(06b) Francisco de Vitoria and Humanitarian Intervention

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Francisco De Vitoria and Humanitarian Intervention
James Muldoon
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Francisco De Vitoria and

Humanitarian Intervention
JAMES MULDOON
Box 1894, Providence, RI 02912, USA
ABSTRACT Humanitarian intervention is a staple of current discussions about relations among

states. Should powerful states interfere in the internal affairs of weaker ones, particularly those
identified as failed states, in order to bring peace and stability when it is clear that the existing
government can not do so? The concept is an old one, not a new one. European nations that
engaged in overseas expansion generally justified their conquests on the grounds that they would
seek to civilise and Christianise the peoples whom they encountered. The most extensive
discussion of the right / or the responsibility / of strong states to intervene on a humanitarian
basis occurred among sixteenth- and seventeenth-century Spanish intellectuals who sought to
justify the Spanish conquest of the Americas. The most famous of these figures was Francisco de
Vitoria (1485 /1546) whose De Indis outlined all of the arguments that could be raised for and
against such intervention. His line of argument suggests that in the long run, intervention even
with the best of intentions, may well lead to tragic consequences. It may even be hubris, the sin of
those who would play God.
KEY WORDS: Vitoria, humanitarian intervention, Conquest of Americas, just war
Humanitarian intervention is a concept found not only in rarified UN policy

documents or in learned journals, it is a staple of current public discussion of
national policy. For the past fifty years, American troops for example have
been found around the world, from Haiti to Afghanistan not as legionnaires
of an expanding empire but as the protectors of the oppressed when their own
governments cannot protect them or when it is their own government from
which they have to be protected. American policy is to intervene only to
punish those who are oppressing the people and to establish institutions that
will prevent a similar occurrence in the future. These goals achieved and, as
the saying goes, democracy restored, the Americans withdraw. Elsewhere
troops wearing blue helmets signifying United Nations forces patrol the
streets and attempt to end civil strife.
According to one scholar, the term ‘humanitarian intervention’ was
‘formulated after the demolition of the Iron Curtain’ and marked a
‘breathtaking expansion of the U. N.’s well-established peacekeeping role . . . .’
(Muldoon Jr. 1995: 60). Nevertheless, the concept had a long history under a
Correspondence Address: J. Muldoon, Box 1894, Providence, RI 02912, USA. Tel: 1 401 863 2725; E-mail:
James_Muldoon@brown.edu
1502-7570 Print/1502-7589 Online/06/020128 /16 # 2006 Taylor & Francis

DOI: 10.1080/15027570600724529
Francisco De Vitoria and Humanitarian Intervention 129
variety of guises and ‘is today well-established in international society and

widely recognised by scholars’ (Bellamy 2004: 217). The historically-minded
observer might be reminded of the French justification of their empire as
having a mission civiliatrice or the argument that in the nineteenth century the
British Empire had a humanitarian responsibility for the well being of the
subject peoples (Jackson 1998:9). An observer with an old-fashioned classical
education might recall Virgil’s description of the role of the Roman Empire
offered in the Aeneid:
. . . remember, Roman
To rule the people under law, to establish
The way of peace, to battle down the haughty,
To spare the meek. Our fine arts, these, forever.
(Virgil 1951: 172).
Another might recall Kipling’s White Man’s Burden and its call to
Send forth the best you breed /
Go bind your sons to exile
To serve your captives’ need;
To wait in heavy harness
On fluttered fold and wild /
Your new-caught, sullen people,
Half devil and half child.
(Kipling 1982: 602)
This in turn reflected a theme found in many older texts of English expansion,
such as the charters of colonial Massachusetts and Virginia that declared that
the colonists had a responsibility to bring the indigenous population to a
civilised level of existence and to convert them to Christianity (Muldoon
2001: 37, 41, 42).
While none of these older examples employed the term humanitarian
intervention to describe the task in which they were engaged, the activities
involved would amount to the same thing. The interventionist power claimed
to be acting on behalf of the best interests of those who were the object of the
intervention, above all in raising the inhabitants of the New World to a higher
level of existence, from the primitive, perhaps violent way of life associated
with living in the fields and forests to living in an orderly, civilised community.
In a broad sense, such intervention could be seen as a catalyst for speeding up
a natural process of social and political development.
Humanitarian intervention always raises questions about the sincerity of
those who would engage in it. Were the Romans really interested in uplifting
the downtrodden and were the French and the English imperialists quite as
altruistic as they claimed to be? Is the current call to end civil wars in Africa
truly humanitarian and altruistic or is it a covert call for the restoration of
European empires there? Some writers have openly called for the restoration
of some form of European or American imperial control as the only solution
to the situation in parts of Africa (Ferguson 2004: 169 199). The United
/
States, faced with the ongoing problems facing Haiti, has over the years
periodically taken control of Haiti, until such time as the immediate problems
130 J. Muldoon
are resolved, at least temporarily (Ferguson 2004: 56 57). To justify

