Week 3 Discussion

6

The emergence of international law

Although a society of states has been in the making in Europe since at least the fifteenth century, the idea of a distinct body of law springing from and regulating this society remained hazy throughout the early modern period. The term “international law” (and cognate expressions in other languages) did not come into general use until the nineteenth century. Even then, the rules governing international relations were sometimes referred to as the “public law of Europe.” But most writers clung to the antiquated and equivocal term “law of nations” (ius gentium, droit des gens, Völkerrecht, etc.), struggling to describe new modes of diplomacy using a conceptual vocabulary inherited from ancient Rome and medieval Christendom.

The modern debate over whether a law-governed order is possible in a world of sovereign states reflects the growing importance of individualism. Theorists who base civil law on individual interests argue that the sole purpose of government is to protect the lives and property of its subjects. For some, this argument points toward constitutional government and the protection of individual rights. To others it suggests an instrumental conception of government in which laws are tools of rather than constraints on policy. Such a conception threatens individual rights by undermining the laws that define and protect them.

In its most extreme versions, individualism regards human beings as appetitive creatures, driven, in the absence of a superior earthly power, to be their own law in matters affecting their survival. In such a condition there is no authoritative superior law, only instrumental rules which freely choosing human beings devise for their own convenience. Natural law gives way to natural right – one’s de facto liberty to use one’s powers as best one can. The proposition that sovereign states are subject to a law prescribing limits on the pursuit of power, already undermined by radical conceptions of reason of state, had to be reasserted against this new theory of natural right. What we call international law is one of the outcomes of an intellectual effort to reconstruct the Stoic/Christian universal human community as a community of territorial states. Whether states really do constitute a community regulated by international law is, of course, a debate that has not yet run its course.

Natural law and natural rights According to the Stoics, there is a divine and natural law governing everything in the universe, including human conduct. In the Christian version of this view, the law is divine in being promulgated by God and natural in being knowable by reason without the aid of revelation. Because human beings are free, rational beings, they can choose to disobey this law. And natural law, understood as a morality binding on all human beings, must be distinguished from the laws observed in particular communities. This conception of morality goes back through Aquinas to the Stoic view that all human beings are citizens not only of a particular polis with its own local laws but of an ideal universal community: a “cosmopolis” whose law is this rationally knowable natural law. There are, in other words, objective, universal, and eternal standards of right and wrong by which human laws as well as human conduct are to be judged.

The most significant natural law theorists of the sixteenth and early seventeenth centuries were Catholic theologians working in the tradition of medieval scholasticism. But by the middle of the seventeenth century, Protestant writers drawing directly on the Bible and the classics were at the center of natural law theorizing. Chief among them were Grotius and Hobbes.

Hugo Grotius (1583–1645) was, among other things, a humanist scholar, poet, historian, and self-taught theologian. Trained in Latin and Greek and then in law, he sometimes combined these interests in odd ways: one of his poems, for example, is a Latin verse paraphrase of the passages on dominium (property) from Justinian’s Institutes, a manual of Roman law commissioned by the sixth-century emperor. Grotius held a series of offices under the patronage of the chief of the United Provinces of the Netherlands, Johan van Oldenbarnevelt. But his public career was abruptly terminated in 1619 when Oldenbarnevelt tangled with more powerful rivals and was executed for treason. Sentenced to prison for life, Grotius escaped to Paris, where he later served as the Swedish ambassador to France.

Grotius made his first significant contribution to international affairs in response to the Dutch rivalry with Portugal and Spain in the East Indies. In 1603 the Dutch East India Company captured a Portuguese vessel in the Straits of Malacca and brought it back to Holland, claiming ownership of the vessel and its cargo as “prize” (property seized lawfully in a war). Grotius, who at this time was a celebrated Latin author as well as a prominent lawyer, was a natural choice not only to defend the company’s claim in court but to make a compelling public case for Dutch efforts to disrupt Portuguese trade in the East Indies (Roelofsen, 1990: 105). This assignment resulted in a manuscript known as The Law of Prize. Except

for a chapter printed in 1609 as Freedom of the Seas, the work remained unpublished until 1864.

The Law of Prize is more than a legal brief on behalf of the Dutch East India Company or a moral defense of the Dutch challenge to Portuguese and Spanish imperial claims, for it offers an elaborate philosophical argument for the right of individual and collective self-preservation and for the lawfulness of war, private as well as public, as an instrument of self-preservation. Instead of devising a narrow legal argument that would be sufficient to win his case in a Dutch court, Grotius develops a general justification of the use of armed force based on principles that could be acknowledged in Portugal as well as in Holland, and by Catholics as well as Protestants.

Grotius is grappling with a significant problem: how can one establish the truth of moral principles if people adhere to different traditions of moral belief? There are three obvious ways of handling this problem, which we might call dogmatism, relativism, and consensus. First, one can ground morality on some premise that one believes to be beyond doubt. The difficulty with this solution is that those who reject the premise will remain unconvinced: the premise and the conclusions it supports may be true, but this won’t make any practical difference. Second, one can reason from within one of the competing traditions of moral belief, leaving others to reason within their own traditions. But this solution is even less likely than the first to generate moral agreement because it offers no basis for choosing between traditions. Third, one can seek a foundation in principles common to all systems of belief. But this solution, too, is problematic, for a proposition might be generally accepted and yet be false. This, however, is the solution Grotius finds most compelling.

Grotius argues that one cannot establish the truth of a moral conclusion by invoking principles drawn from some particular, historically contingent moral system. He therefore rejects both civil law and Holy Scripture as a source of universal moral principles. The rules of civil law are binding only on the citizens of a particular state. Nor is Scripture a source of universal principles: the law revealed to the Hebrews is law only for them, and even Christian teaching has limited universal validity because it is mainly concerned with how to lead a more Christian life. Only natural law – which consists of moral principles correctly derived from universally valid premises – possesses the required generality.

But how, we might ask, do we know where to begin? How can we discover which moral premises are universally true? Why should we embrace the Stoic idea of a universal law of nature? Grotius reasons that what Stoicism and the other philosophical traditions of antiquity – which are, for him, the most authoritative

systems of rational morality – agree upon must in fact be true. And all the ancient schools, including the “Academics” (Skeptics), agree on the primacy of self- preservation (Grotius, 1950: 10–11). Ancient Skepticism is not a purely epistemological view: it recommends suspending belief to achieve a state of mind in which one is free from anxiety. But because one must go on living to enjoy this state, Skepticism implicitly views self-preservation as the basic human motive. Grotius therefore concludes that the injunction to preserve oneself, which even the Skeptic acknowledges, is the indisputable foundation for morality (Tuck, 1987: 110–11).

