1
“NOT EXCEPTING THE IROQUOIS THEMSELVES...”
Sociological thought and International Law
“Die Souveränität des früneuzeitlichen Staates is zwar ans
Recht gebunden, aber sie steht über den Gesetzen.
Staatraison war eine der Begründungen, mittels derer sich
die frühneuzeitlichen Herrscher von traditionellen
Bindungen dispensierten, doch gleichzeitig verpflichteten
sie sich darin auf eine neu Bindung; auf die Intressen des
Staates, und die waren keinesweges immer identisch mit
den ihren». 1
Florence (EUI), Max Weber Lecture April 2007
I INTRODUCTION
International law has always been a predominantly intellectual discipline. That is to say, its
doctrines and theories, its rules and institutions, have been conceived in abstract terms, by reflection
and literary commentary, rather than painstaking analyses of the international social world. Like all
modern lawyers, international lawyers subscribe to the adage ubi societas, ibi jus. By this they wish
to convey the sense that their law is not merely utopian speculation about immutable norms but a
real thing, to use the standard metaphor, a “reflection” of the (international) society it is supposed to
govern. But although international law developed since late-19th century in close relation to what
Duncan Kennedy has called the “second globalization of legal thought” – that is, the worldwide
spread of the critique of legal form and an emphasis on the law’s “social” basis and “function”, 2 the
suspicion among other lawyers, and indeed international relations experts, has been that
international law is particularly remote from the social world and that, perhaps, recourse to the
Latin adage has been a merely formal compliment in the direction of reigning political theory, while
the discipline itself has remained remarkably dependent on speculation about human nature and the
universal good.
1
Herfried Münkler, Im Namen des Staates. Die Begründung der Staatsraison in der frühen Neuzeit (Hamburg, S.
Fischer, 1987), 167.
2
Duncan Kennedy, ‘Three Globalizations of Law and Legal Thought 1850-2000’, David M. Trubek & Alvaro Santos
(eds.), The New Law and Development. A Critical Appraisal (Cambridge University Press, 2006), 37-62.
2
International lawyers have not themselves done much to dispel this suspicion. They have not
developed complex images of the “reflective” relationship between their rules and principles and
the international society to which they are addressed. And even where they have attempted this, this
has taken place against humanist vocabularies that have claimed validity independently of time and
place. The discipline of “international relations” was, I suppose, born to compensate for the absence
from the older academic field of credible approaches to its sociological environment.3 To be sure, as
the modern international law was born, at and around the Institut de droit international from 1870’s
onwards, its representatives were conscious of the need to link their craft with the economic,
scientific and technical developments of the age. In France, Germany, and Switzerland and, to a
lesser extent, Britain and the United States, international lawyers at the turn of the 20th century
called for “new” rules and institutions to keep abreast with the plunge into a cosmopolitan
modernity. 4 Some of them did this by expressly invoking sociological vocabularies of “solidarity”
and “interdependence” and describing their craft in functional terms as a kind of international
government.5 The “move to institutions” after the First World War was accompanied by visions
about the how the “social” was expanding beyond the State, and “sovereignty” was being replaced
international government.6 Inter-war books on international law from France and Germany are full
of sociological language sometimes focusing on international organisations, sometimes on the
internal dynamics of diplomacy, and increasingly often also to structural developments in
international economy and technology. In the 1950’s avant-garde lawyers especially in the United
States joined the teaching of legal realism with the political realism brought in by refugees from
Europe. Realistic descriptions of international law as a social “process” alternated with liberal views
about interdependence and individualism. 7 Today, international law is eagerly adopting political
science vocabularies about effective regimes, legitimacy and compliance – and learns to speak the
language of globalization – to buttress its sociological respectability.
3
For one delightful early working attempting precisely this, see J. K. Stephen, International Law and International
Relations. An Attempt to Ascertain the Best Method of Discussing Topics of International Law (London, Macmillan,
1884).
4
I Have discussed this in The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960
(Cambridge University Press, 2001).
5
Especially so in France, see Koskenniemi, The Gentle Civilizer, supra note 4, Ch. 4.