/
intervening in Haiti or elsewhere, there was a need to create a new vocabulary

that would authorise intervention in the internal affairs of legally recognised
sovereign nations. Nations such as Haiti are now termed failed states, because
the government cannot provide the stability and the services identified with a
functioning state (Jackson 1998: 2). Under such circumstances, humanitarian
intervention was justified. The assumption is that something, perhaps
defective social and political institutions, or someone, a wicked imperial
power or an evil indigenous ruler, has blocked a people from moving along
the normal course of development that ultimately leads to the formation of a
modern nation-state. Once the intervention has re-established effective state
power and administration, once democracy has been restored as American
officials are inclined to say, then the intervention is ended.
One of the characteristic differences between old-fashioned imperialism
and contemporary humanitarian intervention is that such intervention is now,
generally speaking, not unilateral. Intervention now calls for some kind of
authorisation, usually from the United Nations, on the grounds that mankind
forms a single community, that the intervening forces are acting only to
enforce internationally recognised standards of behaviour, and that they are
acting under recognised international authority and with the cooperation of
other governments (Tharoor 2003: 67 68). This current emphasis on the
/
international community, on universal humanitarian standards, and on

the right to enforce them thus marks a significant movement away from
the Grotian notion of international law and order that has dominated
European thinking since the seventeenth century. The Grotian world order
consisted only of the states of Christian Europe until the mid-nineteenth
century when the Ottoman Turks were admitted (Crawford 1979: 13). These
states were labelled sovereign and therefore exempt from any intervention
from outside. The goal of Grotian international law was to regulate relations
among the major powers of Europe especially where their interests conflicted
in the various new worlds that were opening up to them following Columbus’s
first voyage. The Grotian order, often seen as beginning with the Peace of
Westphalia (1648), rejected the notion of a universal, hierarchically con-
structed world order in favour of one based on sovereign nation-states that
adhered only to rules based on treaties negotiated and signed by the
European states (Lesaffer 2004: 3).
In constructing a conception of world order that was egalitarian at the top,
a flat plane consisting of the Latin Christian states instead of a pyramid with
the pope at the peak, Grotius was deliberately rejecting the medieval notion
of a hierarchically constructed universal human community governed by
natural law that was enforceable under the direction of the pope. His first
published work, the Mare Liberum, was a direct attack on this medieval papal
view of world order and international relations (Grotius 1609, 2004). Instead
of the medieval hierarchical structure of a papally directed world order,
Grotius constructed a system of a European order composed of sovereign
states, all legally equal, without any overarching authority that could
authorise intervention in their internal affairs. On the other hand, the
Grotian schema allowed European states, presumably being more developed

than the other nations of the world, to intervene legitimately in the affairs of
non-European nations on the grounds that they were not the political and
cultural peers of the Europeans. This was a fundamental element of the
rationale for the creation of the great European overseas empires. These
empires would see to the development of the peoples whom they were ruling
so that they would adhere to the standards that the Europeans claimed were
universal in nature. In this regard at least, the Grotian conception of world
order had more in common with its predecessor that is generally realised.
The currently fashionable notion of humanitarian intervention is in fact a
striking revival of the pre-Grotian conception of world order associated with
the medieval papacy, precisely the claim that Grotius rejected, although few
of its proponents, if any, appear to realise that fact. One reason for the failure
to appreciate the extent of the rejection of the Grotian world order is the
failure to appreciate the paradox that exists at the heart of the current
situation. On the one hand, the Grotian world order assumes the existence of
legally equal sovereign states, subject to no external authority in internal
affairs. On the other hand, the current world situation recognises the
existence of failed states that are unable to perform the functions associated
with statehood. The problem can be seen most clearly in the operations of the
United Nations which is composed of sovereign states. In 1945 there were 51
members while in 2004 there were 191, all recognised as sovereign and legally
equal so that intervention in their internal affairs was theoretically prohibited.
The economic and social situation is, however, quite different inasmuch as
these legally equal states ranged in size and power from the United States to
tiny, poverty-stricken island nations such as Haiti. At the moment, the leaders
of the powerful states occasionally claim the right to intervene in nations such
as Haiti on the grounds that they are failed states and thus not deserving of
the protection from intervention normally granted by their sovereign status.
The intervention is designed to end the violations of humanitarian standards,
perhaps oust the members of the government, and to re-establish the
fundamental institution necessary for the proper functions of the state.
At the present moment, however, when vocal, well-organised humanitarian
elements in the major nations of the western world demand intervention in
the internal affairs of failed states, the Grotian conception of a well run world
order composed of equals who respect one another’s domestic affairs seems
unworkable. What is occurring is a gradual return to the conception of world
order that preceded Grotius and against which he wrote. This conception of
world order was that of the medieval Catholic Church whose canon lawyers
developed a vision of international community that included all mankind
organised according to the law proper to them, canon law for Christians,
Mosaic Law for Jews, and the natural law for all the rest of mankind. The
pope, as God’s representative on earth, was the judge of last resort in all these
legal systems. He could even order Christian rulers to punish Jews who
violated the Law of Moses or infidels who violated the natural law (Muldoon
1979: 7 10). To an extent not fully appreciated, from Grotius to the United
/
Nations the states of Western Europe and North America have operated in
132 J. Muldoon
the international sphere along lines that the medieval ecclesiastical thinkers
had developed. That is, they accepted the notion of a world community
governed by a set of universally applicable rules. Where they differed from the
medieval approach was in the definition of what constituted violations that
justified intervention and where the ultimate locus of responsibility for
enforcing these rules existed. The Protestant Reformation eliminated the pope
from consideration, even in Catholic circles, so from the Peace of Westphalia
(1648) to the Security Council of the United Nations, there has been a
consensus that the international order is the responsibility of the major
European powers and their offshoots, in effect, acting collectively as the pope
once had functioned.
The current calls for humanitarian intervention thus suggest a return to the
pre-Grotian approach to international order. It would appear that the human
community has not evolved as the Grotian vision suggested it might, that is as
a world community composed of states that are not only equals in the
abstract legal sense but capable of functioning at a high level of effectiveness
domestically as well. Instead, there are failed states and also working states
that fail to measure up to what are now termed international humanitarian
standards. In such cases, there is often a call for humanitarian intervention to
remedy a situation that violates recognised international standards. In doing
so, state leaders and advocates of humanitarian action are reverting to the
approach to world order identified with the medieval Church, that is an
emphasis on the moral responsibility of the major powers to protect the
citizens of failed or corrupt states whose leaders are unwilling or unable to
enforce universal humanitarian standards. Where medieval documents speak
of a responsibility to civilise and to convert the peoples of the New World,
twenty-first-century policy statements speak of the restoration of democracy
and the restoration of a humane way of life. The words are different but the
concept is the same, a statement of humanitarian justifications for armed
intervention based on the intervening nation’s definition of what constitutes
humanitarian behaviour.
The most extensive discussion of the medieval papal conception of world
order arose not in the Middle Ages but in connection with the discovery of
the New World. Sixteenth-century European Christian thinkers faced a
problem that their predecessors had only dealt with to a limited degree, the
relationship between Christian and non-Christian societies. Scholars have
paid great attention to earlier Christian relations with non-Christian societies
in terms of the just war and the crusade (Brundage 1969; Russell 1975;
Johnson 1981). Less attention, however, has been paid to peaceful contacts
with such peoples, contacts based on the right of all men, merchants and
missionaries in particular, to travel anywhere in peace, a major theme of
sixteenth-century discussions.
Columbus’s first voyage presented Europeans not only with a New World
but with a new set of problems as well. In both cases, however, it took a good
deal of time before the ‘newness’ of the New World was appreciated and the
unsuitability of older methods of comprehending non-Christian peoples was
recognised (Elliott 1970: 6 8; Grafton 1992: 3 7). The fundamental issue
/ /
facing European legal thinkers in the sixteenth century was the question of
the legal basis upon which Europeans could lay claim to the Americas. This
issue appeared as early as 1493 when Pope Alexander VI (1492 1503) issued /
three bulls usually known collectively by the title of the first, Inter caetera,
which outlined the rights and responsibilities of the Spanish and the
Portuguese in the New World (Davenport 1917, 1967: 56 78; Muldoon /
1978). This was followed by other documents that spelled out in more detail
the legal situation in the Americas from the perspective of canon and Spanish
law. It was in these documents that what we might term the humanitarian
basis for Christian intervention in the internal affairs of American societies
were first presented. The most extensive synthesis of the papal conception of
world order that underlay the Spanish occupation of the New World was that
of the Dominican Friar Francisco de Vitoria (1485 1546) whose De Indis was
/
the most detailed examination of the arguments for and against the
legitimacy of the conquest of the Americas. Vitoria was one of the leaders
of the great revival of scholastic philosophy and theology that marked the
golden age of Spanish universities, the period of the so-called school of
Salamanca, the second scholastic age (Vitoria 1991: xiii; Pagden 1981: 72 /
75). From the earliest days following Columbus’s return from his first voyage,
there had been discussion of the right of the Spanish to occupy the newly
discovered lands and to kill or enslave the native population. There were, for
example, those who argued that the inhabitants of the Americas were guilty of
breaches of the natural law, cannibalism being the usual example, and
therefore Christians had both the right and the responsibility to punish them
for those violations at the behest of the pope (Vitoria 1991: 272 275). Others,
/
Bartolomé de Las Casas, for example, condemned the treatment of the

