THE SHIELD OF ACHILLES

by Bobbitt, Philip

  Wolff expressed this underlying drive for peace in a legal fiction he termed the Civitas Maxima. This Latin neologism was meant to contrast with the term Civitas, which refers to the civil society of a single state. While the Civitas Maxima can be anachronistically misunderstood as a kind of precursor to the League of Nations, it is nevertheless strikingly modern in concept. It might be best explained as a collective unconscious that influences free, self-determining actions. The Civitas Maxima is composed of a body of rules derived from the promotion of the common good. These are not moral rules, but they are rather the source of our evaluation of all rules. Where Grotius thought the contents of natural law could be found in the received traditions of Western practices, Wolff believed that the logical implications of free will—which he saw as the foundation of truth—would provide guidance. These implications would show what states ought to do to enhance their interests, which include a common interest shared with other states. Nature has created a society of states, and the self-preservation of this society also forms an interest of the constituent members of that society.

  The Civitas Maxima is a supreme state only in a metaphorical sense, composed of morally equal and free, self-determining states. The law of the “Great State” is composed of what the individual state ought to and would agree to, as well as what states have actually agreed to either by custom or treaty. Thus its laws are based, in every case, on consent, and genuine consent can only be given by free and independent actors. The sovereignty of states, which so bedevils analysts of international law who seek cooperation among states, is instead for Wolff a precondition for law based on cooperation.

  Grotius saw in a just war the positive workings of international law: war decided disputes among sovereigns the way litigation decides disputes among citizens. Rights were vindicated by victory. Wolff maintained, instead, that because war could be considered just by both parties, each following his own free judgment, the point of war was the achievement of peace, not simply of justice. Only peace would vindicate the developmental interests of a state, and thus there is no automatic legal right to pursue war in the presence of peaceful alternatives. In domestic societies, not every dispute is solved by litigation, which is an expensive and chancy way to achieve harmony, and harmony after all is an essential element in justice. If, for Grotius and the Westphalian system, victory in war determined the rightness of a cause, for Wolff and the Utrechtian settlement, peace, not war, was the central element in determining rightness. A victor cannot acquire by force of arms a right unless a peace treaty ultimately ratifies that right; this underscores the fact that the assertion of interests, not rights, is the essential duty of the territorial state. Interests are best preserved by consensus, while rights can be vindicated in the costliest and most self-destructive of conflicts.

  Toward the end of his life, the fame and drama of Wolff's early career faded. He drew fewer students. His public role had led him to style himself “professor universi generis,” which was bound to invite ridicule. Eventually even Frederick began to avoid him, and on at least one occasion expressed displeasure at Wolff's prolixity. The enormous scope of his master, Leibniz, had degenerated in Wolff's hands into a systematic completeness that was pedantic. Wildebrand referred to him as a “schoolmaster” and pointed to Wolff's “ridiculous micrology.” But though he could not save himself—his renown as a philosopher had vanished by the nineteenth century—he was saved by another, a shrewd and ironic diplomat. Emmerich de Vattel carried Wolff's name everywhere in the pages of Vattel's treatise, the most important and the most widely read essay on international law since Grotius's De Jure Belli ac Pacis.

  VATTEL

  Emmerich de Vattel was born in 1714. Like Pufendorf, he was the son of a Protestant minister, but here all similarities end. Baron Pufendorf regarded himself as principally a philosopher, although Leibniz seems to have had some doubts about this. There is a dogmatism about Pufendorf that one associates with persons who are certain not only of being right, but of being right for all the right reasons. Vattel seems to have been a more humane and engaging figure and one more attuned to reality at the same time.

  He was born in the Swiss principality of Neuchâtel, which was by dynastic union connected with the Kingdom of Prussia. At age thirty-two he became a diplomat in the service of the Elector of Saxony, returning to Switzerland as ambassador three years later. In 1758 he was recalled to Dresden as the equivalent of a modern permanent undersecretary for foreign affairs. Vattel only returned to Neuchâtel in 1766 and died there the next year. Thus for most of his life, he was a practicing diplomat in the highly complex politics of post-Utrecht Germany.

  Vattel was a man of letters. Before becoming a diplomat he had published his Defense du système Leibnitzen in 1741 and he thereafter wrote essays in a vein that recalls Montaigne, interspersing philosophical speculations with amusing and ironic observations about mankind. His fame, however, rests on one massive work. This was Le droit des gens; ou Prin-cipes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains, published in 1758.

