The Legitimacy of International Interventions in Vattel’s The Law of Nations
Lorenzo Cello (School of Political Science and International Studies, University of Queensland, Australia). Email:
[email protected]
[The Version of Record of this manuscript has been published and is available in Global Intellectual
History
(published
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8,
2017).
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Abstract. Although Emer de Vattel is widely acknowledged as a pivotal figure in the history of international thought, his legacy remains contested. Scholars struggle to find a comfortable intellectual collocation for what is often seen as an incoherent and contradictory thinker. The present article tackles this interpretation and suggests that the supposed inconsistencies in Vattel’s international thought diffuse once we fully grasp the nature of his intellectual intervention. In order to substantiate this view, the paper focuses on Vattel’s reasoning on the legitimacy of international interventions, as disclosed in his The Law of Nations. It recovers his casuistic mode of reasoning with reference to the historical and intellectual context from which it emerged. The article concludes by suggesting that this long-forgotten mode of reasoning offers a different entry point into current debates on international intervention and the use of force, one that might help us move beyond a merely moralistic approach.
Keywords: Vattel; law of nations; international relations; international intervention; casuistry.
1. Introduction Vattel’s The Law of Nations (1758) represents one of the most important contributions towards the consolidation of a state-centric model of international law in which formally equal sovereign states are the primary (if not exclusive) holders of duties and rights. 1 The principle of sovereign equality of the members of the society of nations, which he introduced through his work, is unequivocally sanctioned in article 2.1 of the United Nations Charter. The principle of national liberty and independence, to which he accorded great importance in his book, is also upheld in the UN Charter (art. 2.7) along with the possibility of using collective force to preserve international security and peace (arts. 39-42). Further, his conceptualisation of sovereignty as independence has been the bedrock of national declarations of independence and of struggles for international recognition that contributed to the transition from a world of empires to a world of states. 2 His work thus contributed to the formation of the European system of states, and his influence can still be observed in our contemporary post-1945 international institutional architecture. Although this might be considered a generally uncontroversial point, contrasting readings of Vattel – as a statist or an internationalist, as a ‘realist’ or an ‘idealist’, as an heir of the ius gentium tradition or the initiator of legal positivism – persist among scholars of international law, history and international relations. 3 Certainly, Vattel does not sit very comfortably in either of the two canonical podiums – that of the realists and that of the liberals – of international relations theory. While there is some value in his depiction as a ‘realist’, 4 it is worth stressing that Vattel was not arguing that inter-state relations were lawless and anarchical, a conclusion forcedly attributed to Hobbes by twentieth-century theorists of the newly established discipline of International Relations (IR). 5 Neither, for that matter, did he allow for a right (or duty) of states to use military force beyond their borders.
In order to better understand Vattel’s place in the emergence of ‘modern’ international relations and international law, this article recovers his mode of reasoning over the legitimacy of what we call today international interventions. 6 In informing judgment and deliberation on the legitimacy of intervention through the application of flexible principles as opposed to a rigid set of criteria, Vattel’s casuistry defies those modes of reasoning that too easily understand interventions as exceptions to the norm of sovereignty and its corollary principle of nonintervention. These views perpetuate an unwarranted dichotomy between politics and morality that envision intervention as either the cynical instrument of amoral politics or the impartial long hand of apolitical morality. 7 Things are clearly more complicated. Politics and morality are inextricably entangled and contestations over the legitimacy of international interventions have traditionally been embedded in broader debates about the possibilities of pursuing moral purposes beyond national self-interest, what Hedley Bull called ‘purposes beyond ourselves’ and Vattel called ‘offices of humanity’. 8 The historical reconstruction of Vattel’s casuistic mode of reasoning will be based on an understanding of the historical and intellectual context in which his work emerged, which will further help us to redress today’s misleading portrayals of casuistry as simply case-by-case reasoning. Thence, I attempt a general reconstruction of Vattel’s ‘scientific’ system of the law of nations based on the idea of the nation as a corporate moral person, describing the author’s theory of ‘popular’ sovereignty and the principle of non-intervention as they emerge from his ‘double’ law of nations (i.e. necessary and voluntary). In the second part of the article I move on to examine Vattel’s language and arguments apropos of international and colonial intervention, before bringing the article to a conclusion.