Indians from a very early date (Tierney 1997: 272 287).
/
Vitoria’s De Indis was not a startlingly creative response to the moral

problems that the Americas posed for European thinkers. What it did do was
to bring to bear on the problems arising from the conquest of the Americas
three hundred years of philosophical, theological, and legal thought on the
nature of human society. In effect, it was a masterly synthesis of Christian
thought on the issues of world order and the relationship of Christian society
to the non-Christian, non-European societies that Europeans were encoun-
tering overseas. While it is traditional to examine Vitoria’s thought in terms of
the development of theories of the just war, it is also possible to deal with his
work in terms of what we would now call humanitarian intervention, that is
the right, perhaps even the responsibility, of Christians to punish violations of
the natural law or to raise a primitive society to civilised status, in other words
to intervene in another state for the welfare of those who live there.
In the De Indis Vitoria dealt with the issues raised by the discovery of the
Americas in the traditional scholastic format, that is the classroom lecture,
the relectio. He began with a biblical statement that provided the basic theme
of the lecture, then stated a theological question that arose from the biblical
quotation, and then proceeded to respond to the question by breaking it
down into its constituent parts and responding in sic et non fashion,
presenting the pros and cons of the question. Finally, having discussed
134 J. Muldoon
both sides of the question, he drew his own conclusion (Vitoria 1991: xvii,
xxxiii).
Vitoria opened the De Indis with a biblical quotation that suggested that
the Spanish could legitimately lay claim to the Americas only if it was to the
benefit of the inhabitants, in other words only if their presence in the New
World had some humanitarian benefits for the peoples of the New World. He
began with Christ’s injunction to His followers to ‘Go ye therefore, and teach
all nations’ (Matthew 28: 19), the Great Commission that requires Christians
to preach to all mankind (Muldoon 1999). He then raised a question based
on this injunction: ‘whether it is lawful to baptize the children of unbelievers
against the wishes of their parents?’ (Vitoria 1991: 233). While this issue
clearly had older roots, Vitoria identified it with the conquest of the
Americas. Was it permissible to baptise the children of the inhabitants of
the Americas over the objections of their parents, to modern eyes a rather
peculiar angle of approach to the issue? On the other hand, beginning this
way, Vitoria presented the issue of the conquest in terms of conflicting rights
and responsibilities and the related issue of whether the value of the
humanitarian good imposed outweighs the costs involved. Did, in other
words, the promise of salvation that the child gains from baptism outweigh
the moral evils associated with the means employed to provide the baptism?
To answer this question, Vitoria sub-divided the issue into three parts. In
the first place, ‘by what right (ius) were the barbarians subjected to Spanish
rule? Second, what powers has the Spanish monarchy over the Indians in
temporal and civil matters? And third, what powers has either the monarchy
or the Church with regard to the Indians in spiritual and religious matters?’
(Vitoria 1991: 233). In his opinion, one can answer the question about the
propriety of baptising the children of infidels in the New World against their
parents’ wishes only after a thorough examination of the origin of Spanish
possession of the New World, that is, careful examination of the justification
of the conquest and the actual circumstances of the occupation.
Moving to the arrival of the Spanish in the Americas, Vitoria offered seven
arguments that had been advanced to defend the Spanish conquest. These
arguments focused on the legal capacity of the Indians to possess land and to
govern themselves. Were they fully rational human beings or were they what
Aristotle had described as natural slaves? Could non-Christians legitimately
own land and possess political authority? Did the Pope or the Holy Roman
Emperor possess universal temporal jurisdiction and therefore could author-
ise the Spanish to conquest the Americas? Could Europeans claim possession
of the Americas by virtue of a right of discovery? Did refusal to accept
baptism deprive the Indians of their lands and freedom? Did the sins of the
Indians justify their conquest and reform under Christian control? Finally,
had the Indians voluntarily accepted the Spanish monarchs as their rulers?
(Vitoria 1991: 239 277). Vitoria judged these arguments as providing only
/
‘false and irrelevant titles for the conquest of the countries of the barbarians’.
He admitted that it might be possible to develop a legitimate claim to the
Americas in support of one or another of the titles that he rejected but he
could not find one (Vitoria 1991: 277).
If the arguments that he had refuted were the only arguments that could be
offered as a basis for legitimate Spanish possession of the Americas, then,
according to Vitoria, ‘it would indeed look grim for the salvation of our
princes’ because if they justified their conquest on any of these grounds, they
had waged an unjust war in the Americas and had unjustly deprived the
inhabitants of their liberty and property, thereby endangering their own
salvation (Vitoria 1991: 277). He did not stop at this point, however, but
proceeded to consider seven legitimate bases and one possibly legitimate basis
for Spanish possession of the Americas. At this point Vitoria began to
develop what we would label a justification for humanitarian intervention,
that is, a defence of the entry of the Spanish into the Americas not for sordid
and self-aggrandising reasons but in order to assist and protect the
inhabitants from harm, spiritual and temporal.
The foundation of all of Vitoria’s discussions of the legitimacy of the
Spanish conquest of the Americas was a discussion of the right of all men to
travel everywhere in peace. Thus, he wrote: ‘the Spaniards have the right to
travel and dwell in those countries, so long as they do no harm to the barbarians,
and cannot be prevented by them from doing so’ (Vitoria, 1991: 278). In his
opinion, it was the custom of all societies reflected in the ius gentium, the law
of nations, that is the customs and practices common to all societies, to admit
peaceful travellers and to do them no harm. It would be ‘inhumane and
unreasonable’ to forbid entrance to such travellers (Vitoria 1991: 279). The
natural right to travel freely in peace extended to merchants who wished to
trade with the inhabitants of the Americas and could legitimately claim the
right to do so unless they were also doing harm to the inhabitants. Should the
peoples of the Americas seek to prevent peaceful Spanish merchants and
travellers or should they attack them after admitting them and if the Spanish
were not able to convince them to act reasonably and in accordance with the
ius gentium regarding travellers, it would be legitimate for the Spanish to
conquer the peoples of the New World in order to bring them into peaceful
relations with the rest of mankind.
By beginning with the natural sociability of mankind, Vitoria was
emphasising the universal nature of human society so that, as his
contemporary Las Casas preached, all mankind is one, at least potentially
(Hanke 1974: 157). In other words, human beings form a single community,
so that Europeans, even if they were not Christians, might have the
responsibility to bring the peoples of the New World into communication
with the rest of mankind, by force if necessary for their own good. There is
also in this argument an echo of Aristotle’s discussion of the importance of
communication and association among men for their own improvement. In
the Aristotelian tradition, isolation, being cut off from communication with
other human beings, is contrary to the nature of man. The man who does not
live win a developed community, a polis, ‘is either a poor sort of being, or a
being higher than a man . . ..’ (Aristotle 1946: 5).
Only after explaining the natural basis of human sociability did Vitoria
move to a discussion of the right of Christian missionaries to enter infidel
societies and to preach publicly. It might be legitimate for the pope to
136 J. Muldoon
authorise the Spanish to enter the New World in order to protect missionaries
who initially came in peace. This would not authorise the killing of the
Indians and the pillaging of their lands because such behaviour ‘obstructs the
conversion of the barbarians instead of encouraging it’ (Vitoria 1991: 286).
This is always the test of the legitimacy of intervention; will the people be
clearly better off as a consequence of the intervention? If not, then it is not
legitimate. At this point Vitoria was also hinting at one of the great problems
associated with the conquest of the Americas, the gulf between theory and
practice. In practice, could the Spanish monarchs control the actions of their
agents in the Americas in order to prevent looting and killing? If not, then
perhaps the Spanish should not go there at all.
The remaining titles that defenders of the Spanish conquest of the Americas
could allege clearly justified the conquest of an infidel society on the grounds
that the welfare of the population, or a significant part of the population,
required protection from their own ruler. If, for example, a number of
infidels were converted to Christianity ‘and their princes try to call them back
to their idolatry by force or fear’, the Spanish could legitimately intervene to
defend the converts and even depose the infidel ruler if necessary in order to
insure the long-term security of the converts. Here again, Vitoria emphasised
that the barbarians’ ‘conversion to Christianity makes them friends and
partners of us Christians’ so that ‘on the grounds of human amity’ alone,
Christians should come to the aid of their friends (Vitoria 1991: 286).
In the next section of the discussion, Vitoria raised the issue of whether
Christian converts ought to remain under the rule of an infidel ruler who has
refused to convert to Christianity even if he has not interfered in any way with
the religious practices of his subjects. He concluded that it might be proper to
remove such a ruler since an infidel ruler might change his mind and persecute
his Christian subjects at some point in the future (Vitoria 1991: 287).
The next legitimate title to the Americas that Vitoria offered was one that
resonates on the modern ear. He raised the issue of intervention ‘on account
of the personal tyranny of the barbarians’ masters toward their subjects or
because of their tyrannical and oppressive laws against the innocent, such as
human sacrifice practiced on innocent men or the killing of condemned
criminals for cannibalism’. Vitoria argued that ‘in lawful defence of the
innocent from unjust death, even without the pope’s authority, the Spaniards
may prohibit the barbarians from practicing any nefarious custom or rite’
(Vitoria 1991: 288). This is the broadest assertion that Vitoria made about the
right or the responsibility of civilised societies, Christian or not, to punish
those who were ‘sinners against nature’ (Vitoria 1991: 288). It suggests a
universal responsibility for the well being of one another and, apparently, the
right to intervene whenever other people are engaging in practices deemed
‘nefarious’. Since the definition of ‘nefarious’ is left to Christians, this claim
to possession of the Americas could, logically, be extended to possession of
the entire world.
Finally, Vitoria pointed out that it was possible that the inhabitants of the
Americas, recognising ‘the wisdom and humanity of the Spaniards’ admin-
istration’ might ‘accept the king of Spain as their prince’ and therefore
remove their infidel ruler and replace him with the Spanish monarch because
any ‘commonwealth can elect its own master’ (Vitoria 1991: 288). In a related
discussion, he argued that the Spanish might come into legitimate possession
of the Americas as a result of their providing military assistance to the
oppressed as they did for the Tlaxcaltecs in Mexico against the Aztecs
(Vitoria 1991: 289 290). In other words, the superior military capacity of the
/
Spanish or their ability to administer large territories justly might convince