6
See David Kennedy, ‘The Move to Institutions’, 8 Cardozo Law Review (1987), 841-988.
7
Myres S. McDougal, ‘International law, Power and Policy. A Contemporary Conception’, 82 RdC (1953), 113-259.
3
Despite all this rhetoric, recourse to sociological studies of international law remain largely absent.8
Why is this? I suggest it is because “the international” is not for lawyers at all a sociological
category. It is neither a place nor a group, neither a structure, nor a function nor process. Instead it
is a project. It is a project that does not recognise itself as such. And hence, seeking scientific and
political credibility, international law uses a social science vocabulary in a way that tends to lead it
into the familiar impasse between idealism and realism, utopia and apology, which is so frustrating
for insiders and outsiders alike. The problem is this: The profession is committed to a
“progressivist” reading of international law that makes it attractive for ambitious minds but is not
defensible in sociological terms. It consists of two related assumptions. A first assumption depicts
the rules and principles of international law as limits to sovereign behaviour. The world, so the
assumption goes, has been divided into several states that may be provisionally necessary as
instruments for human purposes. One must, however, be constantly aware of the dangers involved.
It is the task of law – and in particular international law – to limit state power so that it does not
become an intolerable burden on natural human flourishing. This idea – the view of law as limit to
state power – is connected with another assumption. According to this, progress means the gradual
replacement of statehood by a universal federation of humankind. Kantians or not, international
lawyers view of international law as a path to a single cosmopolitan world, a united humanity in
which individuals enjoy natural rights in harmony.
These assumptions tend to push into extreme positions: the world is either apprehended as anarchy
of dangerous sovereignties, or it is viewed under a universal teleology under which its problems
have been already resolved. Neither works as a plausible sociology or basis for effective reform.
The problem lies with the separation of two contexts of meaning – the state and the world – and the
a priori linkage of each with a positive or negative value. Yet no such separation can be maintained.
On the one side, the international world can be grasped only by reference to the policies of states.
To think otherwise appears “utopian”. On the other, statehood can only be assessed from the
perspective of universal principles. Anything else will be an apology of power. This dichotomy of
state and world, sovereignty and law, and the homologous disciplinary division into “international
8
Most of the works discussing international law in its social “environment”, with special reference to “functions” and
“effectiveness” comes from a political-science oriented literature in the United States in the 1950 to 1970s. Aside from
the work of Myres McDougal and his “policy-oriented school”, examples include Michael Barkun, Law without
Sanctions (Yale University Press, 1968); William Coplin, The Functions of International Law. An Introduction to the
Role of International Law in the Contemporary World (Chicago University Press, 1966); Morton Kaplan & Nicholas
Katzenbach, The Political Foundations of International Law (New York, Wiley 1961) and many of the essays in Karl
Deutsch & Stanley Hoffmann, The Relevance of International Law (Cambridge, Mass. Schenkman 1968).
4
relations” and “international law” sets up the interminable circle of “utopia” and “apology” in
which neither position can be plausibly held in view of the critiques produced by its counterpart.9
This lecture is about work in progress. I am interested in the play of idealism and realism, utopia
and apology that characterises not only modern international law but our imagination of the limits
and possibilities of political change more generally. My sense is that the state and the world cannot
be usefully separated from each other, and that above all, there is no reason to build upon a
historical teleology leading inexorably from the former to the latter. If the critiques of “apology”
and “utopia” are correct, then no beneficient transformation depends on whether we move from the
state to the world or vice-versa. On the contrary, to stare at the level of government is to look at the
wrong place. More important is how government operates and with what effect. Like cosmopolitan
liberals generally, international lawyers tend to celebrate the move from the state to the world as a
move from power to law. For them, “power” is the source of political evil and the right way to
combat it is through “law”. This cannot be right. “Power” is the source of evil and good and it is no
less “power” by being channelled through law, domestic or international. To think otherwise is to
isolate “legal” power from political critique and to limit contestation to formal channels of
representation. Law is a limit to power but it also an instrument of empowerment. Any meaningful
political project is a project to seize power and to use it though law.