2. “The Law of Nations” in context: between natural law and reason of state Contrary to conventional wisdom, Kant’s cosmopolitan philosophy did not have a widespread impact on his contemporaries beyond philosophical circles; very little of his work was translated and read in English-speaking juridical and diplomatic circles between the 1790s and the 1880s. 9 The opposite is true of Vattel’s The Law of Nations, which was probably the single most widely used diplomatic manual in Europe, America and Asia. 10 The four books comprising it were written by Vattel during the Seven Years’ War (1756-1763) and, soon after their publication, they earned him a promotion from the position of Plenipotentiary Minister of Saxony to that of chief advisor on foreign policy to the government of Saxony. 11 It is important here to remember that at the time when Vattel was writing, ‘the international’ was not yet the independent object of knowledge nor the autonomous sphere of governmental action that it would become in the nineteenth century. Rather, it was the indecipherable field where states’ interests interplayed. The word ‘international’ itself was not even available until, a few decades later, Jeremy Bentham took up the challenge of refurbishing the English language with a series of more or less successful neologisms. 12 Yet, we can reasonably look at the sattelzeit (1750s-1830s) as the historical period when the self-reflectivity of the state inaugurated by the literature on reason of state in the seventeenth century starts to be conceived as being part of a system of states. 13 Only when states started to be conceived of as corporate persons and sovereign equals, rather than as dynastic patrimonies of rulers, could a hierarchy of powers emerge and, with it, the modern understanding of intervention as a (geo)political act conducted by states as collective actors (or corporate persons). It was not until the second half of the eighteenth century, in fact, that the right to intervene started to be separated from the broader right to use force that was previously conferred on all actors independently of their status and on condition that there was a just cause for war. 14
In order to determine ‘the rights subsisting between nations or states, and the obligations correspondent to those rights’, Vattel combined two distinct discourses. 15 On the one hand, he used natural law and the law of nations (ius naturale et ius gentium) as the overarching universalistic framework that provided him with the intellectual resources to discuss the general principles of natural rights and justice. On the other, he derived from reason of state and diplomatic literature (and practice) those customs and rules for the regulation of inter-state relations that constitute the backbone of his book. In a passage that is telling of his approach to the subject matter of his work, he wrote: To flatter ourselves with the vain expectation that men, and especially men in power, will be inclined strictly to conform to the laws of nature, would be a gross mistake; and to renounce all hope of making impression on some of them, would be to give up mankind for lost. 16 The extent to which reason of state was influential in both describing and informing political practice and government had already became evident during the Thirty Years’ War (16181648), when the publication of pamphlets, commentaries and newsletters as well as information leaked from confidential counsels and negotiations held by rulers made it clear that Europe had turned into a testing field for theories and precepts relating to reason of state. 17 Reason of state, indeed, comprised a heterogeneous body of knowledge whose main concern was not that of providing an abstract moral-legal justification for the legitimacy of political authority and its limits, but rather that of elaborating ‘knowledge of the means through which states form, endure and grow’. 18 Natural jurisprudence, instead, was a diversified discourse in which theological, philosophical and political doctrines were variously articulated in ‘the attempt to understand morality in legalistic terms’. 19 The laws of nature were considered to be eternal and immutable, prescribing the rights and duties conferred upon each human being. Rather than constituting a progressively and coherently developed body of knowledge – from theology, through natural,
to modern natural law – we should think of it as a discursive battlefield in which authors advanced their theories of social order, obligations and rights. Hence, when treating natural law as a discourse it is central to keep in mind that it harbored intellectual interventions with competing political objectives and programs.
2.1. The composite persona of the state and its liberty During the period of the European Enlightenment(s), an ‘intellectual civil war’ was unfolding between a theological-universalist strand of natural law – represented by neo-scholastic authors like Vitoria and post-scholastic ones like Leibniz and Wolff – and a more secularising-statist strand formed by Hobbes, Pufendorf, Thomasius and Barbeyrac. The latter were attempting to craft a specifically political morality that could ensure the autonomy and legitimacy of a civic government against the grip of any superior authority. 20 In this context Vattel’s The Law of Nations deserves particular attention because of its peculiar adaptation of the universalistmetaphysical natural law outlook to the geopolitical concerns of European states. Vattel agreed with both Pufendorf and Wolff that the ‘scientific’ endeavor of the law of nations was one that needed to put the nation-state as a moral person at the centre of attention. 21 Although Vattel did not clearly distinguish between the concepts of ‘nation’, ‘state’, ‘body politic’, ‘country’ or ‘society’ – tending to conflate the terms nation and state 22 – he unequivocally defined the nation-state as ‘a moral person, who possesses an understanding and will peculiar to herself […] susceptible of obligations and rights’. 23 In considering nations as human beings living in a state of nature, Vattel recognised that they were subject to all the duties and rights that nature prescribed and attributed to individuals in general. This gave rise to the image of a ‘society of nations’ populated by sovereign states as legally equal members. 24 At the level of international relations – he went on – it was up to sovereign states to fulfill the natural duties towards strangers (i.e. cosmopolitan duties or ‘offices of humanity’) that
individual human beings were hindered from performing as a consequence of their act of association. 25 Despite the Thomist-Aristotelian moral anthropology and the understanding of political obligations that he inherited from Wolff, Vattel never embraced the latter’s idea of a ‘supreme state’ (civitas maxima). 26 He certainly was an outspoken believer in the offices of mankind and the duties that nations owe to other nations, but he just as firmly opposed Wolff’s idea that nature recommended, or even prescribed, a necessary association between nations the same way it did for human beings. 27 Importantly, for Vattel the fact that the nature of individuals and the nature of states differed meant that their duties were not identical. Indeed, obligations needed to be open to modification ‘as may arise from the different nature of the subjects’; specifically, in consideration of states’ enhanced capacity to secure their own needs and sovereigns’ collective responsibility towards the nation. 28 Vattel further argued that given the peculiar corporate nature of nations as moral personae and the natural liberty that they enjoyed, ‘one sovereign cannot make himself the judge of the conduct of another’. 29 For his insistence on this aspect, Vattel can rightly be considered an early proponent of the principles of self-government and non-intervention. In his words: It is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no state has the smallest right to interfere in the government of another. Of all the rights that can belong to a nation, sovereignty is, doubtless, the most precious, and that which other nations ought the most scrupulously to respect, if they would not do her an injury. 30 A further indication of the weight given to the principle of non-intervention is provided by the way he authoritatively expounds his morally non-discriminatory conception of war and the concept of justus hostis – a legitimate, recognised and legally equal public enemy. 31 Against appeals to ‘universal monarchy’ and holy wars, Vattel believed in the importance of considering warring nations as if they both had justice on their side. 32 Indeed, for Vattel the principle of
non-intervention functioned as a bulwark to the destructive effects of competing appeals to just wars voiced by earlier authors in the idiom of natural jurisprudence (e.g. Gentili and Grotius).33 The centrality of sovereign independence and of non-interference in Vattel’s thought did not mean that there were no limits to the principle of non-intervention. More than having a moral value in itself, the latter was ultimately instrumental in ensuring an international order and preserving a society of free nations. Thus, judgments about the legitimacy of interventions (and the violation of the principle of non-intervention) were formed with reference to a plurality of moral considerations about the duties that a nation owes to itself and the duties it owes to humanity. The tension between these two set of duties that emerges in Vattel’s work has generally been seen as the result of the supposedly contradictory and incoherent nature of his treatise. 34 Nevertheless, we should be wary of this interpretation for it does not do justice to the way he addressed the issue. Vattel did not see the tension between the particularistic moral imperative to promote national interests and the universalistic one to protect human life and prevent suffering as an irreconcilable dichotomy; thus, we cannot possibly blame him for having left this tension unresolved in his work. In recent years, the accusations of logical incoherence attributed to Vattel’s work have been questioned by Ian Hunter’s portrayal of The Law of Nations as a work of ‘diplomatic casuistry’ that creates a ‘bi-polar field of judgment’. 35 In this specialised ‘art of diplomatic casuistry’ – says Hunter – ‘the natural-law principle of cosmopolitan mutual perfection is continuously adjusted – moderated, adapted, suspended – in relation to the divergent maxims and exigent circumstances of national self-interest’. 36 For Vattel the choice was not one between morality and politics. Instead of drawing a universally valid hierarchy of principles on which moral and political judgment had to converge, Vattel faced the difficulties of balancing the various particularistic moral imperatives of states and reconciling them with the universal
laws of nature by devising a casuistic normative framework for thinking about appropriate external conduct.
