Law, war, and casuistry in Vattel's jus gentium.
One of the central difficulties confronting modern interpretations of early modern jus naturae et gentium is that they posit a level and kind of philosophical coherence that is not possessed by their object. (1) The law of nature and nations was not a single science or a methodologically coherent body of doctrine but a sprawling genre in which several disciplines or doctrinal bodies--theology, jurisprudence, political, and moral philosophy--were shaped and reshaped in accordance with rival cultural and political programmes. (2) Moreover, it was a genre in which a wide array of more concrete or technical discourses --common law, public law, military history, diplomatic history, treaty collections--were incorporated in higher-level discourses of theological or political rationality by being subjected to particular processes or practices of 'abstraction': for example, by being annexed to metaphysical doctrines of man's self-perfecting rational or social being; civil discourses on man's pursuit of security in the state via the social contract; (Stoic) humanist discourses on a society of nations grounded in man's cosmopolitan nature; and so on. Rather than assuming a coherent body of doctrine unified by abstract theoretical or philosophical foundations, then, it is the task of the historian (as opposed to the philosopher) of jus naturae et gentium to approach his object in terms of its programmatic variety. This means that he must approach philosophical abstraction itself as an object of historical investigation, hence as a concrete activity assuming diverse forms and roles in the genre. (3)
In the case of Emer de Vattel's Droit des gens (1758), the assumption that the law of nations is a discourse based on philosophical principles has had particularly damaging consequences, leading to a failure to investigate the actual operations of Vattel's discourse and the historical circumstances in which they were mounted. This assumption is largely responsible for the conflict between those who viewVattel's project of applying natural law to the relations between states as idealistic and impracticable, (4) and those who treat its idealism as fatally undermined by political expediency and capitulation to the actual self-interested practice of states. (5) The same assumption is even more emphatically present, however, in Emmanuelle Jouannet's proposal for overcoming this conflict: by treating it as endemic in the tradition or 'school' of jus naturae et gentium to which Vattel was heir, which she regards as divided between positivist and naturalist forms (Hugo Grotius and Francisco Suarez versus Samuel Pufendorf and Christian Wolff), and statist and universalist tendencies (Thomas Hobbes and Pufendorf versus Gottfried Leibniz and Wolff). For, this permits her to argue in the (Kantian) philosophical--historical manner, thatVattel's discourse is characterized by the dialectical reconciliation of these divergent tendencies, giving rise to a unifying philosophical principle for the law of nations. (6) According to Jouannet, this principle is that of the 'tacit agreement' of the members of a 'society of nations'--each of which should be regarded as a self-perfecting 'nation-person'--to pursue their collective self-perfection as commanded by natural law, thereby giving rise to the 'classic' or 'modern' doctrine of international law. This solidarist agreement is supposed to impose 'perfect' juridical obligations on the nation-persons, thereby subordinating statist positive law to cosmopolitan natural law, and establishing the principle of (perfectionist) justice as the normative foundation of international society. (7) Vattel can thus be portrayed as articulating the modern version of 'just war' doctrine--understood in terms of the collective enforcement of international juridical obligations--thereby purging his reputation as an apologist for the balance of powers and aligning his Law of Nations with the modern philosophical defence of just war in Rawls's Law of Peoples}
The problem with both of these approaches to Vattel--the one that criticizes him for sacrificing the natural law principle of justice to political expediency no less than the one that defends him for realising it in the 'modern' doctrine of international law--is that neither approach investigates how Vattel actually uses this principle in his discourse on the law of nature and nations, or the cultural and political circumstances governing his use of it. In fact Vattel derived his principle of natural law from Thomist scholasticism, according to which natural law consists of the rules for the realizing (perfecting) man's essence or nature as a rational and sociable being: rules to which man accedes via his reason and through which he governs his will, thereby achieving the rightful or just governance of his social existence. (9) Vattel borrowed the scholastic formulary indirectly, via the German metaphysician Christian Wolff (1659-1754). Wolff had already used it to formulate the notion of nations as self-perfecting corporate persons, and hence to construe the law of nations as the form in which the perfectionist rules of natural law applied to a society of nations, where those nations were understood to be obligated to pursue their mutual perfection and security as nation-persons. (10) It was this metaphysical construction of natural law that supplied Vattel with his universalistic and communitarian conception of right and obligation in terms of the rules for the perfection of human nature and human good in a self-governing society. (11) It also permitted him to reject Pufendorf's Hobbesian conception of obligation as arising from the commands of a superior: a view that sees society being formed through political subjection, for the purposes of peace, not perfection, and that does not apply above the level of the territorial state. (12)