Grotius establishes a moral right of self-preservation by reasoning that if the desire for self-preservation is inherent in human nature, no-one can be blamed for acting on this desire. And once we grant a right of self-preservation, we must grant other rights that are implied by it. Grotius uses the most important of these implied rights, self-defense and ownership, to formulate two fundamental principles of natural law: that it is permissible to defend one’s life and to acquire things useful for life (Grotius, 1950: 10).

According to this theory, the basis of natural law, ius naturae, is natural rights. The word ius, Grotius writes, stands for what is “just” by nature and, by extension, for the “law” by which natural justice and injustice is measured. But there is another meaning of ius which is close to what we mean today by “a right.” Ius, in this sense, means the moral quality by which a person can be said to justifiably perform an action or possess a thing. It includes moral powers which one has over oneself (freedom), others (mastery), and things (ownership), as well as contractual rights (Grotius, 1950: 35–6). This meaning of ius (plural iure) as a power owned by someone is not novel. Grotius’ Spanish contemporary, Francisco Suárez, for example, distinguishes ius as “the moral right to acquire or retain something” from ius as “law, which is the rule of righteous conduct” (1944: 326), and there is evidence that the use of ius to mean a right goes back at least to canon lawyers of the twelfth century (Tierney, 1997). In using the idea of natural right, then, Grotius is reshuffling the elements of an inherited tradition. But in making rights the foundation of natural law, he gives the individualist element in that tradition an importance it did not have in medieval thought.

Because of the primacy of self-preservation, Grotius argues, human beings have a right to defend themselves against attack – a right they retain even in civil society. And because the justification of civil society is that it secures the right of self-preservation, individuals may use force to defend their lives and property when government fails to protect them or to resist a government that attempts to deprive them of these things. In this way Grotius maps out a line of thought that is

central to political theory for the next two centuries: that civil society is an artificial entity constructed by individuals endowed with natural (pre-civil) rights, including the right of property. The idea that persons “have” rights, that civil law exists to protect their rights, and that government is illegitimate when it interferes with these rights, helped transform the Aristotelian/scholastic premises of medieval thought into the secular individualism we take for granted today.

Grotius does not, however, push his individualist premises to the limit. He argues that the natural kinship human beings feel for their fellows makes it reasonable to demand that they refrain from injuring one another. This demand generates two additional natural laws: that one may not physically harm others or seize their possessions (Grotius, 1950: 10). When Grotius says that “one’s own good takes precedence over the good of another” (1950: 21), he does not mean that in pursuing one’s own ends one can violate these two natural laws. A person is morally entitled to act in ways that injure the interests of other persons, but not their bodies or property.

The natural moral order implicit in these additional principles is nevertheless quite minimal. Natural law, as Grotius understands it, is a morality based on coexistence between self-regarding individuals, not on benevolence or on cooperation to secure shared social goods. Human beings may be inherently social, but the law of nature does not require that they assist one another, only that they leave one another alone, though there may be a duty to assist those who are the victims of violent injustice. Grotius’ understanding of sociality is only superficially like that of Aristotle and Aquinas, for it attributes to human beings no more than a natural propensity to respect one another’s interests. Founding natural law on natural rights undermines the Aristotelian assumption of natural human sociality and narrows the scope of natural law to mutual noninterference.

Grotius develops the implications of his theory of natural rights for international relations in The Law of War and Peace (1625). Like the earlier work, it is concerned with both private and public war. It is therefore not a treatise on international law, understood as a distinct body of law regulating international relations. Instead, it articulates a single theory of morality applicable to any person, individual or collective, whose natural rights are threatened by the actions of others. Civil societies are associations of persons cooperating to secure their lives and property, and one purpose of a government is to defend the rights of its citizens against injury by foreigners. Although individual human beings live in civil societies, these societies remain in a natural (pre- or non-civil) condition with respect to one another. Like the persons they protect, states have a right to self-

preservation. The natural rights of states are analogous to the natural rights of individuals.

For Grotius, to defend one’s own life and property is the most fundamental ground for using armed force – hence the title of the chapter (Book 2, chapter 1) in which Grotius opens his discussion of the circumstances under which war is justified: “The Causes of War: First, Defense of Life and Property.” In defending one’s rights by force one must, however, avoid violating the rights of others: “it is not… contrary to the nature of society to look out for one self and advance ones own interests, provided the rights of others are not infringed; and consequently the use of force which does not violate the rights of others is not unjust” (Grotius, 1925: 54). In the state of nature, one individual may punish another for violating the rights of any person, because such injuries set a bad example and are therefore the concern of all. The same is true of injuries inflicted on a state. Just as each person in the state of nature may fight to preserve the rights of all, so each state may fight to preserve the rights of all states. A state is therefore permitted to punish injuries to others as well as to itself. Any state, for example, may justly use force to suppress piracy or barbaric practices like cannibalism. But only the most serious crimes against nature can justify punitive war, which is always “under suspicion of being unjust, unless the crimes are very atrocious and very evident” (Grotius, 1925: 508).

If the cause for which a war is fought is unjust, then, Grotius argues, everything done in the course of waging it is unjust. He does not recognize the modern principle that would excuse soldiers in an unjust war from the charge of criminality on the grounds that the rights and wrongs of conduct in war are independent of the justice of the war’s aims. Nor does he offer moral reasons (that is, reasons based on natural law) for refraining from atrocities; instead, he condemns atrocities as un-Christian and inexpedient. This failure to connect the laws of war with the natural rights of noncombatants suggests that Grotius did not grasp the full implications of his own moral system.

Perhaps no consistent system of moral precepts is possible, however, if the right of self-preservation is treated as foundational. For Thomas Hobbes (1588–1679), self-preservation erodes rather than supports natural law. Grotius deduces natural law principles from the right of self-preservation. But the human beings whose right he postulates are not the ruthless powerseekers imagined by Hobbes. What Hobbes calls “the right of nature” is the unrestricted liberty of appetitive creatures competing for life and power: isolated selves who are driven to use one another, each for its own purposes. Human beings are rational creatures, but their rationality is the ends/means prudence of creatures concerned with self-

preservation. Because their only motive in refraining from harming one another is self-regarding, Hobbesian selves lack even the minimal sociality that Grotius ascribes to human beings in the natural condition. Hobbes’ theory of natural rights is therefore more radically individualist than Grotius’.