The association of statehood with “power” and the international world with “law” may have been a
useful move in the early 20th century when the gravest threats to freedom and human flourishing
came from totalitarian states. International law was then a progressive political project.10 Statehood
is no longer a privileged realm of power, however, and the “international” bears no intrinsically
critical meaning. If “power”, law and government are everywhere, as analyses of global governance
suggest, then political critique must be everywhere, too. A realistic analysis and critique of law
cannot rest satisfied with identifying formal “levels” of governmental power such as domestic,
regional or universal. Instead, it must see power embedded in an unlimited form of interactions
between human beings close to and far away from each other, in structures and discourses often
expressed in vocabularies of truth claiming status of or translation to “law”. To examine these
informal interactions between social power and international law, I would like to evoke the spirit of
early modern natural law for which sovereign power and universal law, empirical facts and
9
I have discussed this problem at length in my From Apology to Utopia. The Structure of International Legal Argument
(Reissue with New Epilogue, Cambridge University Press, 2005).
5
reasonable rules were aspects of one single sociological reality, manifested in the emergence and
government of modern states. If it is true that the “progressive” international law we know arose as
a minor aspect of public law in the late-19th century, I would now like to examine its prehistory, the
moment when international law was still spoken of as an inextricable and beneficial aspect of the
government of modern States, a technique for preserving and extending the security and welfare of
populations, pointing to ways in which governmental authorities were both constrained and enabled
by the social conditions in which they acted. I want to suggest that international law as natural law
did not consist of the abstract and inflexible maxims that later accounts have suggested but formed a
vocabulary through which new types of political power could be both justified and criticized in
professionally plausible ways.
I cannot here attempt to produce a full prehistory of international law. Instead I will just make some
observations about how the law of nations (Droit des gens, Völkerrecht, or jus gentium in its
“modern” meaning) arose as the vocabulary of the government of modern states in their external
relations in the period from approximately 1500 to 1800. This is an international law that is
conscious of being part of the exercise of power, simultaneously authorising and limiting particular
kinds of action. In the first part I shall examine how the ideal of universal monarchy was set aside
by a vocabulary of ragione di stato in Florentine political debates by the early 16th century. The
conditions of Northern Italy suggested a particular way to think about government that focused on
the unchanging conditions of ruling states. In the second part, I will look at how the vocabulary of
natural law in late-17th century Germany adopted and updated the teachings of the reason of states
into a scientific outlook on ruling large populations in Europe and elsewhere. In the final, third
part, I will draw some conclusions from the experience of the decline of Florentine republicanism in
the 16th and the emergence of North European absolutism in the 17th centuries to the ways in which
we today speak about globalization and its challenges to international law and government.
International lawyers themselves trace their profession to the 16th and 17th centuries where new
vocabularies sought to articulate the emergence of statehood as the centre of a new world. They
spoke about universal laws of social life that, as confidently assumed by Montesquieu, would cover
the whole of humankind “...not excepting the Iroquois themselves”. 11 This may be true. And the fact
that there are no longer any Iroquois tribes will have to be the measure with which we weigh our
shared globalising modernity.
10
I have argued this in ‘The Fate of International Law. Between Technique and Politics’, 70 The Modern law Review
(2007) 1-32
11
Montesquieu, The Spirit of The Laws,
6
7
II: ITALY
Medieval law operated without a concept of statehood embodying supreme secular value. Political
community was articulated through feudal relationships of personal allegiance to which legal sense
was given through the scholastic synthesis of Christian morality and Aristotelian politics. Secular
statehood challenged that synthesis. Concentration of power in the hands of the territorial ruler was
completely at odds with a legal theory that presupposed the Pope’s or the Emperor’s overlordship.
