CHAPTER TWENTY
THE WESTPHALIAN PROBLEM—that, absent an absolute and universal sovereign, every kingly state would attempt to aggrandize itself to the limit of its power—found its most threatening expression in the campaigns of Louis XIV that directly challenged the Westphalian settlement. The solution to this Problem was ultimately expressed in a series of eight treaties known as the Peace of Utrecht, which resolved the epochal war composed of Louis's campaigns.
France and Spain had signed the Peace of the Pyrenees in November 1659, ending the one remaining conflict left open by Westphalia, just as Cateau-Cambrésis finally ended the Valois-Habsburg wars four years after Augsburg. Louis XIV married the Spanish infanta in Bayonne and returned to Paris in triumph. France, after some years of turmoil following the death of Louis XIII, was now united.
Once Louis was liberated from internal challenges and the administrative despotism of a sophisticated kingly state was securely in place, he began to make war on the territorial settlements of Westphalia in order to become the arbiter of European affairs. During this period the French state was supreme on the continent. French became the language of diplomacy, French architecture and literature reached their zenith, and the French canons of manners and taste were accepted as the standard throughout Europe.
For seventeen years—from 1667, when he led an army into the Spanish Netherlands, until 1684 when the Truce of Ratisbon confirmed him in all his gains since 1678—Louis's ambition dominated European events. Louis attempted to compel the states of Europe to recognize Ratisbon as an amendment to the territorial dispositions of Westphalia. The design flaw of Westphalia was that it invited this limitless aggrandizement on the part of the prevailing kingly state. In the pursuit of his goal, Louis actually brought into being the coalition and the animating idea that would prove both his undoing and also the undoing of the kingly state itself.
In 1686 this coalition, the League of Augsburg, was formed between the emperor, the Dutch, the western German states, including the upper Rhine provinces, and, in the next year, Savoy. All were alarmed by French intentions and capabilities. Partly in reaction, partly in pursuit of his historic goals, Louis invaded Germany in 1688, burning Heidelberg and reducing the Rhine provinces to ruin. While Louis was thus engaged, William III of Orange landed in England, displaced Louis's ally James II, and took the English crown. Thus by the end of 1689, France faced the United Provinces, England, the Habsburg-led Empire, Spain, Savoy, and the principal German states. The Nine Years' War that ensued exhausted both sides, and in 1697 the Treaty of Ryswick brought a new armistice. Neither side was now able to penetrate the fortress line that divided them in the north. At this point Louis might have been content with his gains; he was certainly acutely aware of the forces arrayed against him. A diplomatic crisis developed, however, that ignited his dynastic ambition, ambition that drove the kingly state. This crisis, provoked by the death of Carlos of Spain in 1700, led to the final campaign of Louis's epochal war, the struggle over Spanish succession, in which Louis attempted to unite the French and Spanish kingdoms in the Bourbon line.
By 1709, however, Louis had withdrawn French forces from Spain and was fighting to preserve France itself. The battle of Malplaquet, near Mons, was a defeat for the French, though allied forces actually lost twice as many men. Now the allied campaign sank into a grinding, brutal, and expensive but indecisive struggle. Louis's efforts toward peace negotiations were consistently rebuffed.
Then in 1710 the Tory party resolved to end British participation in the war. The following year the emperor Joseph died—he had succeeded his father only six years before—and the Archduke Charles unexpectedly became emperor. Enthusiasm for continuing to fight in order to place this figure on the throne of Spain as well was hardly high in Britain. Bolingbroke, the new foreign secretary, argued that if Charles united the Habsburg possessions under a single crown, he would pose the same threat of hegemony that a Bourbon dynasty had created in uniting France and Spain. Thus Bolingbroke recast the purpose of the alliance as one organized to effect a balance of power (rather than to uphold the Treaty of London by recognizing the dynastic claims of the Archduke in opposition to Louis)—that is, replacing the war aims of a society of kingly states with those of a society of territorial states. By this means he provided the basis for a British about-face, as well as for the peace congress to follow.
Britain worked out a secret agreement with France. The British were to receive Gibraltar; Minorca; Nova Scotia, Newfoundland, and Hudson Bay in Canada; and, importantly, the asiento—the monopoly of the slave trade with the Spanish colonies—for twenty years. In return for these commitments, Britain forced the Dutch to agree to a general congress, threatening to make a separate peace if the Dutch refused. Thus the congress opened at Utrecht in January 1712, in a climate of mutual suspicion.
THE CONSTITUTION: THE PEACE OF UTRECHT
The British and French had hoped to conclude proceedings before the next year's military campaign got underway. When this failed to happen, owing to Imperial intransigence, Bolingbroke ordered British troops to withdraw from the alliance, and obligingly provided this news, along with the plan of the allied campaign, to the French. The resulting allied catastrophe at Denain on July 24, 1712, finally persuaded the emperor of the need for a peace.
