Emer de vattel and the politics of good government constitutionalism small states and the internatio

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Emer de Vattel and the Politics of Good Government Constitutionalism, Small States and the International System

Emer de Vattel and the Politics of Good Government

Antonio Trampus

Emer de Vattel and the Politics of Good Government

Constitutionalism, Small States and the International System

Antonio Trampus

Linguistics and Comparative Cultural Studies

Ca’ Foscari University Venice Venice, Italy

ISBN 978-3-030-48023-3

ISBN 978-3-030-48024-0 (eBook)

https://doi.org/10.1007/978-3-030-48024-0

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020

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Acknowledgements

The idea for this book originated in discussions with my friends and colleagues Koen Stapelbroek, Richard Whatmore, Béla Kapossy and Christoph Good during our visit to Vadstena in 2008 for the research conference Reforming the European State System in the Long Eighteenth Century, organised by the European Science Foundation. In the course of the subsequent ten years, I have pursued my research in many European archives, in Venice, Siena, Modena, Palermo, Bastia, Bern, Vienna, Paris and The Hague. I have been able to discuss the development of the phases of the work on several occasions with Antonella Alimento, Koen Stapelbroek, Gabriella Silvestrini and Walter Rech, during seminars hosted by the University of Pisa, the Erasmus University of Rotterdam, the Ca′ Foscari University in Venice, and the Helsinki Centre for Intellectual History. More recently, some results of this research have been discussed at the University of Vercelli (Eastern Piedmont) within a section of the project Natural Law 1625–1850 directed from Erfurt and Halle by Knud Haakonssen, Frank Grunert and Diethelm Klipper and coordinated in Italy by Gabriella Silvestrini and Elisabetta Fiocchi Malaspina. This research was supported in large part by the Italian Ministry of Education, University and Research (Research Project of Relevant National Interest 2015 “The Legacy of Enlightenment: Rights and Constitutionalism between Revolutions and Restorations 1789-1848” directed by Vincenzo Ferrone, University of Turin). The lengthy preparation and discussion of this project has initiated other new research by international scholars, opening new fields of investigation: some results of this have been published in the book The Legacy of Vattel’s Droit des gens (Palgrave Macmillan, 2019), which I

edited alongside Koen Stapelbroek and which in fact constitutes an important complement to this book. Special thanks to Matthew Armistead for his careful revision of the English text.

Much of this work has become intertwined over time with the research, reflections and contributions of Koen Stapelbroek, from whom I received inspiration, ideas and even study materials. My thanks go to him above all.

CHAPTER 1

Introduction: The Invention of Good Government for the Law of Nations

For more than two hundred years Emer de Vattel’s Droit des gens has attracted the attention of historians, jurists and political philosophers. The uninterrupted discussion and success of this work have been accompanied by lively debates about the originality and relevance of its author’s ideas about crucial issues such as the position of the individual in international law, the right of war, the question of peace, republicanism, and the nature of the international order. The Droit des gens, originally published in Neuchâtel in 1758, has proved to be a text capable of crossing historical contexts and geographical space, in so doing becoming a bestseller of international law.

During this long journey through time, Vattel’s treatise has, however, also been subjected to many processes that from a historical and interpretative point of view have distorted its meaning, processes that reflect the transformation of cultural contexts and changes in international geopolitics. The most significant is that after being used in the eighteenth century as a political and philosophical text invaluable to reform programmes and constitutional development, in the nineteenth century, after the Congress of Vienna, it began instead to be used as a simple yet dominant manual for studies on international law. Another important consequence of these processes has been the fact that compared to the period in which the Droit des gens played a part in political debates within states, in the past century interest in Vattel has turned almost completely towards his contribution to the analysis of interstate relations.

© The Author(s) 2020

A. Trampus, Emer de Vattel and the Politics of Good Government, https://doi.org/10.1007/978-3-030-48024-0_1

However, the readers of the eighteenth and early nineteenth centuries perceived many more points of interest in the Droit des gens, and these aroused heated debates, attracted praise and criticism, and generated continuous re-editions, translations and adaptations of the text. This book offers a historical analysis that aims to show the deeper reasons for the success of Vattel’s work, to understand what contemporaries saw and found in it and how it was able to make a contribution to the transformation of states and society, in Europe and across the Atlantic, both before and after the French Revolution.

To achieve this result, it is necessary to begin by shifting attention from the traditional vantage points from which Vattel’s work has been considered.1 The Droit des gens has in fact for a long time been analysed through internal readings of the text, in other words through philosophical or philological analyses aimed at studying the internal coherence of Vattel’s thought in relation to the great past masters of natural law, and in so doing identifying his sources or his expositive and interpretative strategy. This, however, is only one of the possible approaches to the Droit des gens, and one that does not fully explain the reasons for the work’s success, or the strategies for reading and receiving the text. If we turn our attention instead from the history of philosophy and law towards cultural and intellectual history, it is possible to study the legacy of the Droit des gens through the centuries, in particular in the second half of the eighteenth century and in the nineteenth, including from the perspective of the circulation of thought. This book also proposes a subsequent goal, namely that of turning attention further towards the strategies of appropriation of the text, and of the cultural ‘consumption’ of the Droit des gens, to understand not only how it was read, but also how it was used, adapted and reworked by those drafting constitutions, formulating reform projects and fighting everyday battles for freedom in different geographical, linguistic and social contexts within ancien régime Europe.

Also hidden behind these phenomena is the paradox of the asymmetrical relationship between the fame of the author and the way his work found success for reasons unconnected to his objectives. Furthermore, Vattel himself appealed on the one hand to an idea of a natural law that was universal and eternal, and which for this very reason was also the source of guarantees, and on the other hand was convinced that the great works of the previous century were no longer sufficient to explain the great transformation of commerce and society of his time. The result was a work that did its utmost to stick to principles and characteristics of

generality and abstractness, with very few references to contemporary affairs so as not to risk becoming a victim of contingent situations and debates. This characteristic, which could have been a strength but also a weakness of the Droit des gens, was, however, destined to be quickly overtaken by events.

As documented by letters exchanged with the French censors, Vattel had tenaciously defended his work plan, which he developed by interweaving general principles with case studies carefully selected from history. Yet, almost immediately the tendency to use and bend the text to serve specific political and geographical situations became apparent. Even the early pirate edition published in Leyden in the same year as the first official one, 1758, revealed a readiness to insert in the text examples considered dangerous by the censors and by Vattel himself, which dragged the interpretation and use of the Droit des gens towards the specific interests of certain states.2 To a greater or lesser extent, as we shall see in the pages of this book, this trend has continued to manifest itself constantly right up to the present day, through the strategies of translation and appropriation of the text, through the reorganisation of its contents in accordance with the tastes of editors, through summaries and epitomes used for study or work purposes in governmental offices, and through critiques and proposals for the correction and reconstruction of the work. The paradox of the Droit des gens’s success is linked precisely to these two opposing characteristics: on the one hand, Vattel’s readers could find in it concepts, affirmations and general principles of natural law that were mostly well-known and therefore reassuring, and on the other, thanks to the way they were formulated, they could be immediately transferred into their own political contexts, which were those of nations in ever-increasing competition with each other.

Good Government: A renAissAnce PArAdiGm for the eiGhteenth-century stAte system

All this happened, however, when Vattel could no longer communicate with his readers, because death had taken him in 1767, less than ten years after the publication of the work. The story of the Droit des gens thereupon became—as often happens in cultural history—also the story of a work without an author, in other words one of readings and interpretations beyond his intentions. Consequently, it is particularly important to

try to understand what the historical situations were that made the use of the Droit des gens constantly relevant during the eighteenth and nineteenth centuries.

To this end it is necessary to return to the context in which Vattel wrote his work, that of mid-eighteenth-century Europe. As is recalled in the first chapter, the 1713 Peace of Utrecht and the 1718 Peace of Passarowitz had profoundly changed the international landscape, both through religious pacification and through the recognition that competition between states was by then more and more frequently of a commercial nature, rather than purely military. In consequence of this, the ancient moral code of conduct between states was gradually replaced by a system of legal norms based on the political will of the princes and nations. It was therefore necessary to look for the theoretical bases of this new system, and the books of the past no longer provided satisfactory answers, nor did they use a language suited to the new times.

Vattel was aware of these changes and above all of the fact that to understand the new international order it was necessary to start from the point of departure, to understand the nature and function of the state, and to use natural law to understand the mechanisms through which political relationships between single individuals and between the various communities of people are formed. He dedicated the first part of his work to this research, giving a long and detailed explanation of what exactly was meant by states, nations and constitutions, and also what was meant by sovereignty. The first book, in short, appeared more as a treatise on constitutional philosophy, which explained what the minimum criteria should be for achieving formal equality between states and which, in this sense, laid the foundations for modern constitutionalism.3 Only in the second part of the work did Vattel focus on themes that today are considered more typical of international law, in other words relations between states, the international system, treaties and their interpretation, and the politics of alliances and the remedies to apply when these failed.

As much of this research illustrates, public attention in the eighteenth century was primarily directed towards the first part of the Droit des gens. This is surprising, and it begs the question of what people found so interesting in those pages or, rather, why Vattel’s investigation into the constitution of the states seemed so important. The second chapter of this book focuses on the fact that running through Vattel’s work is a repeated reference to a phrase corresponding to a key concept of the modern age, which is that of ‘good government,’ understood as the ability of those who

govern to adopt effective laws to avoid clashes and build consensus within the community. By using this concept, which became a key point in his plan for a constitutional state and for the regulation of international relations, Vattel managed to bridge the great cultural, philosophical and political debate of modern Europe on the goodness of the laws and the qualities of a good legislator, the foundations of which went back to antiquity and had returned to the centre of attention with the crisis of the ancien régime.

In eighteenth-century Europe, the idea and the need for a good government—construed as a constitutional practice capable of acting as regulator and mediator not only within the sphere of politics but also in that of commerce, serving as a remedy for the new inequalities that this produced—became an increasingly relevant issue. The myth of the good government, suggested by the intellectual legacy of the ancient world and its revival in the world of the Renaissance,4 was invoked as a regulating principle and a restraining influence on the power politics of the great monarchies, in the face of absolute sovereigns trying to be perceived as good legislators. It therefore offered a formula of guarantee for a constantly changing reality coming to terms with the great political and economic transformations of the crisis of the ancien régime.

This debate also relaunched the role of the small republican states. In these states, according to the classical and Renaissance tradition, virtue and political moderation depended on the laws and not on an individual and absolute legislator, while awareness and care for the wellbeing of the population were a direct consequence of the absence of particular interests and of economic interests that were subject to power politics.

Vattel’s focus on the good government thus became, in the interpretations of his contemporaries, a strong argument in favour of republicanism and the essential survival of the small states. At the same time, the pages which the Droit des gens dedicated to the internal constitution of states, to the subject of political consensus and the legitimacy of sovereignty, indicated that to reach formal equality between the states it was necessary to study the mechanisms through which the political will of a nation was expressed, the problem of the legitimisation of sovereignty, and, finally, the origins and the function of constituent power in line with a concept central in modern constitutionalism that Vattel, in 1758, was one of the first to define in this way. As we also see in this chapter, this was an argument of interest mainly to the small states of central and southern Europe, from the German states to Switzerland and the Italian peninsula, where ancient political and cultural traditions relating to good government that

could act as a moderating influence on the princes already existed, and where these were based on principles of peace and justice that came to be identified with Ambrogio Lorenzetti’s famous Medieval fresco cycle, The Allegory of Good and Bad Government, which still decorates Siena’s Palazzo Pubblico.5 In this way, the language of Vattel seemed on the one hand to be very modern, while on the other it referenced older traditions and realised them in the light of the problems and political changes of the eighteenth century.

The first case for the reception of the Droit des gens in terms of these modes of interpretation was that of the Mediterranean islands, which towards the middle of the eighteenth century found themselves at the centre of the manoeuvring between the great powers (Spain, Austria and France) and attempted to assert their traditions of autonomy and resistance when threatened by governments that were often geographically and culturally distant. Vattel’s work, with its idea that an essential characteristic of the good government and of the constitutional state had to be the willingness to make the interests of the nations the central consideration, thus provided unexpected ideological support.

As we see in the third chapter, this was the case of Sicily, which after the Peace of Utrecht (1713) passed from the dominion of Spain to the control of Victor Amadeus II of Savoy, and then to Austria (1718). Soon after, this was also the case of Corsica, which in 1728 rebelled against the Republic of Genoa to try to win independence, which it in fact briefly achieved until it ceded to France in 1768. On these two Mediterranean islands, whose affairs had significant effects on the political and constitutional debate in Britain and America, Vattel’s work was read, studied and commented on immediately after its publication in 1758, both to justify the right to resist foreign governments that attacked ancient political freedoms, and to understand how to interpret more favourably the international treaties that impacted on the destinies of those territories.

vAttel the ‘constitutionAlist’

At the start of the 1780s the political function of the Droit des gens would become even clearer in the eyes, this time, of a prince ruling over a state which, though small, had great cultural influence over the entire European continent. Peter Leopold of Habsburg was the second son of Francis Stephen, who had governed Lorraine independently of France up to the

1736 exchange with the Grand Duchy of Tuscany, before marrying the future empress Maria Theresa of Austria. Like his father, Peter Leopold undertook an extensive programme of economic, religious and administrative reforms that accelerated when news of the War of Independence began to arrive from the American colonies. Convinced of the possibility of transforming Tuscany into a constitutional monarchy, Peter Leopold instigated, with his advisers, a series of in-depth studies of the French, English and American political cultures, and of Vattel’s work, with the aim of bringing to fruition a constitutional project capable of interpreting the philosophy of the good government in the light of new ideas of political liberty and of the Tuscan tradition of citizen’s freedoms. The fourth chapter of this volume shows, by analysing the different phases in the writing of Peter Leopold’s constitution, how the Droit des gens—a philosophical and theoretical work—was recast as an aid to the drafting of the constitution, offering concepts, ideas and key words that were transferred almost directly into Peter Leopold’s manuscripts.

The use of Vattel’s work in the constitutional experiment of Tuscany did not, however, exhaust its function in the debate on the position of the small state, but rather contributed to restoring the importance of the Droit des gens in the international context of the 1770s. Indeed, while in Holland and Switzerland new editions which announced the discovery of previously unpublished additions by Vattel were being prepared, in Tuscany work began on an Italian translation limited to the first volume dedicated to the constitutional structure of the state and the concept of the nation. This was a difficult task complicated by the fact that it involved transferring and adapting from French into Italian as well as from the language of the 1760s to that of the 1780s—a decade influenced by the spirit of the Atlantic Revolutions—words and concepts that were taking on new meanings. The research carried out for this volume in the State Archives of Siena, the city of the Good Government frescoes, has led to the rediscovery of the lost manuscript of this first Italian translation, and the various stages involved in this translation, along with the choices made by the translator, and the impact that these had on the political debate both in Tuscany and on the nearby Kingdom of Naples are reconstructed in the fifth chapter.

By the time that the Tuscan translation was completed, however, the echo of the Droit des gens, and the various readings and interpretations of it on both sides of the Atlantic Ocean, in Europe and in the American colonies had already transformed the work into a political and literary

sensation. The Droit des gens no longer served only to legitimise the existence of small states or the right of resistance of the inhabitants of Corsica and of the American colonies, but also to satisfy the appetite of the book market and public opinion. This was recognised by a journalist working in Venice, Lodovico Antonio Loschi, a friend of the celebrated adventurer Ange Goudar, the author of The Chinese Spy (1764). Loschi prided himself on being aware of all the latest literary developments, and in no time at all had prepared and published another Italian translation of the Droit des gens that immediately captured the hearts of the public and rendered the printing of the Tuscan edition useless. Chapter 6 explains that the Venetian version of Vattel’s work, printed in 1781, reflected not only the international political problems of the time, but also the tastes of the public and the interests of the governing authorities of Venice, who wanted to use the Droit des gens as a theoretical instrument in addressing the decline of the republic and in promoting the latest efforts of political reform.

the end of An internAtionAl utoPiA

The situation in Venice, which in the midst of its political and economic decline found itself involved in a difficult international controversy with Holland that risked triggering armed conflict, allows us to see how use was made of the Droit des gens in late eighteenth-century diplomacy and commercial competition. As Chap. 7 demonstrates, in the last two decades of that century, Vattel’s work had already become a classic of international politics, an authoritative source from which to derive principles and rules of help in analysing and solving problems and crises in the internal politics of states and of the European and the Atlantic world. The chapter tells the history of a commercial fraud which, starting in 1771, saw Holland, Venice and Austria set against each other, with their respective ambassadors all victims of adventurers and swindlers who brought the three countries to the brink of a European war. Vattel’s work then became the point of reference for those who, resorting to international arbitration, saw the good government of the European balance of powers—through the use of reason rather than military action—as the key to resolving the conflict and safeguarding the prestige and dignity of the two republics, which were also small states that could easily fall prey to international power politics.

In more or less the same years, as we see in Chap. 8, when facing the progressive affirmation of the language of rights through the American

Declaration of Independence and then through the French Declaration of the Rights of Man and of the Citizen, the Droit des gens was used and discussed as a synthesis of the natural law tradition and therefore as a useful point of reference for the debate on the natural rights of man, both by the culture of the Enlightenment and that of Catholicism, especially in the Mediterranean region. Catholic thinkers in particular formulated a complex strategy of exegesis around the Droit des gens, enabling them to recognise the importance of Vattel’s work while making use of it for anti-Protestant purposes, to criticise the foundation of the right to resistance (one of the most important human rights in the era of Atlantic revolutions) and to emphasise instead other rights and duties such as those of service, assistance and asylum that were linked to the virtues of charity and humanity and were of help in reinforcing the natural bonds within society.

For over thirty years after its publication, the Droit des gens had thus been the work through which it was possible to measure how the meaning of such terms as ‘state,’ ‘constitution,’ ‘nation’ and ‘republic’ changed when having to deal with international power politics, trade conflicts and the crisis of the ancien régime. It can therefore be understood why, during the years of the French Revolution and the Napoleonic Empire, Vattel’s text was viewed with suspicion and even as a danger. Depending on the situation and the interpretations made of it, it could be used as a ‘revolutionary’ work to emphasise the right of resistance against an oppressor, the role of the nation before the state or within the state, and the role of the small states as a constraint and antidote to the despotism of the great powers and empires.

Chapter 9 of this volume shows how, after the era of Napoleonic hegemony in Europe, the Droit des gens reacquired its importance in the preparations for the Congress of Vienna and the geopolitical redrawing of nineteenth-century Europe. The idea that the small states, whether monarchies or republics, could continue to play a part in the new balance between the powers led to further success, a ‘renaissance’ of Vattel’s work. At the same time, however, the book was also deprived of its typically eighteenth-century utopian and political charge in favour of a community of free and equal constitutional states. In short, Vattel’s work was neutralised, with its political function set aside in order to become an essentially technical manual of international law.

At the beginning of the nineteenth century and especially after the Restoration, the profound changes in the meaning of words like ‘homeland,’ ‘nation’ and ‘constitution’ made it clear that it was no longer

possible to read the Droit des gens with eighteenth-century eyes. To be sure, the parts of the work dealing with international relations between the states could still be useful in the new contexts of nineteenth-century diplomacy, but the first book, on the subject of the internal constitution of the states, had to be radically reinterpreted in order to avoid offering arguments that might prove dangerous to supporters of liberal constitutions and democratic revolutions. The European culture of the Restoration thus set in motion a multifaceted operation aimed at divesting the Droit des gens of its nature as a philosophical and political work, and thereby of the potential political project that was central to that nature, in order to transform it into a simple university textbook of international law.

At the same time, European scholars and commentators, mostly in Germany, Italy and Portugal, initiated a radical critique of the first book of the Droit des gens, which in some cases actually involved revising and reworking the text. As is shown in the twelfth and final chapter of this book, there remained some interpreters who still tried to use Vattel’s work in a subversive sense, in defence of the freedoms and rights of nations and individuals, as happened in the political trials of mid-nineteenth-century Italy. Others attempted to use it to call into question the idea that the positive laws of the state could prevail over the natural law of communities and over individual safeguards. But among the majority of the interpreters there prevailed instead the idea that the Droit des gens was a historical document of a bygone age, a text that was no longer relevant, and a source that was simply technical, which presented basic concepts of international law but was not enough to elucidate with any effectiveness political and international reality. This ‘renaissance’ of the Droit des gens—its second life as a manual for use in diplomatic life—was, however, destined to produce another divergence between European culture and the culture of the United States and Latin America. There, as explained in the conclusion, Vattel’s work would experience another rebirth, continuing to play a role of stimulus and point of discussion in the public and political debate.

Given the nature of this volume, which engages with the reception, diffusion and translation of ideas through different editions of the Droit des gens published in different languages, certain choices had to be made regarding the citation and presentation of these various editions. Throughout the book, references will take the same standardised form and include the book, chapter and paragraph of the Droit des gens, so as to help readers using different standard editions of the text in different languages. Most of the quotations come from the widely available

English-language edition of 2008, which includes an introduction by Béla Kapossy and Richard Whatmore (Indianapolis: Liberty Fund) and maintains the text and English title The Law of Nations: Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns of the 1797 London standard edition. References to this English-language edition, however, still take the same form as above, citing Vattel, Droit des gens, book and chapter in Roman numerals, and paragraph in Arabic numerals. In cases where differences in language, concepts or contexts are relevant and are part of the argument being made, references and quotations are from other editions or unpublished translation manuscripts, as specified.

notes

1. For a comprehensive bibliography on Vattel see Andrew Hurrell, “Vattel: Pluralism and its Limits,” in Classical Theories of International Relations, ed. Ian Clark and Iver Neumann (Houndmills-New York: Palgrave, 2001), 233–255; Béla Kapossy and Richard Wathmore, “Introduction,” to Law of Nations: Or, Principles of the Law of Nature, Applied to The Conduct and Affairs of Nations and Sovereigns, ed. Béla Kapossy and Richard Whatmore (Indianapolis: Liberty Fund 2008); Vattel’s International Law in a XXIst Century Perspective/Le droit International de Vattel vu du XXIe siècle, ed. Vincent Chetail and Peter Haggenmacher (The Hague: Martinus Nijhoff, 2011).

2. Édouard Beguelin, “En souvenir de Vattel (1714–1767),” in Extrait du Recueil des travaux offerts par la Faculté de droit de l’Université de Neuchâtel à la Société suisse des Juristes à l’occasion de sa réunion à Neuchâtel 15–17 septembre 1929 (Neuchâtel: Université de Neuchâtel, 1929), 93; Antonella Alimento, “The French Reception of Vattel’s Droit des gens: Politics and Publishing Strategies,” in The Legacy of Vattel’s Droit des gens, ed. Koen Stapelbroek and Antonio Trampus (Cham: Palgrave Macmillan, 2019), 135–164.

3. In this sense one can speak of Emer de Vattel’s ‘constitutionalism’ and I am in agreement with the considerations expressed by Martti Koskenniemi, ‘“International Community’ from Dante to Vattel,” in Chetail and Haggenmacher Vattel’s International Law/Le droit International de Vattel, 51–75.

4. See Quentin Skinner, The Foundation of Modern Political Thought, vol. 1, The Renaissance (Cambridge: Cambridge University Press, 1978), especially part two.

5. The invitation to explore the implications of the idea of good government in the commercial policies of the eighteenth century has recently also been issued by Sophus A. Reinert, The Academy of Fisticuffs: Political Economy and Commercial Society in Enlightenment Italy (Cambridge Mass.: Harvard University Press, 2019).

BiBlioGrAPhy

Most of the quotations from Vattel’s Droit des gens come from the widely available English-language edition of 2008, which includes an introduction by Béla Kapossy and Richard Whatmore (Indianapolis: Liberty Fund) and maintains the text and English title The Law of Nations: Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns of the 1797 London standard edition.

Contemporary translations of primary sources are listed under the names of their authors. Full manuscript sources are referenced only in the notes for reasons of space.

PrimAry sources

Printed Books

Vattel, Emer de, Law of Nations: Or, Principles of the Law of Nature, Applied to The Conduct and Affairs of Nations and Sovereigns, eds. Béla Kapossy and Richard Whatmore (Indianapolis: Liberty Fund 2008)

secondAry sources

Alimento, Antonella, “The French Reception of Vattel’s Droit des gens: Politics and Publishing Strategies,” in The Legacy of Vattel’s Droit des gens, eds. Koen Stapelbroek and Antonio Trampus (Cham: Palgrave Macmillan, 2019), 135–164 Beguelin, Édouard, “En souvenir de Vattel (1714–1767),” in Extrait du Recueil des travaux offerts par la Faculté de droit de l’Université de Neuchâtel à la Société suisse des Juristes à l’occasion de sa réunion à Neuchâtel 15–17 septembre 1929 (Neuchâtel: Université de Neuchâtel, 1929)

Chetail, Vincent and Haggenmacher, Peter, eds., Vattel’s International Law in a XXIst Century Perspective/Le droit International de Vattel vu du XXIe siècle (The Hague: Martinus Nijhoff, 2011)

Hurrell, Andrew, Vattel: Pluralism and its Limits, in Classical Theories of International Relations, eds. Ian Clark and Iver Neumann (Houndmills-New York: Palgrave, 2001), 233–255

Kapossy, Béla, and Wathmore, Richard, “Introduction,” to Law of Nations: Or, Principles of the Law of Nature, Applied to The Conduct and Affairs of Nations and Sovereigns, eds. Béla Kapossy and Richard Whatmore (Indianapolis: Liberty Fund 2008), ix–xx

Koskenniemi, Martii, ““International Community” from Dante to Vattel,” in Vattel’s International Law in a XXIst Century Perspective/Le droit International de Vattel vu du XXIe siècle, eds. Vincent Chetail and Peter Haggenmacher (The Hague: Martinus Nijhoff, 2011), 51–75

Reinert, Sophus A., The Academy of Fisticuffs: Political Economy and Commercial Society in Enlightenment Italy (Cambridge Mass.: Harvard University Press, 2019)

Skinner, Quentin, The Foundation of Modern Political Thought, vol. 1, The Renaissance (Cambridge: Cambridge University Press, 1978)

CHAPTER 2

Vattel’s Droit des gens. A Transnational Bestseller from the Age of Enlightenment

The Droit des gens is fundamental to understanding the evolution of the political debate that arose during the Seven Years’ War on the system of international relations and the relationship between the interests of states of trade, and the discussion relating to natural law that was had during the crisis of the ancien régime. Interpreters, be they Vattel’s contemporaries or more recent ones, have used the work in very different ways, sometimes regarding it as an effective reinterpretation of the tradition of natural law, and at other times as a republican argumentation against despotism.1 What is certain, however, is that Vattel offered a useful redefinition of natural law that brought the traditions associated with Hugo Grotius and Christian Wolff into dialogue with the exigencies of the law of nations, which laid the groundwork for a modern doctrine of the fundamental rights of individuals and states.2

Because of these very qualities, Vattel’s work enjoyed widespread success, as is shown by the numerous editions and translations: twenty in France, ten in Britain, a dozen in the United States, as well as others in Italy, Spain and Latin America.3

The critical literature, often of high quality, has, however, spotlighted the theoretical dimension and the internal analysis of the Droit des gens, leaving some other important questions in the shade. The first relates to

Archival Abbreviations

ASV Archivio di Stato di Venezia, Venice, Italy

© The Author(s) 2020

A. Trampus, Emer de Vattel and the Politics of Good Government, https://doi.org/10.1007/978-3-030-48024-0_2

the different phases of the reworking and consolidation of the book. This long exercise began with the first edition, which was published during the Seven Years’ War, and continued with the versions of the 1770s, rewritten even as the independence of the American colonies was being debated. It finally drew to a close with the early nineteenth-century editions, during the pre- and post-Restoration period of international political balances. By contrast, the second question relates to how individual states, politicians and men of letters used Vattel’s work to good effect in their political and institutional reform programmes and, also, to how it impacted on foreign policy procedure and international relations.

The Peace of UTrechT (1713) as The Premise for a New eUroPe

From a theoretical point of view, the Peace of Utrecht is the indispensable premise for any understanding of the importance of Vattel’s work. From a historical perspective it was also the most important testbed for a new way of constructing international politics and of regulating relationships between states during the eighteenth century. The Utrecht agreement did not end in a single treaty, nor, in a technical sense, did it immediately achieve the goals that a peace process normally pursues in the context of international relations. Rather, it signalled the start of a new practice of international and interstate relations that was destined to produce longterm ef fects. Alongside the three so-called multilateral agreements—of Utrecht, Rastatt and Basel—another twenty bilateral accords were signed following lengthy negotiations. It should be remembered that at the time of the Utrecht treaties in the European political lexicon the term ‘peace’ still retained multiple meanings that have subsequently been lost as the word was reduced to narrower semantic fields typical of our own time: in that period ‘peace’ not only signified the opposite of war, and therefore disarmament or armed vigilance, but it also expressed concepts of security, conservation and tranquillity in the domestic sphere, that is, of the sphere within the state, and in the international public sphere.4 In the political language of the eighteenth century, ‘security,’ ‘conservation’ and ‘tranquillity’ were all terms that were used much more frequently than the word ‘peace.’

The debate on the significance and the real effects of the Utrecht agreements on the international politics of the eighteenth century is still

unsettled. Some now consider them, as some did at the time, as a means of consolidating the dynasties in the form of political equilibrium, others instead as the origins of a collective security system.5 The agreements developed around the Dutch city certainly gave rise to a watershed in the history of interstate relations. The Utrecht agreements helped develop diplomacy as a political and social institution, and it was in them, in particular in the first part of the treaty between Spain and England, that the expression ‘balance of power’ first began to be used purposefully. The concept, which was mentioned for the first time in 1701 by Charles Davenant in his Essays on the Balance of Power and reappeared with the same meaning in the 19 April 1709 issue of Daniel Defoe’s publication A Review of the Affairs of France, thus came into general usage in the talks concerning the war and the conferences that led to the signing of the Treaty of Utrecht.

As regards Europe, with Utrecht the centre of gravity of international relations shifted significantly towards the Mediterranean. Attention focused on Spain and the rejection of its control over the Italian peninsula. Spanish dominion had often been preferred by the Italians because it was exercised by a more distant, blander, less centralised and less efficient government,6 whereas the Habsburgs, taking the place of the Bourbons, established a new dynasty in Naples itself. It is true that the Kingdom of Naples passed from one form of dependency to another, but it is equally the case that this was the moment, with the creation of a ‘national’ monarchy,7 when a new chapter opened in the history of the Mediterranean linked to new forms of political organisation of communities, to new areas of autonomy and to the search for forms of economic and political freedom.

This freedom was construed, to some extent throughout Europe, mainly in terms of the independence and autonomy of the small states from the influence of the great powers. The survival strategies of the small states reopened ancient discussions on the political virtue inspired by the size of these countries, and raised new questions about the importance of neutrality as a guarantor of independence. European culture harboured a long tradition of exalting the virtues of the small states, which were immune to the interests and politics of power and so tended to be averse to any form of despotism.8

As for neutrality, even during the War of the Spanish Succession, Venice, Rome and Florence had discussed the possibility of guaranteeing their continuation through the creation of a league of small states.9 In Piedmont,

Victor Amadeus, the head of a small state which, thanks to an alliance with England, had obtained an advantageous peace settlement from France, had, from the end of 1712, suggested to the Queen of England that the Emperor’s use of the English fleet to transfer the imperial troops from Spain to Italy be made conditional on the neutrality of the Italian peninsula. Then, in January 1713, the neutrality of the Italian princes was also requested by France as a guarantee against the Habsburgs, and this was supported by Venice. According to the political language of the time, neutrality would serve the “security” of the Duke of Savoy, the “safest repose” of the peninsula, and the containment of the Empire.10

A reflection of these issues is provided by a famous report by the Venetian ambassador Carlo Ruzzini, the permanent representative to the States General at The Hague and a special envoy during the Utrecht negotiations. Ruzzini had been very clear, during and after the negotiations, that the main change in the interstate system was not so much the shifting of the dynastic axis from Spain to Austria. Rather, he had understood that the real protagonists of the international scene were once again the small states, as demonstrated by the role that the Duke of Savoy had assumed with the support of anti-French and anti-Empire England. He thought it was a situation that might present an opportunity for other players, like Venice. He therefore noted that the Emperor and the Empire at the centre of Europe felt pressing “on their heart new, stronger forces and sharper punctures,” and thus suffered “with disdain the initiative of the Duke of Savoy and the support lent by England and France.”11

The concessions obtained with English help by the Duke of Savoy had, according to Ruzzini, surprised everyone. And they had the after-effect of the duke now being able to deny foreign powers access to the Italian peninsula. As long as he “does not voluntarily open the doors, it seems that France cannot find any way to put a foot in Italy.”12 From the standpoint of the Republic of Venice, this was a highly desirable situation since it and the Duchy of Savoy—two small states, hitherto minor players on the international stage—were left to watch over the security of the peninsula on their opposite borders, to the west and east, and thus found themselves allies. But Ruzzini feared that this apparent balance could vanish and that the Duke of Savoy would bring new upheaval to Italy, because of his dynastic ties, because of the political influence exercised by Eugene of Savoy at the Habsburg court, and also because Marie Adelaide, mother of the future Louis XV, though not yet destined for the throne, was also a Savoy.

The stakes, then, were obviously high: not only was the containment of the European powers in question, but so too was the ability of the small states to erect a geopolitical and strategic barrier against the large ones. Ruzzini, however, made clear that the problem of the small states and their security was not just an Italian or Germanic issue, but rather a panEuropean one, for he mentioned the impor tance of “Spanish Flanders,” that is, the Austrian Netherlands, as a rampart against France and the United Provinces. The Dutch, Ruzzini believed, preferred the proximity of the emperor, resident in Flanders, to that of the elector of Bavaria, because in the former they had a neighbouring prince who was better able to defend them against the French king.13 Another case at the centre of international attention was that of Switzerland, not only because some of the peace negotiations were taking place there, but also because the confederation of cantons was another place in which to test the role of the small states and the system of balances. It should not be forgotten that precisely as a result of Utrecht and the new European settlement the great powers had sanctioned the passing of Neuchâtel—the home of Jean de Barbeyrac, one of the future protagonists of the European debate on natural law and the law of nations—into the hands of the Hohenzollern.14

The small states thus acquired an awareness of their role on the European stage and sought to assert it more in the diplomatic sphere than the commercial and territorial ones, concentrating attention on the rules and rituals of diplomacy, and on protocol and ceremony, as the small Republic of Lucca and the Duke of Savoy insisted on doing.15 The use of ceremony and the observation of formalities still seemed to be able to demonstrate that, irrespective of grandeur, it was possible to overcome the distinction between small and large states, between real power and relative power, to give the impression that all states were formally equal, having recourse to a ‘culture of appearance’ that served to carry forward the plan for a European balance.

The other standard by which the policies of the states were measured was that of neutrality. In the case of the Republic of Venice, as Ruzzini wrote, the decision to adopt this political approach did not mean that Venice “should remain excluded from the participation and the honour of these peace [accords],” but was in fact a mark of political independence and autonomy.16

Indeed, on the same day as the signing of the suspension of hostilities between the Duchy of Savoy and France, 14 March 1713, the convention between England and the Habsburg monarchy was also agreed to ensure

the neutrality of the Italian peninsula and the limitation of imperial troops within it. The agreement between the great powers thus revitalised the myth of the small state, of its virtuous neutrality as a factor of European security. This myth was then fuelled by publications of the time by way of extensive literary and iconographic propaganda, and through a variety of works like that of Casimir Freschot, who in 1715 published The compleat history of the Treaty of Utrecht, a 600-page volume with a dedication to the two English delegates to the negotiations, or like that of Jean Le Clerc, the author of a largely apologetic history of the United Provinces.17

These happenings opened the way to many plans for universal peace and to a rich literary and utopian trend, starting with the work by the Abbot of Saint-Pierre, that would look upon the Peace of Utrecht as the birth of a new era of perpetual concord. In the realm of diplomacy, a more pragmatic phase began that aimed to bring about new rules for the resolution of international disputes through the elaboration of a law of nations that would take into consideration not only the needs of states and governments but also the aspirations of people, of nations and homelands, that is, the potential new actors in international politics that were important for creating a universal society and consolidating reciprocal agreements.18 According to the vision of some of the protagonists of the time, the increased number of subjects in play would make it possible to keep in check the great powers and impose the principle of reciprocity as a balancing force in international relations, as prescribed by article 2 of the Treaty of Utrecht, which pointed to the iustum Potentiae equilibrium as the foundation of the peace and tranquillity of the Christian peoples.19

The coNseqUeNces of religioUs Peace: legal imPeraTives Towards moral imPeraTives

The Utrecht treaties thus represent an important change of direction for the theoretical development of international relations and, in particular, for the law of nations. The political and philosophical culture up to that point had based the interpretation of the law of nations principally on De iure naturae et gentium by Samuel von Pufendorf, who had elaborated the theoretical principle of inequality between states as a precondition for stable alliances. After Utrecht, attention instead turned mainly to Hugo Grotius and his De jure belli ac bacis, which was based on a different idea that was more compatible with the order being sought, that is, on the

theory of the natural equality among all peoples, suitable for creating a consensus gentium necessary for the stability of the international system.

It was Jean Barbeyrac who mediated and reworked the positions of these two authors, combining the study of the law of nations with attention to the role and function of the small European states. Barbeyrac had studied in Geneva, and taught in Lausanne and then Groningen in the United Provinces. He had already made a name for himself as a translator and commentator of Pufendorf’s works: in 1706 he translated De iure naturae et gentium and in 1707 De officio hominis et civis, following these with his own original works on ethics and history, such as Traté du jeu (1709), Traité de la Morale des Pères de l’Église (1728) and Histoire des Anciens Traités (1739).

In the wake of the Utrecht treaties, of the new European order and of the role played by the small states, Barbeyrac increasingly shifted his focus from the work of Pufendorf to that of Grotius, which he translated in 1724 with the intention of establishing an organic system of the law of nations that would enable a practical use of both authors’ conceptions of natural law within the renewed international setting. Barbeyrac knew that the Utrecht peace treaty had, in its innovative way, attributed greater legitimacy in the system of international relations to the concept of ‘nation’ alongside the notion of ‘state.’ From the second half of the seventeenth century the term ‘state’ (État) had already become part of the language of international relations, as had the term puissance, but with different meanings, not to refer to an international actor necessarily leaning towards a foreign policy based on power, but rather to explain the characteristics of the sovereign state, that is, the requirement of national sovereignty as a prerequisite for recognition by other states and legitimacy to act on a juridical-international level.

One of Barbeyrac’s first objectives was to translate Grotius from Latin to French, a project that he brought to conclusion in 1724. Hence in the years following the Peace of Utrecht, Grotius’s ideas spread internationally through this French version, primarily in the small European states, where it was accompanied by intense commentary work and translations into other ‘national’ languages. Barbeyrac believed that it was necessary to create an organic system of the law of nations that connected Pufendorf and Grotius, both Protestant authors, but his project was even more ambitious than this, and included both a new organisation of the law of nations and the possibility of building bridges with the Catholic culture. As his interpreters have shown, he used a model of translation that brought

together the theological premises linked to the need to disseminate natural law doctrines with methodological declarations on the centrality of natural law as the foundation of the law of nations. He thus helped to shift the spotlight from natural law as a purely philosophical system towards natural law as the source of the law of nations. At the same time, he introduced what has been defined as a displacement operation which moved legal thought away from the Protestant world to the Catholic one, making the two authors’ works accessible to Catholic culture. His translation of and commentary on Grotius allowed him to use the law of nations to set out a symmetrical system that united the study of moral philosophy, so dear to Catholicism, with the investigation of constitutional systems (in other words, the internal stability of states) and the international system (i.e. the stability of the system of states). Thanks to this mediation, the thought of Grotius, after Utrecht, became a more secure guide to accompany in Italy “the often tormented and restless paths of moral philosophy.”20 The reception of Grotius involved questions of a juridical, political and also ethical nature, and through him the idea of a more reasonable form of Christianity that clashed with the intransigent and conservative dogmatism of some sectors of Catholic culture was disseminated. In this way the Dutch author could also be used, in the name of a form of natural law that would be more rational and easier to share, to oppose the Enlightenment interpretations of natural law, which is to say against those who supported a naturalistic and utilitarian idea of natural law.21

Grotius’s work from there on spread more widely in the Mediterranean area. In doing so it introduced into the political culture of the small Italian states the principle of the consensus gentium, that is, the consensus of all peoples or the consensus of the most civilised peoples for the formation of an international society, and also that of the appetitus societatis. Both these principles were criticised by Pufendorf, who preferred a utilitarian socialitas. This theoretical discontinuity in the continuity of natural law was underlined by many eighteenth-century authors, for example in 1751 by Giuseppe Maria Buondelmonti in an essay that would be read out publicly in Florence’s Accademia della Crusca under the title Ragionamento sul diritto della guerra giusta.

It was in this context that Emer de Vattel’s Droit des gens, published in 1758, intervened to construct a systematising and complex line of reasoning that used natural law to link the problem of security and stability of the international order to that of the internal constitutional stability of each state. To do so he concentrated not so much on the small states as

territorial entities, as on nations as political organisations of the people. His reasoning started from the concept of natural equality between men, their rights and their duties originating from natural law, and then was extended to nations seeing that they were composed of men and perceiving themselves as free people who lived together in a state of nature and therefore shared the same rights and obligations.22

To formulate this theory Vattel had to consider the entire tradition of European natural law. Grotius, in his opinion, had ultimately reduced the law of nations to the simple uses of the nations, to construct instead a voluntary law of nations dependent on the consensus gentium; in consequence, he had underestimated the fact that, in any event, political societies and nations lived in a state of reciprocal interdependency.23 Moving on, Vattel argued that Pufendorf presented certain limits in so far as he had maintained the confusion between natural law and the law of nations without trying to draw a clear distinction between them. The attempt to mediate between the two authors might have been helped by the writings of another great theorist of natural law, Christian Wolff, which Vattel had edited and commented on and which constituted an important point of reference for his own ideas. In particular, Vattel called attention to two brief essays on natural law written by Wolff: the Essai sur le fondement du droit naturel et sur le premier principe de l’obligation où se trouvent les hommes d’en observer les lois and the Dissertation sur cette question: La loi naturelle peut-elle porter la société à la perfection sans le secours des loi politiques?

The first of these was a sort of analysis of the fundamental concepts of natural law, primarily those of the law and of morality. It was “a general theory of the duties of man, regarded simply as man, or a science which teaches us what is naturally good or bad for man, what he must do and what he should not do” (my italics). Vattel noted that in the common language these expressions were often confused “because they all have the same purpose, namely to regulate the customs and conduct of men.” By distinguishing the legal rule from the moral rule it was, however, possible to understand the difference between what was right and good in itself and what instead was right because it conformed to the duties of man and society. But all this was not enough, Vattel went on, because people not only needed to understand the importance of these laws, but also needed to observe them. This turned the spotlight on the concept of ‘obligation,’ which for Vattel meant being bound or, more accurately, being almost morally driven to do something despite being a free individual, and,

moreover, to do so even against the instinct of passions and without being forced or physically constrained. The study of natural law helped one to understand these phenomena and to grasp the fundamentals of the functioning of civil and interstate society since, to quote Cicero, natural law is “ratio summa insita in natura, quae iubet ea quae facienda sunt, prohibet que contraria.” Unlike natural laws, civil laws were norms of behaviour established by the civil authority. They could not oppose natural law since “at heart they coincide with it” but they made up for the “shortcomings” of natural law when dealing with the too frequent wrong actions of men.

According to many interpreters, this theoretical construction implied the subordination of ethics to politics, and, according to the most recent scholars, derived from Vattel’s “non-juristic concept of rights and obligations.”24 For Vattel, then, the laws of nature were not perfect, and natural law itself, like morality, was inherently incomplete. Only through voluntary law, as a positive law, does natural law become complete and can be considered a real law accompanied by the faculty of obligation and constraint.

This reasoning may seem complex and segmented but it was well understood by eighteenth-century European readers and intellectuals. It appeared convincing first because it conveyed an idea of morality no longer anchored to the theological dimension but closely correlated to natural law. Second, it explained that morality, being considered a pre-juridical and pre-political concept, was a force capable of orienting the course of law, of society and of the nations but in itself incomplete without its activation through voluntary law. Moreover, the study of morality helped to qualify duties as a necessary corollary for activating rights. The close connection between moral imperatives, construed above all as man’s duties towards society, and legal imperatives construed as cardinal obligations of the theory of human rights would remain a central theme in eighteenthcentury constitutionalism.

moraliTy aNd Trade afTer PassarowiTz

It is not possible to fully grasp the context in which the Droit des gens was born without considering the history of the treaty and the peace which, five years after Utrecht, modified the balances of Eastern and Mediterranean Europe. Still today the Treaty of Passarowitz (1718) features prominently in the analyses of historians because it seems to have been the first situation in the history of the modern age in which a model of negotiation

emerged that replaced the competition of arms with that of trade. The name of Passarowitz, a distant place now known as Požarevac, in Serbia, was destined within a few years to open the eyes of Europeans to the new problem of commercial rivalries, to economic competition, to the “jealousy of trade” that Hume described as the key characteristic of a modernity based on the development of free trade even in its most radical consequences.25 In short, in the history of international relations the Peace of Passarowitz provides important early evidence of the awareness that the regulation of commercial relationships could serve as an effective antidote to war. Until then commercial clauses remained isolated within more general peace treaties, but after Passarowitz the idea gradually emerged that commercial treaties should be separated from peace treaties, even if the two types of treaty were signed at the same time.26 In a second phase, the purpose of commercial treaties became not only that of ending wars, but also that of modifying economic arrangements and forms of competition in order to preclude war in itself.27

When we examine the Passarowitz case in more detail, we find that this symmetry is confirmed by the fact that the peace treaty between the emperor and Ahmed III, and the Republic of Venice and the Ottoman sultan (21 July 1718) was followed by a new trade and navigation treaty between the Habsburg monarchy and the Ottoman Empire (27 July 1718). As the most recent historiography has observed, the division of material between the two treaties implied that the peace agreement implicitly took into account its impact on the function of war itself, in the sense that it established free exchange rights and trade rules independently of the outcome of the war.28

We see, then, that the Peace of Passarowitz was a corollary of that of Utrecht, and read together the two made clear the transition from the logic of arms to that of trade, especially when it was necessary to choose the most suitable means for regulating or restoring order to the international context. Starting from Passarowitz, therefore, it became increasingly evident that trade treaties could be instruments used to curb the politics of power and to obviate war or mitigate its effects. Hume had this picture in mind when he described the tendency of modern politics to selfdestruct and to annihilate the principles of civilisation on which it was built,29 and Vattel himself shared this idea, taking his place in the process that John Pocock called the “Utrecht Enlightenment.”30

These changes also directly involved the Mediterranean area in which the upshot of Utrecht and Passarowitz could be gauged and the new

political and institutional solutions to problems like those posed by Hume and Vattel could be tested. The question of commercial and military sovereignty over the Mediterranean and its divisions (particularly the Adriatic, Ionian and Aegean Seas) should not therefore be considered, with regard to the eighteenth century, as a simple peripheral reflection of an eastern conflict with the Ottoman Empire. Rather it was a testbed for a new form of power politics and for new interstate European formations.

Passarowitz is important in the picture we have outlined also for another reason: it was actually the treaty that succeeded in removing for the first time one of the classic causes of justification of war, namely that based on religious diversity or, more specifically, on the need to defend Christianity when it was endangered or intimidated. In the course of the eighteenth century the new phenomenon in the Mediterranean would therefore become that of wars waged not with arms but by means of trade. The extension and amplification of commercial competition demonstrated, on the one hand, that military operations were ever more often combined or concealed by commercial operations and, on the other, that the use of armed force was no longer a necessary aspect of the prosecution of a war, and hence it became increasingly difficult to distinguish clearly between wartime and peacetime. Many wars, especially trade wars, would be fought while peace reigned between the contending sides.

In the Mediterranean these phenomena were augmented by the use by many states, and especially those with a southern coastline subject to the Ottoman Empire, of privateering as a means of harming their rivals economically. There was frequent recourse to the granting of special authorisations—permitted by custom and the law of nations—to carry out guerrilla actions in the absence of a formally declared war. The commercial shipping of distant countries such as Holland and Denmark paid the highest price, being the object of constant attacks by French and imperial corsairs. More and more often the problem became that of reconciling the use of privateering with the idea of free trade and the development of trade as a means of neutralising the use of war.31 The rejection of armed warfare and the limitation of privateering were both necessary to counter the use of violence, which was incompatible with economic development and with the wellbeing of peoples, cities and ports.

How could these problems best be tackled? The seventeenth-century theories of both the law of nations and the classical doctrine on the times and ways of just war (derived mostly from Grotius and Wolff) failed to give effective answers predicated on natural law alone. As Vattel would