"Humanitarian Intervention" as the Legal Basis for Colonization: Why Arguments Against Colonization Must be Grounded in Morality, not Legality - Josh Morganstein
In Contract & Domination, Carol Pateman argues that terra nullius was the justification for various colonial endeavors. Pateman cites a slate of scholarly literature from the 1990s that reviewed early justifications for colonization, arguing that terra nullius constituted much of the early justification of colonization (37). Pateman outlines how European powers used terra nullius to occupy land—jurisdiction was granted to the country which occupied it (in other words, the country that exploited, dominated, and pillaged the land and its populace) (41). She argues that terra nullius was employed in two ways. First, defenders of colonization in North America argued that the land was uninhabited (36). Second, they argued that even when the land was inhabited, no sovereign government existed (36). Pateman critiques these two justifications, and much of her argument rests on the idea that North America and Australia at the time cannot be considered terra nullius.
I wanted to hone in, however, on a particular distinction made by Pateman. She argues that the Spanish, through their conquistadores, used Grotian conquest logic to justify colonization, whereas the British used terra nullius justification in order to distinguish themselves from the brutality of the Spanish colonization a century prior. While Pateman goes on to critique the settler contract in order to prove why the justification for British colonization (terra nullius) is illegitimate and legally bankrupt, she assumes that the Grotian justification for Spanish colonization is obviously illegitimate. It is not an unfair assumption—the justification assumes that natives were “no more than beasts” (43) and, it follows then, that its inaccuracy spells the death of its legitimacy. Much more interesting than the Grotian justification, however, is the other “just war” theories surrounding colonization. Francisco de Vitoria’s postulation of an early form of humanitarian intervention, in particular, came to mind when reading Pateman.*
Francisco de Vitoria, a Spanish theologian in the School of Salamanca, posited that states have the right to punish other states who act improperly. As Daniel Schartz notes in “Late Scholastic Just War Theory” (in Seth Lazar’s and Helen Frowe’s Oxford Handbook of Ethics of War), Vitoria’s ideas became quite influential and were used (or perhaps, better put, abused) by the Spanish as the intellectual justification for colonization of Central America. The Spanish argued that the Aztec’s inhumane governance practices (which admittedly were horrifying—consisting of the mass sacrifice of children, frequent massacres of entire villages, genocidal acts, etc.) constituted grounds for humanitarian intervention. Unlike the terra nullius justification which doesn’t acknowledge the native people at all and the Grotian justification which regards the native people as beasts, Vitoria’s “justification” acknowledged the existence of a state in the colonized land. It, therefore, does not fall victim to the same inaccuracy that plagued the other justifications. Furthermore, humanitarian intervention remains an important justification for current warfare. It has been invoked to prevent atrocities (as by India in the Indo-Pakistani War of 1971 to prevent the massacre of Bengali nationalist forces in East Pakistan and by the United States in the Spanish-American war in 1898 to end the Spaniard's widespread employment of concentration camps to suppress Cuban rebels). Furthermore, humanitarian intervention is solidified in international law under the R2P doctrine. Indeed, we can imagine a case where if a government today was committing the same types of atrocities that the Aztecs were committing, it would be well within international law as well as widespread conceptions of morality for the leading world powers to authorize a military intervention to prevent such atrocities (as they did in Libya). Such an intervention could (and would) be labeled as "colonization" by many, but it would be perfectly legal and (in my opinion) moral. In other words, humanitarian intervention is neither morally nor legally bankrupt (as Pateman alleges terra nullius is). Thus, the complication arises: How can we condemn the Spanish colonization of the Americas without relying on a critique of humanitarian intervention?
The answer: we should focus on the violence that colonization entailed, and rather than relying on an explicitly legal critique of colonization, we should use a moral one. Colonization was unjust because it was an unjust application of force. Regardless of whether or not the Spanish possessed the right to humanitarian intervention in the 1550s against the Aztecs is an impossible legal debate (the legal precedent was not established, the Aztecs committed atrocities but so had the Spanish Empire, and the specifics of what constitutes the right to humanitarian intervention is still debated to this day). It is very clear-cut morally, however, that the Spanish were wrong in exploiting and pillaging the native land and in raping and murdering the native people, just as the British were wrong in doing it to the natives in North America. The moral argument applies in all cases; the legal only in some.** For that reason, arguments against colonization must be grounded in the demonstration of unjust use of force (a moral argument, rather than a legal one).
*This blog post relies on the assumption that colonization can be best viewed as a form of warfare, a view for which I am admittedly indebted to The Wretched of the Earth by Frantz Fanon (even I must occasionally borrow from a Marxist).
**The only legal argument which I could potentially see applying in all cases is one grounded in jus in bello concepts that are codified in treaties/documents like the Geneva Conventions, but that's a whole other conversation.