  In this work, Vattel proposed to make Wolff's ideas on the law of nations accessible to “sovereigns and their ministers,” translating Wolff's abstractions into practical and understandable propositions that could be applied to the circumstances of diplomatic life. Nussbaum, however, has concluded that, “in reality the Book is far more than a paraphrase of Wolff's treatise. It is the work of a modern-minded diplomat who, while leaning on Wolff, systematically sets forth his own opinions on the most diverse topics of international and constitutional law.”19

  The work met with instant and widespread success. It soon attained a circulation second only to Grotius's De Jure Belli ac Pacis and, in the first half of the nineteenth century, achieved oracular authority among diplomats.20 It was immediately translated into English and German, the first editions appearing in 1760; it was in Benjamin Franklin's hands by 1775. By 1820 it had been cited by more American courts than Grotius and Pufendorf combined. By the time of Nussbaum's treatise in 1947, there had been twenty-one editions of the original French text and twenty-three translations into English (thirteen of them American).21 Partly this was due to Vattel's style of reasoning, which provided for many exceptions to any general rule and was thus available to both sides of most disputes.22 Partly, this was owing to Vattel's anticipation of the state-nation; this accounts for his popularity with American judges and political figures. But mainly it was because Vattel was reasonable and accessible, something hard-pressed politicians and diplomats appreciated and had scarcely found in the literature on international relations since Grotius, whether it was the violent narcissism of Rousseau or the detached abstraction of Wolff. Government officials needed resources to cope with the post-Utrechtian world; if there was a science of maintaining the balance of power, they wanted instruction in its principles and, more importantly, in the application of those principles.

  Le droit des gens begins with a review of Grotius and faults him for postulating universal consent as the basis for international law. This is not entirely fair to Grotius, for the consent on which he held fundamental law to be based was not a consent to particular rules but to the method of rule creation. Nor is Vattel's criticism of Pufendorf—that the latter tried to give a theological explanation for the binding character of international law—quite just. In both cases, however, the criticisms are made to set the stage for Vattel's presentation of Wolff as a humanist who grounded the law of nations upon reason and thus fulfilled the project of Leibniz.

  Like Wolff, Vattel saw the law of nations as a science of state interests. And like Wolff, he maintained a division between the natural, immutable law (which was the basis for the distinctions between just and unjust) and the acts of state (treaties and custom) that supplement this natural law. Whereas Grotius had maintained that the universal ground of law was legal method—the way in which legal rules were created—Wolff and Vattel held that the universal ground of law consiste
d in the way in which legal rules were followed. For example, it was part of the natural law that states are morally equal, each being able to apply the rules of law on the basis of the freedom to act, and thus what is lawful or unlawful for one state must be so for all. The universal ground, therefore, is the freedom to act, and this makes possible, as well as determines, the lawfulness or unlawfulness of a state's action (as when, for example, a state avails itself of a legal rule it would deny to other states). It follows that each state must be left to decide matters as the consciences of its leaders demand, and that each state owes to every other state what it owes to itself.

  Following Wolff and Leibniz, Vattel wrote that the duties of a state toward itself determine what its conduct should be toward the larger society of states that nature has established. And what is that?

  Each state must strive to develop, as well as to protect, its existence. Thus, like Wolff, Vattel gives primacy to national interests, not national rights. If states act to develop their interests, there will be more cooperation, not less:

  Nations would mutually exchange their products and their knowledge; profound peace would reign upon the earth and would enrich it with its precious fruits; industry and science and art would be devoted to our happiness no less than satisfying our needs…. The world would take on the appearance of a great Republic; all men would live together as brothers, and each would be a citizen of the universe… 23

  It is not surprising then that, for the author of such a passage, 24 the freedom of commerce is a common right of nations. Each state is free to trade as it wishes without accountability. An equilibrium of international trade will be achieved just as the unrestrained freedom of contract is supposed to achieve maximal economic results for a domestic society.

  Neither Vattel nor Wolff believed war was endemic to international relations. Because some leaders despise justice and refuse to listen to reason, there will be wars, but such persons are not merely the enemies of the states they attack but the enemies of all mankind. This fits nicely with the ideology of the balance of power, which legitimates the acts of an individual state to achieve defensible borders and collective action in favor of the status quo but disdains intervention on Westphalian grounds, that is, to aggrandize the State.

  Vattel and Wolff part, however, with respect to the Civitas Maxima. Ironically, Vattel rejects this legal fiction because he rejects the Hobbesian premise to which Wolff was responding. It had seemed to some commentators that Hobbes had posited a mortal counterargument to the Grotian system when he asserted that the one thing men had in common was a desire to take each other's property, not a charitable impulse to collaborate. Post-Westphalian Europe—indeed the entire history of the kingly state—appeared to support a Hobbesian rather than Grotian view. Pufendorf and Wolff responded in different ways to this perceived shortcoming in Grotius: countering that human beings had in common a moralistic perception (Pufendorf) and a rationalistic perception (Wolff), respectively, that inclined states toward collaboration. Accordingly, Wolff had postulated that international law would be as necessary to the survival and development of the individual state as domestic law was to the survival of the individual (even if the rational grounds for this necessity were far from Hobbesian), and Pufendorf had gone so far as to deny the usefulness of international law at all, since the laws of nature would bring about the same collaborative behavior as that sought by international law. It was Wolff's solution to the Grotian flaw that had led him to hypothesize the Civitas Maxima, a collective unconscious grounded in necessity.