For Grotius, the state of nature, the situation of persons outside civil society, is still a moral order, but for Hobbes it is a lawless war of all against all: there can be no moral life without authority to declare and enforce a common law. For Grotius, as for the Thomists, moral principles create obligations even in the absence of security. For Hobbes they do not: if others will not behave decently, you don’t have to, either. In the absence of security, each person is free to do whatever, in his or her own judgement, is necessary for self-preservation. For Hobbes, outside civil society the laws of nature are in effect de-moralized: they become maxims of prudence for persons seeking self-preservation. If others are willing to cooperate, it will benefit you to cooperate as well, but you have no obligation to cooperate because in the state of nature there is no guarantee that others won’t exploit your cooperation.

Hobbes uses these prudential maxims to generate civil society: rational persons, he argues, will put themselves under a system of authoritative and enforceable civil law. But the resulting states system is, paradoxically, still a state of nature. Whether sovereigns, too, might profit by establishing a world state depends on circumstances: for Hobbes, the costs of remaining in the state of nature are not as high for commonwealths as for individuals, so the motive for creating a super-state is weaker than that which brings individuals into civil society. But that is a contingent judgement; one can imagine circumstances in which the costs of remaining independent might motivate states to institute a world state (Airaksinen and Bertman, 1989).

Hobbes’ view of international relations is, then, one we would call “realist” or Machiavellian. Within civil society, law rules; between civil societies “policy” (expediency) comes to the fore. The eighteenth-century theory of the balance of power illustrates how far international political theory can go on Hobbesian premises.

Seventeenth- and eighteenth-century theorists tried ingeniously to reconcile the new theory of natural rights articulated by Grotius and Hobbes with the older understanding of natural law. The most famous of these in his day was the German philosopher Samuel Pufendorf (1632–94). Pufendorf accepts Hobbes’ argument that enforcement is essential to the idea of law. But instead of concluding that natural law is not enforceable and therefore not really law, he argues that it is authentic law because it is willed by God and backed by the threat of divine

punishment. He also argues that Hobbes is mistaken in thinking that there can be rights without correlative duties. If there is a natural right of self-preservation, there must also be a natural duty to respect the lives and property of others. Finally, against Grotius, Pufendorf argues that our natural duties include a positive duty of benevolence:

Everyone should be useful to others, so far as he conveniently can … It is not enough not to have harmed … others. We must also … share such things as will encourage mutual goodwill. (Pufendorf, 1934/1991: 64)

Underlying these duties is the fundamental principle of morality: that one should cultivate “sociality.” This is Pufendorf’s version of the Golden Rule, and it is fundamental in the sense that all the other precepts of morality derive from it. With these arguments, Pufendorf retreats from Hobbes’ and even Grotius’ theory of natural right to a position less hostile to that of Thomistic natural law.

Pufendorf’s On the Duties of Man and Citizen (1673) is a compact survey for students of the principles of natural law expounded in a massive treatise published the year before, On the Law of Nature and of Nations (1672). In these works, Pufendorf identifies natural law as a kind of moral knowledge. It is knowledge of one’s duties as a human being, acquired by the use of reason, as distinguished from knowledge of one’s duties as a citizen, as determined by the civil laws of ones country, or knowledge of ones duties as a Christian, based on divine revelation. In modern terms, we might say that Pufendorf distinguishes philosophical ethics from positive jurisprudence, on the one hand, and moral theology, on the other.

If natural law is really law, then international relations is governed by law. But it is of course moral, not positive, law. Morally speaking, a state has no unlimited right to wage war for its own security, only a right to defend itself against unjust attack or to rectify some other injury to itself. Like Grotius, Pufendorf relies on customary practice as well as natural law in discussing the moral limits that govern the conduct of war. He observes, for example, that international custom permits states at war to use all measures necessary for victory, though civilized nations may choose to forego such measures as the use of poison or the assassination of rulers. And although immovable property seized in war belongs to the conquering sovereign, custom entitles soldiers to keep movable property they have taken as booty. Pufendorf is reluctant to ascribe such principles, which reflect the state of civilized opinion regarding the conduct of war, to natural law.

From ius gentium to ius inter gentes

Much attention has been given since the middle of the nineteenth century to the origins of international law. While some have claimed the title of founder of international law for Grotius, others bestow the honor on Gentili, Vitoria, or Suárez (A. Nussbaum, 1954: 296–306; Haggenmacher, 1990). The dispute, fueled in part by national and religious rivalries, presupposes a naive conception of history. Modern international law is a complex practice, and the concept that corresponds to this practice was only slowly clarified. The main elements of this modern concept of international law – that there exists a body of rules specifically regulating the relations of independent territorial states, and that these rules have their source not in natural reason but in the customs and agreements of states – were articulated by theorists using a vocabulary ill-suited for the task.

The Romans distinguished ius (customary law) from lex (enacted law). Every lex, being enacted at a particular time, is law only after it has been enacted. And, because it has been enacted, it can be amended or repealed. Civil law, which governs relations between Roman citizens, is lex but the law governing relations between citizens and foreigners – that is, aliens living under Roman authority – was not the product of legislation; rather, it was originally case law emerging from the decisions of administrators and judges handling disputes between the two classes of persons. It is, therefore, a body of common or customary law. The Romans called this customary law governing relations between members of different gentes or peoples ius gentium. In late medieval and early modern Europe, ius gentium meant the customary law common to all or most civil societies. It is positive law in the sense of being a social practice, not in being lex declared by a sovereign (Haakonssen, 1996: 18–19).