The Peace of Utrecht consists of eleven separate bilateral treaties.1 That it represented a constitutional convention of the kind that had met at Osnabrück and Münster was well recognized by the parties. In his correspondence during the treaty process, Bolingbroke repeatedly referred to negotiations about the “système général des affaires de l'Europe” and to a “system for a future settlement of Europe.”2 In fact, in the eighth of his “Letters on History,” which deals with Utrecht, he writes that the object of the congress was to achieve a “constitution of Europe.”3
There was a general distinction drawn by the statesmen at the congress between the “private” interests of the states involved in the negotiations and the “public” interests of the society of the states of Europe as a whole.4 Bolingbroke wrote to Torcy, his French counterpart, that “[t]he queen's ministers are far from wishing that the king should act contrary to his word and his honour; but Sir… something must be done for the sake of the peace and the interest of one individual must yield to the general interest of Europe.”5
The ability to put forward a state's arguments in terms of a society of territorial states—a society, that is, characterized by a concern for the territorial stability of the whole—bedeviled and eluded some of the actors at Utrecht. The emperor, for example, “showed little aptitude for putting his case persuasively, neglecting to couch it in the idiom of international consensus…. Charles was quite literally unable to communicate on the international level [and] found himself increasingly isolated.”6 The language of this new consensus was reflected in four striking contrasts with the idiom it superseded.
First, the language of “interests” replaced that of “rights.” “Rights” were something that kings might assert against each other; “interests” were something that states might have in common. Whereas the Westphalian monarchs had been concerned to establish the rights of the kingly states—the legal status of dynastic descent; the absolute right of the king over his subjects, including especially control over the religious liberties of the persons within his realm; and the perfect sovereignty of each kingly state unfettered by any external authority—the society of territorial states was concerned instead with the mutual relationships among states, specifically with maintaining a balance of power within that society itself. At one point Bolingbroke observed explicitly that “enough has been said concerning right, which was in truth little regarded by any of the parties concerned… in the whole course of the proceedings. Particular interests were alone regarded.”7
Second, aggrandizement—so integral to the stature of the kingly state—was replaced by the goal of secure “barriers” to such a degree that claims for new accessions were universally clothed in the language of defensive barriers. Aggrandizement per se was frowned upon and even regarded as illegitimate.
Third, the word state underwent a change.8 A “state” became the name of a territory, not a people, as would occur later when state-nations began to appear, nor a dynastic house, as was the case at Westphalia. Bolingbroke, characteristically, swiftly picked up on the difference. When commenting on the dilemma facing Louis over Carlos's will, Bolingbroke wrote that “adhering to the partitions seemed the cause of France, [whereas] accepting the will [seemed] that of the House of Bourbon.”9
Fourth, whereas the kingly states had seen a balance of power as little more than a temptation for hegemonic ambition to upset, the territorial states viewed the balance of power as the fundamental structure of the constitutional system itself. “The concept was no longer applied simply as a procedural rule (‘counteract any power if and when it threatens to become dominant‘), but as a device for controlling and planning—in advance, on this occasion—the structure of the system as a whole.”10
At Utrecht, a new conception of the balance of power made its historic debut. Its novelty arose from the change the states of Europe were undergoing in their domestic constitutional orders. As the territorial state replaced the kingly state, the idea of the “balance of power” moved from providing the occasions for sovereign action to animating a constitutional structure for collective security itself. Consider this passage from one of the renunciation documents produced by the Congress and signed by Louis XIV's grandson, the Duke de Berry:
All the powers of Europe finding themselves almost ruined on account of the present wars, which have brought desolation to the frontiers, and several other parts of the richest monarchies among states, it has been agreed in the conferences and peace negotiations being held with Great Britain, to establish an equilibrium, and political limits between the kingdoms whose interests have been, and still are the sad subject of a bloody dispute; and to consider it to be the basic principle of the preservation of this peace that it must be ensured that the strength of these kingdoms give reasons neither for fear nor for any jealousies. It has been thought that the surest way of achieving this is to prevent them from expanding, and to maintain a certain proportion, in order that the weakest ones united might defend themselves against more powerful ones, and support one another against their equals.11
All of these developments are evident in the exchanges between the two principal negotiators at Utrecht, Bolingbroke and Torcy.
The immediate problem lay in persuading Philip V, king of Spain and prince of the French royal line, to give up one kingdom or the other in order to forestall the situation in which he, through a series of deaths in his family, might unite the two crowns in one person. This diplomatic objective underscored the preventive nature of the territorial states' concept of the balance of power, and the structural role of this concept. The issue was given new intensity in 1711–1712 – 1712 by the deaths of three heirs to the throne of France. When in March 1712, Torcy told Bolingbroke of the death two days earlier of the Duke of Brittany, only his younger brother—a child of two who was suffering from the same disease as the little duke who had just died—stood between Philip and the French crown. There immediately ensued an exchange of proposals between Bolingbroke and Torcy that unmistakably disclose the changed world of the territorial state confronting the world of the kingly state that it would supplant.