In Northern Italy, for example, the gap between law and experience was illustrated in the 14th
century in Bartolus’ odd view that although the Emperor was dominus mundi – ruler of the whole –
he was not ruler of its parts.12 When statehood became the exclusive focus of political debates and
pursuits in the writings of the Italian civic humanists in the 15th and 16th centuries, the conceptual
and physical worlds beyond it were reduced to a shadowy realm of (essentially non-political) fears
and opportunities, instruments rather than purposes, economics and civil religion on the one side,
the respublica universalis on the other. Although diplomats travelled across Europe since the 13th
century and treaties – especially treaties of alliance and peace – were routinely concluded by
European Princes, none of this was understood in terms of the regular management of an
independent “international” realm. As Joseph Strayer notes, “[i]n Europe without States and without
boundaries, the concept of foreign affairs had no meaning, and so no machinery for dealing with
foreign affairs was needed”. 13
This is not to say that there would not have existed governmental techniques before the writings of
the renaissance civic humanists. On the contrary, there was a vigorous literature that gave advice to
princes on how to govern so as to attain the bonum commune or utilitas publica.14 The special
contribution of the novel literature was to abstract from moral or theological views about the
common good and to encourage a “situational” analysis of secular statehood where the persistence
and strengthening of the state itself became the focal point of politics. This is radically different
from the medieval articulation of the political community as a “corpus mysticum” that united the
prince and his subjects as the “head” and the “body” between which any tension was excluded a
12
Hinsley Sovereignty, 81-82; Pagden, Lords of All the World, 27-28.
Joseph Strayer, On the Medieval Origins of the Modern State (Princeton University Press, 1969/2005), 27.
14
On the medieval “Fürstenspiegel” (mirror of princes) literature, see e.g. For a discussion of this literature in Italy as
part of the Aristotelian “politics” of striving for the “common good” before the Florentine renaissance, see Maurizio
Viroli, From Politics to Reason of State. The Acquisition and Transformation of the Language of Politics 1250-1600
(Cambridge University Press, 1992). 11-125.
13
8
priori by the definition of the prince in terms of his representative capacity. 15 The prince’s action
was always also the action of the community, and the point of that action was to assure not only the
continuity but the perpetuity of the rule that it embodies. This was a radically a-historical and
unitary concept of political rule, part of what Walter Ullmann has termed a “descending” theme of
government that would ultimately derive itself from God.16 The North Italian humanists set it aside
precisely because in being so, it could not integrate the experience of historical states collapsing and
emerging as a result of the political choices of their rulers.
A sociological and historical understanding of political power, in contrast to philosophical
derivation of rational conclusions from moral premises, emerges in the vocabularies of reason of
state (ragione de stato, ratio status) that seek to grapple with the precarious conditions in Northern
Italy in the early renaissance. Contrary to the theocratic kingdoms of Britain or France, the Italian
cities could not make claims about their eternal existence.17 Political analysis now begins to focus
on the actual conditions in which political communities existed, directing attention on what, in view
of the situation of each community, was “necessary” to secure it against internal and external
threats. Instead of speculating about good government in the abstract, politics becomes a technique
of government of limited territories in view of their specific circumstances. The point of
Machiavelli’s The Prince (1513) was to speak of the business of ruling not as it was imagined but
as it was in historical time, focusing on what experience suggested was needed to maintain and
strengthen the state.18
Machiavelli’s work is notoriously ambivalent.19 In particular, he uses the notion of “state” – a term
with many etymologies20 – to denote both a particular regime or rule as well as the political
community, the republic or the city-state itself. This duality supports contrasting views of
15
The classic is, of course, Ernst Kantorowicz, The King’s Two Bodies. Study in Medieval Political Theology (Princeton
Universoty Press 1957/1995). A very useful discussion of the contrast between the legitimation of medieval
government by the “bonum commune” in which the status régis and the status régni are inextricable aspects of the
whole and the “reason of states” as it emerged in Florentine civic humanism is Christian Lazzeri, Introduction, Henri de
Rohan, De l’intérêt des princes et des États de la chrétinté (Paris, PUF 1995), 24-57.