Far from indicating a rebirth of scholasticism, Vattel's entirely instrumental adaptation of Wolff's perfectionist principle was symptomatic of a divergence within the tradition of Protestant natural law itself, which in turn reflected the particular cultural and political circumstances in which Vattel operated. In the first place, in Book I of the Droit des gens, Vattel deployed the construction of the nation as a self-perfecting collective person in order to invest sovereignty in the corporate political body of the 'people', rather than in the prince or state as an agency empowered to impose social peace. (13) Unlike Pufendorf's Hobbesian construction of sovereignty--which restricted it to the minimal end of maintaining social peace--Vattel's perfectionist construction allowed him to a construe a wide array of social, cultural, and political activities as objects of government. In keeping with a metaphysical republicanism, Vattel thus regards agriculture, trade, military service, and the Protestant religion as national virtues, making their cultivation by the national state into the object of its government and the test of its legitimacy (85-91, 96-112). It might be said that here Vattel used the metaphysics of self-perfecting personhood as an abstractional device for elevating a particular array of concrete social policies and public law enactments--those associated with a middle-level Protestant agricultural-military republic--into a natural law 'theory of state'. He thus supplied a political rationalization for a particular kind of Protestant territorial state--conceived as a self-perfecting, virtuous republic--in keeping with his diplomatic service for Saxony and his patriotic sympathies for the Protestant cantons of Switzerland. (14)
In the present essay, however, it is Vattel's second use of the perfectionist principle of natural law--in Books II-IV dealing with the law between nations --that is the focus of the discussion. In these books, Vattel uses the principle, not as a means of elevating governmental policies and public law enactments into virtues of the Protestant nation-person, but for a different yet related purpose. Here he deploys it as one of two poles that constitute the normative field inside which the fractious conduct of an ensemble of independent nation-persons can be held within the norms of 'regular' war- and peacemaking. In this regard, the crucial thing to observe is that Vattel does not deploy the Thomist-Wolffian principle of man's self-perfecting rational and sociable nature as the unifying philosophical foundation for a theory of international law. Rather, he treats it as constituting one pole of a bipolar field of judgement--the pole that enunciates the 'natural and necessary law' of a society of reciprocally self-perfecting nation-persons--the opposite pole of which is formed by each nation's autarkic pursuit of its own perfection or national virtues in accordance with its own self-interest.
I shall now argue that rather than constituting a theory of international law, Vattel's discourse on the law of nations is designed to open a particular space of practical judgement. This is one in which the natural law principle of cosmopolitan self-perfection can be continually adjusted in relation to the circumstances of national self-interest. The rules for this art of judgement are derived from diplomatic history and treaty collections, which form the concrete materials from which Vattel abstracts his 'voluntary law of nations'. For these reasons--because it forms an art for adjusting the necessary philosophical principle of cosmopolitan reciprocity to contingencies of national interest, and because it derives these contingencies and cases from the discourses of diplomatic and treaty history--I will characterize Vattel's law of nations as the political rationale for an art of diplomatic casuistry.
II: The Law of Nations as Diplomatic Casuistry
In the subtitle of his work, Vattel glosses the law of nations as the 'principles of the law of nature applied to the conduct and affairs of nations and sovereigns'. What Vattel means by this gloss and hence by the law of nations depends crucially on what he means by the 'application' of the law of nature in this domain. Those who read the Droit des gens philosophically--as if it were a coherent body of doctrine founded on the Thomist-Wolffian perfectionist principle of natural law--construe 'applied' in terms of the application of an abstract theory to a domain of concrete practice, such that the natural law principle is the norm that informs the 'conduct and affairs of nations and sovereigns'. This would mean that the agreement between nations that produces the treaties governing their conduct must itself be regarded as an expression of the principle of man's essential rational sociability, with this principle supplying treaties with their normative or obligative force, as Jouannet presumes. (15)
This is not, however, what Vattel means by applying the law of nature. As he makes clear in the Preface, rather than construing it in terms of the application of a unitary theoretical principle to a domain of practice, Vattel conceives application in terms of the operation of what he calls a 'double law'. He acknowledges that there is indeed a conception of the law of nations as arising directly from the application of the natural law principle of reciprocal self-perfection to nations, issuing in a 'natural and necessary law of nations' (10-11). Were this to be applied directly to the conduct of nations, as Wolff envisages, then it would result in Wolff's civitas maxima (or supreme world state) in which individual nations would be bound by obligative laws in the same way as individuals within a domestic state. (16) By insisting though on the 'liberty and independence' of individual nationpersons --that is, on their capacity and right to realise their own national perfection and preservation--Vattel introduces a second conception of the law of nations, the 'voluntary law of nations'. This is not based on the natural law principle of reciprocal self-perfection--which Vattel now relocates to the inner domain of the sovereign's conscience--but on a second rule or maxim: namely, on each nation's self-interested calculations regarding the need for safety and welfare, hence on voluntary and prudential agreement rather than on a morally necessary one (14-15). In expounding the role of this 'double law', Vattel thus comments that: 'The necessary and voluntary law of nations are therefore both established by nature, but each in a different manner; the former as a sacred law which nations and sovereigns are bound to respect and follow in all their actions; the latter, as a rule which the general welfare and safety oblige them to admit in their transactions with each other' (17).
