3. Civil Law

            Civil law can be broadly defined as the body of laws of a nation that deal with the rights of private citizens.  Laws that govern the regulation of marriage, contracts, and payment for personal injury are examples of civil law.   Civil law has its origin in the legal tradition of Roman law, as opposed to canon law, which has its origins in the legal tradition of the Church.  Also, civil law was the tradition followed by European scholars who developed the system of international law.[1]

Las Casas’ first reference to civil law is in Rule II, where he states that those who conquered did not have any “legitimate [legal] cause to wage those most unjust wars that displaced the Indians.”[2]  That is, according to Just War theory, these wars were not waged legally or justly [3]

In his second reference to civil law, in Rule IV, he states that, although the penitent may have a hundred legitimate children, they may not receive any inheritance owed to them by law. [4]  Las Casas is placing the requirement to make restitution above any legal right an heir has to property unjustly acquired by the deceased.  He does not cite a particular law, but, since civil law treats matters of inheritance, it seems he is referring to civil law. 

Rule VII offers several examples of Las Casas’ use of civil law.  His first reference states that those to be confessed are to make restitution, because they have not fulfilled the final cause of their appointed task, which is to preach to and to teach the Indians.  In the documents concerning encomiendas, the final cause of encomenderos is explained as a legal requirement to be fulfilled.[5]  In fact, he asserts in this rule that there was no attempt by the encomenderos to fulfill the final cause – their legal obligation --, rather they were a hindrance to the preaching of and to the teaching of the Gospel.  Therefore, since they failed to fulfill their legal obligation, they are required to make restitution for what they took unjustly in the way of tributes from the Indians.[6]  Also in Rule VII is the only citation of the principle of the law of nations.[7]  The argument for restitution in this rule is based on the unjust enslavement and treatment of the Indians.   Las Casas says that the enslavement and other injustices committed against the Indians are contrary to natural law, law of nations and divine law.  His use of the term “law of nations” is done at a very unique point in history, since many new issues of international law develop with the discovery of the Americas.[8]  In fact, the work of Las Casas and many others in the Americas provide valuable firsthand insights for academics in Salamanca, so that they can formulate new principles of international law for Spain’s far-flung empire.[9]  In the final reference to civil law in Rule VII, he states the following: “It is against justice to provide for some by means of the hacienda or the goods of others; it is to commit larceny.”[10]  Here he is referring to theft, although expressly prohibited in divine law, it would be judged and punished publicly under civil law.  Finally, in Rule VII, Las Casas not only encourages the penitent to accept the civil laws of the king, he also admonishes the penitent to not resist laws, provisions or mandates of the king himself:

Moreover, he should be ready to accept what the king might order.  And in no manner is he to resist, or entreat [others to do so], the laws, provisions, or mandates that the king may provide, either directly or indirectly, rather he should induce others to obey and to complete them. [11]

Notes