During a historic visit to Naples earlier this year, Pope Francis propounded the image of Catholicism as a ‘theology of acceptance’, recognizing the right for all individuals to freedom of expression and religion (Gerard O’Connell, 2019.) This is a fundamental tenant within the realms of human rights, bestowed upon all individuals through the virtue of being human. However, such rhetoric has not always been institutionalized, most notably evident in Sixteenth Century Latin America where Catholic order was imposed by the Spanish colonialists, the efforts of whom were largely characterized by acts of barbarity, repression and serfdom- though such practises did not go unchallenged. A historical consensus has largely traced the development of human rights ideas within the region back to the efforts of Hispanic scholastics, such as Antonio de Montesinos and Bartolome de Las Casas, with Felipe Gomez Isa considering the Christian Humanist approach ‘as one of first manifestations of the recognition of fundamental (natural) rights in Spanish legal history’ (Felipe Gomez Isa, in Marku Sukksi, Kalliope Agapiou- Josephides, Jean-Paul Lehners, Manfred Nowak, 2015, pp. 106.) This assessment will largely centre around the two pieces of legislation which effectively act as the hallmark for the emergence of human rights within Latin America: The Laws of Burgos (1512) and The New Laws (1542.) Having accepted the production of both documents as the culmination of the Hispanic Scholastics the essay will, in the first place, demonstrate an element of modernity and ingenuity within the school of thought with regards to the discussions surrounding basic indigenous rights. This leads to the second part of the analysis which will act as a rejection of the thesis proposed by Isa. It will ultimately become clear that, although the scholars were undoubtedly advocating basic rights for the indigenous population, a combination of flawed argumentative structuring and a reluctance from the crown to view the issue from an alternative lens to that of geo-political policy, subsequently detracted the influence of the ecclesiastic humanists from the core concepts of human rights that exist within the region today.

The concept of a religious influence within the development of indigenous rights can be separated into two waves of scholarly thinking. The first wave, comprising of the Friars of the Order of Preachers- more commonly referred to as Dominicans- birthed the new generation of neo-scholastics, spearheaded by the newly ordained Dominican Las Casas (Paolo G. Carozza,, 2003, pp. 289.) Montesinos, who was a member of the first wave, initially put forward the argument that all in society, as the children of God, are equals and therefore deserving of just treatment and mercy. His Christmas Eve Sermon of 1511 rather bluntly addressed three thought provoking questions:

‘And what care do you take that they receive religious instruction and come to know their God and creator, or that they be baptized, hear mass, or observe holidays and Sundays? Are they not men? Do they not have rational souls?’ (Antonio De Montesinos, 1511)

Though the last two questions are an echo of traditional Christian humanism, it is still rather progressive within the wider contemporary debate of human rights. His emphasis on the rational capacity of the native Indians would become deeply entrenched within the liberal ideas for freedom advocated by future Enlightenment thinkers. This is particularly impressive when positioned within the context of Sixteenth Century Europe, which as a whole generated massive interest for the “monstrous” natives of Latin America and the Spanish Peninsula was no different, with colonialists regularly bringing across indigenous slaves for the entertainment of the public (Patricia Seed, 1993, pp. 632)

The impact of these ideas upon the Laws of Burgos have been celebrated by R. Sanchez Domingo who describes the document as the ‘first declaration of human rights in Spain’ (R. Sanchez Domingo, 2012, cit. in Isa in Sukksi, Agapiou- Josephides, Lehners, Nowak, pp. 96.) This remains a clear embellishment however and Montesinos’ departure from the idea of basic rights is evident in his suggestion that the Natives of the New World were shackled by working obligations to the extent that they were inhibited from practising fundamental religious exercises. This religious overtone mires his efforts by depicting human rights as a privilege for conformity to Catholic religious norms rather than a fundamental right to be applied to all. Meanwhile, as Montesinos was assimilating the basic identities of the Native Americans with that of the Europeans, his peer Peter Martyr embraced the differences and in the process ‘transformed the Indian from an object of knowledge into a subject of governance’ (Timothy Bowers Vasko, 2019, pp. 34.) Though two different approaches were adopted, the outcome was shared. Credit must be showered upon Las Casas for later delving into natural rights as a fundamental privilege for all individuals. His emphasis on ‘the entire human race…[as] one’ facilitated an element of universality to his argument and his abhorrence for the institution of slavery predates that of even the Enlightenment philosophers (Bartolome de Las Casas, cit. in Carozza, pp. 293.) Should one examine the New Laws of 1542 for which Las Casas petitioned, we see a far more comprehensive coverage of fundamental rights based concerns, most notably apparent in the prohibition of slavery, though the lifespan of this bill was also short lived and scarcely observed.

It is pertinent to note that caution must be taken to not consider the two pieces of legislation as a direct translation of the scholastic arguments. For all the flaws in their preaching, the general thesis put forward in the interest of implementing natural rights was still rather convincing if not an accurate representation of natural rights. It is therefore necessary to also examine the response of the monarchy to these scholastic works, an understanding of which will highlight the deeper malaise afflicting the efforts of Montesinos and Las Casas.

In fact, had the issue of rights been driven by an altruistic desire for freedom for all the children of God, it is not unreasonable to expect that a wider review of rights-based concerns would have extended towards the Spanish Peninsula.