16
Walter Ullmann, Law and Politics in the Middle Ages. An Introduction into the Sources of Medieval Political Ideas
(Cornell Universaity Press, 1957), 31 and passi. I have used this previously in my From Apology to Utopia. The
Structure of International Legal Argument (Reissue with a new Epilogue, Cambridge University Press, 2005), 76-89
17
Lazzeri, supra note 15, 58-59.
18
“I have thought it proper to represent things as they are in a real truth, rather than as they are imagined”. Machiavelli,
The Prince, p. 50.
19
A complainrt made by practically all his students. See e.g. Viroli, supra note, 126-128; David Boucher, Political
Theories of International Relations. From Thucydides to the Present (Oxford University Press, 1998), 90-91.
20
See e.g. Münkler, 171-173; Lazzeri, supra note 15, 47-50.
9
Machiavelli as an advocate of princely authoritarianism and a republican patriot.21 Nevertheless,
key to his work is the articulation of the social in terms of “fortuna” that is juxtaposed to with
“virtù”, two much-debated technical notions that connote succession of unpredictable contingencies
that cannot be brought under human control but to which it is still possible to prepare by adopting
the right attitude or frame of mind. The latter is the nucleus of successful statecraft and what
distinguishes the pursuit of republican vita activa in Machiavelli’s ideal world from the search of an
ethically or theologically coloured “common good” in medieval rhetoric. 22 The counsel Machiavelli
offers Lorenzo de’ Medici on what is required for the purpose of the maintaining and strengthening
the liberty of Florence (and Lorenzo’s own position) against internal and external dangers are of
course not those of conventional morality. “You must realize this: that a prince, and especially a
new prince, cannot observe all those things which give men a reputation of virtue, because in order
to maintain his state he is often forced to act in defiance of good faith, of charity, of kindness, of
religion”.23 Fully emancipated from morality and abstract justice, virtù looks single-mindedly into
the real conditions faced by the government. Machiavelli was not alone in seeking to transform the
old Fürstenspiegel literature from moral education to an autonomous discipline of effective rule.
Francesco Guicciardini’s Dialoggo del Reggimento di Firenze (1524), set at the outset of the brief
period of republican rule in Florence (1494-1512), is even more explicit. Here the Medici loyalist
Bernardo del Nero – Guicciardini’s mouthpiece – not only identifies good government with
effective government but assumes that this is what everybody does:
“For I believe that to know which government is better or less good, one ought to
consider only its effects, and that an illegitimate government is usually judged bad
because in the ordinary course of events it usually produces bad effects”. 24
And to drive the point home, he concludes that although it would be preferable to rule by mercy and
kindness, in fact there are times when one “must use cruelty and unscrupulousness” in order to
control governments and states. In speaking thus, and in advocating, for example, murder and
imprisonment, Guicciardini was ready to admit that he “didn’t perhaps talk like a Christian; [but
that instead he] talked according to the reason and practice of states”.25 His vocabulary had
21
Viroli,
Machiavelli compares fortuna with “violent rivers” that tear down everything from their way and which cannot be
stopped but can still be diverted or controlled. In the end, he writes, “it is probably true that fortune is the arbiter of half
the things we do, leaving the other half or so to be controlled by ourselves”, The Prince, 79.
23
Machiavelli, The Prince, 57
24
Francisco Guiccardini, Dialogue on the Government of Florence (Alison Brown ed., Cambridge University Press,
1994), 13.
25
Guiccardini, Dialogue, supra note 24, 159.
22
10
emancipated itself from morality and theology, and focused simply on the techniques needed to
maintain and strengthen efficient, and thus beneficial, rule in a difficult situation.
Yet one ought not to exaggerate the degree to which Machiavelli thinks cruelty or treachery is
needed in the regular government of States.26 True, it is better to be feared than loved. But it is
worst of all to be hated.27 The soundest foundations of any State are good laws and good arms; but
it is only the latter that apply to the conduct of external affairs. In The Prince and elsewhere,
Machiavelli speaks of the control of foreign affairs as a precondition of domestic order and liberty.