2.2. Casuistry and office ethics Although unknown to most today, casuistry was a characteristic mode of reasoning in early modern Europe, one that fell into disrepute starting from the mid-seventeenth century. 37 Edmund Burke, who throughout his life lavished mixed judgments on the work of his Swiss contemporary, described casuistry as follows: Duties will sometime cross one another. Then questions will arise, which of them is to be placed in subordination? Which of them may be entirely superseded? These doubts give rise to that part of moral science called casuistry. 38 This quote captures the case-based nature of casuistry understood as a contextual mode of moral reasoning. What Burke’s description does not capture, though, is the fact that casuistry was explicitly tied to an ethics of office, which recognised the existence of different moral personae to which a constellation of duties were attached. 39 Parenthood, friendship, priesthood and kingship are all examples of offices. In Conal Condren’s words: An office was an identifiable and discriminate constellation of responsibilities and subordinate rights, or liberties asserted to be necessary for their fulfilment, manifested in a persona and regarded as in some way socially necessary or acceptable. 40 Linked to an ethos of office, the role of casuistry was to mediate both within a single office between different responsibilities and among offices between alternative personae. The tension between different moral values was recognised to be part and parcel of social life; and the role of casuistry was exactly that of providing situational solutions to moral dilemmas concerning ethical conduct. 41 The notion of ‘exception’ does not have any significant place in a casuistic mode of reasoning, where the exception becomes the norm – so to speak. Casuistic reasoning was not concerned with drawing strict lines between normality and exception. The existence
of problematic circumstances was taken at face value and the moral righteousness of individual behavior was not strictly judged on the basis of a universal moral principle. Rather, ‘moral, political and intellectual judgment was a function of office and the agent was a persona’. 42 As Conal Condren puts it, ‘rights were attached not to individuals qua moral agents, but to personae tied to duties’. 43 This is indeed quite a far cry from an understanding of human agency based on the notion of a human being as a bearer of subjective rights. During the seventeenth century and increasingly during the eighteenth century, abuses of casuistry and the fear of incommensurability between simultaneously held offices led to a loss of moral credibility of ‘office-talk’ and the emergence of alternative ethical theories and normative modes of reasoning. 44 As suggested by Edmund Leites, this process was associated with a shift in Western culture from ‘the belief that the individual ought in many cases to seek the aid of others in forming his moral judgments […] to the belief that he ought to be selfreliant in such matters’. 45 Whereas ‘natural law arose from and was a projection of relationships of office’, ius – understood as right or law – was gradually detached not only from divine law but also from office. In other words, when ‘persona became person’ offices became subordinated to a single moral law and casuistry became simply unethical. 46 At this point, political judgment and moral agency started to be determined within a single moral and normative universe – whether based on a secular idea of freedom of conscience or on theological doctrine – rather than with reference to a plurality of moral duties stemming from different personae. 47 Having placed it in this intellectual context, we should now have a clearer understanding of Vattel’s The Law of Nations as a training manual for the ‘art of diplomatic casuistry’. To sum up, the state as a corporate persona was the embodiment of a moral economy and a series of formalised offices. The diplomat was one of these offices, whose persona entailed the casuistic mediation of a distinctive constellation of responsibilities in order to reach
a judgment and formulate political counsel. Appropriate political judgments and decisions required a case-by-case evaluation of specific circumstances, the balancing of contrasting but equally legitimate principles and the mediation of offices. Crucially, the value of Vattel’s diplomatic casuistry rested on the presupposition of the presence of a trustworthy, competent and morally integrous diplomatic persona; that is, a ‘friend of all nations’ that could mediate and harmonise particularistic and universalistic moral commitments.48 Vattel placed all the burden on statespersons and diplomats since he believed that the interplay of states’ interests at the international level could not be summated in a principle of universal justice but had to be harmonised as much as possible. He believed that attempts to impose international justice and to override national sovereignty posed a serious threat to the preservation of the society of nations. 49 In this sense, he saw reason of state as instrumental in safeguarding fundamental moral principles in both the domestic and the international sphere. 50 With an enhanced appreciation of the modus operandi of Vattel’s diplomatic casuistry, of the nature of his The Law of Nations and its grounding in reason of state and natural law discourses, we can now turn to considering the arguments for or against intervention in Vattel’s work. Keeping in mind the casuistic mode of reasoning that Vattel embraced, the remainder of this article takes a close look to the diverse arguments on intervention that he elaborates in The Law of Nations, where examples of legitimate ‘targets’ of intervention can be found among private and public enemies, European and non-European: from the Franks to the Goths, from the Ottoman Turks to the buccaneers and the fanatics of the European wars of religion. 51
3. Vattel on Intervention The aim of Vattel’s intellectual endeavour was not to surpass his contemporary historical time; rather, he was concerned with the conservation and consolidation of that minimal political order painfully built in Europe after a prolonged and lacerating period of religious and civil wars.