Bolingbroke began by urging that Philip simply renounce his right of succession to the crown of France, and retain the kingdom of Spain he was at present governing. Torcy demurred; succession was a matter of divine will—a principle of the kingly state—and could not be lawfully altered. Torcy proposed that if Philip became king of France, he could at that point abdicate the throne of Spain in favor of his brother, the Duke of Berry, another of Louis's grandsons.
Bolingbroke took this counterproposal as evidence that a renunciation document could be effective: on the premise of Torcy's counterproposal, if Philip's “right to the crown of France comes to take place, he is not to enjoy both [crowns]; [but] how can he choose if he cannot renounce either? And can he renounce the crown of France, and not the right of it?”12 Bolingbroke wrote Torcy:
We are happy to believe that you in France are persuaded that God alone can abolish the law upon which your right of succession is founded, but you will allow us to be persuaded in Great Britain that a prince can relinquish his right by a voluntary cession and that he, in favour of whom the renunciation is made, may be justly supported in his pretensions by the powers who become guarantors of the treaty.
In this passage are the characteristic markers of the society of territorial states: the downgrading of the dynastic principle; the willingness to subordinate the rights of sovereigns to the interests of the states involved; and the use of collective security guarantees to ensure the balance of power itself.
When Torcy countered with a proposal that Philip commit himself at Utrecht to renounce one crown or the other in the event of a potential union, Bolingbroke underlined this essentially structural goal, and its difference from the Westphalian model of intervention: “You will say, all the powers are guarantors of this agreement; such a guarantee may really form a powerful alliance to wage war against the prince who would violate this condition of the treaty; but our object is rather to find out the means to prevent, than to support, new wars…”13
Accordingly, Bolingbroke argued, Philip must make his renunciation now: then the guarantee of “the powers of Europe” only had to prevent Philip from reversing his word and seizing one of the two states, as opposed to forcing him to give up a state which he had already invested. Torcy replied: “A rapprochement is easily brought about… [Philip V] must remove the disquietude of Europe by an immediate declaration of the part he will take should the succession be ever open to him.”
Torcy spoke from a perspective that sought to preserve the sovereign scope of action for Philip. All of his concessions amounted to promises to take a course of action in the event a certain situation arises; they were “promises to make a promise.” By contrast, Bolingbroke sought a decision that would foreclose Philip's freedom of action. He justified this on the basis of an appeal to the balance of power and the good of the society of states. This difference in perspective—kingly versus territorial state—put the two men on different wavelengths. Bolingbroke at this point exasperatedly remarked:
The French have undoubtedly a great advantage in treating in their own language, and I can easily believe that some of the expressions in my letter to Monsieur de Torcy may have been either faint, improper or ambiguous; but surely the whole tenor of them makes it plain that we never intended to separate the option and the execution of the option.*
Now the British put a new proposal on the table. Through a complicated set of contingencies, France was to receive Savoy and Piedmont if Philip agreed to stand down from the Spanish throne immediately, the Duke of Savoy replacing him. Having swapped titles with the duke, Philip would then carry Savoy with him when he inherited the French throne. If, on the other hand, Philip chose to remain king of Spain, he would renounce the French crown at once, and the House of Savoy, not Bourbon, would inherit the Spanish crown if Philip's line were to die out.
This scheme had the virtue of enlisting the energies of Louis because it promised an enlargement of his holdings. To this extent it was a Westphalian solution deployed for Utrechtian goals, as the balance of power would be maintained by separating the French and Spanish dynasties. Once he learned of the British offer, Louis pressed his grandson to give up Spain. Louis wrote Philip: “Should gratitude and affection for your [Spanish] subjects be strong inducements with you to adhere to them, I can tell you that you owe those same sentiments to me, to your family, and to [France]… I now call upon you to show me their effects.”14
Philip complied, though he surprised his grandfather by choosing to renounce the throne of France and remain in Madrid. He had acquiesced to a plea from the old world of kingly states, but the effect was to ensure the success of the new world of territorial states. The treaty process now proceeded to a conclusion in the series of agreements known as the Peace of Utrecht. The elaborate French rituals of precedence that had so bedeviled sessions at Westphalia were dispensed with; it was agreed that the delegates would enter the meeting rooms in no fixed order and sit where they liked. As at Westphalia, the constitutional role of the congress was indicated by its power to recognize new states as members of the society of states. At Utrecht, Brandenburg appealed for such recognition and received it; henceforth the kingdom of Prussia was a member of the society of states, entirely apart from Brandenburg's role in the empire. The acquisition of defensive barriers15 dominated the negotiations (in contrast to the rights to “compensations” at Westphalia). These arguments were necessarily clothed in the language of a systemic balance of power, even if the motives of the negotiators were sometimes indistinguishable from simple aggrandizement.
