridge UP, 1982. Schmitt, Carl. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum. New York: Telos Press, 2006. Vitoria, Francisco de. Political Writings. Eds. Anthony Pagden and Jeremy Lawrance. Cambridge: Cambridge UP, 1991. Walzer, Michael. Just and Unjust Wars: A Moral Argument with Historical Illustrations. 4th edition New York: Basic Books, 2006.