This is evident when we examine the understanding of ‘perpetual peace’ that we find in his work, which is quite different from Kant’s renowned one, hence, worth quoting at length: ‘perpetual peace […] is not to be understood as if they [the contracting parties of a peace treaty] promised never to make war on each other for any cause whatever. The peace in question relates to the war which it terminates: and it is in reality perpetual, inasmuch as it does not allow them to revive the same war by taking up arms again for the same subject which had originally given birth to it’ 52. In fact, Vattel’s deep awareness of (geo)political rationalities of state conduct, together with his declared intention of providing a useful guide to statespersons and diplomats, resulted in a ‘flexible’ law of nations oriented towards a pragmatic inter-state modus vivendi. Following Ian Hunter, Richard Devetak points out that Vattel elaborated his diplomatic casuistry by illustrating a series of cases where the national duty of self-preservation that each nation owes to itself should prevail over national duties towards humanity (i.e. cosmopolitan duties of nations). 53 The duty of self-preservation originated the right to national defence and to the legitimate use of force in order to resist an aggressor, to pre-empt an aggression (‘not upon vague and uncertain suspicions’), to obtain reparation, to punish the offender (as a measure ‘capable of deterring similar aggressions’ and to provide for ‘future security’). Finally, it gave all nations ‘a right to join in a general confederacy’ for the purpose of repressing and chastising ‘disturbers of the public peace’. 54 While criticising his predecessors’ justification of punitive interventions for gross violations of the law of nature, Vattel justified interventions in order to secure the balance of power in Europe, to repress ‘enemies of the human race’, and to colonise uncultivated land. The following discussion of Vattel’s argumentation revolves around two main dimensions of intervention: interventions for the preservation of the security and the liberties of the ‘society of nations’ and colonial interventions for the cultivation of ‘vacant land’. Importantly, in both
these dimensions, casuistry was the overarching mode of reasoning that undergirded his considerations about the legitimate causes of intervention.
3.1. Security and order within the ‘society of nations’ Vattel’s view of the state as a corporate moral person and his theory of ‘popular’ sovereignty entailed that those who governed a state held responsibilities towards their own populations as well as towards other nations. He distinguished between the inalienable bearer of sovereignty (the society or the people) and the executor of sovereignty (the prince or ‘the conductors of nations’). 55 The latter, he said, ‘derives his authority from the nation’; 56 that is, from the act of association through which a group of individuals agreed to the consensual and partial surrender of the perfect liberty and independence that all human beings inherit from nature. 57 Importantly, having the people ‘united in society only with a view to their safety and greater advantage’, their obedience to the rulers had to be considered conditional. 58 Vattel went on to argue not only that ‘by violating the fundamental laws, [a ruler] gives his subjects a legal right to resist him’, but also that ‘every foreign power has a right to succor an oppressed people who implore assistance’. 59 Here, Vattel discussed the case of King James II’s deposition during the English Glorious Revolution (1688) in order to make the argument that when rulers turn into tyrants international intervention is justified. At the same time, though, he is very careful to circumscribe this ‘right to succor an oppressed people’ by cautioning against ‘odious machinations against the internal tranquillity of states’ and attempts to invite subjects of a foreign nation to revolt. 60 This gap of normative indeterminacy that Vattel opens up is to be filled by the casuistic reasoning of diplomats and statespersons. Thus, what at first sight could be construed as a ‘humanitarian’ justification for intervention is not ultimately detached from geopolitical reasoning in Vattel. Indeed, Vattel noted that a sovereign could turn ‘his charity […] to his own advantage, to the increase of his power, and to the great
benefit of the state’. 61 The restraints that he imposed on states’ cosmopolitan duties – what we would today associate with human rights and humanitarianism – were grounded in a territorialised political morality, reason of state and international security. It was situational and prudential reasoning, rather than moral or theological axioms, that determined the flexible bounds of legitimate interventions beyond national borders. Vattel famously criticised Grotius for holding that a nation had the right to punish another nation that allowed practices of cannibalism and human sacrifice among its people. Grotius considered these practices to be violations of the law of nature that had to be punished. The problem Vattel saw with this line of argument was that it could easily be used as a pretext for legitimizing intervention in other nations’ internal affairs. In an attack on the otherwise applauded Dutch jurisconsult, Vattel writes: It is strange to hear the learned and judicious Grotius assert, that a sovereign may justly take up arms to chastise nations which are guilty of enormous transgressions of the law of nature […] What led him to this error, was his attributing to every independent man, and of course to every sovereign, and odd kind of right to punish faults which involve an enormous violation of the law of nature, though they do not affect either his rights or his safety. But we have shewn that men derive the right of punishment solely from their right to provide for their own safety; and consequently they cannot claim it except against those by whom they have been injured. Could it escape Grotius that, notwithstanding all the precautions added by him in the following paragraphs, his opinion opens a door to all the ravages of enthusiasm and fanaticism, and furnishes ambition with numberless pretexts? 62 In Vattel’s view, the right to punish derived exclusively from the national duty of selfpreservation and applied solely in circumstances when a nation’s right to security was undermined. 63 Indeed, punishment for offences committed against others than oneself was not a legitimate ground for intervention, since obtruding the offices of humanity on other nations and intervening without their consent was a violation of their natural liberty. Furthermore, the cosmopolitan duty to assist afflicted nations was an ‘imperfect’ obligation and did not give rise
