I was recently helping a student with an assignment on
putting Christopher Columbus on trial. The student struck me as reasonably
intelligent and without any strong political axes to grind. My basic pitch to them was that
there are good arguments to make against Columbus but he was not a simple
cartoon villain. I asked them if they had ever heard of Howard Zinn, the
primary influence for this particular assignment. They had not. This is in
keeping with my general experience with students. They do not know who Zinn was
even when copies of his People’s History of the United States are on their classroom
bookshelves and posters with his quotes are on the walls. As counter-intuitive
as this may sound, I do not take this as good news. These students are so
thoroughly in Zinn classrooms that they are unable to imagine an alternative. Zinn
as the author of a book can be countered by simply pointing out that there are
other perspectives. Admittedly, this is assuming that the individual has not
turned Zinn into scripture. Part of what makes Zinn so dangerous is that he
presents himself as offering Gnostic knowledge as to the “true” nature of the
United States. This means that, if you disagree with Zinn, you are by
definition, one of the “unenlightened” or even the “Satanic” so your arguments
can be dismissed out of hand.
What struck me as particularly interesting was that the text framed the charges explicitly in terms of modern concepts like genocide and ecocide as opposed to charges that would have meant something to someone in the sixteenth century like the violation of Natural Law and just war theory. Genocide and ecocide are such new concepts that we are still in the process of establishing what they even are. To be clear, this does not mean that these concepts are illegitimate. On the contrary, much hinges on our ability to incorporate them into a meaningful legal framework. This takes time and careful thought as opposed to throwing these terms around to make yourself sound sophisticated and socially conscious.
No one has made any serious attempt to prosecute someone for ecocide so we really have no idea what such a charge would look like if brought to a court of law in the twenty-first century let alone to accuse someone in the sixteenth century, before anyone even thought in terms of humans being able to harm something as abstract as the environment. Even in the case of genocide, we are still in the beginning stages of establishing precedents to make it a meaningful crime. Contrast this with an established crime like first-degree murder, where all parties basically agree with the meaning of the charge, leaving the only question as to what the facts are. No defendant is going to get away with claiming that murder is legal.
Making sure that even the defendant recognizes that what they are accused of is actually a crime is important in order to establish a mens rea, a guilty
mind. To get a conviction, the defendant needed to have known that what they
were doing was illegal in some sense. For example, an essential part of the
Nuremberg Trial was that the Nazi defendants knew that what they were doing was
in violation of standards and norms of conduct and would invite retribution from
the international community if they were caught. Otherwise, they would not have
covered up their atrocities during the war and then denied any knowledge of them
happening afterward. Without this, prosecutors could not have gotten around the fact that the entire trial was in violation of the principle of ex post facto as the defendants had not violated any clearly defined statutes.
The recent ICJ charges against Israel are a good example of
the problems facing anyone trying to make genocide a meaningful crime. Putting aside
what one thinks about Israel’s actions in Gaza, does anyone honestly believe that
this trial is really about the war with Hamas as opposed to the question of
Israel’s right to exist? Until you can distinguish the two, no genocide trial
is going to carry legitimacy.
Murder is a meaningful concept because it is an objective
claim that can be disconnected from what anyone thinks of the rightfulness of the perpetrator’s action. For example, I may believe that it is moral to shoot an actual white supremacist like Richard Spencer and not simply punch him. That being said, such an action
would be murder, however noble the cause. As such, as a juror, I would be
obligated to vote guilty even though I would find myself agreeing with the
defendant.
If legal professionals are still working out the details as
to what counts as genocide and to distinguish it from what they personally think of the defendant,
how are high school students supposed to do any better? One suspects, that part
of the point of this exercise is to ingrain into students the anti-law belief that being
guilty of a crime is all a matter of whether you like someone and agree with
their morality. This is the natural way for humans to think. Unless it is
actively educated out of people, we are left with not a legal system but a collection of warring tribes pursuing vendettas against each other.
This use of contemporary terms to denounce Columbus is all the more frustrating because, if you want to
teach students about Spanish atrocities in the New World in a meaningful way,
there is no need to bring in concepts that we, let alone sixteenth-century
Spaniards, do not yet understand. Instead, we can bring in concepts such as Natural Law and just war theory, which were widely understood at the time.
Sixteenth-century Europeans did not simply believe that they
were superior to everyone else and could do with them as they pleased. Medieval Natural
Law Theory, which Christians developed out of the Greco-Roman philosophical tradition, took as its starting point that ethics, while of divine origin, was something distinct from Christianity. As such, non-Christians had rights even to the point that non-Christians could be legitimate rulers with the ability to demand the obedience of Christians. For example, Jesus implied that one should pay taxes to the Romans. While medieval Natural Law assumed hierarchy with a king at the top and everyone else their
subjects, the king had obligations to his subjects. As for foreigners,
the king could not simply wage war, even against non-Christians, without a
legitimate cause and once he conquered a land, the people, once they submitted themselves, became his
subjects whose rights must be protected.