some American societies to accept Spanish rule.
In the De Indis Vitoria presented two possible bases for legitimate
humanitarian intervention, one spiritual, the other natural. In each case,
the goal would be to intervene for the benefit of the people involved. In
spiritual terms, the command to teach all nations, the concept with which
Vitoria began, could obviously be construed as a good of such value that for a
ruler to prevent missionaries from entering his country or for a people to
harass and otherwise hinder the work of peaceful missionaries would justify a
Christian ruler sending troops to protect the missionaries. In terms of natural
law, the refusal to admit peaceful missionaries or merchants or to engage in
‘nefarious’ practices might also justify intervention because missionaries and
merchants would enable the members of a society to participate fully in the
universal human community and thereby receive numerous benefits.
But what if the inhabitants of the Americas were unwilling to accept
baptism and begin the process of transforming their society to meet the
standards expected of Christians? Is the ultimate spiritual salvation of these
people sufficient justification to override their natural right to autonomy?
Would the Spanish fail in their humanitarian obligations if they did not
impose baptism on these people? As Vitoria pointed out, among the
illegitimate claims advanced to justify Spanish possession of the Americas
was precisely the argument that refusal of the barbarians, that is the
inhabitants of the Americas, to accept Christianity once it was preached to
them was in itself a justification for conquering them. The issue itself was an
old one and theologians as far back as St. Augustine of Hippo (d. 430) had
discussed it. Could in effect baptism be imposed on non-believers? Strictly
speaking, according to the theologians, it could not be. Belief could not be
coerced. Jews and Muslims living under a Christian ruler could be required
to attend sermons designed to convince them to convert and there could be
material benefits provided for those who chose to do so, but no one could be
forced to accept baptism, because true conversion required voluntary
acceptance of Christianity (Muldoon 1979: 50 52)./
In dealing with the issue of intervention in order to achieve the salvation of

the Indians, Vitoria was clearly thinking of the manner in which the Spanish
approached them. In theory at least, when a Spanish force encountered
Indians, they were to read a document, the Requerimiento, to them (Muldoon
1980). This document, read in Latin or Spanish, explained who the Spanish
were and why they had come. Should the Indians not submit, the Spanish
would wage war against them, because the pope has granted jurisdiction over
the peoples of the New World to the Spanish. This practice has long been
scorned as there rankest form of legalistic hypocrisy. Vitoria pointed out that
138 J. Muldoon
the pope had no right to award the Americas to the Spanish, because he has
no power in temporal matters (Vitoria 1991: 262 264). Refusal to accept
/
Christianity immediately upon hearing the Requerimiento could not possibly

justify Spanish possession of the Americas. Therefore, unbelief by itself does
not justify Christian conquest of the lands of infidels.
If the spiritual good of the inhabitants of the Americas did not justify
European intervention, did their violations of the natural law, the law
accessible to all rational creatures, justify intervention? According to Vitoria,
there were those who argued that some of the practices of the Indians,
cannibalism, incest, sodomy, are such egregious violations of the natural law
that it was incumbent upon Christians to punish these crimes and reform the
societies that practiced them (Vitoria 1991: 292 293).
/
Vitoria discussed the right to Christians to punish violators of the natural

law in another relectio titled On Dietary Laws which began with the question;
‘is it lawful to eat human flesh?’ (Vitoria 1991: 207). He divided the issue into
two parts, the first dealing with cannibalism and the second dealing with
human sacrifice (Vitoria 1991: 208, 212). He began this discussion by pointing
out that ‘all nations have always held it [eating human flesh] to be abominable’,
a violation of the ius gentium (Vitoria 1991: 207). On the other hand, Vitoria
pointed out, human sacrifice would not appear to be ‘against natural law,
because many nations the past have practiced it’ (Vitoria 1991: 213).
After weighing both sides of these questions and concluding that
cannibalism and human sacrifice were violations of the natural law, Vitoria
raised what he termed ‘a moral question’ that is ‘can Christian princes on their
own authority use this reason to declare war on them’, those who engage in
such practices, and if not, could they do so with papal approval? (Vitoria
1991: 217) After a very detailed examination of the question, Vitoria
concluded that as the Church had no authority over non-believers who
were not already subject to a Christian prince, the pope could not authorise
Christian rulers to act in such situations and they could not act on their own
either (Vitoria 1991: 217 223).
/
What makes Vitoria’s discussion of cannibalism and human sacrifice