Hi Josh!
ReplyDeleteThis is a great post, but I do think in certain scenarios, using a moral argument for colonization allows certain atrocities to occur nonetheless. While it is true that moral arguments rather than legal arguments apply in all cases, people often refer to moras to justify their own poor actions. To rely on a system of moral arguments, you assume that all people possess a system of ethical and moral decision-making. But this is simply not true.
These arguments do not always produce what we would consider a just outcome. Consider a utilitarian who appeals to his sense of morals and decides that actions are morally right when they produce the most overall good. Jeremy Bentham justified American slavery under utilitarianism. So, it is wholly possible that appealing to utilitarian morals can justify colonization -- and certainly not clear cut that the Spanish atrocities were not moral (under this particular justification).
I also think it is important to consider moral arguments and scenarios of non-violent colonization (more commonly in cultural or religious colonization). Consider Mother Teresa. While she was considered a moral hero and pious woman who appealed to her sense of morality to help the common good, her work centered on race-based colonization efforts. Her savior complex, which informed her moral argument for just colonization, led her to (in her view, morally) forcibly convert patients to Catholicism on their deathbeds (a form of religious colonization).
It is easy to use moral arguments against colonization after it occurs. But, when people lack recognition of whether their morals will result in justice (they just assume that they are) and use a moral justification to colonize, enslave, or imperialize, we have to wonder how impactful moral arguments can realistically be. So, maybe you are correct that merely appealing to legal arguments is insufficient in certain cases like that of Spanish colonization. But, a totally moral approach also has its shortcomings.
Hi Josh, great blog post. I like the distinction you draw between the moral and legal arguments, and definitely think there's merit to what you're saying.
ReplyDeleteHowever, I would contest that morality is a shaky justification, for the simple reason that it is, by its very nature, subjective. The boundaries between morally acceptable and unacceptable actions are ever-shifting, and differ from society to society. Even on a micro scale, the moral compasses of two individuals can be radically different. Homosexuality used to be considered morally wrong, and depending on who you ask or where in the world you are, it still can be. Morality has been used throughout history to justify raping and pillaging, slavery, genocide, honor killings, and many other acts that we now consider atrocious. Morality is still used today to justify acts of violence and discrimination. Police work is often construed through the lens of morality, and this can be used to defend police brutality. Russia's occupation of Ukraine has been justified using arguments based in morality (Putin has said that his goal is to "denazify" Ukraine, and to protect the Russian-speaking citizens of Ukraine who are being unjustly subjugated). Propaganda though it may be, this is still a justification that, at its core, is grounded in morality.
I could go on, but the point is that a universal conception of morality does not exist. Morality can, and has, been used to justify acts that are later or elsewhere considered abhorrent. Therefore, I do not agree that morality can be used to ground arguments against colonization, because it assumes that all parties share the same moral presuppositions. While that may be true sometimes, it inevitably will not always be true.
I would like to make the case that legality can be used instead. In the Mabo vs. Queensland case that Pateman cites, the High Court of Australia ruled that the principle of terra nullis was incorrect, and that the Meriam people who were displaced by colonization were "entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands." In doing so, the doctrine of native title was codified in Australian law, but it was merely a recognition of the rights of indigenous peoples who had lived off the land for thousands of years. This ruling is important for two reasons.
First, it invalidates terra nullis. Just because the indigenous peoples were not "using" the land by the standards of the colonizers does not mean that the land was justly available for appropriation. The colonizers applied their own moral framework to justify their imperial efforts, assuming that their own customs were the only ones that matter. However, as Cheryl Harris points out in Whiteness as Property: "Citing custom as a source of property law begs the central question: whose custom?" (Harris 1727)
Secondly (and subsequently from the first point), it recognized that the indigenous peoples had a right to the land under their own customs and laws that had existed for centuries prior to the arrival of colonizers. In doing so, the Mabo judgement establishes legal precedent for cases regarding justice for native tribes going forward. However, more importantly, it recognizes that the indigenous people had a pre-existing legal claim to the land, and that right was violated by colonizers. This is crucial in establishing a legal argument against colonization: understanding that native tribes already had their own system of laws that justified their use of the land, and those rights were violated when colonists forcefully imposed their own system of morality and rights upon them.
Hi all,
ReplyDeleteI appreciate all of your comments and the distinctions being made here. Like Kat and Umer brought up, I also have some issues with using a purely moral argument to assess colonization and other injustices. Umer outlined some great examples of the subjectivity or morality. To add to that, I want to bring up the use of Lockean theory to justify colonization. Josh, you brought up the justifications that colonizers used to take indigenous land - "Pateman outlines how European powers used terra nullius to occupy land—jurisdiction was granted to the country which occupied it (in other words, the country that exploited, dominated, and pillaged the land and its populace) (41). She argues that terra nullius was employed in two ways. First, defenders of colonization in North America argued that the land was uninhabited (36). Second, they argued that even when the land was inhabited, no sovereign government existed (36)." Pateman critiques these form a legal standpoint, and you propose we implement a moral standard. However, I see these incidents as moral justifications, like Kat and Umer bring up. So, to me, that also poses problems just due to the subjectivity of morality.