The Utrecht settlement and the regime it created brought about a major transformation of the international system… After Utrecht—with its emphasis upon, and indeed development of, the “Public Law of Europe”—there was a greater collective concern for preserving stability. Policymakers were therefore functioning in a new decision-making environment after Utrecht, basing their policies upon assumptions and interests quite different from the years before 1713.16
This assessment reflects a consensus among historians about the significance of Utrecht; that this significance lies in its constitutional aspects is less generally emphasized.
CONSTITUTIONAL INTERPRETATION: THE INTERNATIONAL JURISTS
The balance of power was a constitutional concept for the society of European states, and also, as we saw in Book I, played a similar role in ordering the internal relationships of the states that composed that society. Indeed historians have only recently come to appreciate the complicated means by which the territorial states that were later characterized as the states of the ancien régime maintained the principles of an internal balance of power, in contrast to the absolutism that preceded them. But why did the balance of power, a concept long antedating the modern state, 17achieve such a pervasive dominance in the society of territorial states?
Territorial states are so named owing to their preoccupation with the territory of the state. As part of the Treaty of Utrecht, the first agreements were introduced fixing customs duties levied at the state frontier and diminishing the role of internal customs duties. The “most favored nation” clause makes its appearance at Utrecht. This attentiveness to commercial matters—the peace was accompanied by an extensive series of commercial treaties among the signatories—is also characteristic of the territorial states. Rather than focusing on the communities and towns that defined the boundaries of the kingly state, the territorial state attempts to fix a frontier boundary, a line, that marks the jurisdiction of the state. These boundaries are crucial if bartering is to take place, and dynastic rights to be ignored, in maintaining the balance of power, so we may say that for this reason also the territorialism of the eighteenth century state favored a system of perfecting the balance of power among states—but why did these states seek such a system in the first place?
The territorial state aggrandizes itself by means of peace because peace is the most propitious climate for the growth of commerce. Maintaining the balance of power was believed to be the way to maintain peace; and in fact the so-called cabinet wars fought for strictly limited territorial objectives replaced the religious wars of the previous century that were potentially limitless in their destruction. As this new constitution took hold in Europe, a new international jurisprudence accompanied it. International law, which had, as we have seen, been influenced by Catholic theology in the period of the princely states and by Protestant theology in the time of kingly states, now found itself in the hands of deists, those empirico-rationalists who believed in a divine order that ordained and was constrained by the rules of reason. The most powerful and influential of the philosophers of this period, Berkeley and Leibniz, took a very different view of the human condition than had Hobbes and Spinoza. This new perspective, with its emphasis on human freedom and the role of human perception, was crucially influential in the work of the two writers who dominated international jurisprudence during the era of the territorial state: Christian Wolff and Emmerich de Vattel.
The political theories that supported absolutism, like those of Thomas Hobbes, were consistent with assumptions about the behavior of individuals: because, like the State, the individual sought only to preserve himself in a conflict over the resources necessary for self-preservation, and to aggrandize himself at the expense of others in order to better ensure his survival, he would unceasingly pose violent threats unless prevented from doing so by an even more powerful individual. Only an all-powerful person could bring order to the natural and otherwise inevitable and continual chaos of human conflict. These ideas were the intellectual basis for the kingly state; Grotian ideas of a society of states had to contend with the wilful elements of which that society was composed.
The Westphalian settlement, which affirmed the absolute and mutual independence of all the sovereigns, created an uncivilized system. It encouraged war because differences between princes must be resolved by the right of the strongest. Insecurity reigned.18
In contrast, the settlement at Utrecht depended upon very different ideas about the nature of states, though these too were consistent with, perhaps even extrapolated from, assumptions about individuals. Leibniz held, for example, that the naturalistic view of human nature given by Hobbes was too fragmentary to be accurate. The key to human behavior was not compulsion and inevitability, but free will, and the society of free human beings was characterized not only by self-preservation, but by development. Leibniz opposed Hobbes's view that absolute sovereignty was essential to justice because Leibniz saw in human nature a will to cooperate that had its basis in the need for individual development. Law was not founded on the exercise of raw power, but rather it reflected practical arrangements that enabled the pursuit of human happiness. Thus the operation of reason, which Grotius saw as the unifying element in international law, was for Leibniz the tangible expression of this inner human desire for pursuing and nurturing happiness.
