Cartel publicitario Golden Club 1926. Cassandre

If desert and uncultivated places are transformed by cultivation from sterile or at least useless places into fertile and useful places, since in this manner industrial products are multiplied and a crop of natural products is developed by industry and exertion, which assuredly tends to the perfecting of the condition of the nation.¹

As in the case of Latin America, private property, trade, and occupation played a fundamental role in European expansion during the seventeenth and eighteenth centuries in the East Indies and North America. These juridical institutions allowed what I have termed the ‘material appropriation’ of ecosystems in non-European territories, that is, the apprehension and exchange of particular parts of nature, such as minerals, animals, medical plants, etc., and the transformation of particular habitats into plantations for export to international markets. The transformation of ecosystems into commodities reduced biodiversity and had severe localized impacts in the non-European territories in which Europeans decided to intensively extract or produce certain natural resources.

During the seventeenth and eighteenth century, natural lawyers further developed the rights to private property, trade, and occupation that Spanish scholastics had previously ennunciated as part of the ius gentium. Grotius, Pufendorf, Locke, Wolff, and Vattel further theorized about these economic institutions and theories in their disquisitions on the law of nations. There was no uniformity in their treatment of these institutions. Authors disagreed on the scope and applicability of rights of an economic nature, particular when it came to their use in non-European territories. However, they all shared the conviction that seizing nature and exploiting it in order to improve the world was legal and legitimate.²

1 Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum, Vol I, the Translation by Joseph H. Drake (Oxford, Clarendon Press, 1934) Ch III §279 142.

2 As Andrew Fitzmaurice has noticed: ‘the fact remains that the natural law arguments of trade, and friendship and occupation were used by Europeans to dispossess indigenous Americans and other indigenous peoples.’ See Fitzmaurice, Sovereignty, 60.

156 This conviction was a reflection of the important transformations that were underway in their own societies, particularly in the second half of the eighteenth century. In countries like England, the Netherlands, or France, the material condition of life had started to improve thanks to the application of humans’ increasing scientific and technical power to the transformation of nature. Moreover, this secular impulse based on economic factors was still in consonance with Protestant theology. As in the case of Vitoria, natural economic rights and Protestant views on the human relationship with nature tended to converge toward the same goal of improvement through exploitation. The Protestant way of understanding non-human nature was particularly influential in North America due to the strong religiosity of the first settlers. The belief that God had commanded humans to dominate nature paved the way for economic theories and institutions that helped give concrete expression to that power.

Even though the religious and ideological backgrounds of Vitoria and later intellectuals had certain similarities, there were also fundamental differences. This explains the different orientations that Vitoria’s doctrines and those of later authors had. Neither Vitoria, Soto, Las Casas, nor Acosta for that matter were directly invested in the economic dimension of colonization and the material gains derived from the exploitation of labor and natural resources in the colonies—in fact Las Casas strongly criticized it. In contrast, thinkers like Grotius and Locke defended the economic interest of colonial actors, even investing directly in colonial ventures. But even authors who did not have a direct stake in European imperialism were interested in the ways in which their nations could flourish by participating in the economic gains that colonialism brought about. For them, too, private property, trade, and agriculture were the best recipes to that end.

Scholars who represented the interests of small European powers put the accent on the freedom of commerce, in the possibility of each nation to protect itself from the commercial encroachment of the most powerful ones. In contrast, those that represented great maritime empires tried to articulate as permissible and expansionist a doctrine of free trade as possible. Similarly, they amplified the scope of the right to occupy vacant natural resources and especially land in non-European territories. In North America, these theories lay the foundations for the whole appropriation of the continent several decades after the American War of Independence. That is, however, a later story, one that only makes sense after examining the genesis of the legal and ideological mechanisms at play in the North American context.

British inroads in North America and Dutch commercial imperialism in the East Indies created the need for legal developments that allowed the continuous expansion of international markets and the concomitant exploitation of non-European ecosystems.

157 Reformation theology and human power over nature

Christianity had also influenced the Spanish scholastics’ views about the natural world. Notwithstanding nuances in approach, they all believed in a strict separation between the natural and human spheres. Only rational creatures could have natural rights. Moreover, some authors like Vitoria, for instance, put non-human nature at the complete disposal of non-human beings.³ This approach was in consonance with the theology of Saint Thomas Aquinas.⁴

The main treatises on the law of nations during the seventeenth and eighteenth centuries were written after the Reformation had started to alter the religious and political configuration of Europe.

Protestantism consciously broke with the Catholicism that had inspired the reflections on universal rights of the Spanish scholastics. But was there any difference in the way authors from both periods understood human power over the natural world? Did the Reformation introduce a novel way of understanding the human relationship with nature?