to a duty to intervene. Referring to ‘the right to require the offices of humanity’, Vattel commented that ‘a nation has a right to ask for this kind of offices, but not to demand them’. 64 Each nation retained the authority to judge in autonomy whether to fulfil a cosmopolitan obligation, a ‘generous sacrifice’ that we are invited to make ‘by our own advantage, by our own safety, […] for the private good of each is intimately connected with the general happiness’. 65 According to Vattel, thus, the duty of self-preservation allowed for the use of force not only on the grounds of prudential calculations of national security, but also for the preservation of the balance of power and international security. Thus, his insistence on security was not antithetical to his insistence on liberty. Through his legitimatory framework for a conduct of the state attuned to the European geopolitical reality of his time, Vattel himself contributed to the establishment of the balance of power as a legal principle for the protection of ‘the liberties of Europe’. 66 For Vattel, this principle was a defining feature of eighteen-century Europe, which he conceived of as a ‘political system […] a sort of republic, whose members – each independent, but all bound together by a common interest – unite for the maintenance of order and the preservation of liberty’. 67 Thus, the image of a Christian respublica – and Wolff’s civitas maxima with it – is dismissed by Vattel in favor of an image of mankind as divided into legally equal nations. This was the political reality within which ‘the human race’ had to dwell in the face of its ‘enemies’. 68 The epithet ‘enemies of the human race’ that he used on several occasions throughout his book referred to warmongers and violators of the laws of war, tyrants and disturbers of the balance of power. Vattel identified ‘the most cruel enemies of the human race’ with those sovereigns who ‘fired by a lawless thirst of power’ used ‘arms without justice or reason’. 69 As a consequence of such inhumane behaviour, nations had ‘a right to form a coalition’ against ‘a nation of restless and mischievous disposition’. 70 Similarly, having first established the general
principle of the sacredness and inviolability of treaties, Vattel pointed out that those sovereigns who blatantly disregarded and disrespected their treaty obligations were ‘enemies of the human race’ and ‘public enemies’ that justified states ‘forming a confederacy’ to repress them. 71 Thus, in both cases under examination – aggressive states and those disregarding international agreements – he allowed for the use of collective force in intervening for the purpose of repressing these ‘enemies of the human race’. Ultimately, Vattel relegated those actors whose behavior represented a threat to the international order and the survival of the society of nations to a status outside civility. As we are going to see, his universalist rhetoric about humanity and its enemies is consistent with his conception of ‘civility’, which was closely linked to civil inter-state relations and ‘civil’ warfare; specifically, to the respect of the rules of ‘war in due form’ and ‘the humanity with which most nations in Europe carry on their wars at present’. 72
3.2. Civility, colonialism and the duty to cultivate the land Vattel can be considered a midway figure between the old Christian-infidel and the later barbarian-civilised dichotomies based on racial hierarchies. 73 He did not support the exclusion of nations from the society of nations based on religious, geographical or racial grounds, and argued that differences in religion should not affect the entitlements of nations and their obligations to perform their duties. 74 Furthermore, he recognised the existence of ‘American nations’ and condemned interventions justified on the grounds of a supposed ‘civilising mission’: Those ambitious Europeans who attacked the American nations, and subjected them to their greedy dominion, in order, as they pretended, to civilise them, and cause them to be instructed in the true religion – those usurpers, I say, grounded themselves on a pretext equally unjust and ridiculous. 75
Whereas Vattel excluded that states had a right to ‘civilise’ other nations – or to enforce their right to commerce with other nations 76 – he also envisaged cases of legitimate colonial intervention. His views are concisely conveyed in the following statement: The earth […] belongs to mankind in general, and was designed to furnish them with subsistence: if each nation had, from the beginning, resolved to appropriate to itself a vast country, that the people might live only by hunting, fishing, and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants. We do not, therefore, deviate from the views of nature in confining the Indians within narrower limits.77 Vattel’s choice of words is revealing here. The indigenous people of North America he refers to this time are not ‘nations’ but ‘Indians’. Yet, to fully grasp Vattel’s rationale for denying certain populations the status of a nation and to understand his justification for colonial intervention we need to refer back to Vattel’s view of the moral purpose of the state and his theory of property. Vattel believed in the importance of the agricultural self-sufficiency of nations. Indeed, he was an advocate of public granaries and of the European agricultural reform movement. 78 The state policies he supported were grounded in the cameral and police sciences that were flourishing in German universities during the 1750s. 79 In this political culture, diplomacy, war and treaty-making were treated as just another field of sovereign activity and of ‘the art of governing the state’. 80 Béla Kapossy nicely summarises Vattel’s views when he says that the principles of prudent government and the duties of ‘the conductor of the state’ towards the people amounted to the paramount sovereign’s ‘duty to secure a nation’s ability to fend off foreign intervention through good housekeeping, high-yield cultivation of agricultural land, the encouragement of trade and industry and the fostering of military spiritedness amongst the population’. 81
In Book I of The Law of Nations (‘Of Nations considered in themselves’) we learn that those laws that ‘deprive the proprietor of the free liberty of disposing of his land’ and prevent him from cultivating it ‘in the most advantageous manner […] are inimical to the welfare of the state, and ought to be suppressed, or reduced to just bonds’. 82 Indeed, ‘the cultivation of the soil deserves the attention of the government, not only on account of the invaluable advantages that flow from it, but from its being an obligation imposed by nature on mankind’. 83 This carries some important implications with respect to the legitimacy of colonial interventions, which he does not hesitate to elucidate in grim language when distinguishing between ‘savage’, nomadic and hunter-gatherer nations: Those nations (such as the ancient Germans and the modern Tartars) who inhabit fertile countries, but disdain to cultivate their lands, and chuse rather to live by plunder, are wanting to themselves, are injurious to all their neighbours, and deserve to be extirpated as savage and pernicious beasts. There are others, who, to avoid labour, chuse to live only by hunting, and their flocks. 84 These nations – he goes on – have: […] No reasons to complain if, other nations, more industrious, and too closely confined, come to take possession of a part of those lands. Thus, though the conquest of the civilised empires of Peru and Mexico was a notorious usurpation, the establishment of many colonies on the continent of North America might, on their confining themselves within just bounds, be extremely lawful. 85 Thus, if expropriation was an illegitimate practice of intervention, the colonisation of so-called vacant land was, ‘within just bounds’, legitimate for Vattel. Since ‘at present the human race is so greatly multiplied’ – he went on – the ‘obligation imposed by nature’ on every nation to cultivate the ‘land that has fallen to its share’ was ever more pressing. 86 In addressing the ‘celebrated question’ as to ‘whether a nation may lawfully take possession of some part of a vast country, in which there are none but erratic nations whose scanty population is incapable of occupying the whole’, Vattel argued that ‘unsettled habitation in those immense regions