Much about the Grotian order appealed to Leibniz: he approved of the essential Grotian premise that there were deep principles of human nature that were reflected in experience but were independent of that experience. Moreover, he endorsed the most controversial of Grotius's positions, that natural law would be the same even if there were no God, a view that Pufendorf derided as “impious and idiotic.” Actually, this position made good sense if, as I have argued, natural law for Grotius was not a set of substantive rules but rather the operation of reason itself, of rule making. But Grotius had agreed with his contemporaries about the need for a domestic absolutism; he was, after all, the international spokesman for the kingly state. Leibniz rejected this necessity (and the views of human nature on which it was founded) and replaced Grotius's deterministic account with concepts of free will. It was the paradox of free will, by which happiness was maximized but the possibility of error enshrined, that drove justice, according to Leibniz. Therefore there was no necessity for an overarching sovereign on an international scale. The division of the society of states into separate sovereignties was not fatal to international law because all the constituent members were moved to act in accord in order to develop; their very freedom to act, in which Hobbes saw the state's will to war, instead made possible the realization of peace and cooperation. True, it also made war possible, but there was no condition of international relations in which this was not the case, because the possibilities of free will always included the option of error, and even the pursuit of evil. For this reason, moral values were an inescapable part of the natural order—they played a role when men were free to choose.
WOLFF
Leibniz's most celebrated apostle was Christian Wolff, a German Enlightenment figure of polymath scope. Born in 1676, he ultimately became the principal apologist for the territorial state and came to regard Frederick the Great as the model of a “philosopher king.” His sympathy for natural religion, a kind of deism, drew criticism from his colleagues at the University of Halle, and when, in a public address in 1719, he pointed to certain non-Christian rulers as exemplary, he caused a public sensation. In 1721 Frederick William I (the father of Frederick the Great) suddenly ordered Wolff into exile on pain of hanging, probably as a result of a campaign against him by the Protestant orthodoxy. Wolff immediately became a figure of European fame, a martyr for the Enlightenment. He took up a new post at Marburg and remained there for some years, despite the remorse of Frederick William and the latter's repeated efforts to bring Wolff back in honor. When Frederick the Great became king in 1740, one of his first acts was to extend to Wolff a generous and public invitation to return to Halle, which Wolff accepted, remaining there until his death in 1756.
Of the leading Enlightenment figures, only Wolff took a particular interest in the law of nations. In his writings, he followed Leibniz. Hobbes and Spinoza had taken the society of nations to be a kind of presocial jungle, replicating at the international level that world of human beings that had existed before the appearance of the absolute sovereign. Wolff accepted that society reflected nature—the nature of human beings. As Leibniz held, however, Wolff believed that it is in the nature of man not simply to preserve himself, but to seek to thrive and mature, to realize a potential to achieve harmony, a potential that is embedded in the possibilities of free will. Therefore the formation of states without a common sovereign, even if it did create a “state of nature” on the international scale, did not create a lawless jungle. Accordingly the interests of any state must include the promotion of this developmental aspect of human beings. In a concept remarkably characteristic of Frederick the Great and of the territorial state, Wolff held that states have fundamental interests derived from their obligation to themselves. These obligations include self-preservation andthe development of the human resources of the state. This desire for harmony pre-exists the State and is residually existent also in the society of states. The obligations of one state to other states are nascent, “imperfect,” until they are perfected through treaties.
Wolff expressed this underlying drive for peace in a legal fiction he termed the Civitas Maxima. This Latin neologism was meant to contrast with the term Civitas, which refers to the civil society of a single state. While the Civitas Maxima can be anachronistically misunderstood as a kind of precursor to the League of Nations, it is nevertheless strikingly modern in concept. It might be best explained as a collective unconscious that influences free, self-determining actions. The Civitas Maxima is composed of a body of rules derived from the promotion of the common good. These are not moral rules, but they are rather the source of our evaluation of all rules. Where Grotius thought the contents of natural law could be found in the received traditions of Western practices, Wolff believed that the logical implications of free will—which he saw as the foundation of truth—would provide guidance. These implications would show what states ought to do to enhance their interests, which include a common interest shared with other states. Nature has created a society of states, and the self-preservation of this society also forms an interest of the constituent members of that society.
The Civitas Maxima is a supreme state only in a metaphorical sense, composed of morally equal and free, self-determining states. The law of the “Great State” is composed of what the individual state ought to and would agree to, as well as what states have actually agreed to either by custom or treaty. Thus its laws are based, in every case, on consent, and genuine consent can only be given by free and independent actors. The sovereignty of states, which so bedevils analysts of international law who seek cooperation among states, is instead for Wolff a precondition for law based on cooperation.
Grotius saw in a just war the positive workings of international law: war decided disputes among sovereigns the way litigation decides disputes among citizens. Rights were vindicated by victory. Wolff maintained, instead, that because war could be considered just by both parties, each following his own free judgment, the point of war was the achievement of peace, not simply of justice. Only peace would vindicate the developmental interests of a state, and thus there is no automatic legal right to pursue war in the presence of peaceful alternatives. In domestic societies, not every dispute is solved by litigation, which is an expensive and chancy way to achieve harmony, and harmony after all is an essential element in justice. If, for Grotius and the Westphalian system, victory in war determined the rightness of a cause, for Wolff and the Utrechtian settlement, peace, not war, was the central element in determining rightness. A victor cannot acquire by force of arms a right unless a peace treaty ultimately ratifies that right; this underscores the fact that the assertion of interests, not rights, is the essential duty of the territorial state. Interests are best preserved by consensus, while rights can be vindicated in the costliest and most self-destructive of conflicts.