This is a useful lens to understand Spanish activity because
it quickly became clear that the actions of many Spaniards in the New World
violated Natural Law and many Europeans were horrified by what they heard. This included Ferdinand
and Isabella, who saw Native Americans as their subjects whom they were
obligated to protect both physically and spiritually. Far be it for me to want
to defend Ferdinand and Isabella who were morally responsible for the deaths of
thousands of Jews during their expulsion from Spain in 1492. That being said, it
is difficult to hold them responsible for what happened to Native Americans.
Introducing students to Natural Law and just war theory would have the advantage of helping them get into the heads of early modern Europeans so we could have a meaningful conversation as to what it meant to move from a medieval framework to the Enlightenment without falling into the Whiggish trap of assuming that this meant going from religious fanaticism to becoming a rational tolerant individual.
Imagine that you are an educated European
hearing about Native Americans for the first time. You might ask if they have
governments, property, and marriage, which would establish them as “civilized” even
if they are not Christians and greatly limit the right of Europeans to
colonize their lands. For example, the Japanese, whom Europeans are soon going
to encounter for the first time, are, even if they are not Christians, obviously civilized and, unlike Muslims, have no history of
making war against Christians. As such, beyond sending missionaries and
merchants, Europeans need to leave Japan to the Japanese.
Even if Native Americans are not civilized and cannot
claim ownership over their land this does not mean that they are subhuman and
can be abused at will. On the contrary, it is clear that they deserve
protection and Europeans should help them become civilized. It would be
difficult to teach them about Christianity unless they have already embraced the
framework of European civilization and understand Natural Law, without which
Christian doctrines like Original Sin make no sense.
It quickly becomes clear that not all Native Americans are
the same. Some are warlike and brutal, a threat to Europeans and natives alike. The
obvious solution is to fight the “bad” natives and protect the “good” ones.
Unfortunately, it also becomes clear that many of the Spaniards who have come
to the New World are nothing better than thieves and murderers. (The fact that
people in the sixteenth century violated the moral code as they understood it
on a regular basis should be no more surprising than seeing people today
violate the moral code as we understand it.) Acknowledging the existence
of “bad” Spaniards means that it is hard
to tell the difference between the “good” natives who are merely fighting to
protect themselves and the “bad” natives motivated by greed and a desire to
kill. How about we send godly friers to help form native communities? The good
intentions of these friars can be seen from the fact that they are risking
their lives to come to America and preach the gospel to the natives without any
hope of material gain. The friers will control the soldiers by reminding them
of their Christian duty. The friendly natives should want to join of their own
free will to learn European ways and become Christians. Those who do not want to join can assumed to be hostile.
All of this sounds reasonable until you realize that the biggest threat to Native Americans was never European guns and steel but the germs Europeans unknowingly carried. An important lesson that I want my students to take away is that millions of Native Americans died despite European good intentions. My students may mean well and their ideas might still end up killing millions for reasons that are beyond their comprehension.
Contrary to popular myth, pre-modern Europeans did not
believe that they were superior to other people. They knew better. It was the
Enlightenment that pretended to have discovered the fact that China was an
advanced civilization that had developed useful insights regarding ethics. This
was somehow supposed to refute Christianity even though Christians had never denied this fact. One could not have
been a scholastic who admired Greco-Roman thought without being aware of this. On
the contrary, Natural Law is premised on the assumption that one can develop an
advanced society with an ethical system without Christianity. It was because
our ancient Greco-Roman pagans were basically decent people that they
recognized that they fell short of the ethical principles that they knew were
true. This led many of them to become Christians in the first place as they
felt they needed atonement. It should be noted that Protestants are going to
turn against this Natural Law tradition precisely because it so readily
conceded that humans could be good, at least a little bit, without believing in Jesus. In this, Protestants ended up accidentally bringing about the Enlightenment.
The only advantage that pre-modern Europeans believed they had
was Christianity, which allowed them to go to heaven. They knew that they were
not more advanced than other people. It was only once we get to the eighteenth century that Europeans have a decisive edge over everyone else. It is
only at this point that Europeans could even begin to ask the question of why
they had this advantage and conclude that it actually had something to do with them being somehow superior. It should be noted that for Adam Smith the European advantage was solely
due to social and legal systems and not any innate European abilities.
If you were a Native American running into a European who was
in the process of dropping the medieval Natural Law model in favor of
the Enlightenment, there might be certain advantages but also risks. Our
Enlightened European may be in the process of developing a notion of human
rights that is unconnected to being part of a political system. Under the
influence of Rousseau, our European might look to you as a model of innate human
goodness untainted by civilization or Christianity. On the flip side though, unmooring
our European from Natural Law and its emphasis on personal relationships is
going to limit their sense of obligation to those they have power over. If Native
Americans are suffering it must be because they are "unenlightened savages," something that Europeans bear no responsibility for. Prioritizing natives as
economic assets or, worse, bodies occupying useful land over souls in need of
salvation is going to limit any incentive to treat Native Americans with
decency. Most importantly, the Enlightenment had not yet solved the
epidemiological problem that turned first contacts into death traps for Native
Americans.