The independence of the voluntary law of nations from the natural law principle of cosmopolitan perfection derives from the 'liberty and independence' or sovereignty of nations conceived as corporate moral persons. For this means that each nation is the sole judge of the justice of its 'external' transactions with other nations, which in turn means that there can be no universal principle of justice governing such transactions in the society of nations:
Each nation in fact maintains that she has justice on her side in every dispute that happens to arise: and it does not belong to either of the parties interested, or to other nations, to pronounce a judgment on the contested question. The party who is in the wrong is guilty of a crime against her own conscience: but as there exists a possibility that she may perhaps have justice on her side, we cannot accuse her of violating the laws of society. (76)
By confining the universal principle of the 'natural and necessary law of nations' to the inner domain of conscience, while simultaneously grounding the voluntary law of nations in the autonomous judgements of nations regarding their own safety and welfare, Vattel creates a bi-level field of judgement. Here the 'consciential' obligations of cosmopolitan mutual perfection are suspended when they conflict with the maxims of national welfare in the domain of 'external' relations; as in this domain each nation is the unsurpassable judge of what is just: 'When therefore [the nation] cannot contribute to the welfare of another nation without doing an essential injury to herself, her obligation ceases on that particular occasion, and she is considered as lying under disability to perform the office in question' (74).
Unlike Wolff, then, and in contradiction of modern philosophical readings of the Droit des gens, Vattel does not deduce the law of nations from natural law in a unified normative space grounded in the agreement of nations as rational and sociable beings. Rather, he establishes a bipolar field of judgement in which the principle of cosmopolitan self-perfection is continuously modified in relation to the maxims of independent national self-interest: 'since nations, in their transactions with each other, are equally bound to admit those exceptions to, and those modifications of, the rigour of the necessary law' (16). In treating these national exceptions to, and modifications of, cosmopolitan natural law as symptoms of Machiavellian hypocrisy, Vattel's critics are no closer to understanding his discourse than his philosophical defenders, who ignore these modifications and exceptions in favour of principled consistency. This is because both groups deploy a conception of abstract philosophical coherence according to which Vattel's construction of the law of nations should be normatively unified in accordance with the philosophical principle of natural law, differing only over whether it is or not. Once we take due note of the fact that he does not try to install the perfectionist principle of natural law as a unifying normative foundation, however, and instead deploys it in tandem with the maxims of national prudence in order to set up a bipolar field of judgement, then we are in a position to investigate how Vattel constructs the law of nations within this bivalent normative space.
Vattel supplies the content of the law of nations by filling the space between cosmopolitan perfection and national self-interest with a vast catalogue of treaties and conventions that he derived from diplomatic histories and treaty collections. These pertain to such matters as the right to war, the status of neutrals, the forms of regular warfare, the treatment of prisoners, the payment of reparations, the immunities of ambassadors, and so on. By locating them in the space between national self-interest and mutual cosmopolitan perfection, however, Vattel imbues these treaties with an abstract theoretical significance not present in their source collections. For in this space, the 'arbitrary' or 'customary' agreements into which sovereigns have entered voluntarily in pursuit of their own advantage are seen against the backdrop of the 'necessary' agreements they would be obligated to enter as a matter of conscience by the perfectionist law of nature (17). At the same time, though, Vattel does not conceive the judicialform of the law of nations in terms of the conclusive theoretical execution of natural law justice in the practical domain of diplomatic agreements. Rather, he treats this domain as the source of a vast array of 'cases', 'circumstances', and 'occasions' in relation to which an open-ended series of 'exemptions to ... and moderations of the rigour of the necessary law' will be determined in accordance with national judgement and national interest. The actual practice of abstraction through which Vattel 'applies' the natural law to the conduct of nations is thus not one in which he makes the maxims of the latter conform to the principle of the former, or else fails to. Rather it is one in which he deploys both principles in order to structure a specialized practice of judgement. Here it is the difficulty of applying the cosmopolitan principle of natural law to the self-interested conduct of nations that is used to admit a whole series of accommodationist maxims and conventions--the voluntary law of nations--that are to be regarded nonetheless as if they were imperfect approximations of natural law cosmopolitanism.
This art of judgement in which the natural law principle of cosmopolitan mutual perfection is continuously adjusted--moderated, adapted, suspended --in relation to the divergent maxims and exigent circumstances of national self-interest may thus be characterized as an art of diplomatic casuistry. (17) Not only is it deployed in the Droit des gens as a means of adjusting universal principles to exigent circumstances or particular 'cases'--as in various traditions of theological casuistry--but Vattel explicitly frames the rules of the law of nations as a means of adjusting the metaphysical principle of natural law to cases drawn from diplomatic history, treaty practice, and public law.
The subject of this specialized art of judgement is not therefore the universal moral subject of moral and political philosophy. Neither is it the society of nations agreeing to govern itself in accordance with the universal principle of man's rational and sociable nature. Rather this art of judgement is borne by a particular moral persona and comportment, formed in and for the context of early modern European statecraft and diplomacy. (18) This comportment is that of a persona who views conflicting cases of conduct between rival nations from the viewpoint of a particular nation's interest and advantage, yet simultaneously regards the prudential rules for regulating such conflict as surrogates for an unavailable 'inner' principle of cosmopolitan justice. (19) It is just this situationally specific moral persona--that was assumed by the diplomatic casuists of the European state ensemble--that Vattel's Droit des gens addresses and seeks to groom: 'The law of nations is the law of sovereigns. It is principally for them and for their ministers that it ought to be written' (18). As we will now see, it is this casuistical art and persona that informs Vattel's account of the right to war (jus ad bellum) and rights in war (jus in bello) in Book III of the Droit des gens, and also the duties of peace in Book IV.