especially interesting is that at this point he broke with the mainstream of
canonistic and papal thought on the nature and extent of papal jurisdiction.
The claim that violations of the natural law authorised the pope to insure
adherence to its terms did not first emerge with the debate about the
legitimacy of the conquest of the Americas in the sixteenth century. This
justification for the conquest of the Americas rested upon a theory of
universal papal jurisdiction that the canon lawyer Sinibaldo Fieschi, better
known as Pope Innocent IV (1243 1254) had developed. Innocent IV
/
asserted that all Christians were subject to the pope by the terms of the
canon law of the Church. He then asserted that the pope was the ultimate
judge of the Jewish people so that if their rabbis did not uphold the Mosaic
Law, the pope could intervene (Muldoon 1979: 10 11). Finally, according to
/
Innocent, the pope was the ultimate judge of all mankind under the terms of
the natural law. That being the case, he could order the punishment of
violators of that law, thus justifying the conquest of the Americas.
Since the mid-fifteenth century several popes had authorised the conquest
and occupation of the Canary Islands and other places in the Atlantic and
along the coast of Africa on the grounds that the people were enemies of
Christendom and also that they lived at a very primitive level of existence. It
was the responsibility of Christians to raise these people to a civilised level of
existence and thus prepare them for the preaching of the Gospel (Stevens-
Arroyo 1993: 540 541). The underlying assumption, sometimes stated
/
explicitly, sometimes assumed, was that such people were engaging in

practices that violated the natural law.
Vitoria denied that the pope in fact had the right to punish violators of the
natural law. His power extended only to Christians (Vitoria 1991: 274). Even
with regard to Christians, the claim to punish violators of the natural law was
ridiculous ‘since every country is full of sinners’, so that, if the pope was in the
habit of condemning violations of natural law, ‘kingdoms could be exchanged
every day’ (Vitoria: 274). The result would be chaos and anarchy, not order
and stability, the goals of the natural political order.
If the crimes of the non-believers are so obvious, then why should not
Christians punish them? Vitoria offered several reasons why they should not,
reasons that have a strong pragmatic streak. If Christians have the right to
punish the infidels when they grossly violate the natural law, then, logically, he
pointed out, infidel rulers would be justified in waging war against Christians
who engage in murder or other acts forbidden by the natural law (Vitoria
1991: 224 225). In fact, he concluded, ‘it would be strange that fornication
/
should be winked at in Christian society, but used as an excuse for conquering