Toward the end of his life, the fame and drama of Wolff's early career faded. He drew fewer students. His public role had led him to style himself “professor universi generis,” which was bound to invite ridicule. Eventually even Frederick began to avoid him, and on at least one occasion expressed displeasure at Wolff's prolixity. The enormous scope of his master, Leibniz, had degenerated in Wolff's hands into a systematic completeness that was pedantic. Wildebrand referred to him as a “schoolmaster” and pointed to Wolff's “ridiculous micrology.” But though he could not save himself—his renown as a philosopher had vanished by the nineteenth century—he was saved by another, a shrewd and ironic diplomat. Emmerich de Vattel carried Wolff's name everywhere in the pages of Vattel's treatise, the most important and the most widely read essay on international law since Grotius's De Jure Belli ac Pacis.
VATTEL
Emmerich de Vattel was born in 1714. Like Pufendorf, he was the son of a Protestant minister, but here all similarities end. Baron Pufendorf regarded himself as principally a philosopher, although Leibniz seems to have had some doubts about this. There is a dogmatism about Pufendorf that one associates with persons who are certain not only of being right, but of being right for all the right reasons. Vattel seems to have been a more humane and engaging figure and one more attuned to reality at the same time.
He was born in the Swiss principality of Neuchâtel, which was by dynastic union connected with the Kingdom of Prussia. At age thirty-two he became a diplomat in the service of the Elector of Saxony, returning to Switzerland as ambassador three years later. In 1758 he was recalled to Dresden as the equivalent of a modern permanent undersecretary for foreign affairs. Vattel only returned to Neuchâtel in 1766 and died there the next year. Thus for most of his life, he was a practicing diplomat in the highly complex politics of post-Utrecht Germany.
Vattel was a man of letters. Before becoming a diplomat he had published his Defense du système Leibnitzen in 1741 and he thereafter wrote essays in a vein that recalls Montaigne, interspersing philosophical speculations with amusing and ironic observations about mankind. His fame, however, rests on one massive work. This was Le droit des gens; ou Prin-cipes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains, published in 1758.
In this work, Vattel proposed to make Wolff's ideas on the law of nations accessible to “sovereigns and their ministers,” translating Wolff's abstractions into practical and understandable propositions that could be applied to the circumstances of diplomatic life. Nussbaum, however, has concluded that, “in reality the Book is far more than a paraphrase of Wolff's treatise. It is the work of a modern-minded diplomat who, while leaning on Wolff, systematically sets forth his own opinions on the most diverse topics of international and constitutional law.”19
The work met with instant and widespread success. It soon attained a circulation second only to Grotius's De Jure Belli ac Pacis and, in the first half of the nineteenth century, achieved oracular authority among diplomats.20 It was immediately translated into English and German, the first editions appearing in 1760; it was in Benjamin Franklin's hands by 1775. By 1820 it had been cited by more American courts than Grotius and Pufendorf combined. By the time of Nussbaum's treatise in 1947, there had been twenty-one editions of the original French text and twenty-three translations into English (thirteen of them American).21 Partly this was due to Vattel's style of reasoning, which provided for many exceptions to any general rule and was thus available to both sides of most disputes.22 Partly, this was owing to Vattel's anticipation of the state-nation; this accounts for his popularity with American judges and political figures. But mainly it was because Vattel was reasonable and accessible, something hard-pressed politicians and diplomats appreciated and had scarcely found in the literature on international relations since Grotius, whether it was the violent narcissism of Rousseau or the detached abstraction of Wolff. Government officials needed resources to cope with the post-Utrechtian world; if there was a science of maintaining the balance of power, they wanted instruction in its principles and, more importantly, in the application of those principles.
Le droit des gens begins with a review of Grotius and faults him for postulating universal consent as the basis for international law. This is not entirely fair to Grotius, for the consent on which he held fundamental law to be based was not a consent to particular rules but to the method of rule creation. Nor is Vattel's criticism of Pufendorf—that the latter tried to give a theological explanation for the binding character of international law—quite just. In both cases, however, the criticisms are made to set the stage for Vattel's presentation of Wolff as a humanist who grounded the law of nations upon reason and thus fulfilled the project of Leibniz.