III: The Casuistry of War
Thus far we have argued that Vattel elaborates the law of nations not on the basis of foundational philosophical principle but by opening a discursive space between conflicting principles. If the natural law of nations establishes the principle of right or justice in terms of how nations must conduct themselves to form a self-perfecting international society, then the 'liberty and independence' of each nation to determine what is right for itself means that there is no supra-national position from which the principle of natural right might be determined in any particular case. In place of such a determination Vattel elaborates an array of casuistical rules oriented to harmonizing competing national interests to the extent that this is possible, and these rules constitute the positive law of nations. Vattel drew these rules--such as the rules for treaty interpretation discussed in Book II--from particular technical juridical, diplomatic, and military practices. Were it not for the process of abstraction to which he subjects them--by treating them as surrogates for a contingently unavailable principle of natural law justice--they would not be regarded as imperfect expressions of a global principle of right. Rather they would be viewed as customs for ordering the relations between sovereigns in a juridical state of nature, which is how they are seen by Hobbes and Pufendorf. The fact that Vattel does perform this abstraction on them, though, makes a significant difference. It allows diplomats to view their casuistical work on behalf of sovereign states as if it were governed by the ideal of a universal principle of justice binding on a society of nations; even if their task is to continuously adjust that principle--to moderate, modify, or suspend it--in relation to circumstances where it cannot be directly applied. It is in this light that we can approach the rules for 'war in regular form' and the rules for the conduct of nations in such wars--the 'right to war' (jus ad bellum) and 'rights in war' (jus in bello)--elaborated in Book III of the Droit des gens.
Vattel begins his discussion of the right to war by invoking scholastic 'just war' doctrine grounded in natural law and natural right. According to this doctrine, the right to make war is based on the right to self-preservation and punishment possessed by individuals in the state of nature. Extended to nations as collective persons, this provides a right to war that is given by nature and generally acknowledged by reason and the law of nature engraved in men's hearts (469-70). Since the only legitimate cause of war is the unjust infringement of the perfect rights to national self-preservation and perfection, the right to war is grounded in the justness of the cause, making it is impossible for both parties to a conflict to have justice on their side: 'War cannot be just on both sides ... [the contending parties] may be considered as two individuals disputing on the truth of a proposition; and it is impossible that two contrary sentiments should be true at the same time' (489). But no sooner has Vattel launched the just war doctrine than he suspends it, arguing that the sovereign judgement of contending nations makes it impossible to determine which party in fact has justice on its side, as there is no higher court of appeal than the self-perfecting territorial nation. This means that the warring parties must be regarded as equally lawful, and hence that the right to war cannot be grounded in the justness of the cause: 'Wherefore, since nations are equal and independent ... and cannot claim a right of judgment over each other, it follows that, in every case susceptible of doubt, the arms of the two parties at war are to be accounted equally lawful, at least as to external effects, and until the decision of the cause' (489). (20)
Given Vattel's maintenance of these inconsistent conceptions of the right of war-making it is understandable that some commentators should interpret him as retaining a version of the just war doctrine, (21) while others treat him as abandoning this doctrine altogether in favour of a conception of war as an instrument of national self-interest and ambition. (22) Once again, though, such interpretations impose an anachronistic philosophical consistency on Vattel's casuistical discourse. Rather than closing the gap between universal justice and national interest--either through philosophical consistency or consistent hypocrisy--Vattel's discourse works to keep it open, as the ambivalent normative space in which the laws of war will be elaborated. Vattel does indeed say that in the long run rationally calculated national prudence will converge with the principle of justice; yet this functions only as a counsel to statesmen and does not portend a 'universal history with cosmopolitan intent' of the Kantian kind.
Rather than attempting to close the space between justice and prudence with a teleological philosophical history, Vattel keeps it open in order to unfold a particular body of rules or form of judgement: one that acknowledges that national sovereignty has suspended the notion of just war, but that seeks to regulate the war-making of nations by imbuing it with a legality of form that substitutes for the justice of the cause. The notion of just war is thus supplanted by the doctrine of 'war in regular form', the rules of which constitute the conditions for the legitimate exercise of the right to war. The key rules are: that this right is exercised by the sovereign alone as 'conductor of the nation'; that hostilities be occasioned by the plausibly claimed infringement of a right; that reparations have been first demanded; and that war has been publicly declared (507). The rules of regular war thus determine the legitimacy of war-making independently of rival claims to just cause and thereby set parameters within which both parties to a war will be regarded as just in the domain of 'external effects'. Such a war 'is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause' (508).
In suspending the universal just war doctrine, whose subjects had been the twin universal monarchies of the papacy and the empire, Vattel was adapting the right of war to the emerging historical reality of Europe as an ensemble of independent sovereign states engaged in political wars. (23) In doing so he was circumscribing lawful warfare in specific geo-political and geo-intellectual terms by excluding all those groups--bandits, pirates, 'Tartars'--who make 'private' war for the (now) illegal purposes of booty, predation, and glory, and thereby occupy the space of barbarity and savagery. (24) At the same time, Vattel was also delimiting this space in historico-normative terms, by excluding those European states of the recent past who made war on religious grounds--claiming the justness of their cause at the expense of an evil or heretical enemy--and in so doing engaged in atrocious and interminable wars of annihilation. By suspending the doctrine of just war and replacing it with the maxims of regular war, Vattel formalized the doctrine of war as a morally non-discriminatory conflict between equally 'just enemies', arguing that viewing the enemy in this new humanizing light was the key to escaping Europe's atrocious and unstoppable wars of religious annihilation (509). Somewhat paradoxically, to acknowledge the justness and humanity of the enemy, one had to suspend the universal principle of natural law justice in the law of war and restrict it to the internal domain of conscience.