the lands of unbelievers!’ (Vitoria 1991: 230). In other words, European
Christian society was subject to punishment for violations of the natural law
as any non-Christian society would be, an ironic turn of events.
Does this mean that in Vitoria’s mind there was no basis for humanitarian
intervention? The answer is no. He did see the possibility of intervention but
not on the basis of the just war but on the basis of human sociability. That is,
peaceful merchants and missionaries should be allowed to enter any society
and engage with the inhabitants. To the extent that force might be necessary
to allow this kind of peaceful interchange, it can be employed (Vitoria 1998:
278 280). Beyond that, however, contact must be peaceful. Christians should
/
convince the infidels by the example of their lives, not by the use of force, to
accept baptism.
It was the actual practice of the Spanish in the Americas that caused
Vitoria to be quite critical of the conquest. As he observed in a letter of 1534
to his superior in the Dominican Order, having studied the Spanish
occupation of Peru, ‘no business shocks me or embarrasses me more than
the corrupt profits and affairs of the Indies. Their very mention freezes the
blood in my veins’ (Vitoria 1991: 331). Even if the Spanish had a legitimate
claim to rule the Indies, the way in which they slaughtered the Indians meant
that innocent people were being killed undermined the claim that they were
engaged in a humanitarian endeavour.
If the situation was as terrible as Vitoria claimed it was, then what should
the Spanish do at this point? Here again, Vitoria moderated his intellectual
140 J. Muldoon
position with a strong dose of pragmatism. The crucial point was that indeed
the Spanish were firmly in control of much of the New World and had
become dependent on income from the conquest. At the end of the De Indis,
Vitoria summed up the practical problem thusly;
THE CONCLUSION OF THIS WHOLE DISPUTE appears to be this: that If all these titles
were inapplicable, that is to say if the barbarians gave no just cause for war and did not
wish to have Spaniards as princes and so on, the whole Indian expedition and trade would
cease, to the great loss of the Spaniards. And this in turn would mean a huge loss to the
royal exchequer, which would be intolerable.
(Vitoria 1991: 291)
The problems posed here, however, were not insuperable and did not require
the conquest of the Americas based on illegitimate claims. The native
population would certainly be interested in trade with the Spanish and there
were large areas of the Americas that were presently uninhabited, so that
there would be no need for the Spanish to employ force in the Americas if
they wished to settle there. He pointed to the experience of the Portuguese
‘who carry on a great and profitable trade with similar sorts of peoples
without conquering them’. Any revenue lost if the Spanish chose not to
conquer the Americas would surely be made up by import duties on the
goods brought from the Americas to Spain. Finally, if the peaceful
missionaries were successful in making a large number of converts, ‘it would
be neither expedient nor lawful for our prince to abandon altogether the
administration of those territories’ (Vitoria 1991: 291 292). In other words,
/
the Spanish could achieve all of their goals, spiritual, political, economic, by
peaceful means and without any unlawful intervention into the New World.
Conclusion
Vitoria’s discussion of the Spanish conquest of the Americas demonstrated
the strengths and the weaknesses of the scholastic sic et non method of
dealing with issues. On the one hand the method provided a structured basis
for analysing a problem in an orderly way, setting out pros and cons clearly
and enabling the reader to see the consequences of a course of action. On the
other hand, the method can lead to paralysis of the will, balancing each
argument for action against a reason for not acting.1 In fact, the entire
discussion is a series of balances, the responsibility of Christians to preach to
all mankind balanced by the right of the non-believers to refuse baptism; the
right of the missionary and the merchant to travel in peace anywhere
balanced by the responsibility to do no harm to the people they encounter.
There is also a striking tone of pragmatism in Vitoria’s work as well. At the
very beginning of the De Indis he asks whether a discussion of the legitimacy
of the Spanish possession of the Americas is anything but ‘unprofitable and
fatuous . . .’ (Vitoria 1991: 233). After all, the Spanish were in possession of
the Americas, there seemed little possibility that they would be ousted or
withdraw from the New World, and if ‘the titles of rule had always to be
proved by going back to the seeds of time, no tenure could ever be fully
established’ (Vitoria 1991: 234). At the same time, however, ‘where there is
some reasonable doubt as to whether an action is good or bad, just or unjust,
then it is pertinent to question and deliberate, rather than acting rashly
without any prior investigation of what is lawful and what is not’ (Vitoria
1991: 234 235). What concerned Vitoria was the actual practice of the
/
Spanish in the Americas, a question, he pointed out, that was ‘not the
province of lawyers, or not of lawyers alone’ but of those concerned with
the moral issues involved, that is theologians (Vitoria 1991: 238). In a sense,
the discussion was less concerned with legitimacy of title than with the moral
consequences of what the Spanish had accomplished in the Americas. His
concern was ultimately with the actual practice of the Spanish in the
Americas and this he found wanting. What then could or should be done?
It would appear that Vitoria was dubious about humanitarian intervention
but unwilling to offer an unqualified condemnation of the Spanish claim to
the Americas. He did indicate that both the spiritual and the temporal
benefits that the Spanish claimed were provided for both parties in the
conquest could have been achieved by peaceful means, but he did not argue
that the evils that accompanied the Spanish occupation of the Americas
required them to withdraw. His discussion underscored the great gulf between
morally acceptable justifications for intervention and the actual consequences
on the ground. It also reflected the gulf between intellectual theorising about
the responsibilities of an imperial power and the actual practice of the agents
of that empire on the frontier. This in turn is a reminder of the weakness of
early modern rulers. The image of power that they projected in public
ceremonies and the rituals associated with monarchy was belied by their
inability to exercise real control of soldiers and officials who operated several
thousand miles away. It could take two years for a provincial official in the
Americas to receive a response from Madrid to a query about a problem he
faced in the course of fulfilling his responsibilities, so provincials could be
forgiven for acting as they saw fit even if they acted in violation of policies
formulated by royal officials who had little understanding of frontier