In the legal and political theory of early modern Europe, ius gentium occupies an ambiguous place between natural and human law. Theorists devoted much thought to untangling the relationship between ius gentium and other kinds of law. Some, like Grotius, identified ius gentium with natural law on the grounds that any practice acknowledged as lawful among many peoples must be inherently reasonable. But even those who rejected this identification regarded ius gentium as closer to natural law than to the enactments of particular sovereigns. Yet because ius gentium is composed of generally recognized principles, it could be characterized as the “civil law” of a single human community. As Vitoria puts it:

The law of nations (ius gentium) does not have the force merely of pacts or agreements between men, but has the validity of a positive enactment (lex). The whole world, which is in a sense a commonwealth, has the power to enact laws which are just and convenient to all men; and these make up the law of nations. (Vitoria, 1991: 40)

The idea of enactment here is of course metaphorical. Bodin, too, is drawn toward identifying ius gentium as a kind of lex – he calls it lex omnium gentium

communis, the law common to all peoples. For neither author, however, does ius gentium carry any suggestion of international law as an autonomous system of rules, based on treaties and customary state practice, binding independent territorial states in their relations with one another.

But as the selections from Grotius and Hobbes illustrate, as soon as sovereigns were seen as persons outside civil society – persons governed by natural law – theorists could begin to connect natural law with the practices governing sovereigns in exchanging ambassadors, regulating trade, making treaties and alliances, and waging war. For some, these practices were essentially a reflection of natural law applied to the relations of states. For others, they constituted a body of human law which, though similar in content to natural law, was based on custom, not on reason. The existence of such practices also suggested a distinction between two kinds of ius gentium, one comprising norms common to the domestic laws of different states, the other comprising norms observed by sovereigns in their dealings with one another – a system of law springing from and regulating relations between states. In the early modern period there is much confusion because a single expression, the law of nations (ius gentium) is used for both kinds of law. International law proper, sometimes identified by the label ius inter gentes (“law between nations”), only gradually separated itself from the law of nations understood as principles common to different systems of civil law.

Among the first to discuss the two meanings of ius gentium was the Spanish Jesuit theologian Francisco Suárez. Writing in 1612, Suárez distinguishes “laws which individual states or kingdoms observe within their own borders, but which is called ius gentium because the said laws are similar and are commonly accepted” from “the law which all the various peoples and nations ought to observe in their relations with one another” (1944: 447). Only the latter is ius gentium proper, Suárez argues; the former is really part of the civil law of each state. Suárez continues, however, to presuppose a community of mankind: each state, though a “perfect” (independent) community, is also a member of the universal society comprising humanity as a whole. But this universal society is not a society of states. It is an undifferentiated society of persons, some of whom happen to be sovereigns.

Hobbes, writing several decades after Suárez, is perhaps the first to restrict the expression ius gentium or “law of nations” to the law between sovereigns: just as civil law is the law of nature applied to the citizens of a commonwealth, the law of nations is natural law applied to sovereigns, who are not members of any commonwealth, and for whom it serves not as binding law but as prudential good sense. And in a 1650 treatise, Richard Zouche, an English lawyer, distinguishes

“the law which is observed between princes or peoples of different nations” from the civil laws common to all or most nations (1650/1911: 1). Zouche calls the former ius inter gentes and identifies it with the ius feciale, the law of the early Roman “college of fecials” or priests whose office was to ascertain the lawfulness of Rome’s wars and treaties. Seventeenth-century writers often turned to the ius feciale to make sense of the emerging practice of international law. Leibniz, for example, labels natural law applied to the relations of sovereign states iuris feciales inter gentes (1988: 175). Because it is confined to this body of law and includes a discussion of treaties, Zouche’s treatise is recognizably a work on international law as we now understand that subject.

The late seventeenth-century understanding of the law of nations as a distinct body of international law is represented here by some passages from “On the Law of Nations” (1676) by Samuel Rachel (1628–91). For Rachel, who was a contemporary and critic of Pufendorf, the law of nations “properly so called” consists of positive laws springing not from the will of a superior but from the joint will of sovereigns as expressed in agreements between them. This international law, which we can conceive as being jointly enacted by the participating states, must be distinguished from the civil laws common to various states, on the one hand, and from natural law, on the other. But international law, which rests on agreement and good faith, is not enforced by any superior state. To remedy this implicit defect, Rachel proposes that states agree to establish a new “college of fecials” to decide disputes under international law (p. 355). For Rachel, the idea of international law implies the need for a world court.

During the course of the eighteenth century, legal theorists gradually distinguished international law from domestic public law, regarding it as an autonomous system rooted in international practice. A steadily increasing volume of treaties, the availability of records concerning state practice, and the increasing professionalization of law contributed to this development by inviting new ways of establishing international legal rules.

In his The Law of Nations Treated According to a Scientific Method (1748), Christian von Wolff (1679–1754), like Pufendorf a prominent figure in the German Enlightenment, defines the law of nations as “the science of that law which nations or peoples use in their relations with each other” (p.356). This definition reveals an academic’s rather than a practitioner’s conception of the subject. Wolff, who had no legal training or experience, was interested in international law solely as a subject for philosophical analysis.

For Wolff, international law begins with natural law: because nations are “individual free persons living in a state of nature” (p. 356), the law of nations is

natural law applied to nations. Wolff calls this law the “necessary law of nations” (p. 358) because the obligations it prescribes are unchanging and unchangeable: this kind of international law belongs to natural law (morality), and we can’t change morality. But unlike Grotius, Pufendorf, and other natural law theorists, Wolff treats the principles of natural law that apply to states as a separate branch of natural law. Because states have qualities that distinguish them from individual persons, the natural law of nations is not merely an application of the natural law of individuals (Knight, 1925: 200).

Wolff develops a philosophical foundation for international law, so understood, in his theory of the universal or supreme state (civitas maxima). We must imagine that states comprise a society governed by natural law, and that this natural society of states constitutes a universal state. All states are united in this universal state and subject to its laws. In other words, all states, considered collectively, must be imagined to hold a kind of sovereignty over each state considered individually. And because its decisions are made by the agreement of its free and equal members, the “government” of the universal state is democratic. Here, as in other democracies, the majority rules: this is why customary international law is binding on all, even if some do not comply with it. But because the member states cannot assemble, we must deduce their agreement from what is reasonable. Finally, we must imagine a fictitious ruler of the universal state who wills the law of nations on the basis of right reason. The natural law of nations may be said to be “voluntary” in reflecting the will of an imagined world sovereign who represents the presumed rational will of the member states. But this voluntary law of nations, which rests on the presumed will and consent of nations, must be distinguished from the law that springs from the actual will and consent of nations and is embodied in the positive law of nations.