Like Wolff, Vattel saw the law of nations as a science of state interests. And like Wolff, he maintained a division between the natural, immutable law (which was the basis for the distinctions between just and unjust) and the acts of state (treaties and custom) that supplement this natural law. Whereas Grotius had maintained that the universal ground of law was legal method—the way in which legal rules were created—Wolff and Vattel held that the universal ground of law consisted in the way in which legal rules were followed. For example, it was part of the natural law that states are morally equal, each being able to apply the rules of law on the basis of the freedom to act, and thus what is lawful or unlawful for one state must be so for all. The universal ground, therefore, is the freedom to act, and this makes possible, as well as determines, the lawfulness or unlawfulness of a state's action (as when, for example, a state avails itself of a legal rule it would deny to other states). It follows that each state must be left to decide matters as the consciences of its leaders demand, and that each state owes to every other state what it owes to itself.
Following Wolff and Leibniz, Vattel wrote that the duties of a state toward itself determine what its conduct should be toward the larger society of states that nature has established. And what is that?
Each state must strive to develop, as well as to protect, its existence. Thus, like Wolff, Vattel gives primacy to national interests, not national rights. If states act to develop their interests, there will be more cooperation, not less:
Nations would mutually exchange their products and their knowledge; profound peace would reign upon the earth and would enrich it with its precious fruits; industry and science and art would be devoted to our happiness no less than satisfying our needs…. The world would take on the appearance of a great Republic; all men would live together as brothers, and each would be a citizen of the universe… 23
It is not surprising then that, for the author of such a passage, 24 the freedom of commerce is a common right of nations. Each state is free to trade as it wishes without accountability. An equilibrium of international trade will be achieved just as the unrestrained freedom of contract is supposed to achieve maximal economic results for a domestic society.
Neither Vattel nor Wolff believed war was endemic to international relations. Because some leaders despise justice and refuse to listen to reason, there will be wars, but such persons are not merely the enemies of the states they attack but the enemies of all mankind. This fits nicely with the ideology of the balance of power, which legitimates the acts of an individual state to achieve defensible borders and collective action in favor of the status quo but disdains intervention on Westphalian grounds, that is, to aggrandize the State.
Vattel and Wolff part, however, with respect to the Civitas Maxima. Ironically, Vattel rejects this legal fiction because he rejects the Hobbesian premise to which Wolff was responding. It had seemed to some commentators that Hobbes had posited a mortal counterargument to the Grotian system when he asserted that the one thing men had in common was a desire to take each other's property, not a charitable impulse to collaborate. Post-Westphalian Europe—indeed the entire history of the kingly state—appeared to support a Hobbesian rather than Grotian view. Pufendorf and Wolff responded in different ways to this perceived shortcoming in Grotius: countering that human beings had in common a moralistic perception (Pufendorf) and a rationalistic perception (Wolff), respectively, that inclined states toward collaboration. Accordingly, Wolff had postulated that international law would be as necessary to the survival and development of the individual state as domestic law was to the survival of the individual (even if the rational grounds for this necessity were far from Hobbesian), and Pufendorf had gone so far as to deny the usefulness of international law at all, since the laws of nature would bring about the same collaborative behavior as that sought by international law. It was Wolff's solution to the Grotian flaw that had led him to hypothesize the Civitas Maxima, a collective unconscious grounded in necessity.
Vattel argued, however, that
it is true that men, seeing that the Laws of Nature were not being unvaryingly observed, have had recourse to political association… [b]ut it is clear that there is by no means the same necessity for a civil society among Nations as among individuals. It cannot be said, therefore, that nature recommends it to an equal degree, far less that it prescribes it. Individuals are so constituted that they could accomplish but little by themselves and could scarcely get on without the assistance of civil society and its laws. But as soon as a sufficient number have united under a government, they are able to provide for most of their needs, and they find the help of [the society of states] not so necessary for them as the State itself is to individuals.25
Thus for Vattel it is not natural law but diplomacy exploiting the conditions of nature that is responsible for international law. There is a universal society, to be sure, and it is the result of man's interdependence. States that wish to develop themselves can best do so in cooperation with others. But there is no necessity about this; some states may well choose to shut themselves off, as did Japan in the eighteenth century. A legal fiction like the Civitas Maxima is not true to life.
In other respects, too, Vattel brings a fresh sense of realism to Wolff's ideas. Thus, where Wolff recognizes mere acquisition as achieving actual dominion over territory, Vattel more cautiously makes clear that possession is a prerequisite of effective occupation (and thus concludes that papal allotments of newly discovered territories are without legal force). Where Wolff places heavy reliance on the consensual effect of treaties, Vattel stresses the problems of treaty interpretation and perishability. He takes neutrality in war to be the legal effect of nonparticipation and thus dismisses Wolff's reliance on the neutrality treaties that had become obsolete by that time. Vattel takes up a number of practical problems—whether loans by a neutral to a belligerent compromise neutral status; the extent of the right of visit and search of neutral ships by belligerents to check for contraband; the sale of booty to neutrals—that have immense real-world significance but are ignored in Wolff's more philosophical treatise.