On the other hand, I also agree with you, Josh, that legal standards certainly do not cover all forms of colonization and injustice. You raise the question: "How can we condemn the Spanish colonization of the Americas without relying on a critique of humanitarian intervention?" And I agree that legal systems do not provide a solution to this answer. But as Kat and Umer have pointed out, it doesn't seem like moral justification would work entirely either. Unless there exists a "universal conception of morality" like Umer says, there isn't a set way to ensure morality's proper enforcement.
I do want to add a question here that might complicate things though: do the legal system and standards not reflect a certain type of societal morality? Rather, does grounding an argument against colonization in legal terms not implement morality of that same society? I think that the two systems might be too intertwined for me to completely agree on legal OR moral arguments because I see them as connected in the first place. I took this nuance to also be reflected in Pateman's work because she cites legal precedents as well as justifications and reasoning behind colonizing actions. To conclude, I think that it is rather impossible to look at the issues of colonization through a purely legal or purely moralistic lens given the interconnection of the two arguments.
Hi all, it seems your critiques of my blog post rest upon the idea that morality is subjective/people use different moral systems. This argument was made by Hobbes in Leviathan. He wrote that moral arguments are “ever used with relation to the person that useth them” (Hobbes 22) He continued: “For one calleth wisdom, what another calleth fear; and one cruelty what another justice… And therefore such names can never be true grounds of any ratiocination” (Hobbes 22). As I always like to say, this argument, however passionately articulated, suffers from the notable disadvantage of being absolutely wrong. There is indeed merit in applying moral language to war/colonization (and we do so all the time).
ReplyDeleteIn his 1977 book Just and Unjust Wars, Michael Walzer responds to Hobbes by contending that “fundamental social and political transformations within a particular culture may well leave the moral world intact” (Walzer 16). Walzer believes that humans, even across dissimilar cultures and traditions, share moral judgments. These moral judgments are based in moral conceptions—these moral conceptions are the same ones that engendered feelings of deep guilt—or “agony” as Walzer said—among the Athenians after the slaughter of the men of Mytilene and the feelings of many Russian citizens who see what their government is doing in Ukraine.
Just because moral rules are often violated (in war, colonization, etc.) does not mean they do not exist. Disputes over what actions (taken by colonial powers, for example) are wrong implies that we all agree some acts are wrong. Morality does not have to be universal to be objective.
In fact, we all presuppose objective morality in our daily lives. By using phrases like "people often refer to morals to justify their own poor actions” (Kat), you you are presupposing that those actions are poor. That is inherently a normative claim. Indeed, when you say that morality can be used to justify atrocities, the use of the word “atrocities” means you are making a moral argument without even realizing it. We make moral arguments all the time, and do not worry about morality being subjective. Only the fool says, "well, people considered slavery to be moral back in the day, and we consider it immoral now, but because morality is subjective, I guess we don't know who is right." Of course we know who is right. We presuppose the superiority of our moral systems to everyone else's (be them historical actors or members of other societies). If we didn't, we would have no basis for acting upon those moral systems—we would have no basis whatsoever for saying that certain actions are "moral" or "immoral." By making moral arguments, we presuppose objective morality. When someone does something wrong, we do not say “your actions are wrong according to my moral standards, but your actions are excused because you’re probably operating on a different moral conception than me.” We just say: “your actions are wrong.”
I want to weigh in here by building off of Eva's to provide some synthesis while also defending the relevance of Pateman's argument. Josh is right that any normative claim involving an "ought" or "should" statement assumes a form of moral judgement, and we need not be concerned with its subjectivity. Losing the idea of objective morality leads pretty quickly to nihilism. It is therefore important to maintain that baseline when discussing issues like colonization. What Kat and Umer are guarding against, however, is abandoning legalistic principles entirely and thereby allowing anyone to do whatever they think is right. This obviously leads to problems, and is where Eva's point comes in. Laws "reflect a certain type of societal morality" (Eva). They are constructed to implement some understanding of morality that can be enforced against those of others. The particular character of law determines what kind of morality it enforces.