cannot be accounted a true and legal possession’. 87 However, he specified that ‘nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate’. 88 This line of argument, and Vattel’s authority more generally, were subsequently used and abused to justify the imposition of British law in colonial settings. 89 As a corollary, the fact that the Swiss scholar himself was more concerned with European affairs – and particularly with the fragile political autonomy of his native principality of Neuchâtel – rather than with the colonial adventures of the European empires, has often been disregarded or obscured. 90 This notwithstanding, it is hard to overlook the fact that Vattel’s reasoning in favour of the impairment of native Americans’ rights and their subjection to colonial intervention was evidence of a value judgment on the uncivilised status of those people and their failure to exercise the republican agricultural virtues. 91 Indeed, if Vattel’s normative outlook was not premised on the ‘natural-biological’ superiority of European societies, a sense of the ‘historical-institutional’ superiority of Europe loomed large in Vattel’s The Law of Nations. Ignorance of other cultures, Eurocentrism and moral parochialism clearly played a role in shaping Vattel’s arguments on colonial interventions. This should not, however, obscure the fact that also in these cases the mode of reasoning that informed Vattel’s arguments on intervention was casuistic. Leaving aside these specific arguments and the language used by Vattel – which we would easily dismiss from our contemporary standpoint – this discussion has primarily aimed at bringing his casuistic mode of reasoning into view. Determining whether an intervention was legitimate required an act of balancing the natural liberty of each nation of not being interfered with, with the duty of each nation to cultivate its own land. The latter was for Vattel an obligation that a nation owed to itself and a duty towards other nations. When not fulfilled, it represented a threat to the security and welfare of all of them, not only to that of the single
nation involved. In this way Vattel relates the duty to cultivate the soil to the right to security of each nation. In the face of prolonged famines and perceived overpopulation in Europe, an improper exercise of a nation’s duty to cultivate its own land was enough for Vattel to justify colonial expansion, provided that the goal of increased land produce was pursued.
4. Conclusion This article has retrieved Vattel’s mode of reasoning about the legitimacy of intervention. Rather than one being the antithesis of the other, for Vattel intervention and sovereignty were two sides of the same coin. On the one hand, we have seen Vattel arguing that the principle of non-intervention was an effective antidote to the destructive effects of competing calls for ‘just wars’; on the other, he acknowledged that states had the right to carry out interventions in order to maintain their own safety and liberty, to preserve the balance of power and to repress those ‘enemies of mankind’ that posed a threat to the ‘civil’ society of nations. In essence, the discussion of Vattel’s arguments on the legitimacy of intervention has for all intents and purposes illustrated his casuistic mode of reasoning, which entailed an approach to deliberation based on the situational mediation of duties rather than on the strict compliance to principles and norms. By taking seriously the interplay between particular morality and universal morality within which states and state officials are caught, Vattel’s diplomatic casuistry was well placed to grasp the importance of flexible criteria for political judgment and decision making. Indeed, there is no one single formula for unravelling the tangle of politics and morality in Vattel’s jurisprudence. That is not so much the case today, where the determination of whether there is or is not a just cause for intervention does not undergo any casuistic process of deliberation. The common pretension is rather that a list of agreed upon criteria and specific circumstances – genocide, crimes against humanity, war crimes, and ethnic cleansing – can discharge this
function once and for all. The aprioristic determination of strict criteria for ‘just interventions’ reveals the extent to which the casuistic reasoning – where it occurs at all – is superficial and ultimately far removed from an ethics of office. Judgments on the legitimacy of interventions are generally pronounced today without an awareness of the specificity of the office of the diplomat and the difficulties of interpreting its persona, which involves the situational trading of a constellation of responsibilities, rights and expectations attached to the diplomatic office. The central insight that duties – specifically, political ones – are attached to an office rather than to a human being as such is very much neglected in contemporary debates about the legitimacy of intervention. Taking seriously the casuistic mode of reasoning that informed Vattel’s arguments, and its grounding in an ethics of office, means thinking about the legitimacy of intervention in terms of the inevitable mediation of responsibilities within and between offices. More broadly, casuistry is widely considered as an insufficient (or even corrupt) source of moral judgment and deliberation. Anne Orford’s interesting account of the UN’s peacekeeping operations in Congo during the 1960s provides us with a clear example of this when she illustrates in some detail the casuistical reasoning adopted by UN Secretary General Dag Hammarskjöld, whose office she treats as equivalent to an international executive.92 Orford has reservations about the grounds of judgment that Hammarskjöld adopts because – she argues – these did not provide a properly normative justification for intervention. Against Hammarskjöld’s view of ‘international executive rule as a practical or experimental process’ that resists attempts to strict formalisation and recognises the centrality of casuistry, Orford praises the advent of the doctrine of the responsibility to protect. 93 Although, on the one hand, the responsibility to protect ‘can be seen to build on the legacy left by Hammarskjöld’, on the other – she goes on – it is ‘a departure from that legacy in its attempt to offer a normative account of international authority’. 94 As Orford puts it, the latter doctrine seeks to ‘offer a
coherent account of authority through which international officials can interpret their role to themselves and to those they govern’. 95 Contrary to Vattel’s casuistic mode of reasoning about the legitimacy of interventions, such an approach is grounded on a sharp distinction between morality and interest, between the normative and the factual. Ultimately, Vattel’s diplomatic casuistry lays bare a forgotten mode of moral reasoning that forces us to question any form of ‘aprioristic ethics’, whether deontological or consequentialist. A casuistic approach identifies the locus of moral judgment within the process of mediation that takes place among multiple ethical precepts stemming from different obligations. This moral pluralism might be too destabilising for the contemporary champions of an autonomous moral self and of moral certainty, bringing about a disproportionate ‘fear of relativism’; 96 yet if there is some normative value in the retrieval of a casuistic mode of reasoning, this lies in the bulwark it provides against ‘moral imperialism’. Vattel’s mode of reasoning about the legitimacy of interventions was (and can still be) intended as a check against appeals for holy or total wars and their destructive effects. Embracing a casuistic mode of reasoning over the legitimacy of intervention could provide us with a common language across current ideological divisions, a potential remedy for normative conflict and a valuable opportunity for sensible dialogue.