Vattel's most important departure from Wolff, however, lay elsewhere, for the Swiss diplomat was not only the patient recorder of the legal consequences of Utrecht, but also the harbinger of events that would burst upon the world in 1776 and begin the closing of the period of territorial states altogether. The law of nations for Grotius had encouraged the absolutism of the kingly state; international law, for Wolff, aimed at rules that would encourage the enlightened authoritarianism of the territorial state. Vattel took Leibniz's ideas about free will and the aggregation of free decisions one step further and sought to advance the arrival of the state-nation, where sovereignty lay in the people and not in the ruler. Vattel argued that rulers are merely representatives of the State who act in the national interest—Frederick the Great had already claimed as much—but inquired additionally, as to the content of the national interest, and by what right had the king acted in the name of the nation? Vattel's answers to these two questions show him to be a transitional figure, linking the rationality of the territorial state to the idealism of the state-nation.
If the national interest is determined by the duties the State owes itself—as Leibniz and Wolff had contended—then Vattel argued that first among these duties is the responsibility for the welfare of the State. The ruler, who represents the interests of the people, must sever his own personal desires and interests from those of the nation, in order that he might not sacrifice the latter to the former. “Where he personally may be inclined to forgive an injury, he may be obliged to uphold his nation's right.”26 But if the king's interest is not the same as the nation's, by what right does the king assert the nation's interests? Vattel concluded that rulers are merely representatives of the sovereign people: ultimate authority belongs to the nation, which authority is delegated to the State of which the king is the head. By this reasoning, the welfare of the State is the supreme duty of both the king (this was the rationale of the territorial state) and of the nation (the rationale of the state-nation). Sovereignty exists only when the nation governs itself; this much is clear from the argument from free will. If there is no choice but obedience, then no free decision to obey has been made, and no authority can be conveyed to the leadership. Furthermore, the personality of the State supersedes that of the king; this much is to be inferred from the contrast of the territorial state with the kingly state. Putting the two conclusions together, Vattel argued that sovereignty is delegated to the State, not to the king, and resides in the whole society, and that society can withdraw its consent from a despot because the welfare of the State is both the duty of the leader and of the nation. As will be recalled from Book I, this takes us to the very edge of the ideology of the state-nation.
Le droit des gens was published in French, the language of eighteenth century diplomacy, but it was not well received in France. The French had always been dubious about the role of international law. “They are all doctors,” groaned d'Avaux at Westphalia, referring to the legalistic mentality of the German delegates27 and expressing an attitude toward law that endures among diplomats to the present. There was something faintly ridiculous about a middle-aged Swiss bureaucrat from a second-rank German power declaring that the law ordained that sovereignty lay in the people and that the king was superseded by the State. Or so at least it seemed in 1758. Rather Vattel received his warmest reception in America. Citations to his great work appear frequently in the Federalist Papers, the most important interpretive document concerning the U.S. Constitution. Indeed the Federalist Papers take their legal significance from the fact that they were used to explain the Constitution to the American people and thus represent our best evidence of the understanding of the sovereign ratifiers as to what powers were to be conveyed to the new government. The importance of this fact lies in the idea of popular sovereignty; otherwise, why would it matter what the people were told in order to win their endorsement? Vattel appears in McCulloch v. Maryland, the foundation case for doctrinal argument in American constitutional law, as well as in Gibbons v. Ogden, the fundamental constitutional case construing U.S. federal power to regulate commerce.
Perhaps French antipathy lay in their suspicion of the Utrechtian constitution itself. Like Wolff, Vattel approved of the balance of power, and he shared the conviction embodied in the Peace of Utrecht that the rational application of the principles of equilibrium would assure European order. France, whose ambitions were checked at Utrecht, regarded this order as stacked against it. Though it came as a surprise to the states of Europe, it was not Prussia (which ruthlessly exploited the Utrechtian system) that shattered the constitutional consensus of Utrecht but France, which had never fully shared its goals.
When we read today, largely in the literature of welfare economics, about the canons of rationality, we are reading the legacy of Leibniz and the “science of interests.” Grotius believed that the deep consensus among states derived from the way in which rules were made. Vattel asserted that this consensus arose from the way rules were followed. Both ideas are noticeably modern, which suggests that, like the archetypal forms of the State described in Book I, the jurisprudential approaches to the law of nations enter into history and remain, reappearing in an enlarged suite of choices as the society of states matures. For Wolff and Vattel natural law (what we would call the subject matter of the social sciences today) does not force man to obey certain rules, but is rather the ground of all rules, on the basis of which any particular rule is evaluated. The duties of the State toward itself are very much like the rationality that a “sovereign” consumer is thought to embody in making social and economic choices; out of an aggregation of such choices comes the most efficient system, by which is meant the system that maximizes the interests of the participants. Social choices are constrained by freedom—the freedom of the choices of others, whose choices affect our own—Leibniz might have told us. But what are the consequences for the society of states when the nation of a single state exercises its right of resistance and seizes the sovereignty it has delegated to a king? This Vattel did not say.