THE SHIELD OF ACHILLES (90 page)

This assessment reflects a consensus among historians about the significance of Utrecht; that this significance lies in its constitutional aspects is less generally emphasized.

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,
¹⁷
achieve 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.

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.

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
and
the 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
.

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:

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

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.