It is easy to scoff at this pyramid of definitions and fictions, but Wolff is in fact exploring, philosophically, the concept of international law as a body of rules governing the relations of independent states. A system of rules implies authoritative procedures for declaring and interpreting rules. If we cannot identify a real sovereign who performs these functions, we can try to grasp the logic of the system by attributing their performance to a postulated notional sovereign. This would seem to call for an organized union of states with institutions for securing the rule of law. Wolff does not, however, understand the civitas maxima as a proposal for such a union: it is, for him, a pure philosophical construct reflecting the internal logic of international law.

When Emmerich de Vattel (1714–67) decided to popularize Wolff’s system, he dismissed Wolff’s metaphysics and wrote a book designed to be useful to

statesmen and diplomats. Trained in philosophy, Vattel pursued a brief and undistinguished diplomatic career in the service of several minor sovereigns. His Law of Nations or the Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereigns, which appeared in dozens of editions in various languages, was widely used for more than a century after its publication in 1758. The American founders owed their knowledge of international law in part to Vattel.

As its title implies, Vattel’s book treats international law as a branch of natural law. And it is concerned with internal as well as foreign affairs. In both respects, the book resembles the works of Grotius and Pufendorf more than it does a modern textbook of international law. Vattels modernity, like that of Grotius, has been exaggerated by those seeking the origins of international law (Hurrell, 1996). But unlike his predecessors, Vattel pays attention to contemporary diplomatic practice and understands international law as an autonomous body of law.

The passages in which Vattel discusses the equality of states and the laws of war indicate the gulf that separates eighteenth-century international law from the laws of medieval Christendom. States have equal rights under international law, no matter how weak or powerful they may be: “A dwarf is as much a man as a giant is; a small republic is no less a sovereign state than the most powerful kingdom” (Vattel, 1916: 7). This equality provides the justification for the balance of power, which according to Vattel conditionally justifies preventive war against a would- be hegemonic state. And it means that the laws governing the conduct of war apply equally to all, regardless of whose cause is just: what is permitted to one side as a lawful means of war is also permitted to the other belligerents. The rationale for this equality is that it brings war within the bounds of law: if war cannot be forbidden, it should at least be regulated.

Vattel justifies retaining a link with natural law on the grounds that if consent were the only source of international law we could not condemn evil practices like the slave trade. Though much of international law rests on the consent of states expressed in treaties and customary practice, Vattel argues that this law is binding because it is consistent with natural law. It is the natural law principle pacta sunt servanda (“agreements must be honored”), for example, that requires states to keep their promises. But his is the last mainstream work in which international law is identified with natural law. From the late eighteenth century onwards, international law is usually understood to be positive, not natural law. It is positive not in being enacted by a superior but in being jointly willed by states, who bind themselves explicitly through treaties or implicitly through customary international law.

FURTHER READING

For Grotius, beginners are well served by Bull, Kingsbury, and Roberts (1990), more advanced students by Haggenmacher (1983) and Onuma (1993). For Hobbes, beginners might start with Tuck (1989) and then read the speculative essays on the international implications of Hobbes’ political thought in Airaksinen and Bertman (1989). Schiffer (1954), Linklater (1990), and Boucher (1998) each devote a chapter to Pufendorf, on whom the standard work by Krieger (1965) may also be consulted. The standard history of international law, superficial, dated, but nevertheless useful in the absence of competitors, is A. Nussbaum (1954). The history of international law is considered from the standpoint of political theory by Nardin (1983).

SOURCES

Hugo Grotius, from The Law of War and Peace (1625), trans. Francis W. Kelsey (Oxford: Clarendon Press, 1925), Prolegomena, sections 1, 5–13, 15–23, 25, 28–9, 39–40, 48, 50, and Book 1, ch. 2, sections 1, 2, 4 (part), 5 (part), and 6 (part), pp. 1, 10–18, 20, 23–4, 26–7, 51–4. Authors and translators notes omitted.

Thomas Hobbes, from Leviathan (1651), ed. Richard Tuck (Cambridge: Cambridge University Press, 1996), chs.13 and 14 (part), pp.86–92. Hobbes’ spelling has been modernized and his marginal headings omitted.

Samuel Pufendorf, from On the Duties of Man and Citizen (1673), ed. James Tully (Cambridge: Cambridge University Press, 1991), Book 2, chs. 1 and 16, pp. 115–19 and 168–72.

Samuel Rachel, from “On the Law of Nations” (1676), in Dissertations on the Law of Nature and Nations, trans. John Pawley Bate (Washington, DC: Carnegie Institution, 1916), sections 1–3 (part), 11–12, 84–91, and 119, pp. 157–8, 164–5, 204–8, and 223.

Christian von Wolff, from The Law of Nations Treated According to a Scientific Method (1748), trans. Joseph H. Drake (Oxford: Clarendon Press, 1934), Prolegomena, pp. 9–19. The translator’s notes have been omitted.

Emmerich de Vattel, from The Law of Nations or Principles of Natural Law (1758), trans. Charles G. Fenwick (Washington, DC: Carnegie Institution, 1916), Book 2, ch. 3, and Book 3, ch. 12, pp. 126–9 and 304–6. The authors notes, cross-references, and marginal headings have been omitted.

HUGO GROTIUS

HUGO GROTIUS (1583–1645), Dutch humanist, theologian, and jurist. Grotius achieved fame first as a poet and later for his efforts to reconcile Protestant and Catholic Christianity. He is known to students of international relations for his defense of the principle of freedom of these as and, even more, as the author of The Law of War and Peace (1625), which he wrote while living as an exile in France. Despite its baroque style and almost complete neglect of contemporary international practice, Grotius’ famous work continues to be read as a statement of the view that the jurisdiction of morality extends even to war (the law of war, for Grotius, is natural, not positive, law). Although the habit of regarding Grotius as the founder of international law both ignores the contributions of his predecessors and reads back into his work ideas that belong to a later period, his writings contain, in embryo, a powerful theory of international justice.

From The Law of War and Peace

Prolegomena

1. The municipal law of Rome and of other states has been treated by many, who have undertaken to elucidate it by means of commentaries or to reduce it to a convenient digest. That body of law, however, which is concerned with the mutual relations among states or rulers of states, whether derived from nature, or established by divine ordinances, or having its origin in custom and tacit agreement, few have touched upon. Up to the present time no one has treated it in a comprehensive and systematic manner; yet the welfare of mankind demands that this task be accomplished.