ReplyDeleteTo the extent that Pateman's legal argument that the American, Canadian, and Australian social contracts were illegitimate *has normative implications*, it assumes a moral premise, which is that we should seek a form of contractual legitimacy in our society. As you allow with your footnote about jus in bello, Josh, we can therefore easily meet your challenge of condemning "the Spanish colonization of the Americas without relying on a critique of humanitarian intervention" with a legal argument: their invasion of the Aztec empire went outside the bounds of a legal humanitarian intervention. This is, as Eva points out, equally a moral argument, since the bounds of legal humanitarian intervention are presumably set in accordance with some understanding of morality. You claim at the very end of your post, Josh, that an argument about "unjust use of force" is a moral, not a legal one. But isn't the delineation of what is and what is not a just use of force the essential task of a legal system?
Pateman's conclusion, however, goes a step beyond arguing that the social contracts of the New World were unjust because they were bad (illegal) social contracts, which would assume the justice of a good (legal) social contract. Her real aim in giving us the legal history of terra nullius is to argue *against* an essential premise of social contract theory: a "clean slate" for the "creation of a new civil society" (78). The paper illustrates that for social contract theory to work in the New World, it had to rely on the false premise of terra nullius. This fact begs the question: if the contractual legitimacy of America, Canada, and Australia, shining beacons of liberalism and Lockean government, required political theorists to rely on such blatant falsehoods, what does that say about grounding legitimacy on a social contract at all? I believe that Pateman's critique (along with many others) requires us to look beyond the social contract for the source of justice in law and government.
Hi everyone!
ReplyDeleteI wanted to join the discussion by trying to answer the question Josh lays out: "How can we condemn the Spanish colonization of the Americas without relying on a critique of humanitarian intervention?" I would argue that we can't condemn the Spanish colonization efforts without also condemning modern humanitarian intervention. I think that some of the same assumptions and justifications used to justify colonization are employed to justify humanitarian intervention. The main one that comes to mind is the idea of the natives or other countries being "beasts" and needing help becoming civilized. Humanitarian efforts get involved with good intentions but fail to recognize how the culture differs from their own and what might come across as uncivilized to some is a part of everyday life in another country. Who is one country to say that what happens in another is wrong or bad and needs to get involved? I recognize that if mass genocide or things like that are occurring then yes, sometimes intervention is needed, but I think this question provides a good opportunity to step back and assess humanitarian efforts and their effectiveness. A distinction needs to be made between when one thinks they need to get involved because of their own ideas and conceptions versus when their is an objective problem that could be solved by their support. It should be about the best interest of the country in need not about the country providing support. This is how we more away from humanitarian efforts that mimic the acts of colonization.
Hi Josh!
ReplyDeleteI think you raise a good point in distinguishing between the different types of colonization (violent vs. nonviolent). However, to echo Kat’s point, I’m not sure that nonviolent colonization is morally acceptable either. Although humanitarian intervention might create positive outcomes in certain scenarios, and can probably be morally acceptable in certain circumstances, it often circumvents the actual needs/desires of those people being “helped.”
So, I agree with your point that we cannot judge colonization through a purely legal lens. However, I’m not sure I agree with what your conception of “moral” is when it comes to humanitarian intervention. I think that any foreign intervention or involvement needs to be based on a doctrine of consent to be considered morally acceptable. Otherwise, humanitarian intervention echos the structure for the settler contract: “The Native people are not part of the settler contract––but they are henceforth subject to it, and their lives, lands, and nations are reordered by it.” Even if humanitarian intervention is considered an overall good in the utilitarian sense, it can still elevate the sovereignty and judgment of one nation or people over another.
It would be easy to argue that we can allow for humanitarian intervention so long as it is based on consent of those being aided. However, this doctrine of consent is almost never fully honored in cases of humanitarian aid, and a power dynamic that mirrors the settler contract often arises. Take the Spanish-American War of 1898, which helped to end Spaniard concentration camps for Cuban rebels. While the United States did help to free Cuba from Spanish control, they replaced that control with American economic and political dominance. U.S. forces occupied Cuba for the next decade and organized their school system and finances. After this period of time, the Cuban government was allowed to take back control of their affairs; however, as a condition of “independence,” the U.S. pressured Cuba to adopt the Platt Amendment into their constitution. This amendment granted the United States to build naval bases and coaling stations in Cuba, barred Cuba from making treaties with other countries that would give them power over their affairs, and prevented Cuba from stopping the U.S. from imposing a sanitation system ont he island. Furthermore, it granted the U.S. the power to intervene in Cuban affairs “for their own good” if they deemed it necessary (https://www.archives.gov/milestone-documents/platt-amendment#:~:text=Approved%20on%20May%2022%2C%201903,the%20enforcement%20of%20Cuban%20independence).
My point here is that humanitarian aid almost always comes with conditions, and is rarely actually based on consent, at least long term. It often ends in one group imposing their will or system of government on another, even if it also generates some positive outcomes. So, if we are going to humanitarian intervention from a moral standpoint rather than a legal one, I think we need to better distinguish between humanitarian intervention and a glorified/modernized form of the settler contract.