The theology of Martin Luther (1483-1546) and Jean Calvin (1509-1564) can be defined as

‘theanthropocentric’ because of its focus on the relationship between God and humanity and, particularly, on the question of human salvation.⁵ They devoted less attention to examining the status of non-human nature and its relation with humans. Still, both authors reflected on the Genesis, offering their own interpretation of the divine mandate of human dominion over non-human nature. In this regard, there are several parallels between their views and those of Aquinas (who inspired the Spanish scholastics).

Luther considered humans in the state of innocence as outstanding creatures and ‘far superior to the rest of the living beings’.⁶ Human superiority was the consequence of three interrelated factors. Humans, unlike other creatures had been created in God’s image.⁷ In contradistinction to animals and trees, which were products of the Earth, they had also been created directly by God.⁸ Finally, there was an important distinction (made also by Aquinas) between humanity’s physical dimension, shared with lower creatures, and their immortal life, which set them apart from all other animals.⁹

3 See discussion in Chapter 2, pages 98-105.

4 Ibid., 41-42.

5 This is the terms used in Santmire, The Travail, 122-123.

6 Martin Luther, Luther’s Works. Volume I, Lectures on Genesis Ch. 1-5, edited by Joroslav Pelikan (Saint Louis, Concordia Publishing House, 1958) Genesis 1:26, 56 and 2:7, 86.

7 Ibid., 2:7, 86

8 Ibid., 84.

9 Ibid., Genesis 1:26, 56-57; 2:3, 81; 2:7, 85-86 and 2:20 121.

158 Regarding human mastery over nature, Luther affirmed that God had created Adam and Eve with the aim of them ruling the Earth.¹⁰ This objective was not mere advice but an express command. This command implied a certain kind of power whereby they were placed ‘over the entire animal creation’.¹¹ There is a clear anthropocentrism in Luther’s interpretation of the function of non-human nature. All creation was meant to serve humans, providing them an abode. To demonstrate this point, he cited God’s affirmation that: ‘The heaven I have prepared as a roof; the earth in the flooring; the animals—with all the appointments of the earth, the sea, and the air—are the possession and wealth; seeds, roots and herbs are the food’.¹² Briefly, non-human nature had been created with the specific purpose of serving human needs.¹³

Human dominion over the earth and its creatures diminished as a consequence of the original sin. For Luther, the earth was ‘cursed because of Adam’.¹⁴ Non-human nature was innocent and had committed not sin, but Adams’ disobedience condemned it to share humanity’s fate of degeneration.¹⁵ The ‘course of the earth’ was amplified by the impact of the Flood that further transformed it into a barren place and a ‘waste’.¹⁶ Moreover, the continuance of humanity’s sinfulness made the world further deteriorate day by day.¹⁷ For Luther, the result of all these changes was the transformation of the Earth from a fertile garden into an inhospitable wilderness.¹⁸ Luther never explicitly used the word wilderness, but his description of the world after the Fall and the Flood conveys the same idea. His words are illustrative:

This course was made more severe through the Flood, by which the good trees were all ruined and destroyed, the sands were heaped up, and harmful herbs and animals were increased. Accordingly, where, before sin, Adam walked about among most fertile trees, in lovely meadows, and among flowers and roses, there now spring up nettles, thorns, and other troublesome sprouts in such abundance that the good plants are almost overwhelmed.¹⁹

10 Ibid., Genesis 1:26, 66.

11 Ibid.

12 Ibid., Genesis 1:29 and 31, 73.

13 Scott Icker, ‘Luther and Animals: Subject to Adam’s Fall?’ in Andrew Linzey and Dorothy Yamamoto (eds.), Animals on the Agenda: Questions about Animals for Theology and Ethics (Urbana/Chicago, University of Illinois Press, 1998) 90-99, 91.

14 Ibid., Genesis 3:17,18,19 and 204.

15 Ibid.

16 Ibid., 204-206.

17 Ibid.

18 Luther reputedly compares Paradise, humans’ first abode, with a garden. See Ibid., Genesis 2:7, 8-2:9, 87- 92.

19 Ibid., Genesis 3:17,18,19, 205. In another passages Luther adds several dangerous and destructive natural elements and phenomena to the former list: ‘frost, lightning bolts, injurious dews, storms, overflowing rivers, settling of the ground, earthquakes …’; Ibid., 206.