Abstracted from non-discriminatory military and diplomatic conventions, Vattel's rules of formal war--crucially that it be declared by a sovereign on plausible grounds of infringed right--in fact constituted a shared casuistry through which states could seek to justify their war-making as compliant with legitimatory rules. The ultimate anchorage for these rules was not rational agreement among a society of nation-persons, but the historical--political relations obtaining within the European state ensemble: the so-called 'balance of powers'. Despite Vattel's occasional insistence on their objectivity, the answer to the question of whether the rules determining the right to war apply in a particular case is always that it depends on the circumstances. In discussing whether pre-emptive war is justified, for example, Vattel begins by asserting that for this to be the case it is not enough that a rival nation is developing a powerful army. It is also required that this rival intends to attack our nation or otherwise grievously infringe our rights (492). At the same time, though, experience suggests that such an intention usually accompanies possession of such an army, and this may be determined through past conduct and present threats. This means that a pre-emptive strike might be legitimate on the balance of probabilities even though it remains doubtful whether an infringement of our rights is actually intended (493). In short the right to war is not determined by the rules of formal war themselves but by the casuistical calculations undertaken by diplomats and statesmen adapting them to uncertain and fluctuating circumstances. In this setting, Vattel argues that the best means of resolving the doubt surrounding the right to pre-emptive war is via the cultivation of mobile alliances through which smaller powers can keep their overweening neighbours in check, thereby pointing to the balance of powers as the concrete anchorage for his law-governed society of nations (494-97).
It is in Vattel's discussion of 'rights in war', though, that the casuistical character of his law of nations is on full display. In the first instance, the right to harm the enemy's person is grounded in the 'natural' end of war itself--the prevention or avenging of injury to the nation--which legitimates the infliction of violence and death on enemy persons to the extent that it serves this end (541-42). At the same time, though, it must be considered that the level of harm to be inflicted will vary with circumstance, and that this determination will be made by rival nations exercising sovereign judgement. As a result, even though the right to inflict violence is supposed to be grounded in the law of nature, the determination of legitimate violence will be circumstantial: 'Hence it is that the right to such or such acts of hostility varies according to circumstances. What is just and perfectly innocent in war in one particular situation, is not always so on other occasions. Right goes hand in hand with necessity and the exigency of the case, but never exceeds them' (542). Given this circumstantial variability of judgement, 'it becomes absolutely necessary that nations should reciprocally conform to general rules on this'; and yet the function of the rules is only to set the broad and fluid parameters within which judgement or right may vary according to circumstance.
In accordance with the general principle it is thus unjust to kill prisoners, as this is not necessary to prevent injury to the nation or defend national right. There is an exception though if the prisoners come from a savage nation that discounts the laws of war and itself executes prisoners. Such a circumstance makes it legitimate to kill their prisoners if they are among the guilty, and as a means of compelling this nation towards the laws of humanity (544). Similarly, while it is normally just and magnanimous to make vanquished enemies into prisoners of war--particularly where this weakens the enemy and delivers possible hostages--this will not always be so. In the case of a besieged garrison town, for example, the besieging general might have 'good reasons' for 'disregarding ... the rules of politeness and even the suggestions of pity' by refusing to accept starving civilians as prisoners, instead forcing them to stay in the town in order to intensify the effects of famine. These reasons will pertain to whether acting harshly in this manner will hasten the end of hostilities, advance victory, and lessen overall suffering (551). So too, when prisoners of war are taken, then it is one of the glories of the European nations that they have come to treat their prisoners with humanity and dignity. Nonetheless, there will be circumstances or occasions--when they cannot be fed, or cannot be returned to a savage enemy without endangering the nation --when executing them will be in keeping with the laws of war (554).
In these and a whole series of similar cases--involving the rights of neutrals and refugees, reparations and reprisals, safe passage and hostages, the rights of pillage and booty, and the use of lies and deception--Vattel's rules of war do not deliver binding judgements of right grounded in supranational law. Rather, they exemplify a casuistry designed to set the limits within which sovereign powers can adjust the principle of right to their own interests in the exigent circumstances of war, but in a manner that maintains the stability of the ensemble of powers. The only act that would appear to lie outside this diplomatic casuistry--an act regarded as 'odious in itself' and always in contravention of the laws of war--is assassination, especially the surreptitious poisoning of a sovereign (557-62). Understood as treacherous murder by a turncoat--that is, by someone whose enemy status is disguised --assassination breaches Vattel's laws of formal war as such, whose role is to order public hostilities between declared enemy sovereigns both of whom must be regarded as just.