And this depends solely on “being well armed and having good allies”.28 Neither the adoption of
neutrality nor a balance of power can compensate for the need for the ruler to remain a “lion and a
fox” in the conduct of foreign policy. Here, fortuna cannot be chained by permanent arrangements
or promises: “a prudent ruler cannot, and must not, honour his word when it places him at a
disadvantage and when the reasons for which he made his promise no longer exist”.29 Also there
are no absolute rules for governing wisely: As Machiavelli puts it, sometimes the nobles should be
embraced, sometimes alienated, sometimes fortresses should be built, sometimes razed to the
ground. Sometimes one had to speak for, sometimes against war, and so on, as circumstances
require.30 “It is impossible to give final verdict on any of these policies, unless one examines the
particular circumstances of the state in which such decisions have to be taken”.31Machiavelli’s
understanding of the social conditions in which states acts in their relations with each other draws
on an extremely pessimistic view of human nature. “[M]en are wretched creatures who would not
keep their word to you, you need not keep your word to them”.32 In view of the constant warfare
and external intervention in Northern Italy through the 15th century, this view was certainly
understandable. Machiavelli’s history of Florence, for example, is full of stories of the doing and
undoing of pacts between princes, of creed, treachery and violence in the relations between the citystates themselves.33
It would be wrong to think that under such a view there can be no international law in the sense of
instruments of (prudent) statecraft – treaties or alliance and peace for example. But those
26
The Prince was written to give counsel to a new prince whose rule was still uncertain and who had to consolidate his
position against previously powerful families.
27
Machiavelli, The Prince, 54.
28
Machiavelli, The Prince, 59.
29
Machiavelli, The Prince, 57.
30
Münkler, 228-321.
31
Machiavelli, The Prince, p. 67.
32
Machiavelli, The Prince, 57.
33
Niccolo Machiavelli, History of Florence and the Affairs of Italy (The Echo Library, 2006).
11
instruments enjoy no transcendental or normative validity beyond the force of the reasons that
brought them about. They are what virtù requires in its nervous attempt to chain fortuna. But
Machiavelli and Guicciardini provide contrasting accounts about how this can best come about.
Machiavelli admires the vita activa of Republican Rome. Although in The Prince he accepts the
return of the Medici as a fact, and hopes to be enlisted as an advisor, in the Discourse on Livy and
elsewhere he celebrates Roman citizenship in which virtù was generalised and conflict of opinions
was not a danger to the republic but a manifestation of its vigour. Only a combative and agonistic
civil life can prepare a people to face the contingent pressures that politics creates, and to face up to
internal and external enemies with the required determination. Machiavelli criticized the use
mercenaries and saw citizen participation in the army an essential part of training in virtù. By
contrast, Guicciardini’s hero is the Medici loyalist who was executed during the Republic. In his
view the kind of statecraft needed to preserve the state did not belong to the masses. The people
were unfit to rule: they “make ready and rough judgements, they don’t distinguish and weigh things
carefully, so that they are easily deceived by someone who attempts to appear good”.34 Both authors
insist that there are no general rules for governing wisely but where Machiavelli sees this as the
basis for the need of an active citizenry, Guicciardini believes that the required type of practical
wisdom must remain limited to select individuals, the law-givers, assisted by the best advisers,
experts and professionals.35 Guiccardini’s ideal is Venice – an oligarchic government resorting to
the use of Condottieri and, especially, an extensive and professionalised practice of diplomacy.
Machiavelli and Guicciardini were developing two alternative approaches for how to think about
government that was limited in space and time and did not seek a justification from transcendental
principles. Those approaches were as applicable in the conduct of internal as well as external affairs
of the state, and diverge in the logical manner. For Machiavelli, the “international” did not have any
specific identity as a field of politics or a set of problems: it was either a potential target of imperial
policy, or then it was source of threat – that is to say, the imperial policies of other States. Even as
Machiavelli had extensive experience of diplomatic practice, he did not believe external relations
could be subsumed under permanent structures of rule such as balance of power. War was an
endemic aspect of the policies of ambitious rulers. For both Florentine authors, the old language of
Respublica Christiania and universal monarchy connoted abstractions behind which particular
rulers – the French and Spanish kings, of course Charles V – hid their designs on the resources of
34
Guicciardini, p. 42.