159 The diminution of human perfection due to the original sin did not degrade humanity to the extent of equating humans to non-human nature. There was ‘still a great difference between the human being and the rest of the animals’.²⁰ Still, because of the Earth’s corruption, humanity was compelled to work harder in order to get what nature had spontaneously furnished before. So, the transformation of wilderness into a new garden could not be achieved by ‘the dominion which Adam had but through industry and skill’.²¹ As Luther had, Jean Calvin emphasized the excellence and pre-eminence of humans among all creatures.²² Having been created in God’s image, humans were set apart from the rest of God’s works and given ‘the highest place in its creation’.²³ Their immortal soul and reason placed them above all brute animals.²⁴ Notwithstanding the subordination of material reality to the spirit, Calvin did not have an entirely negative view of nature; quite the contrary, he recognized ‘the beautiful order of nature’.²⁵ Still, that order was completely subjected to God’s power. Calvin frequently referred to nature as the work of God.

According to Calvin, God’s mandate of dominion over the world enshrined in Genesis gave humans authority over all other living beings.²⁶ Humanity was at the center of God’s plan, and material reality had been created for its use and benefit.²⁷ God was the sovereign and ruler of nature in an absolute sense.

After Creation, He continued governing heaven and earth by his providence, so that nothing happened

‘without his counsel’.²⁸ As offspring of the Almighty, humans were also lords of the whole world.²⁹ This power was corroborated by God’s command to subject the Earth to human control.³⁰ According to Santmire, in Calvinist theology human power over history and the environment received theological validation.³¹

20 Ibid., Genesis 1:26, 67.

21 Ibid.

22 Jean Calvin, Institutes of the Christian Religion, translated by Henry Beveridge (Grand Rapids, WM. B. Eerdmans Publishing Company, 1964) Vol I Bk 1 Ch XV §1 159. See also Jean Calvin, Commentaries on the First Book of Moses called Genesis, translated from the original Latin, and compared with the French Edition, By the Reverend John King, M.A., of Queen’s College, Cambridge, Incumbent of Christ’s Church, Hull (Grand Rapids, Christian Classics Ethereal Library) [http://www.ccel.org/ccel/calvin/calcom01.pdf, accessed 26 September 2015] Vol 1, Ch 1 51.

23 Calvin, Institutes, Vol 1 Bk 1 Ch XV §4 164-165.

24 Calvin, Commentaries, Vol 1 28.

25 Ibid., 24.

26 Ibid., Vol 1 Ch 1 53.

27 Ibid., Vol 1 28.

28 Calvin, Institutes, Vol 1 Bk 1 Ch XV §2 174.

29 Ibid., Vol 1 Ch 1 54.

30 Ibid., 55.

31 Santmire, The Travail, 126.

160 For Calvin, human power over nature was primarily related to the need of subsistence.³² Nonetheless, Calvin parted company with Luther on the question of the utility of non-human nature. From a utilitarian perspective he affirmed that, in placing nature at the service of humans, God had provided them with ‘an immense profusion of wealth’.³³ It was legitimate for humans to take an active role in the exploitation of the world’s natural bounty in order to increase their riches. Calvin affirmed that humans ‘were not intended to observe’ the world ‘as mere witnesses but to enjoy all the riches which are here exhibited as the Lord has ordained and subjected them to our use’.³⁴

Not unlike Luther, Calvin believed that the Earth was cursed because of Adam and Eve’s original sin.³⁵ The ‘ruin of man’ extended to ‘all those creatures which were formed for his sake, and had been made subject to him’.³⁶ Nevertheless, humans had not completely lost their ascendancy over non-human nature.

They retained their mastery over the animals, at least to a certain extent.³⁷ For Biéler, the sharing of the Earth in human sin also testifies to the fact that for Calvin ‘man, though fallen from his original nature, does still remain the king and the purpose of all creation’.³⁸

The theology of the parents of the Reformation influenced the theories of Grotius, Locke, and Pufendorf. One of the religious ideas that remained more firmly entrenched in their thinking was the belief in human power over non-human nature. Importantly, they translated that conviction into a legal entitlement to privately appropriate ecosystems. The right to private property gave a concrete institutional form to the exercise of human power over nature. It allowed translating human superiority over non-human nature into a concrete personal power to own and exploit nature. The way they did so will be explain in the next section.

This influence notwithstanding, secularization gradually changed the ideological context in which these writers wrote their works. Tension between the Church and secular power in Europe had existed prior to the Reformation, but the ideas that made possible a sphere of secular power separated from the Church were not yet in place.³⁹ Besides, secularization did not entail the demise of Christianity in Protestant societies. Actually, after the Thirty Years War one of the reasons for the rise of an autonomously

32 Ibid., 54

33 Ibid.

34 Ibid., Vol 1 26.

35 Ibid., Vol 1 Ch 3 114.

36 Ibid.

37 Ibid., Vol 1 Ch 9 211.

38 André Biéler, Calvin’s Economic and Social Thought, edited by Edward Dommen, translated from the original French by James Greig (Geneva, World Council of Churches, 2005) 208.