IV: The Casuistry of Peace
Vattel's discussion of the duties of peace and the rights of embassy in Book IV of the Droit des gens unfolds in the same discursive space as his discussion of the rights of war: that of the diplomatic casuistry of the European state ensemble. It is striking that Vattel begins this discussion by grounding the obligation to cultivate peace in a restatement of his natural law philosophical foundations. Hobbes was wrong to have treated war as man's natural state, argues Vattel, because man's rational nature permits him to resolve differences by reason not force, while his sociable nature--the natural weakness that requires him to cooperate in order to flourish--embeds the duty to cultivate peace as the fundamental tendency and law of nature (651-52). On this view, peace treaties are grounded in a natural law obligation and are thus a means of executing justice or right, making them binding on sovereign states as a matter of moral necessity.
No sooner has Vattel outlined this natural law principle of peace, however, than he advances a second, quite different conception of peace-seeking and peace-making. On this second view, nations enter peace treaties not in accordance with a natural law obligation or moral necessity, but only when the horrors and costs of war have so exhausted their resolve and coffers that they are compelled to sue for peace (662-63). Even more striking in its difference from the first view, the peace treaties into which such nations enter are to be regarded not as executions of the natural law principle of justice, but as instruments of prudential compromise or modus vivendi that require the principle of justice be suspended. This is because each party will claim justice and ascribe the cause of war to the injustice of the other and--in a comment that displays Vattel's distance from our post-Nuremberg world--there is no tribunal possessing the right to judge between them: 'A treaty of peace can be no more than a compromise. Were the rules of strict and rigid justice to be observed in it, so that each party should precisely receive every thing to which he has a just title, it would be impossible ever to make a peace' (662). Vattel thus elaborates a conception of morally non-discriminatory peace as the partner to his conception of non-discriminatory war.
In a series of comments that show the degree to which his conception of peace is grounded in the public law treaties of the seventeenth and eighteenth centuries, Vattel remarks that were acknowledgement of injustice to be made a condition of peace then it would never be accepted. (25) Similarly, were restoration of things damaged and appropriated during a war to be based on claims to strict justice, then competing war claims could never be settled. As a result, peace treaties are executed not through determinations of justice and injustice but through the instrument of amnesty, whose effect is to stipulate oblivion with regard to the contested rights claims that caused the war and the grievances arising from it (663-64). So too the post-bellum disposition of lost territory, population, and goods is to be determined not by an impossible attempt to revert to the rights of the status quo ante, but through a purely political arrangement in which the conflicting nations reach a mutually acceptable compromise that is deemed fair for the purposes of ceasing hostilities: 'In such a convention no decision is pronounced on the original cause of the war ... nor is either of the parties condemned as unjust ... but a simple agreement is formed, which determines what equivalent each party shall receive in extinction of all his pretensions' (663). (26)
Unfolded in the space between a universal principle of just peace incapable of direct application, and refractory national interests in need of restraint and reconciliation, Vattel's rules for executing and observing peace treaties thus once again assume the form of historically derived casuistical maxims. The role of these maxims is to establish the shared limits within which the principle of justice can be adjusted in accordance with national interest and exigent circumstance. It is thus in accordance with natural law justice, for example, that a nation should execute the provisions of a treaty as soon as it is published. At the same time, though, should these provisions be of a kind that might threaten the nation--for example, requirements to send soldiers or corn as reparations to former enemies--then this obligation is suspended until the threat has passed (667). Similarly, Vattel declares that, on the one hand, abiding by a treaty that extinguishes all existing war claims is a 'sacred' natural law obligation binding on sovereigns and peoples (671-72). On the other hand, though, should a nation re-open hostilities on the basis of a claim put forward as 'new', then, in the absence of a supra-national tribunal capable of determining the justness of this claim, this will not be regarded as a breach of the existing treaty. As a result, 'whether the new cause which gives birth to hostilities be just or not, neither he who makes it a handle for taking up arms, nor he who refuses satisfaction, is reputed to break the treaty of peace, provided the cause of complaint on the one hand, and the refusal of satisfaction on the other, have at least some colour of reason, so as to render the question doubtful' (674-75).
At such points, Vattel's discourse is scarcely distinguishable from the concrete histories of public law and diplomacy that supply his 'cases'. Yet these histories typically do not ground duties and rights in the natural law principle of justice, treating them instead as deposits of complex inter- and intra-state modi vivendi grounded in the institutions of public law and diplomacy themselves. In light of this, it is quite understandable that Randall Lesaffer should ask why Vattel persists with the language of universal justice at all; and he is surely right in answering that metaphysical and theological doctrines of natural law continued to play a significant normative role in early modern jus naturae et gentium. (27) Lesaffer is perhaps less persuasive though when he attempts to characterize this role in terms of the generically 'idealistic' character of natural law thought and a pervasive privileging of 'conscience' in Christian Europe. We have argued that the role of the doctrine of metaphysical natural law in Vattel's Droit des gens is characterized by much greater discursive particularity and contextual specificity than this. This doctrine is used to establish one normative pole--that occupied by a globally self-perfecting human nature --of a bipolar discourse, the other pole of which is occupied by morally sovereign territorial nation states. We have suggested that Vattel's discourse executes its work of political rationalization ('political thought') in the form of particular exercises of abstraction performed within the discursive space opened between these two poles.