  Vattel argued, however, that

  it is true that men, seeing that the Laws of Nature were not being unvaryingly observed, have had recourse to political association… [b]ut it is clear that there is by no means the same necessity for a civil society among Nations as among individuals. It cannot be said, therefore, that nature recommends it to an equal degree, far less that it prescribes it. Individuals are so constituted that they could accomplish but little by themselves and could scarcely get on without the assistance of civil society and its laws. But as soon as a sufficient number have united under a government, they are able to provide for most of their needs, and they find the help of [the society of states] not so necessary for them as the State itself is to individuals.25

  Thus for Vattel it is not natural law but diplomacy exploiting the conditions of nature that is responsible for international law. There is a universal society, to be sure, and it is the result of man's interdependence. States that wish to develop themselves can best do so in cooperation with others. But there is no necessity about this; some states may well choose to shut themselves off, as did Japan in the eighteenth century. A legal fiction like the Civitas Maxima is not true to life.

  In other respects, too, Vattel brings a fresh sense of realism to Wolff's ideas. Thus, where Wolff recognizes mere acquisition as achieving actual dominion over territory, Vattel more cautiously makes clear that possession is a prerequisite of effective occupation (and thus concludes that papal allotments of newly discovered territories are without legal force). Where Wolff places heavy reliance on the consensual effect of treaties, Vattel stresses the problems of treaty interpretation and perishability. He takes neutrality in war to be the legal effect of nonparticipation and thus dismisses Wolff's reliance on the neutrality treaties that had become obsolete by that time. Vattel takes up a number of practical problems—whether loans by a neutral to a belligerent compromise neutral status; the extent of the right of visit and search of neutral ships by belligerents to check for contraband; the sale of booty to neutrals—that have immense real-world significance but are ignored in Wolff's more philosophical treatise.

  Vattel's most important departure from Wolff, however, lay elsewhere, for the Swiss diplomat was not only the patient recorder of the legal consequences of Utrecht, but also the harbinger of events that would burst upon the world in 1776 and begin the closing of the period of territorial states altogether. The law of nations for Grotius had encouraged the absolutism of the kingly state; international law, for Wolff, aimed at rules that would encourage the enlightened authoritarianism of the territorial state. Vattel took Leibniz's ideas about free will and the aggregation of free decisions one step further and sought to advance the arrival of the state-nation, where sovereignty lay in the people and not in the ruler. Vattel argued that rulers are merely representatives of the State who act in the national interest—Frederick the Great had already claimed as much—but inquired additionally, as to the content of the national interest, and by what right had the king acted in the name of the nation? Vattel's answers to these two questions show him to be a transitional figure, linking the rationality of the territorial state to the idealism of the state-nation.

  If the national interest is determined by the duties the State owes itself—as Leibniz and Wolff had contended—then Vattel argued that first among these duties is the responsibility for the welfare of the State. The ruler, who represents the interests of the people, must sever his own personal desires and interests from those of the nation, in order that he might not sacrifice the latter to the former. “Where he personally may be inclined to forgive an injury, he may be obliged to uphold his nation's right.”26 But if the king's interest is not the same as the nation's, by what right does the king assert the nation's interests? Vattel concluded that rulers are merely representatives of the sovereign people: ultimate authority belongs to the nation, which authority is delegated to the State of which the king is the head. By this reasoning, the welfare of the State is the supreme duty of both the king (this was the rationale of the territorial state) and of the nation (the rationale of the state-nation). Sovereignty exists only when the nation governs itself; this much is clear from the argument from free will. If there is no choice but obedience, then no free decision to obey has been made, and no authority can be conveyed to the leadership. Furthermore, the personality of the State supersedes that of the king; this much is to be inferred from the contrast of the territorial
state with the kingly state. Putting the two conclusions together, Vattel argued that sovereignty is delegated to the State, not to the king, and resides in the whole society, and that society can withdraw its consent from a despot because the welfare of the State is both the duty of the leader and of the nation. As will be recalled from Book I, this takes us to the very edge of the ideology of the state-nation.

  Le droit des gens was published in French, the language of eighteenth century diplomacy, but it was not well received in France. The French had always been dubious about the role of international law. “They are all doctors,” groaned d'Avaux at Westphalia, referring to the legalistic mentality of the German delegates27 and expressing an attitude toward law that endures among diplomats to the present. There was something faintly ridiculous about a middle-aged Swiss bureaucrat from a second-rank German power declaring that the law ordained that sovereignty lay in the people and that the king was superseded by the State. Or so at least it seemed in 1758. Rather Vattel received his warmest reception in America. Citations to his great work appear frequently in the Federalist Papers, the most important interpretive document concerning the U.S. Constitution. Indeed the Federalist Papers take their legal significance from the fact that they were used to explain the Constitution to the American people and thus represent our best evidence of the understanding of the sovereign ratifiers as to what powers were to be conveyed to the new government. The importance of this fact lies in the idea of popular sovereignty; otherwise, why would it matter what the people were told in order to win their endorsement? Vattel appears in McCulloch v. Maryland, the foundation case for doctrinal argument in American constitutional law, as well as in Gibbons v. Ogden, the fundamental constitutional case construing U.S. federal power to regulate commerce.