자연법, 자연권, 제국주의

Abstract

This essay is concerned with how early modern Europe resorted to the Roman legal discourses of ius naturale and ius gentium to justify its colonial expansionism. It is worth paying attention not to the way the idea of ‘just war’ limited and prohibited any ‘illegal’ aggression but to the way it was effectively utilized in justifying colonial aggression and conquest. Francisco de Vitoria’s De Indis, although seemingly critical of the Spanish conquest of the Americas, was in fact providing a legal ground on which the Spaniards were able to make war against the American natives. Ius gentium was Vitoria’s answer. Early modern Europeans were also being reborn, so to speak, as ‘economic men,’ obsessed as they were with the idea of private property. Richard Tuck has traced the transformation of the meaning of ius naturale from “natural law” to “natural rights,” and regarded it as the most important development of modern political thought. Although evidences of ius as a potential that belongs to a subject go back to the twelfth century, it was only in the seventeenth century that ‘subjective rights,’ and especially ‘property rights,’ began to work as the guiding principle of Europe’s political discourse. Hobbes and Grotius, who both were involved directly in the British or Dutch colonies, built their political theories on the idea of ‘natural rights’ of man for ‘self-preservation’ and ‘rights of necessity.’ It was the purpose of Locke, however, to go beyond Hobbes and Grotius without falling prey to some dangerous possibilities contained in the idea of ‘necessity.’ ‘Necessity’ in Grotius was a reason for making an exception to the law of private ownership, or for suspending the law. On a different level, necessitas has always been a dangerously slippery notion which may serve monarchs as an expedient for suspending the rule of law, or as a kind of supra-legislative authority they may exercise a master term in the discourse of ‘Reason of State.’ It was Locke’s intention to oppose to both rights of necessity: with regard to both private property and with regard to civil government. His Second Treatise was laying theoretical foundations for both the unhindered accumulation of capital and the idea of civil government whose final objective is to protect private property.