자연법, 자연권, 제국주의 (Natural Law, Natural Rights, and Imperialism)

서지정보

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· 저자명 : 이성원

초록

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.

영어초록

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.

참고자료

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