conditions (Parry 1966: 205 207). Spanish overseas officials were famous
/
for defending their reliance on their own discretion by claiming to ‘Obey but
not enforce’ edicts emanating from Madrid when they interfered with
resolving problems they faced on a daily basis (Parry 1961: 71).
Where then did Vitoria’s De Indis leave the Spanish monarchs and their
advisors? Should they have entered the Americas professing to intervene in
humanitarian fashion for the welfare of the peoples who lived there? Might it
even have been better if the Spanish had never gone to the Americas, a
conclusion that one could draw from Vitoria’s horrified reaction to what he
had learned about the actions of the Spanish in the New World. Perhaps it
would have been better for the Spanish at least if they had not followed
Columbus into the Americas. On the other hand, given the circumstances of
the time, some other European was likely to encounter the Americas, as the
Portuguese mariner Pedro Alvárez Cabral did in 1500 when he touched at
Brazil (Parry 1961: 39). This of course would not have been a solution to the
consequences of the European entry into the New World, it would only place
142 J. Muldoon
the responsibility for them in the hands of another ruler, perhaps easing the
conscience of the Spanish king but not resolving the situation of the Indians
and not answering the question of whether the humanitarian ends that the
Spanish proclaimed as a basis for their conquest of the Americas outweighed
the human consequences.
In the final analysis, what Vitoria teaches is a sad, even tragic, lesson, that
even with the best of intentions, intervention is likely to incur unforeseen evil
consequences. The only issue that remains is whether the consciences of those
who justified the intervention and those who opposed it can bear the moral,
human, and emotional price of their actions? Is it better to act or not to act in
a situation fraught with such complexity? Is it better to intervene on a
humanitarian basis in the hope that the evil consequences that often occur
will not happen this time, or would it be better not to intervene in the hope
that once those engaged in behaviour that violates humanitarian standards
are made aware of the evils in which the engage they will end them? Finally, is
the temptation to intervene proclaiming the most humanitarian of intentions
simply hubris, the sin of those who would play God?
Note
1
The problem is not restricted to medieval scholastic thinkers. President Harry S. Truman is said to have
claimed he ‘was in search of a one-armed economist so that the guy could never make a statement and
then say: ‘‘on the other hand’’’. The Macmillan Book of Business and Economic Quotations, ed.
Michael Jackson (New York: Macmillan, 1984: 68).
References
Aristotle. (1946) The Politics. E. Barker (Ed) (Oxford: Oxford University Press).
Bellamy, A. J. (2004) Motives, outcomes, intent and the legitimacy of humanitarian intervention, Journal of
Military Ethics, 3(3), pp. 216 /232.
Brundage, J. A. (1969) Medieval Canon Law and the Crusader (Madison: University of Wisconsin Press).
Crawford, J. (1979) The Creation of States in International Law (Oxford: Clarendon Press).
Davenport, F. G. (Ed) (1917) [1967] European Treaties bearing on the History of the United States and its
Dependencies to 1648, Vol. 1. (Washington, DC: Carnegie Institution of Washington; Gloucester, MA:
Peter Smith).
Elliott, J. (1970) The Old World and the New 1492 /1650 (Cambridge: Cambridge University Press).
Ferguson, N. (2004) COLOSSUS: The Price of America’s Empire (New York: Penguin Press).
Grafton, A. (1992) New Worlds, Ancient Texts: The Power of Tradition and the Shock of Discovery
(Cambridge, MA: Harvard University Press).
Grotius, H. (2004) [1609] Free Sea , R. Hakluyt (trans.), D. Armitage (Ed) (Indianapolis, IN: Liberty
Fund).
Hanke, L. (1974) All Mankind is One (DeKalb, IL: Northern Illinois University Press).
Jackson, R. H. (1998) Surrogate Sovereignty? Great Power Responsibility and ‘Failed States’. Working
Paper No. 25. Institute of International Relations, The University of British Columbia.
Johnson, J. T. (1981) Just War Tradition and the Restraint of War (Princeton, NJ: Princeton University
Press).
Kipling, R. (1982) in: I. Howe (Ed.), The Portable Kipling , pp. 602 /603 (New York: Viking Press).
Lesaffer, R. (2004) Peace Treaties and International Law in European History from the Late Middle Ages to
World War One (Cambridge: Cambridge University Press).
Muldoon, J. (1978) Papal responsibility for the infidel: Another look at Alexander VI’s inter caetera,
Catholic Historical Review, 62(2), pp. 168 /184.
Muldoon, J. (1979) Popes, Lawyers, and Infidels: The Church and the Non-Christian World 1250 /1550
(Philadelphia, PA: University of Pennsylvania Press).
Muldoon, J. (1980) John Wyclif and the rights of the infidels: The Requerimiento re-examined, The
Americas, 36(3), pp. 301 /316.
Muldoon, J. (1999) The Great Commission and the Canon Law; The Catholic Law of Mission, in: J. Witte
& R. Martin (Eds), Sharing the Book; Religious Perspectives on the Rights and Wrongs of Proselytism ,
pp. 158 /173 (Maryknoll, NY: Orbis Books).
Muldoon, J. (2001) Discovery, grant, charter, conquest, or purchase: John Adams on the legal basis for
English possession of North America, in: C. Tomlins & B. Mann (Eds), The Many Legalities of Early
America , pp. 25 /46 (Chapel Hill, NC: University of North Carolina Press).
Muldoon, J. P. Jr. (1995) What happened to humanitarian intervention? Bulletin of the Atomic Scientists,
51(2), pp. 60 /61.
Pagden, A. (1986) The Fall of Natural Man (Cambridge: Cambridge University Press).
Pagden, A. (1981) The School of Salamanca and the Affair of the Indies, History of Universities, 1, pp. 71 /
112.
Parry, J. H. (1961) The Establishment of the European Hegemony (New York: Harper & Row).
Parry, J. H. (1966) The Spanish Seaborne Empire (New York: A. A. Knopf).
Russell, F. H. (1975) The Just War in the Middle Ages (Cambridge: University Press).
Stevens-Arroyo, A. M. (1993) The inter-Atlantic paradigm: The failure of Spanish medieval colonization
of the Canary Islands and Caribbean Islands, Comparative Studies in Society and History, 35(3), pp.
515 /543.
Tharoor, S. (2003) Why America still needs the United Nations, Foreign Affairs, 82(5), pp. 67 /80.
Tierney, B. (1997) The Idea of Natural Rights (Atlanta, GA: Scholars Press).
Virgil, (1951) Aeneid , trans. R. Humphries (New York: Charles Scribner’s Sons).
Vitoria, F. de (1991) in: Anthony Pagden & Jeremy Lawrance (Eds), Political Writings (Cambridge:
Cambridge University Press).
Biography
James Muldoon is Professor of History (emeritus) of Rutgers University
and an Invited Research Scholar at The John Carter Brown Library at Brown
University. His research has focused on relations between Christian and non-
Christian societies, especially as discussed by medieval canon lawyers. His
major publications include Popes, Lawyers and Infidels (1979), The Americas
in the Spanish World Order (1994) and Empire and Order (1999). Some of his
articles have been republished in Canon Law, the Expansion of Europe and
World Order (1998).