In reality however, following the defeat of the Communeros Revolt in 1520, the attention of the Spanish crown moved away from domestic affairs and towards the Empire’s status as the global leading Catholic power (Anthony Pagden, 1987, pp. 79.) Reports of Spanish monstrosity within the region were a source of embarrassment for Spain and Catholicism, who could not afford to be seen practicing such violence and barbarity. Moreover, as the century progressed, Catholicism and Protestantism became increasingly embattled within the Americas, further necessitating a drastic review of the approach adopted by the colonialists. Failure to effectively spread the Catholic message and capitulate the indigenous would challenge the legitimacy of Spanish rule within her Empire and leave the region exposed to English colonialism, which promised the perfect ‘Modell of Christian Charity’ (John Winthropp, 1630.) The personal agenda of the crown is perhaps most prominent in the way in which Montesinos’ preaching was translated into law. The process in itself was an insult to the altruistically motivated as Ferdinand V of Spain invited just a handful of friars to the council responsible for drawing up the Laws of Burgos and the attitude of the crown most certainly manifested itself within the new set of laws (Ronald D. Hussey, 1932, pp. 304.) Ordinance XIII for example, promulgated the following:

‘…the said persons who have Indians in encomienda [the economic structure most similar to serfdom in Europe] shall extract gold with them for five months in the year and, at the end of these five months, the said Indians shall rest forty days… and the persons who have the said Indians in encomienda shall be obliged, during these forty days of rest, to indoctrinate them in the things of our Faith more than on the other days, because they will have the opportunity and means to do so.’ (The Laws of Burgos, Ordinance XIII, 1512.)

The crown was significantly more concerned with the symbiosis of the economic value of slavery within the mining industry and the importance of religion as a tool for state building, culminating in legislation that reflected this precisely.

It is therefore clear that the early development of human rights was immediately hindered having emerged against the backdrop of a rather novel geo-political scene. Granted, English ventures into the Americas would only materialize during the second half of the Sixteenth Century, yet it is highly plausible that a foreign policy, characterized by the principle of “realpolitik”, drove the reform of treatment for the native Indians.

It can thus be ascertained that the role of the Hispanic scholastics appears limited to shedding light on the harsh treatment of the indigenous population as opposed to successfully communicating their ideas of human rights. Even factoring the generational disposition ingrained within the granting of rights in addition to the display of a highly advanced intellectual capacity by these men, it is clear that the Hispanic Scholastics were ultimately shunned into obscurity in the aftermath of three decades in the political spotlight. New legislation stemming from their writings was tainted by overtones of the crown’s ulterior motives whilst the Enlightenment thinkers- who notably proved more influential- developed their own ideas of rights by removing the figure of a divine in approaches to discussing mankind. The scholastics general tendency to formulate their arguments around a religious core was by no means flawed, since the link was fitting for the era in which the scholars were writing. It merely happened that the scholars were preaching to an inappropriate audience and their ideas manipulated in the interest of securing Spanish hemispheric hegemony. 

References

Primary Sources

The Laws of Burgos (1512), Ordinance XIII, [accessed via < http://faculty.smu.edu/bakewell/BAKEWELL/texts/burgoslaws.html>] 

Montesinos, Antonio de, “Christmas Eve Sermon of 1511” on Just Treatment of Indians, (January 1, 1511), [accessed via https://berkleycenter.georgetown.edu/quotes/antonio-de-montesinos-christmas-eve-sermon-of-1511-on-just-treatment-of-indians]

Winthropp, John, “Model of Christian Charity” (1630), []

Secondary Sources

Paolo G. Carozza, “From Conquest to Constitutions: Retrieving a Latin American Tradition of the Idea of Human Rights.” Human Rights Quarterly 25, (2003), pp. 281-313, [Accessed via ]

Hussey, Ronald D. Text of the Laws of Burgos (1512-1513) Concerning the Treatment of the Indians, The Hispanic American Historical Review 12, (1932), pp. 301-326, [accessed via www.jstor.org/stable/2506673]

Pagden, Anthony (ed.), The Languages of Political Theory in Early-Modern Europe, (Cambridge, 1987), [accessed via < https://0-doi-org.pugwash.lib.warwick.ac.uk/10.1017/CBO9780511521447>]

Seed, Patricia, ‘Are These Not Also Men?’: The Indian’s Humanity and Capacity for Spanish Civilization, Journal of Latin American Studies 25, (Cambridge, 1993), pp. 629-652, [accessed via < https://0-doi-org.pugwash.lib.warwick.ac.uk/10.1017/S0022216X00006696>]

Sukksi, Marku, Agapiou- Josephides, Kalliope, Lehners, Jean-Paul, Nowak, Manfred (eds.), First Fundamental Rights Documents in Europe, Commemorating 800 Years of Magna Carta (Intersentia, 2015), [consulted at < https://0-doi-org.pugwash.lib.warwick.ac.uk/10.1017/9781780685281>]

Vasko, Timothy Bowers. ‘That They Will Be Capable of Governing Themselves’: Knowledge of Amerindian Difference and Early Modern Arts of Governance in the Spanish Colonial Antilles, History of the Human Sciences 32, no. 3 (July 2019): 24–48, [accessed via ]