In Books II--IV of the Droit des gens, Vattel uses the difference between the natural law principle of universal justice and the prudential maxims of national self-interest for a specific cultural--political purpose: to open a space in which the law of nations can be unfolded in the form of a diplomatic casuistry for an ensemble of territorial sovereign states. On the one hand, Vattel invokes the moral sovereignty of national states in order to suspend the universal principle of justice, replacing it with rules for non-discriminatory war and compromise peace drawn from public law and diplomatic history. On the other hand, in simultaneously treating these rules as external surrogates for the suspended inner principle of justice, he wants them to limit the adjustment of right to circumstance by invoking the stability of the ensemble of states as a whole 'society'. The key to understanding the operation of this casuistry, I have argued, lies in grasping that its subject is neither man as the bearer of a rational and sociable nature nor the society of nations whose solidaristic agreement turns the perfection of this nature into an obligation. Rather the subject of this casuistry and the exponent of Vattel's law of nations is the office-specific ethical persona of the diplomat serving the interests of a European territorial state. Only via this specific intellectual and ethical comportment can the natural law be 'applied' to the conduct of sovereigns and nations in the casuistical manner that gives rise to Vattel's law of nations. It is the ethical role of this persona to suspend the cosmopolitan principle of justice in the interests of his own nation, while simultaneously defending the rules--of non-discriminatory war and compromise peace--that serve the 'justice' and interests of the 'society of nations' as a whole. Vattel's Droit des gens should thus be understood as supplying a casuistry of war- and peacemaking for the diplomats of the early modern European state ensemble.
The University of Queensland
(1) The research for this paper was made possible by the award of an Australian Professorial Fellowship. It draws on a larger essay, Hunter, 'Vattel's Law of Nations: Diplomatic Casuistry for the Protestant Nation', Grotiana, 31 (2010), 108-40.
(2) Cf. Michael Stolleis's comment that 'there is no such thing as "the" natural law; instead, in the course of some 150 years, the success of natural law was based on a wide variety of religious, theoretical and political approaches and motifs': Stolleis, 'The Legitimation of Law through God, Tradition, Will, Nature and Constitution', in Natural Law and Laws of Nature in Early Modern Europe: Jurisprudence, Theology, Moral and Natural Philosophy, eds Lorraine Daston and Michael Stolleis (Aldershot: Ashgate, 2008), pp. 45-56 (p. 51). For the opposing view--that jus naturae et gentium emerged as a science with philosophical foundations--see Merio Scattola, ' Scientia Iuris and Ius Naturae: The Jurisprudence of the Holy Roman Empire in the Seventeenth and Eighteenth Centuries', in A History of the Philosophy of Law in the Civil Law World, 1600-1900, eds Damiano Canale, Paolo Grossi, and Hasso Hofmann (Dordrecht: Springer, 2009), pp. 1-45.
(3) For an exemplary discussion of the historian's vocation in this regard, see J. G. A. Pocock, 'The History of Political Thought: A Methodological Inquiry (1962)', in Political Thought and History: Essays on Theory and Method, ed. Pocock (Cambridge: Cambridge University Press, 2009), pp. 3-19.
(4) Charles G. Fenwick, 'The Authority of Vattel', American Political Science Review, 7 (1913), 395-410.
(5) Hersch Lauterpacht, 'The Grotian Tradition in International Law', British Yearbook of International Law, 23 (1946), 1-53 (pp. 51-52); Karl-Heinz Ziegler, 'Emer de Vattel und die Entwicklung des Volkerrechts im 18. Jahrhundert', in Macht und Moral--Politisches Denken im 17. und 18. Jahrhundert, eds Markus Kremer and Hans-Richard Reuter (Stuttgart: Kohlhammer, 2007), pp. 321-41; Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), pp. 191-96; T. J. Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge: Cambridge University Press, 2000), pp. 176-83.
(6) Emmanuelle Jouannet, Emer de Vattel et l'Emergence Doctrinale du Droit International Classique (Paris: Pedone, 1998), pp. 9-30.
(7) Jouannet, pp. 85-105, 144-64.
(8) Jouannet, pp. 222-25. For a more detailed exposition of the same argument, see Simone Zurbuchen, 'Vattel's Law of Nations and Just War Theory', History of European Ideas, 35 (2009), 408-17 (pp. 411-14).
(9) Annabel S. Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (Cambridge: Cambridge University Press, 1997), pp. 88-122; Dieter Schwab, 'Der Staat im Naturrecht der Scholastik', in Naturrecht und Staat: Politische Funktionen des europaischen Naturrechts (17.-19. Jahrhundert), eds D. Klippel and E. Muller-Luckner (Munich: Oldenbourg, 2006), pp. 1-18.
(10) Christian Wolff, Jus gentium methodo scientifica pertractum (1749), trans. J. H. Drake (Oxford: Clarendon Press, 1934). For a helpful overview of Wolff's reworking of Thomist natural law, see Knud Haakonssen, 'German Natural Law', in The Cambridge History of Eighteenth-Century Political Thought, eds Mark Goldie and Robert Wokler (Cambridge: Cambridge University Press, 2006), pp. 251-90 (pp. 268-78).