… 5. Since our discussion concerning law will have been undertaken in vain if there is no law, in order to open the way for a favourable reception of our work and at the same time to fortify it against attacks, this very serious error must be briefly refuted. In order that we may not be obliged to deal with a crowd of opponents, let us assign to them a pleader. And whom should we choose in preference to Carneades? For he had attained to so perfect a mastery of the peculiar tenet of his

Academy that he was able to devote the power of his eloquence to the service of falsehood not less readily than to that of truth.

Carneades, then, having undertaken to hold a brief against justice, in particular against that phase of justice with which we are concerned, was able to muster no argument stronger than this, that, for reasons of expediency, men imposed upon themselves laws, which vary according to customs, and among the same peoples often undergo changes as times change; moreover that there is no law of nature, because all creatures, men as well as animals, are impelled by nature toward ends advantageous to themselves; that, consequently, there is no justice, or, if such there be, it is supreme folly, since one does violence to his own interests if he consults the advantage of others. 6. What the philosopher here says, and the poet reaffirms in verse,

And just from unjust Nature cannot know, must not for one moment be admitted. Man is, to be sure, an animal, but an animal of a superior kind, much farther removed from all other animals than the different kinds of animals are from one another; evidence on this point may be found in the many traits peculiar to the human species. But among the traits characteristic of man is an impelling desire for society, that is, for the social life – not of any and every sort, but peaceful, and organized according to the measure of his intelligence, with those who are of his own kind; this social trend the Stoics called ‘sociableness’. Stated as a universal truth, therefore, the assertion that every animal is impelled by nature to seek only its own good cannot be conceded. 7. Some of the other animals, in fact, do in a way restrain the appetency for that which is good for themselves alone, to the advantage, now of their off spring, now of other animals of the same species. This aspect of their behaviour has its origin, we believe, in some extrinsic intelligent principle, because with regard to other actions, which involve no more difficulty than those referred to, a like degree of intelligence is not manifest in them. The same thing must be said of children. In children, even before their training has begun, some disposition to do good to others appears, as Plutarch sagely observed; thus sympathy for others comes out spontaneously at that age. The mature man in fact has knowledge which prompts him to similar actions under similar conditions, together with an impelling desire for society, for the gratification of which he alone among animals possesses a special instrument, speech. He has also been endowed with the faculty of knowing and of acting in accordance with general principles. Whatever accords with that faculty is not common to all animals, but peculiar to the nature of man. 8. This maintenance of the social order, which we have roughly sketched, and which is consonant with human intelligence, is the source of law properly so

called. To this sphere of law belong the abstaining from that which is another’s, the restoration to another of anything of his which we may have, together with any gain which we may have received from it; the obligation to fulfil promises, the making good of a loss incurred through our fault, and the inflicting of penalties upon men according to their deserts. 9. From this signification of the word law there has flowed another and more extended meaning. Since over other animals man has the advantage of possessing not only a strong bent towards social life, of which we have spoken, but also a power of discrimination which enables him to decide what things are agreeable or harmful (as to both things present and things to come), and what can lead to either alternative: in such things it is meet for the nature of man, within the limitations of human intelligence, to follow the direction of a well-tempered judgement, being neither led astray by fear or the allurement of immediate pleasure, nor carried away by rash impulse. Whatever is clearly at variance with such judgement is understood to be contrary also to the law of nature, that is, to the nature of man. 10. To this exercise of judgement belongs moreover the rational allotment to each man, or to each social group, of those things which are properly theirs, in such a way as to give the preference now to him who is more wise over the less wise, now to a kinsman rather than to a stranger, now to a poor man rather than to a man of means, as the conduct of each or the nature of the thing suggests. Long ago the view came to be held by many, that this discriminating allotment is a part of law, properly and strictly so called: nevertheless law, properly defined, has a far different nature, because its essence lies in leaving to another that which belongs to him, or in fulfilling our obligations to him. 11. What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him. The very opposite of this view has been implanted in us partly by reason, partly by unbroken tradition, and confirmed by many proofs as well as by miracles attested by all ages. Hence it follows that we must without exception render obedience to God as our Creator, to Whom we owe all that we are and have; especially since, in manifold ways, He has shown Himself supremely good and supremely powerful, so that to those who obey Him He is able to give supremely great rewards, even rewards that are eternal, since He Himself is eternal. We ought, moreover, to believe that He has willed to give rewards, and all the more should we cherish such a belief if He has so promised in plain words; that He has done this, we Christians believe, convinced by the indubitable assurance of testimonies.

12. Herein, then, is another source of law besides the source in nature, that is, the free will of God, to which beyond all cavil our reason tells us we must render obedience. But the law of nature of which we have spoken, comprising alike that which relates to the social life of man and that which is so called in a larger sense, proceeding as it does from the essential traits implanted in man, can nevertheless rightly be attributed to God, because of His having willed that such traits exist in us. In this sense, too, Chrysippus and the Stoics used to say that the origin of law should be sought in no other source than Jupiter himself; and from the name Jupiter the Latin word for law (ius) was probably derived. 13. There is an additional consideration in that, by means of the laws which He has given, God has made those fundamental traits more manifest, even to those who possess feebler reasoning powers; and He has forbidden us to yield to impulses drawing us in opposite directions – affecting now our own interest, now the interest of others – in an effort to control more effectively our more violent impulses and to restrain them within proper limits.

… 15. Again, since it is a rule of the law of nature to abide by pacts (for it was necessary that among men there be some method of obligating themselves one to another, and no other natural method can be imagined), out of this source the bodies of municipal law have arisen. For those who had associated themselves with some group, or had subjected themselves to a man or to men, had either expressly promised, or from the nature of the transaction must be understood impliedly to have promised, that they would conform to that which should have been determined, in the one case by the majority, in the other by those upon whom authority had been conferred. 16. What is said, therefore, in accordance with the view not only of Carneades but also of others, that

Expediency is, as it were, the mother Of what is just and fair,

is not true, if we wish to speak accurately. For the very nature of man, which even if we had no lack of anything would lead us into the mutual relations of society, is the mother of the law of nature. But the mother of municipal law is that obligation which arises from mutual consent; and since this obligation derives its force from the law of nature, nature may be considered, so to say, the great-grandmother of municipal law.