(06b) Francisco de Vitoria and Humanitarian Intervention

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Journal of Military Ethics

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Vol. 5, No. 2, 128 143, 2006

Francisco De Vitoria and

ABSTRACT Humanitarian intervention is a staple of current discussions about relations among

KEY WORDS: Vitoria, humanitarian intervention, Conquest of Americas, just war

Humanitarian intervention is a concept found not only in rarified UN policy

1502-7570 Print/1502-7589 Online/06/020128 /16 # 2006 Taylor & Francis

variety of guises and ‘is today well-established in international society and

are resolved, at least temporarily (Ferguson 2004: 56 57). To justify

intervening in Haiti or elsewhere, there was a need to create a new vocabulary

international community, on universal humanitarian standards, and on

Grotian schema allowed European states, presumably being more developed

Bartolomé de Las Casas, for example, condemned the treatment of the

Vitoria’s De Indis was not a startlingly creative response to the moral

Spanish or their ability to administer large territories justly might convince

In dealing with the issue of intervention in order to achieve the salvation of

Christianity immediately upon hearing the Requerimiento could not possibly

Vitoria discussed the right to Christians to punish violators of the natural

What makes Vitoria’s discussion of cannibalism and human sacrifice

explicitly, sometimes assumed, was that such people were engaging in

should be winked at in Christian society, but used as an excuse for conquering

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