(11) See Vattel's dedicated presentation of this conception in Emer de Vattel, 'Dissertation on This Question: "Can Natural Law Bring Society to Perfection Without the Assistance of Political Laws?"', in Law of Nations, eds B. Kapossy and R. Whatmore (Indianapolis: Liberty Fund, 2008), pp. 773-81.
(12) The Thomistic-Wolffian terms of this rejection are spelt out in Emer de Vattel, 'Essay on the Foundation of Natural Law', in Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, eds B. Kapossy and R. Whatmore (Indianapolis: Liberty Fund, 2008), pp. 747-72.
(13) Vattel, Law of Nations, eds Kapossy and Whatmore, pp. 68-70, 81-89, 91-96. Further references are given in text.
(14) This model of a virtuous national republic had initially been developed for nation-building purposes in Switzerland, where the division of the country into Protestant and Catholic cantons had led to short-lived religious civil wars in 1656 and 1712, and where the virtuous republic recommended itself as a unifying conception of the nation. For more on this context, see Thomas Lau, "Stiefbrueder": Nation und Konfession in der Schweiz und in Europa (1656-1712) (Cologne: Bohlau, 2008).
(15) Jouannet, pp. 403-17.
(16) See Nicholas Greenwood Onuf, 'Civitas Maxima: Wolff, Vattel and the Fate of Republicanism', American Journal of International Law, 88 (1994), 280-303.
(17) Despite its antiquity, casuistry remains under-researched and under-appreciated in the historiography of political thought. For a useful collection of essays, see Edmund Leites, ed., Conscience and Casuistry in Early Modern Europe (Cambridge: Cambridge University Press, 2002). For a more general account discussing the theological context, see Albert R. Jonsen and Stephen Toulmin, The Abuse of Casuistry: A History of Moral Reasoning (Berkeley: University of California Press, 1988).
(18) On the centrality of office-specific ethical personae and vocabularies to early modern ethics and politics, see especially Conal Condren, Argument and Authority in Early Modern England: The Presupposition of Oaths and Offices (Cambridge: Cambridge University Press, 2006). See also the essays collected in Conal Condren, Stephen Gaukroger, and Ian Hunter, eds, The Philosopher in Early Modern Europe: The Nature of a Contested Identity (Cambridge: Cambridge University Press, 2006).
(19) For a useful discussion of modern diplomatic ethics as specific to a particular professional competence and persona, see Sasson Sofer, 'Guardians of the Practitioners' Virtue: Diplomats at the Warriors' Den', Diplomacy & Statecraft, 16 (2005), 1-12.
(20) In this regard, Vattel's relegation of just war doctrine in favour of a conception of war as a contest between equally just sovereigns compares directly with Alberico Gentili's earlier move in the same direction. For the latter, see the illuminating discussion in Diego Panizza, 'Political Theory and Jurisprudence in Gentili's De Iure Belli: The Great Debate between "Theological" and "Humanist" Perspectives from Vitoria to Grotius', in International Law and Justice Working Papers (New York: Institute for International Law and Justice, New York University School of Law, 2005), unpaginated, Section 2, 'War as "duel" vs. war as "execution of justice"', available at: <http://iilj.org/ publications/2005-15Panizza.asp>.
(21) Jouannet, Emmer de Vattel, pp. 222-25; and Zurbuchen, 'Vattel's Law of Nations and Just War Theory', pp. 411-14.
(22) Tuck, Rights of War and Peace, pp. 191-96; Robert L. Holmes, 'Can War be Morally Justified?', in Just War Theory, ed. Jean Bethke Elshtain (Oxford: Blackwell, 1992), pp. 197-233.
(23) See Martti Koskenniemi, 'The Advantage of Treaties: International Law in the Enlightenment', Edinburgh Law Review, 13 (2009), 27-67; and Randall C. H. Lesaffer, 'A Schoolmaster Abolishing Home-Work? Vattel on Peacemaking and Peace Treaties', Social Science Research Network, (2008), 1-35, available at <http://ssrn.com/ abstract=1091170>.
(24) Cf. Carl Schmitt, The Nomos of the Earth, in the International Law of the Jus Publicum Europaeum, trans. G. L. Ulmen (NewYork: Telos Press, 2006).
(25) Lesaffer, 'A Schoolmaster Abolishing Home-Work?', pp. 22-26.
(26) If the Westphalian treaties provided the most famous example of the use of moral amnesty to suspend justice, then they also contained an exemplary instrument for reaching political compromise over the restoration of alienated territories and property: the so-called Normaljahr or standard year. Arrived at in 1648 after the most protracted negotiations between the Protestant and Catholic parties to the peace, it was decided that all political territories and religious properties and entitlements would be restored to the notional state in which they stood in the Normaljahr of 1624. The Normaljahr thus represented neither the actual distribution of these things in 1648, nor the just distribution of entitlements that each party might claim, but the distribution on which the parties could reach a compromise in order to cease hostilities. See the illuminating discussion of this in Martin Heckel, Deutschland im konfessionellen Zeitalter (Gottingen: Vandenhoeck & Ruprecht, 1983), pp. 181-209.
(27) Lesaffer, 'A Schoolmaster Abolishing Home-Work?', pp. 15-16.
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|Title Annotation:||Emer de Vattel|
|Article Type:||Critical essay|
|Date:||Jul 1, 2011|
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