The law of nature nevertheless has the reinforcement of expediency; for the Author of nature willed that as individuals we should be weak, and should lack

many things needed in order to live properly, to the end that we might be the more constrained to cultivate the social life. But expediency afforded an opportunity also for municipal law, since that kind of association of which we have spoken, and subjection to authority, have their roots in expediency. From this it follows that those who prescribe laws for others in so doing are accustomed to have, or ought to have, some advantage in view. 17. But just as the laws of each state have in view the advantage of that state, so by mutual consent it has become possible that certain laws should originate as between all states, or a great many states; and it is apparent that the laws thus originating had in view the advantage, not of particular states, but of the great society of states. And this is what is called the law of nations, whenever we distinguish that term from the law of nature.

This division of law Carneades passed over altogether. For he divided all law into the law of nature and the law of particular countries. Nevertheless if undertaking to treat of the body of law which is maintained between states – for he added a statement in regard to war and things acquired by means of war – he would surely have been obliged to make mention of this law. 18. Wrongly, moreover, does Carneades ridicule justice as folly. For since, by his own admission, the national who in his own country obeys its laws is not foolish, even though, out of regard for that law, he may be obliged to forgo certain things advantageous for himself, so that nation is not foolish which does not press its own advantage to the point of disregarding the laws common to nations. The reason in either case is the same. For just as the national, who violates the law of his country in order to obtain an immediate advantage, breaks down that by which the advantages of himself and his posterity are for all future time assured, so the state which transgresses the laws of nature and of nations cuts away also the bulwarks which safeguard its own future peace. Even if no advantage were to be contemplated from the keeping of the law, it would be a mark of wisdom, not of folly, to allow ourselves to be drawn towards that to which we feel that our nature leads. 19. Wherefore, in general, it is by no means true that

You must confess that laws were framed From fear of the unjust,

a thought which in Plato some one explains thus, that laws were invented from fear of receiving injury, and that men are constrained by a kind of force to cultivate justice. For that relates only to the institutions and laws which have been devised to facilitate the enforcement of right; as when many persons in themselves weak, in order that they might not be overwhelmed by the more powerful, leagued

themselves together to establish tribunals and by combined force to maintain these, that as a united whole they might prevail against those with whom as individuals they could not cope.

And in this sense we may readily admit also the truth of the saying that right is that which is acceptable to the stronger; so that we may understand that law fails of its outward effect unless it has a sanction behind it. In this way Solon accomplished very great results, as he himself used to declare,

By joining force and law together, Under a like bond.

20. Nevertheless law, even though without a sanction, is not entirely void of effect. For justice brings peace of conscience, while injustice causes torments and anguish, such as Plato describes, in the breast of tyrants. Justice is approved, and injustice condemned, by the common agreement of good men. But, most important of all; in God injustice finds an enemy, justice a protector. He reserves His judgements for the life after this, yet in such a way that He often causes their effects to become manifest even in this life, as history teaches by numerous examples. 21. Many hold, in fact, that the standard of justice which they insist upon in the case of individuals within the state is inapplicable to a nation or the ruler of a nation. The reason for the error lies in this, first of all, that in respect to law they have in view nothing except the advantage which accrues from it, such advantage being apparent in the case of citizens who, taken singly, are powerless to protect themselves. But great states, since they seem to contain in themselves all things required for the adequate protection of life, seem not to have need of that virtue which looks toward the outside, and is called justice. 22. But, not to repeat what I have said, that law is not founded on expediency alone, there is no state so powerful that it may not some time need the help of others outside itself, either for purposes of trade, or even to ward off the forces of many foreign nations united against it. In consequence we see that even the most powerful peoples and sovereigns seek alliances, which are quite devoid of significance according to the point of view of those who confine law within the boundaries of states. Most true is the saying, that all things are uncertain the moment men depart from law. 23. If no association of men can be maintained without law, as Aristotle showed by his remarkable illustration drawn from brigands, surely also that association which binds together the human race, or binds many nations together, has need of law; this was perceived by him who said that shameful deeds ought not to be committed even for the sake of one’s country. Aristotle takes sharply to task those who, while unwilling to allow any one to exercise authority over themselves except in

accordance with law, yet are quite indifferent as to whether foreigners are treated according to law or not.

… 25. Least of all should that be admitted which some people imagine, that in war all laws are in abeyance. On the contrary war ought not to be undertaken except for the enforcement of rights; when once undertaken, it should be carried on only within the bounds of law and good faith. Demosthenes well said that war is directed against those who cannot be held in check by judicial processes. For judgements are efficacious against those who feel that they are too weak to resist; against those who are equally strong, or think that they are, wars are undertaken. But in order that wars may be justified, they must be carried on with not less scrupulousness than judicial processes are wont to be.

… 28. Fully convinced, by the considerations which I have advanced, that there is a common law among nations, which is valid alike for war and in war, I have had many and weighty reasons for undertaking to write upon this subject. Throughout the Christian world I observed a lack of restraint in relation to war, such as even barbarous races should be ashamed of; I observed that men rush to arms for slight causes, or no cause at all, and that when arms have once been taken up there is no longer any respect for law, divine or human; it is as if, in accordance with a general decree, frenzy had openly been let loose for the committing of all crimes.

29. Confronted with such utter ruthlessness many men, who are the very furthest from being bad men, have come to the point of forbidding all use of arms to the Christian, whose rule of conduct above everything else comprises the duty of loving all men. To this opinion sometimes John Ferus and my fellow-countryman Erasmus seem to incline, men who have the utmost devotion to peace in both Church and State; but their purpose, as I take it, is, when things have gone in one direction, to force them in the opposite direction, as we are accustomed to do, that they may come back to a true middle ground. But the very effort of pressing too hard in the opposite direction is often so far from being helpful that it does harm, because in such arguments the detection of what is extreme is easy, and results in weakening the influence of other statements which are well within the bounds of truth. For both extremes therefore a remedy must be found, that men may not believe either that nothing is allowable, or that everything is.

…

39. … I have made it my concern to refer the proofs of things touching the law of nature to certain fundamental conceptions which are beyond question, so that no one can deny them without doing violence to himself. For the principles of that law, if only you pay strict heed to them, are in themselves manifest and clear, almost as evident as are those things which we perceive by the external senses; and the senses do not err if the organs of perception are properly formed and if the other conditions requisite to perception are present. Thus in his Phoenician Maidens Euripides represents Polynices, whose cause he makes out to have been manifestly just, as speaking thus:

Mother, these words, that I have uttered, are not Inwrapped with indirection, but, firmly based On rules of justice and of good, are plain Alike to simple and to wise.

