The community natural right and the prepolitical community: a contribution of francisco Suárez to the “defense of indians” in america

Abstract

Francisco Suárez had a great historical vision in discovering the community natural right. This right was essential to the “defense of the Indians” in America. The Castilians found several territories without state organization in America. Ginés de Sepúlveda considered that this situation in which they did not have a State, placed them into a situation of “slaves by nature” and therefore they did not have the right to property and self-government. To combat this nefarious idea, which was supported by the conquerors, Suárez advocated that the communities and populations lacking of political structure still had extensive legal capacity and therefore were assignees of private and public rights backed up by a natural community right. Suárez’s community natural right would currently be equivalent to public natural right, a field which is practically not dealt with today, since specialists only speak of positive public right. The natural community right of Suárez is a pre- state and pre-political divine institution that serves as the basis for positive law in all its branches, just as natural law is the foundation of all positive laws. This community natural right is distinguished by: a) being natural, it is prior to the State and therefore affects the family, the tribe and imperfect social groups, which have obligations and congenital natural rights by which these populations and individuals are assignees in any cultural and political situation; b) Being pre-state and pre-political, the community natural right is a natural social right, typical of legal persons who are members of the universal human community.