Acknowledgements Early versions of this paper have been presented at the University of Queensland and the London School of Economics and Political Science. I would like to thank colleagues and members of the audience for their comments on those occasions, as well as the two anonymous readers for Global Intellectual History.
Notes
1
I use here the recently republished 1797 anonymous translation of Emer de Vattel, Le Droit des Gens. Ou Principes de la lois naturelle, appliqués a la conduite & aux affairs des nations & des souverains, 3 vols, ed. M. P. Pradier-Fodere (Paris: Guillaumin, 1863). Emer de Vattel, The Law of Nations: Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, ed. Béla Kapossy and Richard Whatmore (Indianapolis: Liberty Fund, 2008 [1758]). Hereafter referred as Vattel, LoN. 2 On the role of Vattel’s ideas on the American Declaration of Independence and, more generally, the transition from a world of empires to a world of states see Armitage, The Declaration of Independence: A Global History. 3 For a few examples of contrasting interpretations see: Linklater, Men and Citizens in the Theory of International Relations, 80-96; Hurrell, “Vattel: Pluralism and Its Limits,” 233-55; Koselleck, Critique and Crisis, 41-50; Jouannet, The Liberal-Welfarist Law of Nations; Hunter, “Vattel's Law of Nations”; Anghie, “Vattel and Colonialism: Some Preliminary Observations”. 4 Devetak, “Law of Nations as Reason of State”. 5 For a reassessment of Hobbes ‘international’ thought, its reception and its contemporary (mis)interpretation see Armitage, “Hobbes and the Foundations of Modern International Thought”; and Malcolm, Aspects of Hobbes, 432-56. For a disciplinary history of International Relations and the ‘discourse of anarchy’ see Schmidt, The Political Discourse of Anarchy. 6 For a reading that problematises the commonly held view that it was not until the 1870s that ‘modern’ international law emerged, see Hunter, “About the Dialectical Historiography of International Law”. 7 For a similar point see Sleat, “The Politics and Morality of the Responsibility to Protect”. 8 Bull, “Options for Australia,” 137. Vattel, LoN, 261. 9 Hunter, “Kant and Vattel in Context”, 479-480. 10 Many are the sources that document the long-lasting prominence of this work. Among others, Chetail, “Vattel and the American Dream”; Holland, “The Moral Person of the State,” 444-445; Mancuso, Diritto, Stato, Sovranita. Il Pensiero Politico-Giuridico Di Emer De Vattel, 223-224; Sacchi, Il Diritto Delle Genti Di E. De Vattel. On Vattel’s influence in XIX century China and in landmark cases in the history of indigenous and native peoples see Anghie, “Vattel and Colonialism,” 247. 11 Kapossy, “Rival Histories,” 5-7; Holland, “The moral person,” 442-443. 12 For a comprehensive resource on Bentham’s neologisms see the University College London (UCL) Bentham Project webpage: https://www.ucl.ac.uk/Bentham-Project/tools/neologisms. 13 On the importance of this historical period of transformation in Europe (i.e. the sattelzeit) see Koselleck, Futures Past. John Pocock followed Koselleck in defining this period as a ‘threshold period’ for modernity. Pocock, The Discovery of Islands. Lately, various studies are building on Kosellecks’s original argument and adding historical evidence of the emergence of ‘the international’. Among them, Armitage, Foundations of Modern International Thought, 30; and Devetak, “Historiographical Foundations of Modern International Thought,” 1-4. 14 Keene, “International Hierarchy and the Origins of the Modern Practice of Intervention,” 1078. A similar position is upheld in Lawson and Tardelli, “The Past, Present, and Future of Intervention,” 1236. 15 Vattel, LoN, 67. 16 Ibid., 261. 17 Rabb, The Struggle for Stability in Early Modern Europe; Hobbes and Malcolm, Reason of State, Propaganda, and the Thirty Years' War.
