• OT: religious doctrine, secular philosophy and law on the doctrine of d

    From Burkhard@21:1/5 to All on Fri Mar 31 06:57:16 2023
    Arguably rather OT for TO though related issues have been discussed on and off

    This is fresh from the press: yesterday, the Catholic Church distanced itself officially for the first time from a number of previously promulgated positions, in particular the "doctrine of discovery" as expressed in the Papal Bulls Dum Diversas,
    Romanus Pontifex and Inter Caetera, all from the 15th century. https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2023/03/30/230330b.html

    When I say "distance", it not so much overrules them, but now states that when properly understood in their historical context, the doctrine was never part of official catholic teaching.

    What is the issue? The "doctrine of discovery" was the legal justification for European powers to seize the land in the new world. This territory, so they argument, was "uninhabited" (well, uninhabited by anyone who counted) - terra nullius - and
    therefore up for grasps. It provided the justification for the forceful exclusion/murder of indigenous populations.

    It was not just the Church that made the argument, you also find it at the time in secular philosophers, most importantly and influentially John Locke ( Two Treatises of Government 1690)

    The impact this doctrine had on the law is difficult to overestimate. In one of the key property law cases in the US that every student will read in first year, Johnson v. McIntosh, Chief Justice Marshall opined for the unanimous court (though quite a
    bit of it is probably mere dicta) :

    "Discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the natives… All the proprietary rights of civilized nations on this continent are founded on this principle. The right derived from discovery and
    conquest, can rest on no other basis; and all existing titles depend on the fundamental title of the crown by discovery….

    On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the
    character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made
    ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence"

    200 years later, Johnson v. McIntosh remains good law and was never overruled. By contrast, in Australia the Mabo decision in the 1992 formally recognized aboriginal title preceding any title to land by later settlers. While at this point largely
    symbolic, I'm quite happy to see the Vatican formally rejecting and apologising for the doctrine.

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