39 Ingrid Creppell, ‘Secularization: Religion and the Roots of Innovation in the Political Sphere’ in Ira Katznelson and Gareth Stedman Jones (eds.), Religion and the Political Imagination (Cambridge, Cambridge University Press, 2010) 23-45, 30.

161 legitimized political realm was the protection of the plurality of religious beliefs that had come into existence after the Reformation. It was rather the influence of the Church in political life that gradually diminished during the seventeenth century.

The materialization of human power over nature: private property—Grotius to Vattel

Hugo Grotius (1583-1645) was born and educated within the elite of the Dutch Republic.⁴⁰ His father was a devout Protestant, holding different posts in the government of the city of Delft, including that of major. Grotius was a Calvinist who witnessed with alarm the devastation caused by the religious wars that afflicted Europe at the time. The internal division of Christianity was eroding the possibility of peaceful coexistence between different European commonwealths.⁴¹ One of these divisions affected the Dutch Republic as the Remonstrants or the followers of Jacobus Arminius departed from the teachings of Jean Calvin, inciting a vehement reaction by part of the Dutch society.⁴² Grotius’ alleged association with the Arminians was one of the reasons that he found himself condemned to life captivity in 1618.⁴³ During his imprisonment at Loevestein Castle, he prayed and read the Bible intensively.⁴⁴ He also employed part of his period in captivity writing an apology of the Christian faith, a treatise entitled On the Truth of the Christian Religion.⁴⁵ In this work, he sought to promote Christian unity by underlining the difference and superiority of Christianity over non-Christian beliefs.⁴⁶ In other words, for Grotius, the external boundaries of Christianity were more fundamental than internal divisions. Overall, Grotius’

work evidences a profound sense of tolerance and moderation regarding the Christian faith.

Grotius’ legal and political writing have been described as exhibiting a secularizing impulse.⁴⁷ This impulse derives from his conviction of the importance of disentangling religion and politics in order to

40 Martine Julia Van Ittersum, Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of the Dutch Power in the East Indies (1595-1615) (Leiden, Brill Academic Publishers, 2006) xxiii-xxiv.

41 J.P. Heering, Hugo Grotius as Apologist for the Christian Religion: A Study of his Work De Veritate Religionis Christianae, translated by J.C. Grayson (Leiden, Brill, 2004) 66-67.

42 Stephen C. Neff (ed.), Hugo Grotius on the Law of War and Peace (Cambridge, Cambridge University Press, 2010) xviii.

43 Ibid.

44 Heering, Hugo Grotius as Apologist, 3-4.

45 Hugo Grotius, The Truth of the Christian Religion in Sixth Books by Hugo Grotius, done into English by John Clarke, D.

D. and Chaplain in ordinary to his Majesty (London, Printed for J. Knapton, 1719).

46 Heering, Hugo Grotius as Apologist, 67.

47 See Mark Somos, ‘Secularization in De Iure Praedae: From Bible Criticism to International Law’ in Hans W. Blom (ed.), Property. Piracy and Punishment: Hugo Grotius on War and Booty in the Iure Praedae—Concepts and Contexts (Leiden, Brill, 2009) 148-191. Somos is careful to note the distinction between a ‘secularizing’ theory and a ‘secular’ one. It is the former not the latter that he identifies in Goritus’ De Iure Preadae. Ibid.

162 avoid future wars of religion in Europe.⁴⁸ He favored the intervention of civil authority on religious matters to promote toleration and avoid dogmatism. Though Grotius’ theories might not constitute a sharp break from medieval and late scholastic tendencies, as Vitoria, he applied former theories to the particular circumstances of his era, using traditional arguments for new purposes.⁴⁹ In this sense, he provided a conceptual bridge between the late scholastics and modern thinking about natural law.⁵⁰ But there is more to Grotius’ deserved reputation. As he declared in the Prolegomena (prologue) of his magnum work De Jure Belli ac Pacis (On the Law of War and Peace),⁵¹ no one before him had produced a comprehensive and systematic treatise on the relations between different commonwealths or their rulers.⁵²

Grotius’ ideas about humanity’s place in God’s creation can be found in the Prolegomena of De jure belli. In order to prove the existence of a distinctively human natural law, he drew a clear-cut line between humans and non-human nature. He declared: ‘Man is, to be sure, an animal, but an animal of a superior kind, much further remove from all the other animals than the different kinds of animals are from one

Grotius’ ideas about humanity’s place in God’s creation can be found in the Prolegomena of De jure belli. In order to prove the existence of a distinctively human natural law, he drew a clear-cut line between humans and non-human nature. He declared: ‘Man is, to be sure, an animal, but an animal of a superior kind, much further remove from all the other animals than the different kinds of animals are from one