18
Botero, La Ragion Di Stato, 7. My translation from the original Italian: ‘Ragion di Stato è notizia di mezzi atti a fondare, conservare ed ampliare un dominio’. 19 Haakonssen, Natural Law and Moral Philosophy, 15. 20 Hunter, Rival Enlightenments, 28. 21 On the influence of Roman law on this early modern idea of the state as a composite person see Holland, “Sovereignty as Dominium”. 22 See for example Vattel, LoN, 67; 485. This interpretation is corroborated also by the editors in the preface of the book, ibid, 11. For a similar reading of Vattel’s use of these concepts see Cobban, In Search of Humanity, 200. 23 Vattel, LoN, 67. On the significance of conceiving the state as a ‘moral person’ for Vattel’s international thought see Holland, ‘The moral person’, 438-445. 24 Vattel, LoN, 10-11. 25 Ibid., 72-75. 26 Wolff, Jus Gentium Methodo Scientifica Pertractatum. For an interpretation of Vattel’s international thought that emphasises its similarities with Wolff’s see Glanville, “Responsibility to Perfect”. 27 Vattel, LoN, 15. 28 Ibid., 73. See also Kapossy, “Rival Histories,” 14. 29 Vattel, LoN, 290. 30 Ibid., 289. 31 Ibid., 509-511. 32 On discourses of ‘universal monarchy’ in early modern Europe see Devetak, “The Fear of Universal Monarchy”; Bosbach, Monarchia Universalis; Bazzoli, “Un concetto di lunga durata: la ‘monarchia universale’,” 67-74. 33 Zurbuchen, “Vattel's 'Law of Nations”. 34 Wight, “Western Values in International Relations”. 35 Hunter, “Vattel's Law of Nations,” 124. 36 Ibid.,125-126. 37 Jonsen and Toulmin, The Abuse of Casuistry, 11-16; Condren, Argument and Authority in Early Modern England, 1-35. See also Leites, Conscience and Casuistry in Early Modern Europe. 38 Burke, “An Appeal from the New to the Old Whigs,” 168. On Burke’s shifting views on Vattel see Hampsher-Monk, “Burke’s Counter-Revolutionary Writings,” 209-220. See also Pitts, “Empire and Legal Universalisms in the Eighteenth Century,”112-114. 39 Condren, Argument and authority, 6-10. 40 Ibid., 29. 41 Ibid., 172-185. 42 Ibid., 25. 43 Ibid., 33. 44 Ibid., 23-28. For two far-reaching critiques of Kant’s moral philosophy and his abstract conception of politics see Hunter, Rival enlightenments; and Geuss, “Realism and the Relativity of Judgement”. 45 Leites, “Conscience, Casuistry, and Moral Decision: Some Historical Perspectives,” 41. 46 Condren, Argument and authority, 347. 47 Geuss, “What Is Political Judgment?”. 48 Vattel, LoN, 20. See also Kapossy, “Rival Histories,” 9-10. 49 Vattel, LoN, 72-76. 50 This understanding of reason of state can also be found in Edmund Burke. See Armitage, Foundations of Modern International Thought, 154-171. 51 See for instance Vattel, LoN, 487; 507-508. On the same point see Silvestrini, “Giustizia Della Guerra e Diseguaglianza,” 399-400; Hunter, “The Figure of Man and the Territorialisation of Justice”. 52 Vattel, LoN, 663 (emphasis added). 53 Devetak, “Law of Nations as Reason of State,” 118. 54 Vattel, LoN, 654. 55 Ibid., 100. For a discussion see Mancuso, Diritto, Stato, Sovranita, 209-212. 56 Vattel, LoN, 100. 57 The stress on the partial surrender of natural liberties is an indicator of the distance between Vattel’s and Hobbes’s conceptions of the state of nature and sovereignty.
58
Ibid., 114. For Vattel’s comprehensive treatment of the role of the sovereign, his obligations and rights, see ibid., 96-112. 59 Ibid., 290. 60 Ibid., 290-291. 61 Ibid., 329. 62 Ibid., 265. 63 This is a significant departure not only from Grotius but also from Locke. Zurbuchen, “Vattel's Law of Nations,” 80-81. 64 Vattel, LoN, 266. 65 Ibid., 454. 66 On Vattel’s acceptance of the balance of power as a legal principle see Koskenniemi, “The Advantage of Treaties”. For the importance of the balance of power in Vattel’s thought see Devetak, ‘Law of Nations’. 67 Vattel, LoN, 496. 68 For a study of Vattel’s use of this category of ‘enemies of mankind’ see Rech, Enemies of Mankind, 129-192 especially. 69 Vattel, LoN, 652-653. 70 Ibid., 288-289. 71 Ibid., 387-388. 72 Ibid., 543. 73 Pitts, “Empire and Legal Universalisms,” 97-102. 74 Vattel, LoN, 268. 75 Ibid., 265 76 Ibid., 131-139. 77 Ibid., 216. 78 Kapossy, “Rival Histories,” 7-8. 79 The best known professor of cameralism at that time was Johann Heinrich Gottlob Justi (17171771). See Small, The Cameralists, 7-32; 277-282 especially. On cameral and police sciences see also Campesi, Genealogia Della Pubblica Sicurezza, 110-124; Dean, Governmentality, 102-122. 80 Koskenniemi, “The Advantage of Treaties,” 53-63. 81 Kapossy, “Rival Histories,” 7. 82 Vattel, LoN, 128. 83 Ibid., 129 84 Ibid. (emphasis added). 85 Ibid., 130 (emphasis added). 86 Ibid., 130. 87 Ibid., 216. 88 Ibid. 89 Dorsett and Hunter, Law and Politics in British Colonial Thought, 19-23; Cook, “‘The Great Society of the Human Species’,” 311. 90 On this point see Hunter, “The Figure of Man,” 305-307; Kapossy, “Rival Histories,” 5-11. 91 Tuck, The Rights of War and Peace, 191-195; Muthu, Enlightenment against Empire, 273-277; Anghie, “Vattel and Colonialism,” 244-249. 92 Orford, International Authority and the Responsibility to Protect, 69-87. 93 Ibid., 88. 94 Ibid., 106. 95 Ibid., 103. 96 On the misconceived link between methodological pluralism and relativism in IR see Jackson, “Fear of Relativism”. For a defence of the relativity of judgment and the value of normative pluralism in IR see Geuss, “Realism and the Relativity of Judgement”; and Rengger, “Pluralism in International Relations Theory”.
Disclosure Statement No potential conflict of interest was reported by the author.
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