The poet adds immediately a judgement of the chorus, made up of women, and barbarian women at that, approving these words. 40. In order to prove the existence of this law of nature, I have, furthermore, availed myself of the testimony of philosophers, historians, poets, finally also of orators. Not that confidence is to be reposed in them without discrimination; for they were accustomed to serve the interests of their sect, their subject, or their cause. But when many at different times, and in different places, affirm the same thing as certain, that ought to be referred to a universal cause; and this cause, in the lines of inquiry which we are following, must be either a correct conclusion drawn from the principles of nature, or common consent. The former points to the law of nature; the latter, to the law of nations.

The distinction between these kinds of law is not to be drawn from the testimonies themselves (for writers everywhere confuse the terms law of nature and law of nations), but from the character of the matter. For whatever cannot be deduced from certain principles by a sure process of reasoning, and yet is clearly observed everywhere, must have its origin in the free will of man.

… 48. I frequently appeal to the authority of the books which men inspired by God have either written or approved, nevertheless with a distinction between the Old Testament and the New. There are some who urge that the Old Testament sets forth the law of nature. Without doubt they are in error, for many of its rules come from the free will of God. And yet this is never in conflict with the true law of nature; and up to this point the Old Testament can be used as a source of the law of nature,

provided we carefully distinguish between the law of God, which God sometimes executes through men, and the law of men in their relations with one another.

This error we have, so far as possible, avoided, and also another opposed to it, which supposes that after the coming of the New Testament the Old Testament in this respect was no longer of use. We believe the contrary, partly for the reasons which we have already given, partly because the character of the New Testament is such that in its teachings respecting the moral virtues it enjoins the same as the Old Testament or even enjoins greater precepts. In this way we see that the early Christian writers used the witnesses of the Old Testament.

… 50. The New Testament I use in order to explain – and this cannot be learned from any other source – what is permissible to Christians. This, however – contrary to the practice of most men –I have distinguished from the law of nature, considering it as certain that in that most holy law a greater degree of moral perfection is enjoined upon us than the law of nature, alone and by itself, would require. And nevertheless I have not omitted to note the things that are recommended to us rather than enjoined, that we may know that, while the turning aside from what has been enjoined is wrong and involves the risk of punishment, a striving for the highest excellence implies a noble purpose and will not fail of its reward.

…

Book 1 chapter 2 Whether it is ever lawful to wage war

I. THAT WAR IS NOT IN CONFLICT WITH THE LAW OF NATURE IS PROVED BY

SEVERAL CONSIDERATIONS 1. Having seen what the sources of law are, let us come to the first and most general question, which is this: whether any war is lawful, or whether it is ever permissible to war. This question, as also the others which will follow, must first be taken up from the point of view of the law of nature.

Marcus Tullius Cicero, both in the third book of his treatise On Ends and in other places, following Stoic writings learnedly argues that there are certain first principles of nature – ‘first according to nature’, as the Greeks phrased it – and

certain other principles which are later manifest but which are to have the preference over those first principles. He calls first principles of nature those in accordance with which every animal from the moment of its birth has regard for itself and is impelled to preserve itself, to have zealous consideration for its own condition and for those things which tend to preserve it, and also shrinks from destruction and things which appear likely to cause destruction. Hence also it happens, he says, that there is no one who, if the choice were presented to him, would not prefer to have all the parts of his body in proper order and whole rather than dwarfed or deformed; and that it is one’s first duty to keep oneself in the condition which nature gave to him, then to hold to those things which are in conformity with nature and reject those things that are contrary thereto. 2. But after these things have received due consideration (Cicero continues), there follows a notion of the conformity of things with reason, which is superior to the body. Now this conformity, in which moral goodness becomes the paramount object, ought to be accounted of higher import than the things to which alone instinct first directed itself, because the first principles of nature commend us to right reason, and right reason ought to be more dear to us than those things through whose instrumentality we have been brought to it.

Since this is true and without other demonstration would easily receive the assent of all who are endowed with sound judgement, it follows that in investigating the law of nature it is necessary first to see what is consistent with those fundamental principles of nature, and then to come to that which, though of later origin, is nevertheless more worthy – that which ought not only to be grasped, if it appear, but to be sought out by every effort.

… 4. In the first principles of nature there is nothing which is opposed to war; rather, all points are in its favour. The end and aim of war being the preservation of life and limb, and the keeping or acquiring of things useful to life, war is in perfect accord with those first principles of nature. If in order to achieve these ends it is necessary to use force, no inconsistency with the first principles of nature is involved, since nature has given to each animal strength sufficient for self-defence and self-assistance.

… 5. Right reason, moreover, and the nature of society, which must be studied in the second place and are of even greater importance, do not prohibit all use of force, but only that use of force which is in conflict with society, that is which attempts to take away the rights of another. For society has in view this object, that through

community of resource and effort each individual be safeguarded in the possession of what belongs to him.

… 6. It is not, then, contrary to the nature of society to look out for oneself and advance one’s own interests, provided the rights of others are not infringed; and consequently the use of force which does not violate the rights of others is not unjust.

THOMAS HOBBES

Thomas HOBBES (1588–1679), English philosopher and author of Leviathan (1651), a work acknowledged to be a masterpiece of political theorizing even by those who abominate its conclusions. Central to its argument is a metaphor, the state of nature, to which Hobbes contrasts the civil state. Unlike the state of nature, the civil state is a condition in which human beings are associated on the basis of a common body of laws. Law, Hobbes argued, can only exist where there are agreed procedures for enacting rules and resolving disputes about their proper interpretation. Sovereigns, being outside civil society, must be regarded as being in a state of nature with respect to one another. And the state of nature is a state of war. It is not easy to refute this Skepticism regarding the claims of international law, and for that reason Hobbes’ writings continue to provoke thought about the character and conditions of justice in international relations.

From Leviathan

Chapter 13 Of the natural condition of mankind, as concerning their felicity, and

misery

Nature has made men so equal, in the faculties of body, and mind; as that though there be found one man sometimes manifestly stronger in body, or of quicker mind then another; yet when all is reckoned together, the difference between man, and man, is not so considerable, as that one man can thereupon claim to himself any benefit, to which another may not pretend, as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret