PART I

VATTEL AND THE INTERNATIONAL SYSTEM

VATTEL ET LE SYSTÈME INTERNATIONAL

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 I

‘INTERNATIONAL COMMUNITY’
FROM DANTE TO VATTEL

Martti KOSKENNIEMI*

I. INTRODUCTION

Every commentary on Vattel begins by stressing his debt to the German rationalist
philosopher Christian Wolff – and in the same breath highlighting his dissociation
from Wolff’s idea of the Civitas Maxima, ‘a supreme State’ into which individual
States have been combined “because they wish to promote the common good”.236 For
Wolff, this ‘idea’ was the basis for deducing the “voluntary law of nations”, the civil
law of the world.237 In Vattel’s view, such an idea had no basis whatsoever in reality:
“On ne peut rien concevoir, ni rien supposer de semblable entre les Nations.”238 Later
lawyers have been divided about the merits of Vattel’s position. Many among the first
generations of readers, but also among later ones, have applauded Vattel’s ‘realism’.
In a world of sovereign States, there can be no basis to presuppose the existence of a
superior political community. Others, again, have disapproved of his apparent capitu-
lation to sovereign egoism, the consecration of the diplomacy of the status quo. In a
way, both positions appear correct, given their premises – premises which, even as
they lead to conflicting conclusions, most contemporary lawyers share.
At issue is a tension between an idea and its institutional realization. On the one
hand, few would reject the notion of Civitas Maxima as an expression of, or perhaps
a metaphor for, the ideals of universalism, community, and solidarity beyond political
divisions, the ideal of humanity united into one. To the extent we interpret Vattel as
giving up such ideals, we feel disappointed by him. On the other hand, we cannot but

* Professor of International Law, University of Helsinki, and Director of the Erik Castrén
Institute of International Law and Human Rights.
236
Christian Wolff, Ius gentium methodo scientifica pertractatum (Classics of International
Law, Carnegie Institution of Washington, Washington, transl. Joseph H. Drake, 1934),
Prolegomena, para. 12, p. 14.
237
Ibid., para. 22, pp. 17–18.
238
Emer de Vattel, Le Droit des gens, ou Principes de la loi naturelle appliqués à la conduite
et aux affaires des Nations et des Souverains (Classics of International Law, Carnegie
Institution of Washington, Washington, 1916), Préface, p. xvii.

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 50 CHAPTER I

agree with his assessment that there is no political institution that could legitimately
claim the status of an authentic representative of humankind. All we have are familiar
other actors such as the United Nations, a civil society conference, a single State or a
group of like-minded States or perhaps a committee working in an international
organization occasionally making the claim of acting on behalf of ‘everyone’, the
present-day rhetorical equivalent of the Civitas Maxima, the ‘international commu-
nity’. Whatever we think of such claims, it is hard not to note that at least so far, no
body or institution has been unequivocally successful in being recognized as the
embodiment of the whole of humankind.
There is a gap between the ideal of the whole and the claim of any particular to
represent it, a gap made evident in the old adage “whoever says humanity wants to
cheat”.239 When the member States of the NATO claimed that the bombing of Serbia
in 1999 was carried out by the ‘international community’, or when President Bush
referred to the presence of the ‘international community’ in Iraq, many voices have
raised in suspicion: why would a group of Western States be the embodiment of the
international community? Whoever appointed them to that role? These are only
extreme examples.240 The same suspicion can be voiced against any institution: is the
UN a representative of the world or an instrument of the five permanent members?
Do the ‘laws of globalization’ express spontaneous humanity or an excuse for com-
panies to relocate in countries of cheap labour? Are ‘human rights’ about universal
values or Western hegemony? The gap between the ideal and its realization seems
perpetual. We cannot close it in a permanent way. This gap is the space of the politics
of international law, the way one institution, one actor, and one project seeks to speak
in the voice of all – and then comes to be seen, or is made to appear, merely a repre-
sentative of some particular interest or position, as biased as its rivals.241
In this paper I hope to sketch a brief genealogy of international law by pointing to
a series of conceptual manoeuvres whereby some entity or institution is made to
appear as the representative of all, and then falls from that position after having been
revealed as merely the representative of particular interest or preference. One place
where such an enquiry might start would be Rome, especially the Rome of Seneca,
Cicero and the Stoics. Here the view of all human beings united in a single commu-
nity was articulated by a theory of natural reason and represented by Roman law,
especially the ius gentium. The threefold division by Gaius – ius naturae, ius gen-
tium, ius civile – postulated in its middle-term a world-wide community of human
beings governed by that branch of universally valid natural law that was applicable

239
See e.g. my The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–
1960 (Cambridge University Press, Cambridge, 2001), pp. 432–436.
240
For one (polemical) analysis, see Michel Feher, Powerless by Design: The Age of the
International Community (Duke University Press, Durham, 2000).
241
I have elsewhere discussed this technique – the way a particular comes to represent the
general – in terms of a notion of hegemony borrowed from the political theory of Ernesto
Laclau. See my ‘International Law and Hegemony: A Reconfiguration’ (2004) 17 Cambr.
Rev. Int’l Aff., pp. 197–213, reprinted in a slightly modified form in my La politique du
droit international (Pedone, Paris, 2007), pp. 291–320.

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 ‘INTERNATIONAL COMMUNITY’ FROM DANTE TO VATTEL 51

to humans. This was institutionally represented by the practices of the praetor per-
egrinus that dealt with the legal problems emerging between Roman citizens and oth-
ers and whose application was rationalized on their being based on the “common
sense, or on ‘natural reason’, which all men shared as part of their human nature”.242
In Cicero, the relationship between universal natural law and the Roman Empire was
that between the idea and its historical representative. For, he wrote, all humans share
reason and they therefore also share law. And all who share law “must be considered
members of the same state”.243 And so Roman law becomes the representative of
(reasonable) humanity.
It may of course be that the claim of the Emperor to be dominus mondi was a kind
rhetorical hyperbole and that it was anyway not meant to extend to unknown parts of
the world.244 But the political grasp of Roman law as an expression of written reason
(ratio scripta) was hard to resist in medieval political theory and was expressly used
by canon lawyers in the course of the 12th century to encompass the institutional
authority of the Pope. The appeal to the crusades by a lawyer-Pope such as Innocent
IV (1243–1254) explicitly affirmed his authority over the universal Christian
commonwealth.245
Still in Bartolus, the Emperor was dominus mundi, however awkward this may
have seemed in the 14th century. But he got away with this by making the distinction
between de jure and de facto and conceding that although Emperor was the ruler of
the world as a whole, he did not rule over all of its individual parts.246 It was quite
conceivable that Kings might be sovereign in their own realm but nevertheless under
the Emperor’s supreme lordship. At least something like this was suggested by the
medieval view of the ‘four empires’, forecasting the world’s end after the end of the
fourth (Dan: 8). Inasmuch as Rome was assumed to be the fourth Empire, there was
little alternative to interpreting somebody – and why not the most powerful ruler who
actually made that claim – as its representative. In any case, the application of Roman

242
Peter Stein, Roman Law in European History (Cambridge University Press, Cambridge,
1999), p.13.
243
Cicero, ‘On the Laws’, in On the Commonwealth and On the Laws (Cambridge University
Press, Cambridge, 1999), p. 113.
244
Richard Tuck, The Rights of War and Peace: Political Thought and the International
Order from Grotius to Kant (Oxford University Press, Oxford, 1999), pp. 58–59.
245
Robert A. Williams, The American Indian in Western Legal Thought: The Discourses of
Conquest (Oxford University Press, Oxford, 1990), pp. 43–51. On the clerical use of the
Roman imperial idea in the Middle Ages generally, see Johannes-Jürgen Meister,
‘Sacerdotium ac Imperium. Zur Lehre vom Papsstum im Mittelalter’, in Peter von Sievers
(ed.) Respublica Christiana (List, Munich, 1969), pp. 19–46; Walter Ullmann, A History
of Political Thought: The Middle Ages (Penguin, Harmondsworth, 1965), pp. 74–80.
The very notion of the Western Emperor was, Ullmann writes, “no more than a personified
concept created for special purposes by the pope” (i.e. to secure the priority of Rome over
Constantinople), ibid., p. 97.
246
Francis H. Hinsley, Sovereignty (Cambridge University Press, Cambridge, 1986), 2nd ed.,
pp. 81–82; Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain
and France c. 1500-c. 1800 (Yale University Press, New Haven, 1995), pp. 27–28; Tuck,
supra note 9, pp. 61–62.

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 52 CHAPTER I

law was premised on the concept of the Empire. It was only with later humanist juris-
prudence that it was secularised into the law of a particular place and time. In the 15th
century the epithet ‘of the German nation’ was linked to the name of the Empire,
indicating a geographical limitation and preparing ground for the move of the impe-
rial claim to the Spanish administration.
The story of Roman law and Roman institutions as representative of universal rea-
son was, since the conversion of Constantine, closely related to Pauline Christianity
that understood humankind as united in view of its having been created by God.
“There are no longer Jews or Greeks, no longer slaves or freemen; there is neither
man nor woman” (Gal. 3: 14. See also Rom 10: 13-14). Before God, all such distinc-
tions become meaningless. Even pagan peoples carry natural law in their hearts
(Rom 2:14). This was not just a theoretical postulate, but the staring-point of the
Christian mission: because the whole world was a single whole, there was also no
limit to Christian evangelisation. Cicero and Saint Paul shared the view of the world
as a single community – in the one case represented by Rome, in the other by
Christianity. For a long time, the two appeared inextricable, a Christian Rome as
the Civitas Maxima, represented by the secular leadership of the Emperor, and the
spiritual leadership of the Pope.247 The gap between the idea and its representa-
tive broke wide open in the investiture struggle: mankind was, of course, a whole, but
was access to it open from the side of the institutions of the Church or those of the
Empire?

II. DANTE’S DE MONARCHIA

The answer to this question played itself out differently depending on where in Europe
one happened to live. In Northern Italy in the late 13th and early 14th century one’s
view on it must have reflected the political turmoil and internecine warfare between
the city-States and the incessant intervention of the Pope in playing them against each
other. To many, the only way out from the chaos would lie in the re-affirmation of the
universal secular authority of the Emperor. This was the question on which Dante
wrote his De Monarchia around 1310 in bitter political exile from his native
Florence.248 Everything about future thought on the international community was
contained there. Dante began by affirming the unity of humankind on Aristotelian
premises, on the basis of its possession of a single telos, namely “constantly to actual-
ize the full intellectual potential of humanity”.249 To attain this will require “the calm

247
Pagden, ibid., pp. 24–27 and pp. 29–31 and also other references in note 10 supra.
See also James Muldoon, Empire and Order: The Concept of Empire 800–1800
(Macmillan, London, 1999), especially pp. 46–86.
248
For the context of Monarchy, see Quentin Skinner, The Foundations of Modern Political
Thought, Vol I: The Renaissance (Cambridge University Press, Cambridge, 1978),
pp. 12–18; Alessandro P. D’Entrèves, Dante as a Political Thinker (Clarendon, Oxford,
1952), pp. 26–51 (stressing Dante’s knowledge of Roman law as inspiration for his impe-
rial views).
249
Alighieri Dante, Monarchy (Cambridge University Press, Cambridge, 1996), Book I, iv,
para. 8.

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 ‘INTERNATIONAL COMMUNITY’ FROM DANTE TO VATTEL 53

tranquillity of peace”.250 And how can this objective be attained? Dante responds:
“(…) mankind is most a unity when it is drawn together to form a single entity, and
that can only came about when it is rules as one whole by one ruler.”251
The presence of many leaders will automatically create a conflict. And when there
is conflict, judgment is needed. In other words, and as international lawyers have
written ever since, “there must be a third party of wider jurisdiction who rules over
both of these”.252 This is why monarchy is the best form of government. It is the per-
fect image of God’s rule over the earth. But it is the best also because most effective.
“Unity seems to be root for what it is to be good, and plurality the root of what it is to
be evil.” In Dante’s ideal of the international community the represented and the rep-
resentative can no longer be separated:
The whole of mankind in its ideal state depends on the unity which is men’s wills. But this
cannot be unless there is one will which controls and directs all the others towards one
goal, since the wills of mortals require guidance on the account of the seductive pleaser of
youth, as Aristotle teaches at the end of the Ethics. Nor can such a single will exist, unless
there is one ruler who rules over everybody, whose will can control and guide all the
other wills.253

In the second part of Monarchy, Dante offers a historical demonstration of how in

the past it was Rome that ruled the world rightfully for this purpose so that a ‘perfect
monarchy’ was set up “under the immortal Augustus”.254 That Rome’s rule on the
world was a work of divine providence we can know by their nobility and their self-
lessness, by the miracles that God performed to save and support Rome and by the
‘trial of strength’ under which Rome was capable of becoming what it was.255 But we
can know it from the scripture in which the Rule of Rome over the world at the birth
of Christ is taken for granted.256
And who is to represent Rome’s legacy? For Dante, this can only be the Emperor.
Proof for the Emperor’s secular supremacy is received in part from history, in part
from passages in the scripture where Christ makes a distinction between His Kingdom
and the earthly powers.257 The jurisdiction of the Emperor derives directly from God,
not from any vicar in this world. To the claim that the Emperor had given his power
to the Pope by the alleged ‘Donation of Constantine’, Dante responds that it was
never open for the Emperor to give away that which was his by divine design, namely
universal secular rule over the whole of humankind.258
Dante’s ‘international community’ signified a state of peace and tranquillity that
would be guaranteed only within the bosom of universal Empire, ready to intervene

250
Ibid.
251
Ibid., viii, para. 13.
252
Ibid., xii, para. 21.
253
Ibid., xv, para. 27.
254
Ibid., xvi, para. 28.
255
Ibid., Book II, iii-v, paras. 33–45; and ix, paras. 53–56.
256
For example, the fact that Christ’s chose to be born and be executed under Roman author-
ity proves that the authority had divine approval, Ibid., x, paras. 58–60.
257
Ibid., Book III, iv-ix, paras. 69–80.
258
Ibid., Book III, x, paras. 82.

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 54 CHAPTER I

in places such as Northern Italy in order to pacify its warring cities. This was not, of
course, any idiosyncrasy. It accepted the Roman law notion of the Emperor as the
dominus mundi even in a world whose local authorities were exercising increasingly
wide jurisdiction. For many other political and legal thinkers, however, the time of
Empire was over, especially to the extent that the imperial idea seemed little more
than a troubled veil over the policy of the Spanish Habsburgs.

III. MACHIAVELLI, RAGION DI STATO & EUROPEAN EMPIRE

One of those reacting against both Empire and the increasingly aggressive policy of
France in the late-15th and early 16th centuries was Machiavelli. There is no
express theory of the international community in his writings. Nevertheless, there is a
view of the nature of the international world – the world beyond the city-State – as
governed by Fortuna in which survival depends on the cultivation of a certain kind of
prudent statesmanship he called virtù that is only available in the conditions of repub-
lican activism. It is thus possible to read into Machiavelli – particularly the Machiavelli
of the Discorsi – a certain ideal of an international world of free or at least freedom-
loving republics whose rulers have regard to the interests of their States and are in
this way able to steer their communities in a dangerous world.259 This can never be
written in the language of rules or laws, of course. But it does presume the presence
or accessibility of certain type of universal knowledge – knowledge of the ways of
human beings organised in political States, the Ragion di stato – that will grasp the
unchanging nature of statecraft.260 Machiavelli wrote in a moment when the Empire
itself had become a party to the struggles in Northern Italy – part of the problem that
Dante and others wanted it to resolve. Like the Pope earlier, the Emperor had for-
feited his ability to be regarded as the institutional embodiment of such wisdom.
In neither of the two traditions of writing on international matters that follow
Machiavelli – the Ragion di stato and the more conventional Christian-Aristotelian
advise to Princes – did there appear any singe institutional representative for the
‘international community’. The actors were the sovereigns of the leading European
States, Spain and France in particular, but also Austria and the heterogeneous con-
glomerate of the Holy Roman Empire. This was the international community of
European Princes, with their varying status, varying pretensions, and varying ability
to act wisely. No wonder then, that the bulk of writing on international affairs was
addressed to them in terms of behavioural instructions and the questions that seemed
relevant concerned the right methods, and the correct mindset, within which they

259
For this reading, see in particular John G.A. Pocock, The Machiavellian Moment:
Florentine Political Thought and the Atlantic Republican Tradition (Princeton University
Press, Princeton, 1975).
260
I have discussed the dialectic of fortuna and virtù in more detail in my ‘ “Not Excepting
the Iroquois Themselves”. Machiavelli, Pufendorf and the Prehistory of International
Law’, European University Institute, Max Weber Lecture Series 2007/07 (Fiesole,
European University Institute, 2007), pp. 6–11.

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 ‘INTERNATIONAL COMMUNITY’ FROM DANTE TO VATTEL 55

should carry out their duties. When Erasmus discussed treaties in his instructions to
the young Charles V, for example, he remained sceptical about their value: honesty
between Princes, especially Christian Princes, ought to be enough. That Princes
should always work for the ‘public interest’ is the self-evident starting-point, but
there is no institutional – for example legal– representative for that interest.261 All
depends on the Prince’s “wisdom, (…) sense of justice, personal restraint, foresight,
and concern for the public well-being”.262
A noteworthy aspect of this literature from the 16th to the 18th centuries is a novel
approach to treating the visible diversity of the international world. From the earliest
Ragion di stato writings, such as those by Giovanni Botero on 1598 to the Esprit des
Lois of Montesquieu in 1748, writers highlight the differences between nations – dif-
ferences of size, geography, population, resources, religion, government and so on –
and the imperative need to take account of such differences in order to develop the
kind of prudential statesmanship that will allow the Prince to attain the admiration he
needs both from his subjects and other Princes so as to carry out the principal task of
government, the conservation and, to the extent possible, expansion of his realm.263
Such a situational analysis of the international world, though most apparent in the
reason of States tradition, expanded to natural law so that the image of a universal
law that is to be found in the Esprit des Lois is precisely a universality of difference
under which the ‘natural’ aspect of law leads attention to the (natural) differences
between nations (instead of any homogeneity between them).
In the course of the early 18th century, this type of writing began to describe
European politics in terms of a historical perspective on a ‘system’ in which apparent
diversity is reduced to the diplomatic practices that articulated Vattel’s contemporar-
ies’ sense that, despite all the conflict, there was a historical and cultural unity that
still bound European nations into a single commonwealth.264 Typical of this is the
enlightenment activist Gabriel Bonnot de Mably’s nearly 300-page introduction to
his Droit public de l’Europe that sketched European treaty practices in terms of a
structure of sovereign relationships that is firmly based on the history of European
nations. The work highlights the old assumption that everyone’s real interests are
best realised, and the international community thus best served, by a coherent pol-
icy of treaty-making where everyone’s eye is on the pursuit of long-term national
interests.265

261
Desiderius Erasmus, The Education of a Christian Prince (Cambridge University Press,
Cambridge, 1997), pp. 93–95.
262
Ibid., p. 5.
263
Giovanni Botero, The Reason of State (Routledge, London, 1956). See also Henri de
Rohan, De l’Intérêt des princes et des Etats de la chrétienté (PUF, Paris, 1995) and,
of course, Baron de Montesquieu, The Spirit of the Laws (Hafner, New York, transl. Ted
Nugent, 1949).
264
See e.g., Francis H. Hinsley, Power and the Pursuit of Peace: Theory and Practice in the
Relations between States (Cambridge University Press, Cambridge, 1966), pp. 49–61.
265
Abbé de Mably, Principes de négociation pour servir d’introduction au droit public de
l’Europe, fondé sur les Traités (Uytwerf, Amsterdam, 1757), pp. 20–29.

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 56 CHAPTER I

IV. CATHOLIC ‘CONSTITUTIONALISM’

A parallel but differently oriented stream of ‘constitutionalist’ writing emerges in the

catholic realm from the rationalism of St Thomas and in connection with the 16th and
17th century debates about the nature and extent of the Spanish Empire. From the
Thomistic notion of natural law a grasp is had on the world as a whole that resembles
methodologically Machiavelli’s doctrine of Fortuna but points to other means of
attaining mastery over a world of apparent difference. From the perspective of divine-
natural law, the world will always appear as a one – this had already been the basis on
which the reductio ad unum was operated in Dante’s Monarchia that was “nothing
but Thomism applied to the universal monarchy”.266 In Aquinas and his followers, the
derivation of universally valid prescriptions of natural law proceeds methodologi-
cally from the more generally valid to increasingly more specialised and less univer-
sally binding – ‘positive’ – directives.267 In this view, the original sin established a
gap between the uncorrupted ideal state of humanity and secular existence in which
everything is overshadowed by difference. Here specific laws of politics apply that
have to do with the government of separate commonwealths. Human beings continue
to carry natural law in their hearts, however, from where they can make it apparent
through the use of (practical) reason. For Machiavelli, the ideal state was usually
unattainable, though approachable by virtù – in Thomism it remained often unat-
tained, but would always be attainable by the recta ratio, a natural law of human
reason the knowledge of which enjoins even separate communities into a single
humanity: “[N]atural law is simply rational creatures’ participation in the eternal
law.”268
This view of an international world united by reason accessible to every human
lies at the heart of the Second Scholastic that emerged from the University of Paris in
the late-15th and early 16th centuries. It was carried by the Salamanca school into
Church reform and in debates about Empire inside and outside Europe.269 When its
leading member, the Dominican scholar Francisco Vitoria, returned from Paris to
Spain in 1524, the country was worried over the efforts of a foreigner – Charles V of
the Habsburgs – to govern it. The men around Charles, particularly his influential
Chancellor, the Italian lawyer Mercurio Gattinara, an admirer of Dante’s De
Monarchia, argued in terms of new world Empire – a ‘new Rome’ –emerging not
only in Europe but also overseas, buttressed by the rhetoric adopted by Castile during

266
Ullmann, supra note 10, p. 193.
267
“Just so, human reason needs to advance from the precepts of the natural law as gen-
eral and indemonstrable first principles, to matters that are, more particularly regu-
lated”, Thomas Aquinas, Treatise on Law (Hacett, Cambridge, 2000); Summa, Q. 90, third
article (10).
268
Ibid., second article (9).
269
Annabel Brett, ‘Scholastic Political Thought and the Modern Concept of State’, in Annabel
Brett et al., Rethinking the Foundations of Modern Political Thought (Cambridge
University Press, Cambridge, 2007), pp. 141–143.

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 ‘INTERNATIONAL COMMUNITY’ FROM DANTE TO VATTEL 57

the Reconquista.270 For these purposes, the teaching of law and political theory in
Salamanca fit well. Indeed Vitoria’s view on the ius communicandi, the right of the
Spanish to travel in Indian lands and to trade and proselytise there and to wage war
against the Indians in case they seek to prohibit this, bound Indians in a normative
system under which they could be disciplined in a benign way.271
In a lecture from 1528, Vitoria put forward a legally articulated notion of the inter-
national community: “[t]he whole world, which is in a sense a commonwealth, has
the power to enact laws which are just and convenient to all men; and these make up
the law of nations”.272 This is institutionally represented by the different nations, gov-
erned by one or another of the three Aristotelian forms as monarchies, aristocracies or
timocracies. Vitoria agrees with Dante, however, that monarchy is the best form of
government: if the end of every commonwealth is “the sociable intercourse and com-
panionship of its members” and this is best preserved by a single ruler, “just as the
universe is governed by a single Lord and Ruler”.273
But Vitoria was no uncritical admirer of the Spanish Empire and his famous lecture
on the Indies of 1539 is specifically directed against the view that the Emperor or the
Pope would be entitled to think of themselves as lords of the world. They do have
their role in keeping the peace and seeing to the salvation of souls. But neither task
authorizes them to rule over all humans. On the other hand, it would be unthinkable
that they did not seek to proselytise and gather resources available in foreign lands.
Having described the world as a commonwealth, he also identifies Christians as a
separate part of it: “Christendom is in some sense a single commonwealth and single
body, according to the Apostle’s words, ‘we, being many, are one body in Christ’.”274
There are then two communities, one secular and consisting of all humankind,
including the Indians, another joining Christians all over the world. In Vitoria as in
generations of Christian thinking earlier, the relationship between these two commu-
nities is governed by the institutional project of universalising Christendom for “the
defence and propagation of the Faith and Christian religion”.275 Accordingly, in the
last parts of his lectures on the Indies, Vitoria lays out a number of just reasons for
Spanish rule over the Indians. The Spanish King is authorised to enforce the purposes
of the human commonwealth, that is to say, to the right of the Spanish to travel, to
trade, occupy land and be treated on the same basis as everyone else.276 He is also

270
Pagden, supra note 11, p. 41. On Gattinara, see John M. Headley, The Emperor and his
Chancellor: A Study of Imperial Chancellery under Gattinara (Cambridge University
Press, Cambridge, 1983).
271
See generally Antony Anghie, Imperialism, Sovereignty and the Making of International
Law (Cambridge University Press, Cambridge, 2005), pp. 13–31.
272
Francisco de Vitoria, ‘On Civil Power’, in Anthony Pagden, Jeremy Lawrance (eds.)
Political Writings (Cambridge University Press, Cambridge, 1991), p. 40.
273
Ibid., p. 20.
274
Ibid., p. 31.
275
Ibid., p. 31.
276
Francisco de Vitoria, ‘On the American Indians’, in Political Writings, supra note 37,
pp. 278–283.

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 58 CHAPTER I

entitled – and possibly required – to spread the Christian religion according to the
Gospel of Mark “Go ye into all the world and preach the gospel to every creature”.277
Granted, Spanish imperialism is defended in the least violent, most pacific ways,
though of course, as the Second Relectio makes clear, war is available when there is a
just cause for it.
Vitoria’s ‘international community’ is humankind over which the highest authority
is exercised by the Catholic Church. True, he did hold against the Protestants that
secular dominion was not dependent on grace but on knowledge of natural law that
was in principle accessible to all. Although Indians were pagans, they possessed rea-
son and were entitled to form political communities and hold dominium under natural
law.278 But he had no doubt about the authority of the Church, its institutions and offi-
cials, as best placed to decide what natural law required. It was, after all, enacted by
God. Although Vitoria and others were as critical against Machiavelli as they were
against Luther, their naturalism was not too far from the Ragion di stato inasmuch as
it, too, identifies a special type of knowledge that most laymen are assumed to lack,
the knowledge of natural law, as the key to attaining the good of the community. For,
as Vitoria explains in the Prologue to De Indis: “in every case of doubt there is a duty
to consult with the competent to pronounce upon it, since otherwise there can be no
security of conscience, regardless of whether the action concerned is really lawful or
unlawful”.279
Because the laws in question now are not civil laws, the right authorities are not
secular magistrates but theologians: “since this is a case of conscience, it is the busi-
ness of the priests, that is to say the Church, to pass sentence upon it”.280 This justifies
the special claim of Church officials to the Prince’s ear, the practice whereby reli-
gious scholars such as Bellarmine or Richelieu could become the Prince’s advisors
and the Jesuits could interpret natural law so as to consolidate the authority of
Catholicism.281
A universal natural law that covers all of humankind was postulated by Innocent
IV for the crusades and by Vitoria as a basis for the commercial and spiritual relation-
ship between the Spaniards and the Indians. Of course, there was an enormous differ-
ence between the general outlook and the proposed institutional solutions of these
two men. What united them, however, was the sense that knowledge of natural law
was inextricable from knowledge of the Christian faith and that those who possessed
authority to speak of the latter would also be the most important interpreters of the
former. Both exemplify, as Robert Williams has put it, “a style of discourse that spoke
of universal norms binding all humankind into a world community [that] provided

277
Ibid., p. 284.
278
Francisco de Vitoria, ‘De Indis’, in Political Writings, supra note 37, pp. 239–252.
279
Ibid., p. 237.
280
Ibid., p. 238.
281
Ernst Reibstein, Die Anfänge des neueren Natur- und Völkerrechts: Studien über den
‘Controversiae illustres’ des Fernandus Vasquius 1559 ( Haupt, Bern 1949), pp. 56–57.
See e.g., Quentin Skinner, The Foundations of Modern Political Thought (Cambridge
University Press, Cambridge, 1998), vol. 2, pp. 138–143.

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 ‘INTERNATIONAL COMMUNITY’ FROM DANTE TO VATTEL 59

a reassuring continuity with the West’s medieval discursive traditions of unity and
hierarchy”.282
The same ideas are continued in later Spanish political theory by writers such as
Vázquez de Menchaca (1512-1569) whose effort was to find a basis for the authority
of political institutions in a concrete, fact-based natural law outside theological dis-
putes.283 For that purpose, Vazquez introduced a broad range of universal subjective
rights that could be invoked to justify resistance against tyranny as well as to found
independent civil commonwealths.284 For him, the right of citizens to ground political
authority was “of its nature irrevocable since they are seen to have subjected them-
selves for their own utility and not that of their prince”.285 Power was to be exercised
in the interests of the subjects, not for any transcendental purposes, and this required
close attention to facts, to the particular conditions of political rule in particular com-
monwealths. For law emerged from custom and was not timeless. To invoke Roman
Empire was “to be compared to the tales of children, to the advise of the aged and the
shadows of unquiet sleep”.286
In the late 16th and early 17th century there was a revival of the debate about
whether the centre of the Empire might be Spain or in Germany. With its possessions
in the Indies, Spain had a much better claim.287 In this time, writers such as the
Neapolitan priest and visionary Tommaso Campanella (1568-1639) “looked at Spain
as the agent and bearer of universal monarchy”.288 Campanella’s ultimate object was
a theocracy, however, and he suggested that the King of Spain should be subordinated
to the Pope and should aggressively intervene in the Holy Roman Empire to assert his
predominance. Only under a Pope can a monarchy be sustained – with cardinals and
bishops as imperial governors and members of the priestly orders as royal counsel.289
This required cultural uniformity: “it must be his care to draw on all Nations to com-
ply with Spanish Manners and Customs; that is, make them all Spanish”.290 Campanella
gave detailed instructions on how universal Empire ought to be attained and consoli-
dated, from science to eugenics, astrology to religion.291 He also advocated the use of

282
Williams, supra note 10, p. 107.
283
Reibstein, supra note 46. See also Tuck, supra note 9, pp. 70–77 and especially Annabel
Brett, Liberty, Rights and Nature: Individual Rights in Later Scholastic Thought
(Cambridge University Press, Cambridge, 1997), pp. 165–204.
284
Martin Van Gelderen, ‘‘So meerly humane’: Theories of resistance in early-Modern
Europe’, in Rethinking the Foundations of Modern Political Thought, supra note 34,
pp. 157–159
285
Fernando de Menchaca Vazquez, Controversiarum illustrum aliarumque usu frequentium
libri tres, quoted in Gelderen, supra note 49, p. 158 and further, Brett, supra note 48,
pp. 171–176.
286
Pagden, supra note 11, p. 58.
287
See John M. Headley, Tommaso Campanella and the Transformation of the World
(Princeton University Press, Princeton, 1997), pp. 197–202.
288
John M. Headley, ‘Spain’s Asian Presence 1565–1590: Structures and Aspirations’ (1995)
75:4 HAHRev., p. 624.
289
Headley, supra note 52, p. 213.
290
Quoted in Headley, supra note 52, p. 217.
291
Ibid., p. 216.

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 60 CHAPTER I

Machiavellian strategies, especially divide et impera, including Spain’s use of its sea
power – to send Armadas to rule the world seas.292 In the final years of his life he
switched allegiance, however, to France, campaigning now France as the universal
monarchy and suggesting the transfer of the Empire by the Pope from Madrid to
Paris.
Campanella mixed genres of political commentary and utopia, the latter having,
since Thomas More’s invention of the word, often expressed the desire of an ideal
form of social life beyond existing commonwealths.293 Another part of this Catholic
universalism was played by the peace proposals emerging from early 17th century
France the most famous of which were (or have since become) Eméric Crucé’s
Nouveu Cynée (1623) and the Grand Design written by Henri IV’s foreign Minster
Duc de Sully and credited to his former chief (1638/1662). The former work came
from the hand of a Parisian educator known for his advocacy of religious tolerance. It
rejected the values of war and – foreshadowing Comte in its rejection of jurispru-
dence and moral sciences more generally as socially useless – highlighted the pacifist
qualities of trade and production on the basis of natural reason. Crucé proposed the
setting up of a ‘permanent and perpetual union’ between European sovereigns, includ-
ing Russia and Turkey ‘to make peace unalterable in Europe’ and the setting up of a
permanent assembly of ambassadors of all sovereigns, including those of Japan,
China and even the Mongol Empire.294 The latter, several times amended and in part
based on forged documents, was essentially discussion between its author and his
master on several proposals to limit Habsburg pretensions by moving the centre of
the Empire from Vienna to Paris. It also suggested the complete reorganization
of European political order by expelling Turkey and Russia and by coordinating
European colonial conquest.295 The ‘design’ contained full territorial reworking
of European space and the establishment of a ‘general council’ to decide issues of
general importance and six particular councils to decide on local affairs. Both tracts
focused on Europe’s organisation as the decisive issue in the ‘international commu-
nity’. They advocated tolerance among Christians and represented humanistic prefer-
ences and historical outlooks that took for granted Christianity’s predominance over
the rest of the world and hence the worldwide significance of peace between
Christians.296

292
Ibid., pp. 224–225.
293
For a review, see Jean-Pierre Bois, L’Europe à l’époque moderne XVIe-XVIIIe siècles:
Origines, utiopies et réalités de l’Europe XVIe-XVIIIe siècle (Colin, Paris, 1999),
pp. 165–184.
294
Emeric Crucé, ‘Le nouveau cynée’ ou discussion d’occasions et moyens d’établir la paix
générale et la liberté de commerce par tout le monde (Villerey, Paris, 1623), pp. 60–77
and passim.
295
For a discussion of the content and context of the proposals, see Francis H. Hinsley, Power
and the Pursuit of Peace (Cambridge University Press, Cambridge, 1963), pp. 20–29;
Bois, supra note 58, pp. 186–199.
296
See also Lucien Bély, L’art de la paix en Europe: Naissance de la diplomatie moderne
XVIe-XVIIe siècle (PUF, Paris, 2007), pp. 103–130.

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 ‘INTERNATIONAL COMMUNITY’ FROM DANTE TO VATTEL 61

V. PROTESTANT COMMUNITY

On the protestant side, universal monarchy meant little else than the use of the doc-
trines and institutions of the Catholic Church at the service of the imperial pursuits of
particular Princes, Charles V and Philip II from Spain, and Louis XII and Louis XIV
from France in particular. Luther’s confrontation with the Pope had many aspects but
from an international law perspective two of the most significant were his insistence
on the separation of the jurisdictions of the Church and the Prince, and his doctrine of
secular authority as an effect of God’s grace. The complete rejection of the secular
powers of the Church was epitomised in his repudiation of the canon law and the
rationalist doctrines of the (Dominican) scholastics. There would be no supranational
normative structure beyond the authority of the Princes of particular communities. In
particular, no law can bind the Prince to prudence or acting in view of what seems
necessary.297 And it was not for the sinners, in Luther’s early doctrine, to question
their wisdom. Superior power was directly instituted by God who had his inscrutable
reasons for its being the way it was. Instead, they were to take care of their own
souls.298
Protestant views on political authority developed, however, in view of the religious
strife in 16th century France, Germany and the Netherlands, and significantly in a
constitutional direction. Focus of that theory was the State, however, and not suprana-
tional rules or institutions. Even as Huguenot lawyers in France such as Francois
Hotman or the author of the Vindiciae contra tyrannos argued for an extensive right
of resistance, they did not do this on the basis of any developed views on universal
natural law but rather by reference to local customs and privileges and the ‘ancient
constitution’.299 The most important work in this literature, Jean Bodin’s Six livres de
la république (1576), provided a theory of undivided sovereignty as the key to inter-
nal pacification and, though Bodin held the sovereign bound by treaties with foreign
powers by a kind of ius fetiale, no sense of an international community beyond
abstract statements about the superior force of divine and natural law is to be gleaned
from his work.300
Such arguments could be used in the local and national contexts but not in order to
discuss the justice of war or laws applicable outside national commonwealths. For
this purpose, Grotius adapted the natural law vocabulary developed by the Salamanca
School and its successors, especially Vázquez, into a secular theory of sociability that
referred back to what God had inscribed in the heart of every human being. The idea

297
The little appreciation Luther had of law is visible in many places of his Political Writings.
See e.g., ‘On Secular Authority: How Far does the Obedience owed to it Extend?’, in
Harro Höpfl (ed.), Luther and Calvin on Secular Authority (Cambridge University Press,
Cambridge, 1991), pp. 10–11 and pp. 34–35.
298
See Skinner, supra note 46, pp. 12–20.
299
See William F. Church, Constitutional Thought in Sixteenth-Century France. A Study in
the Evolution of Ideas (Harvard University Press, Cambridge, 1941).
300
See Julian Franklin, Jean Bodin et la naissance de la théorie absolutiste (PUF, Paris,
1993), p. 115 and pp. 130–141.

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 62 CHAPTER I

of universal human community celebrated by Lauterpacht and others as the ‘Grotian

heritage’ points to Grotius’ transformation of the ius gentium into a universally appli-
cable set of rules and principles that were directed not only to Princes and ambassa-
dors but to private individuals and, of course, to entities such as the Dutch East India
Company. That those rules and principles were formulated in terms of entitlements to
exercise and to defend (subjective) property rights made them independent of earthly
legislators and applicable both in order to support the extension of Dutch commercial
Empire in the East Indies and to defend it against the exercises of jurisdiction by
Spain and Portugal.301 The First Book of De jure belli ac pacis is a vigorous defence
of the universal right of Christians to wage war in order to defend the natural right of
property. If there is no express theory of the international community in Grotius, the
implicit construction is crystal-clear: all human beings are united by a natural law the
most significant aspect of which guarantees them certain basic subjective rights, par-
ticularly the right of property and the entitlement to defend it by force if necessary:
“this is most certain, that every Man has the natural Right to revenge himself, and
therefore were Hands given to us”.302 This community has no other institutional rep-
resentative than each community of property-holders itself, whether conceived as a
public law commonwealth or a commercial company.303
One consequence of this ‘cosmopolitanism’ is the right to appropriate whatever is
found uncultivated or unused – that is to say, whatever is not subject to Western agri-
culture – “because whatever remains uncultivated is not to be esteemed a property”.304
This applies all over the globe so that merely jurisdictional limits – because they are
precisely not determinative of ‘property’ – cannot differentiate this. It follows like-
wise that every individual is now entitled to ‘punish’ those who violate natural law.
No political institution or subject will have the monopoly in this regard. For, Grotius
writes, ‘natural Reason informs us that a Malefactor may be punished, but not who
ought to punish him’. Although it would preferable, he writes, that punishment be
done by the one who is superior, even this is not ‘absolutely necessary’, so that when-
ever there are no such institutions, the right of punishment remains general.305 This
then extends to the international world:
Kings, and those who are invested with a power equal to Kings, have a Right to exact
Punishments, not only for Injuries committed against themselves, or their Subjects, but
likewise, for those which do not peculiarly concern them, but which are, in any Person,
grievous Violations of the Law of Nature or Nations. For the Liberty of consulting the
Benefit of human Society, by Punishments, which at first, as we have said, was in every

301
For an extended treatment, see Ileana M. Porras, ‘Constructing International law in the
East Indian Seas: Property, Sovereignty, Commerce and War in Hugo Grotius’ De iure
praedae – the Law of Prize and Booty, or “On How to Distinguish Merchants from
Pirates”’ (2005–2006) 21 Brooklyn JIL, pp. 741–804.
302
Hugo Grotius, The Law of War and Peace (Classics of International Law, Carnegie
Institution of Washington, Washington, 1913–1915), Book. I, Chap. V, para. 1, p. 384.
303
The rights are those of individuals – it follows that their defence belongs also to individu-
als or whatever entities individuals may choose to establish. See Tuck, supra note 9, p. 82.
304
Grotius, supra note 67, Book II, Chap. II, para. XVII, p. 448.
305
See further Tuck, supra note 9, p. 89.

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 ‘INTERNATIONAL COMMUNITY’ FROM DANTE TO VATTEL 63

particular person, does now, since Civil Societies and Courts of Justice, have been insti-
tuted, reside in those who are possessed of the supreme Power (…).306

Grotian cosmopolitanism sets all individuals in the world at the same level as hold-
ers of rights and entitlements to protect and advance them. Because there is no body
that would be representative of that universal order, all individuals may themselves
do this by joining together in self-defence pacts. Hence the State, conceived not as an
entity in itself but an aggregate of the individuals that it encompasses, may realize
these rights wherever.307
The assumption that this law is knowable by purely secular means as it resides in
the natural sociability of all human beings was, however, a fragile basis for articulat-
ing the reality of an international community. Hobbes had little difficulty to ridicule
the very idea. Surely what we learn from experience is not a natural solidarity. It may
be that the Princes are among themselves in state of nature, and that their relations are
thus governed by natural law. But that is surely not one of love but one in which the
States confront each other in the posture of gladiators: the principles of justice invoked
by just warriors are mere words. And in fact, the violent implications of Grotius’
theory of property undermine the theory of natural sociability, make it seem an ideo-
logical smokescreen over a wide right of legitimate violence.
A much more robust, sociologically oriented notion of international community
emerges from the reconciliation of Grotius and Hobbes by the Saxon lawyer, adviser
to a number of Protestant Princes, Samuel Pufendorf. Pufendorf agreed with Hobbes
about there being no natural sociability in human beings; their behaviour was gov-
erned by self-love. But if humans were drawn (by nature) to be essentially selfish,
their self-love was not independent from their capacity to reason. And reason showed
that in a world of pathetically weak human beings self-love can only be realised by
cultivating sociality:308
For nature has not commanded us to be sociable, to the extent that we neglect to take care
of ourselves. Rather, the sociable attitude is cultivated by man in order that by the mutual
exchange among many of assistance and property, we may be enabled to take care of our
own concerns to greater advantage.309

For Pufendorf, the world is united by two phenomena: the fact that humans are
selfish and the fact they are able to reason and to learn. Natural law is the realization

306
Grotius, supra note 67, Book II, Chap. XX, para. XI.1, p. 1021.
307
Tuck draws attention to the theory of jurisdiction in Grotius as a kind of procedural com-
petence to organise the use of a territory. But it does not override the natural rights of
property and its defence, or the right of punishment. Tuck, supra note 9, pp. 102–108.
308
Samuel von Pufendorf, De jure naturae et gentium Libri Octo (The Classics of International
Law, Humphrey Milford/Clarendon, London/Oxford,), vol. 2, Book II, Chap. III, para.
14–15. On Pufendorf’s ‘sociality’ not as an innate property but a rational conclusion, see
also Leonard Krieger, The Politics of Discretion: Pufendorf and the Acceptance of Natural
Law (University of Chicago Press, Chicago, 1965), pp. 92–94; Likewise K. Saastamoinen,
The Morality of the Fallen Man: Samuel Pufendorf on Natural Law (SHS, Helsinki, 1995),
pp. 62–72.
309
Pufendorf, supra note 73, Book II, Chap. III, para. 18.

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 64 CHAPTER I

of these features in the conditions of real social interaction. As human beings learn to
co-operate, everybody will be better off in the future.
Pufendorf’s civil philosophy had the great merit of presuming that humankind was
united by a rational sociability that did not need to look back on innate norms or some
natural ability of the humans to do good. Justice and goodness were functions of
social institutions, above all of sovereignty. By directing the basic egoism towards
common purposes, social institutions would receive a legitimacy that was independ-
ent of religion and valid universally as a scientific fact about human nature and the
principles of reason. Such natural law also provided the basis for natural religion that
would accommodate confessional disagreements. ‘Sovereignty’ thus becomes the
institutional representative of the ideal of a universal community of fallible human
beings.
This is also a principal lesson of Pufendorf’s analysis of the German Empire under
the Pseudonym of the Italian nobleman Severinus de Monzambano (1667).310 This
had been preceded by an extremely lively debate in which some had taken the
position that the Empire should be understood as an aristocracy, while others had
defended the view of it as a monarchy, with some of the monarch’s powers divided
among the imperial estates. For Pufendorf, none of these conceptualisations was
historically or sociologically credible. The most famous sentence of the work is that
of the Reich as monstrum simile, resembling a monster.311 This was a polemical
expression – not repeated in the second edition – to dismiss a priori categories in the
analysis of real situations. For Pufendorf, the real situation in Germany was best
seen as a complex systema communitatis, series of de facto relationships between
moral persons that was a product of specific German conditions for which the appro-
priate frame of analysis was not provided by abstract categories but by finding a
workable balance between the reason of State in the Empire and that properly with
the territorial States.
The analysis of legal and moral norms in De Jure Naturae et Gentium (1672) sug-
gested further that these, too, were the result of imposition by social institutions, and
were not available automatically in the human heart.312 This nominalism relativised
politics: nobody had an innate right to property, for instance. Property was a particular
type of social arrangement the form of which varied in different contexts.313 Even as
the law had a universal basis in human self-love and reason, nobody could arrogate to
himself any a-historical or perspective from which to judge how they should operate
in particular contexts. The only legitimate social and moral institutions were particu-
lar, historical institutions. Thus, unlike Grotius, Pufendorf rejects the view that any-
one should be entitled to enforce natural law. This was possible only in cases of ‘real
injury’ to oneself: “But if the sin was against another, whose defence has not been

310
Samuel von Pufendorf, Severinus de Monzambano: Über die Verfassung des deutschen
Reiches (Hobbing, Berlin, transl. H. Breslau, 1922).
311
Ibid., Chap. VI, para. 9, p. 94.
312
Pufendorf, supra note 73, Book. I, Chap. I, para. 4, pp. 5–6.
313
See Stephen Buckle, Natural Law and the Theory of Property: Grotius to Hume (Clarendon,
Oxford, 1991), p. 99.

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 ‘INTERNATIONAL COMMUNITY’ FROM DANTE TO VATTEL 65

laid upon me as a special charge, I can no more take upon myself to avenge him, unless
host to him by treaty, than to pronounce laws to such as are not subject to one.”314
He specifically observes that war is not automatically allowed on Indians on
account of their alleged violations of natural law.315 Nobody is entitled to invoke the
laws of nature so as to put himself up as entitled to enforce them. All legitimate
power can only be the result of social institutions, which is to say sovereignty, an
institution that human beings may themselves create for this purpose.

VI. THE RATIONALIST REACTION: LEIBNIZ AND WOLFF

Now perceptive observers such as Gottfried Leibniz immediately saw what was
wrong with this. Pufendorf’s nominalism, the view that there were no natural norms
but that they all were functions of a law-creating will, the product of existing social
institutions, was unable to make any distinction between tyrannical and just rule. To
make this distinction, an external standard outside existing institutions was needed.
And in fact, as Leibniz pointed out, Pufendorf knew this and, failing to be consistent
with himself, postulated that citizens had an unconditional duty to obey laws that the
sovereign had ‘just grounds’ to enact the laws he enacted. Where did those ‘just
causes’ then come from? There had to be some supranational standard, some criterion
of good and bad government that was higher, or anterior to existing sovereignty316 –
indeed that could distinguish between the sovereign and, as later analytical jurispru-
dence would put it, ‘a band of robbers’.
The protestant tradition of natural law of which Grotius, Hobbes, Pufendorf and
Leibniz are representatives (but which harked back on an older scholasticism) was
above all concerned to consolidate the power of sovereign States against efforts at
‘universal monarchy’ and against the Holy Roman Emperor, and to produce a basis
for the exercise of firm internal rule by the Prince.317 But it would also contribute to
an amorphous notion of ‘Europe’ as a tradition and a structure of sovereign interac-
tions. In the 18th century, it started to become a commonplace that despite the opposi-
tion or hostility between European States, Europe was still a cultural unity and that it
could be imagined as a ‘system’ of historically mediated relationships between its
various parts. European diplomacy could and was increasingly articulated as the Droit
public de l’Europe. Even as many German thinkers such as Pufendorf had despaired
over the chaotic nature of the constitution of the Empire, the condition of this largest
chunk of Europe in the middle of it was also viewed as a guarantor of the stability of
the continent as a whole.318 After the Peace of Utrecht, it was no longer feasible for

314
Pufendorf, supra note 73, Book. VIII, Chap. III, para. 7, p. 1171.
315
Ibid., Chap. VI, para. 5, p. 1297.
316
Gottfried Leibniz, ‘Opinion on the Principles of Pufendorf’, in Patrick Riley (ed.), Political
Writings (Cambridge University Press, Cambridge, 1988), p. 74.
317
Knud Haakonssen (ed.), ‘German Natural Law’, in The Cambridge History of Eighteenth-
Century natural Law (Cambridge University Press, Cambridge, 2006) pp. 256–257.
318
See Jean-Jacques Rousseau, ‘Extrait du projet de paix perpétuelle de M. l’Abbé de Saint-
Pierre’, in Oeuvres complètes de J.-J. Rousseau (Dalibon, Paris, 1826), pp. 411–412.

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 66 CHAPTER I

any single power to receive predominance over the others. This provided the basis on
which the Abbé de Saint-Pierre, for example, published his Projet de rendre la Paix
perpetuelle en Europe (1713). Saint-Pierre had been secretary to the French
Ambassador and, in view of the ‘ineffectiveness’ of present institutions of European
peacekeeping, advocated a ‘Traité d’Union’ and a perpetual Congress of (18 to 24)
European States. In 20 articles his Traité was intended to freeze the territorial status
quo and to set up a system of arbitration and free trade in Europe. Even if the pro-
posal received no diplomatic support whatsoever, it still useful reminded Europeans
of the awkwardness of agreeing to status quo plus a federal union under absolutist
monarchies. As Rousseau observed, in a fashion that could have formed the epigram
of this essay, a federal arrangement could only take place on this basis by revolution –
and in that case, “qui de nous oserait dire si cette ligue européenne est à désirer ou à
craindre? Elle ferait peut-être plus de mal tout d’un coup qu’elle n’en préviendrait
pour des siècles”.319
This sense of European unity had inspired the diplomatic and legal writings of
Leibniz who already in his metaphysical work had aimed to reach for the underlying
principles of coherence and unity of a superficially diverse world: after all, the theory
of monads was designed to operate a ‘reductio ad unum’ on the scale of creation as a
whole. In his theological work, too, Leibniz aimed at an ecumenical construction that
would cover Catholic and Protestant doctrines and be acceptable to both confessions.
His legal theory was inextricable from his moral theory and concentrated on the
notion of the world’s ‘perfection’ as both a fact about its innermost nature and the
objective to which social and individual lives ought to be geared. To attain this,
Leibniz operated with a concept of ‘wisdom’ that combined the spheres of will and
reason that had been starkly opposed in earlier natural law theories since.320 Leibniz
was extremely critical of the imperial pursuits of Louis XIV and much of his legal
work was written as a polemic against French designs for “universal monarchy”.321
But, in accordance with his unitary world-view, he was unable to give up the idea of
the world as a single community, a “City of God”.322 Even though he was clear that
the present state of European nations could and should be addressed by the concept of
‘sovereignty’, he also held that “all Christendom forms a species of republic in which
Caesar has some authority”323 and that the sovereignty enjoyed by European Princes
is compatible with a degree of supreme power in the Pope and the Emperor. For his
‘City of God’ was to be ruled by universally valid and scientific laws that ascended

319
Jean-Jacques Rousseau, ‘Jugement sur la paix perpetuelle’, in Oeuvres complètes, supra
note 83, p. 453.
320
See René Sève, Leibniz et l’école moderne de droit naturel (PUF, Paris, 1989),
pp. 69–131.
321
See especially the ironic ‘Mars Christissianimus’, Political Writings, supra note 81,
pp. 121–145.
322
See Francis Cheneval, La cité des peuples: Mémoires de cosmopolitismes (Cerf, Paris,
2005), pp. 24–34.
323
Gottfried Leibniz, ‘Caesaronus Fürstenerius’, in Political Writings, supra note 81, p. 111.

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 ‘INTERNATIONAL COMMUNITY’ FROM DANTE TO VATTEL 67

from a strict obligation not to cause injury to increasingly ‘higher’ obligations about
(distributive) justice and, finally, personal piety.324
These ideas resonate in Leibniz’ most famous 18th century follower, the rationalist
philosopher Christian Wolff (1679–1754) from the University of Halle, the leading
early enlightenment institution in turn-of-the-century Germany. Wolff was the last in a
long line of ‘old-fashioned’ or scholastic thinkers who assumed that the innermost
core of the world existed as a harmonious whole whose parts have logical relations to
each other. The purpose of natural law was to express these relations in a coherent
system of natural norms. This, he assumed, could be attained by drawing deductive
inferences from metaphysical axioms that would produce mathematically precise and
universally valid principles of morality and law. In this, he represented a completely
different, and in many respects opposed view of the world from Pufendorf’s civil
philosophy.325 While for Pufendorf law had to do with restraining passions and keep-
ing law and order, for Wolff it was above all about reaching perfection and happiness.
Where Pufendorf was pragmatic and pessimistic, Wolff was philosophical and
optimist. The world was a united community whose problems were always already
resolved in its firmament so that the only task for the lawyer-philosopher was to
make its underlying harmony visible by unobjectionable operations of deductive
reasoning.326
For Wolff, “law and politics were essentially concerned with the perfectibility of
human nature as part of the general system of the world”.327 This notion of perfection
united conventionally opposed aspects of human life: the duty to lead a good life and
the desire for pleasure. The search of pleasure was simultaneously the search for the
experience of perfection. And because perfection meant participation in the pre-
established harmony that arose from the creation of the world, it was also the highest
human good. Reason helps us to see clearly what is needed for this purpose by calcu-
lating at each moment the maximal good that can be attained by our action. In other
words, obligation does not emerge from will or command by anyone. It exists in the
world’s inner structure so that, for instance, keeping one’s promises is not obligatory
out of deference to the act of the promise but to the justice of what was being prom-
ised. We are obliged to do what is good so that, as in Leibniz, “[l]ove and justice
are brought together by wisdom”.328 In such a holistic world there was ultimately
no (tragic) discrepancy between the ideal and the real, including between the ‘inter-
national community’ and the political-institutional world that would represent it.

324
Gottfried Leibniz, ‘Prefatio to Codiex Juris gentium’, in Political Writings, supra note 81,
pp. 165–176 and further Roger Berkowitz, The Gift of Science: Leibniz and the Modern
Legal Tradition (Harvard University Press, Cambridge, 2005), pp. 11–66.
325
See especially Ian Hunter, Rival Enlightenments (Cambridge University Press, Cambridge,
2001).
326
See especially the Preface to Wolff, supra note 1, pp. 5–8.
327
Haakonssen, supra note 82, p. 260.
328
Jerome B. Schneewind, The Invention of Autonomy: A History of Modern Moral
Philosophy (Cambridge University Press, Cambridge, 1998), p. 442.

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 68 CHAPTER I

Hence the description of the international world as Civitas Maxima, logical deriva-
tion from principles of universal legality.

VII. VATTEL

Vattel received much of his conceptual vocabulary from Wolff, including the intricate
distinctions that the former made between necessary and voluntary (natural) law, and
perfect and imperfect rights. But he rejected Wolff’s rationalistic derivation of a
‘Civitas Maxima’, the ‘great republic’, as an adequate description of the nature of the
international world (whether or not it had been ever intended as such). What Vattel
seems to share with Wolff nevertheless, was an urgent sense of a need of a new
description of the world that would be coherent, bringing apparently disparate aspects
of the moral and political life together in some overarching vocabulary. Wolff had
attained this with the cost of excessive abstraction, staying too far off the common-
sense understanding of the political world and the interests and aspirations of its
actors. By contrast, Vattel’s was a language that the participants in the debates about
the sense and direction of political change in mid and late 18th century could use as a
common platform over which to debate their often contradictory projects. Vattel’s
‘International Community’ was the group of diplomats and politicians, advisors and
sovereigns to whom he wrote and whom he provided with an understanding of the
world that united their professional experience with the languages of political theory
that were looking beyond the ancien régime.
Even as Vattel rejects the rationalist construction of the Civitas Maxima, he affirms
that all States are nevertheless part of a ‘natural society’.329 They may not have for-
mally concluded a social contract so as to set up a republic amongst themselves but
they did, as a matter of history and social relationships, form a ‘système politique’.330
The notion of ‘system’ was one of the new political languages of the 18th century,
equally available in Mably and Rousseau to describe the relationship between
(European) nations. It referred back to a new kind of understanding of the political
world on a par with the natural world to the extent that in both the individual parts
were best understood as dependent on each other, reacting in predictable ways to
changes in each other and in this respect ‘organically’ related. Avoiding the vocabu-
lary of his predecessor, Vattel was able to dissociate himself from his Prussian ideal-
ism and its potentially authoritarian implications. Focusing instead on the “freedom
and independence”331 of the nation was not only more ‘realistic’. It was also politi-
cally more acceptable by highlighting the duties of the sovereigns, their ministers and
advisers to the ‘nation’ itself, supporting the liberal ideas of self-determination and
representative statehood.332

329
Vattel, supra note 3, Préliminaires, para. 21, p. 12.
330
Ibid., Livre II, Chap. III, para. 46, p. 39.
331
Ibid., Préliminaires, para. 16, p. 9.
332
See the discussion on Vattel’s rejection of any patrimonial theory of statehood in
Emmanuelle Jouannet, Emer de Vattel et l’émergence doctrinale du droit international
classique (Pedone, Paris, 1998), pp. 319–340.

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 ‘INTERNATIONAL COMMUNITY’ FROM DANTE TO VATTEL 69

Unlike the cosmopolitanism of Grotius, this view did not presume that anybody
could intervene wherever violations of natural law were apparently being committed.
Among free and equal nations, no-one may set himself up as judge. Assistance or
good offices may of course be offered. But nobody is entitled to arrogate to himself
the role of a representative of the (necessary) natural law, having an automatic claim
to act on behalf of the ‘international community’.333 At the same time, however,
Vattel’s ‘systemic’ vocabulary allowed him to speak of a ‘society of the human race’,
for example,334 and thus to reconstruct a kind of international community on the lib-
eral premise of limited altruism. By looking to their (enlightened) self-interest,
nations would be able to contribute to the good of the whole. The argument is in two
steps. One explains the nation as free and independent, both entitled and obliged to
look above all to its own good, the second shows that proper understanding of the
systemic nature of the international world reveals that the good of the nation can only
be attained by engaging in cooperation with others.
The first part of Droit des gens is an elaboration of the nation’s duties to itself. This
follows the main line of modern, individualistic natural law that liberates the subject
(as a persona moralis) to look for its own good – defined in (Wolffian, scholastic)
terms of its happiness and “perfectionment”.335 To describe the nation’s primary
duties as being towards constituted a self-evident but nonetheless welcome articula-
tion of the tasks that professional diplomats and advisers had always known they had
been assigned to accomplish. The language of self-preservation (or conservation),
‘perfection’ and happiness respected the traditions of prudent statecraft since Botero
and Henri de Rohan (Duc de Rohan) as well as Pufendorf’s civil philosophy. Under
the language of Wolffian natural law Vattel naturalised the pursuit of solus populi as a
systemic part of European public law. To do this properly meant not so much laying
out of specific rights and obligations as transmitting to the reader a sense of the con-
tingencies of the environment in which nations operated and the specific perspective
from which their representatives needed to react to them. That professional diplomats
and advisers found Vattel useful must have related to his appreciation of the impor-
tance and difficulty of their task. This constituted of a serious taking account of the
actual differences that persisted among European nations, their size, resources,
history, religion and so on, and thus the variability of policy and diplomacy that
different nations needed to heed to. Their policy – that is to say, the pursuit of their
self-perfection – needed to be carefully measured by reference to their particular situ-
ation. This is why Vattel writes, a nation:
doit se connaître elle-même. Sans cette connaissance elle ne peut travailler avec succès à
sa perfection. Il faut qu’elle ait une juste idée de son état, afin de prendre des mesures qui
y sont convenables ; qu’elle connaisse les progrès qu’elle a déjà faits et ceux qui lui rest-
ent à faire, ce qu’elle a du bon et ce qu’elle renferme encore de défectueux, pour con-
server l’un et corriger l’autre.336

333
Vattel, supra note 3, Livre I, Chap. III, para. 17, p. 38.
334
e.g., ibid., Préliminaires, paras. 11–12, pp. 7- 8.
335
Ibid., Préliminaires, paras.12–13, p. 8.
336
Vattel, supra note 3, Livre I, Chap. II, para. 25, p. 30.

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 70 CHAPTER I

In this work, there are no rules. For:

Tel règlement, telle pratique, salutaire à une Nation, est souvent pernicieuse à une autre.
Chaque chose doit être conduite suivant sa nature : les Peuples ne peuvent être bien gou-
vernés, si l’on ne se règle sur leur caractère ; et pour cela, il faut connaître ce
caractère.337

Now this is directly in the tradition of Botero and Rohan, and also of Montesquieu.
It is particularly for the sovereign, now introduced as the representative of the nation,
to know how to govern well so that the salus populi is respected. The sovereign, ‘en
Père tendre et sage’ must, therefore: “connaitre exactement tout le pays soumis à leur
Autorité, ses qualités, ses défauts, ses avantages, sa situation à l’égard des voisins
(…). Toutes ces lumières leur sont nécessaires pour bien gouverner”.338
The first duty of the nation is to govern itself well so that it becomes richer and
more powerful and its population becomes prosperous and happy. The long first book
of Droit des gens therefore deals with practically every aspect of the government of
early modern States, absolutist and republican, including issues apparently unrelated
to international law such as cultivation of lands, commerce, public works, money and
finances, religion, and justice and police.339 But in a Europe understood as an interde-
pendent ‘system’, all of such activities contribute to the relative position of the nation
and thus to the way in which its conservation and perfection, including the welfare
and happiness of its population can be attained. Even if nations are free and inde-
pendent, they are not isolated: “la puissance d’une Nation est relative; on doit la
mesurer sur celle des voisins, ou de tous les peuples dont elle peut avoir quelque
chose à craindre”.340
The duty of the nation to itself leads directly to a consideration of its relations to
others. A nation can be ‘perfect’ only if it understands the system in which it exists,
and conducts itself accordingly. This requires that its position is that of qualified altru-
ism. It should assist others especially by engaging in trade with them, though only to
the extent that this does not undermine its duties to itself. Vattel’s ideal is an interna-
tional world in which nations look for their own prosperity by a carefully constructed
policy of active trade relations accompanied by rules against monopolies and protect-
ing neutral commerce.341 But the real substance comes up in his famous endorsement
of the European balance of power. Clearly, the right of self-preservation includes the
right to prevent one’s neighbour from becoming a threat. With the examples of
Charles V and Louis XIV, Vattel reminds his readers of the need of every State to
prevent future attempts at hegemony. This need is so pressing that action may be
taken even when the immediate threat is not against oneself but rather to the system

337
Ibid.
338
Ibid., Livre I, Chap. IV, para. 41, p. 43.
339
Ibid., Livre I, Chap. VI-XXIII, pp. 73–253, that contain Vattel’s discussion of the three
‘objectives of good government’ (the fulfilment of the needs, ‘happiness’ [félicité] and
safety of the nation).
340
Ibid., Livre I, Chap. XIV, para. 182, p. 177.
341
See especially Isaac Nakhimov, ‘Vattel’s Theory of the International Order: Commerce
and the Balance of Power in the Law of Nations’ (2007) 33 Hist. Eur. Ideas, pp. 157–173.

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 ‘INTERNATIONAL COMMUNITY’ FROM DANTE TO VATTEL 71

itself.342 Of course, he concedes, power is by itself in principle insufficient proof that

one aims to dominate others. But history shows that the growth of power often gives
a strong indication of such a purpose. In case of doubt, a State may require guarantees
against future aggression from its neighbours and, failing to receive such, may have
to take measures.343 Vattel writes about a ‘reasonable presumption’ and so doing once
again refers back to prudent statecraft (and not general rules or formal procedures) as
the principal instrument for realising the nation’s duties to itself in a ‘system’ of con-
stantly changing relations of power. His preference is not in military pre-emption,
however, but in a strategy of alliances (or ‘confederations’) to prevent any single
power from rising above the others.344 All of this is well-known and reflected in the
widespread commentary and assessment of Vattel’s great significance for modern
international law and diplomacy. This significance is wholly indebted to the way he
offered a legal vocabulary to speak about the government of modern States that inte-
grated insights and directives produced in the morally suspect tradition of raison
d’état and the old-fashioned genre of advise to Princes in a larger, systemic view of
an international community of interdependent nations. It was a vocabulary that was
simultaneously ‘realistic’ and ‘idealistic’, useful for the purposes of governmental
policy and intellectual analysis and critique. This may be illustrated by reference to
one of Vattel’s most central, yet most puzzling notions, “voluntary law”.345 This has
the character of both natural and positive law in a way that appears to do away with
the distinction between the idea of the international community and its institutional
realization. ‘Voluntary law’ is understood to be that part of the law that takes into
account the specific nature of the international ‘system’. As such, it offers a view of
the world as a whole that unites the several free and independent nations as a histori-
cal and cultural community sharing a moral and a legal vocabulary that introduces
European diplomacy as part of an emerging public realm, the beginnings of a liberal
Öffentlichkeit.346
At the same time, however, it is understood to reflect their ‘presumed consent’; that
is to say, it would be what they would consent to if they possessed full knowledge of
their interests and their relative position at each moment vis-à-vis their rivals. It not
only allowed prudent statecraft but seemed to positively call for such statecraft as the
application of the ‘law’ of an interdependent world. In this respect, it marks a rhetori-
cal synthesis and transcendence Pufendorf and Leibniz, resolving the central dilemma
of modern natural law (that of voluntarism and rationalism) by a kind of a mutual
reduction. On the one hand, it appears ‘realistic’ as against the ‘Grotians’ and others

342
Vattel, supra note 3, Livre III, Chap. III, para. 44, p. 37: “il est permis, il est même louable
d’assister ceux qui sont opprimés ou injustement attaqués”.
343
Ibid., paras. 42–44, pp. 32–37.
344
Ibid., Livre III, Chap. III, para. 46, p. 39.
345
Ibid., Préliminaires, paras. 21–22, pp. 11–13 and passim. An in-depth discussion of the
‘eclectic’ character of Vattel’s voluntary law, hovering between natural and positive law, is
contained in Jouannet, supra note 97, pp. 144–164.
346
See especially, Thimothy C.W. Blanning, The Culture of Power and the Power of Culture:
Old Regime Europe 1660–1789 (Oxford University Press, Oxford, 2002).

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 72 CHAPTER I

who insist on the straight-forward application of natural law as principles of right

reason, applicable in all kinds of human relationships. This would be to ignore pre-
cisely what is specific in international relations, the nature and history of the relations
between European nations. Voluntary law accepts Pufendorf’s sociological perspec-
tive against scholasticism, and inaugurates the long international law tradition to use
rhetorically the notion of ‘international society’ as the proper context within which
nations should seek their ‘perfection’. On the other hand, ‘voluntary law’ may also be
invoked (‘idealistically’) against the specific will of any Prince. By its rationalist con-
struction of the ‘system’, it points to the need of enlightened policy, and mistakes and
incompetence in the actual conduct of foreign affairs. Something is not in accordance
with the nation’s interest merely because nation happens to do it. Distinct from con-
ventions and customs, voluntary law offers a platform from which these can be evalu-
ated and criticised in view of the appropriateness for what the ‘system’ and the
nation’s ‘perfection’ in regard to that ‘system’ requires. Voluntary law is what profes-
sional expertise tells is needed for a nation’s ‘bonheur et perfection’. In this way,
‘voluntary law’ is firmly grounded in the reality of the 18th century, while also choos-
ing from that reality progressive elements that look for a more harmonious existence
in the future. Like Mandeville’s Fable of the bees, voluntary law’s duals realist/ideal-
ist structure consecrates the liberal world-view under which private vices become
producers of the greatest public good.347
The notion of ‘international community’ in Vattel is then a world of nation-States,
governed by a ‘necessary’ natural law that liberates them to seek their own happiness
and perfection and particular conventions and customs (positive law) that express the
particularity of State interests. The gap between the two, the abstract idea and histori-
cal fact is closed by ‘voluntary law’ that looks dynamically to the resolution of inter-
national problems by an enlightened statecraft which more than just having regard to
the abstract principles of freedom and equality and particular State interests actually
reconciles them by reading each in terms of the other so as to achieve generally
applicable law. The resulting ‘voluntary law’ is a product of, and celebrates a particu-
lar class of professionals, European diplomats, and men of affairs, politicians and
statesmen who in the middle of the 18th century had no doubt that their nations were
embarked on a trajectory of progress that meant the ‘perfection’ of the natural his-
tory in which European nations would prosper in security and friendly competition
by catering to the needs and interests of their populations. In Vattel, it was finally
understood that law had no distance from intelligent policy-making. This was author-
itarianism in a democratic disguise, egoism reconciled with altruism and veiled by a
belief in an progressive harmony produced by natural law that, Carl Becker once
ironically remarked, resembled the ‘heavenly city’ of medieval theologians but
to which 18th-century moderns looked “[w]ith eyes uplifted, contemplating and

347
See generally, Albert O. Hirschman, The Passions and the Interests. Political Arguments
for Capitalism before its Triumph (Princeton University Press, Princeton, 1977/1997).

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 ‘INTERNATIONAL COMMUNITY’ FROM DANTE TO VATTEL 73

admiring so excellent a system, they were excited and animated to correspond with
the general harmony”.348

VIII. CONCLUSION

It seems remarkable, J. G. A. Pocock has recently observed, to what extent the ideas
of freedom and Empire seem both “inseparable and yet incompatible”.349 It was the
destruction of the Empire of Rome that made liberty and republicanism possible; it
was resistance to Empire that created Kingdoms that destroyed liberties. Any effort to
look beyond individual Kingdoms – the project of modern international law – may
always be challenged for appearing to recreate over and again the conditions of
Empire, under new vocabularies, new institutions, new forms of world-wide author-
ity. Between a Realpolitik that looks only at the State and (as in Pufendorf) leads
ultimately to absolutism, and what Kant labelled the (Wolffian) ‘hybris’ of abstract
universal reason, Vattel’s transformation of the problems of international politics into
those of good government of historically existing States appears liberating in its prag-
matism, its sensitivity to ‘systemic’ realities, its celebration of the anti-metaphysical
ethos of professional men and (today) women. Its dark side is that of liberal moder-
nity itself, the consequences of transforming politics into a technique, and decision-
making into a calculation of what is needed for the ‘bonheur’ of the population at any
particular moment. It buys freedom from Empire and the public law of the State at the
cost of capitalism and expert rule.

348
Carl Becker, The Heavenly City of the Eighteenth-Century Philosophers (Yale University
Press, New Haven, 2003), 2nd ed., p. 63.
349
John G.A. Pocock, ‘Foundations and Moments’, in Brett et al., supra note 34, pp. 44–45.

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