12
Northern Italy. To have a Medici as Pope was better than to have a Borgia, at least if one was
Florentine oneself. But Papal “Tyranny” remained a constant source of concern. Machiavelli had
little else to say abut religion than what he said about the ambitions of Ecclesiastical Principalities
in Chapter XI of the Prince. When the imperial army sacked Rome in 1527, the vocabulary of
universal empire was still being offered by scholastic lawyers drawing upon Roman Law and
Dante’s Monarchia.36 But the world could hardly be ruled from Madrid (even as it might have
seemed like that for a brief moment after 1494). Imperial rhetoric was out of touch with
sociological reality.
After the demise of “Christendom” as a political entity on its own right, no distinct political realm
beyond the state was left. For Machiavelli, the power and ambition of States was limited only by the
power and ambition of other states: there was no realm “in between”. Decisions about external
affairs were merely one more aspect of the technique of government the point of which is to
strengthen and preserve the state and the present rule over it. This meant that only a belligerent,
imperial power could look with some tranquillity into the future. Guicciardini’s international world
looks different. He admired the Venetians’ advanced practices of diplomacy that had enabled it to
concentrate on trade and to avoid war for such a long time. Diplomacy is needed to create alliances
and assess realistically the threats that one faced with and to operate systems of common or
reciprocal interests, especially trade. Here there is an “international” realm – a realm of cooperation,
sometimes conflict – between the States that they can use in order to bring about those utilitarian
objectives for which they are created. Machiavelli’s strong view of fortuna does not allow him to
canvass even a relatively steady system of international “rule”, as distinct from the rule over the
state; for Guicciardini, a specific diplomatic craft can be operated so as to manage “international”
affairs to the attainment of the utile that is the point of rule. In the one as well as in the other case,
however, the point and purpose of government was now wholly immanent to statehood; to
strengthen and maintain the state, and present rule over the state, conceptualised sometimes under
an old view of the “liberty” of its people, but increasingly often as its securitas.
By the time Florentine republicanism was over, the language of reason of States (ragione di stato,
ratio status) been established as part of the novel “Machiavellian” approach to statecraft (although
the term itself is found in Guicciardini, not Machiavelli himself) that focused exclusively on the
35
This is why Guicciardini thinks the constitution of Venice as “excellent”: “The Doge, the Pregadi, and the select
principal magistracies exercise the care and vigilance that a prince or an optimate regime enjoys, by the concentration of
activities in the hands of experts”, Dialogues, supra note 24, at 134. See also Lazzeri, supra note 15 , 62.
13
secular, social conditions of the government of early modern states.37 Political writers sought to
preserve Machiavelli’s sociological realism without provoking the moral indignation his name was
associated with. They did this by making distinctions between “bad” and “good” reason of States or
between ragione dominationis – reason serving the Prince in his private capacity – and ragione di
stato under which Prince’s selfish interests were separated from those of his State.38 The most
famous tract in this vein came from a counter-reformation writer, Giovanni Botero. In his Ragion di
stato (1589) exceptional measures to protect the state were argued as perfectly compatible with the
Prince’s Christian duties. For writers like Botero the equation worked both ways; nothing was better
for the Church than to have princes think their professional tasks as part of religious duty, while at
the same time whispering to them – as Botero did – that “...of all religions none is more favourable
to rulers than the Christian law”. 39 Botero and others had no regard for republican virtue; they spoke
to Kings and their counsel, and the Christian love they saw as compatible with the “good” reason of
states, was an instrument of absolutist rule. It introduced as instrumentalist view on religion that
became the avant-garde of late-17th and early 18th century natural law.
In other words, reason of state did not mean that the Prince would not be bound. It only put in
words the real conditions under which the early modern ruler could preserve, strengthen and enlarge
the state. It modernised and updated the medieval Fürstenspiegel – mirror of Princes – that had
since the 13th century laid out principles of Christian rule. The important point about this
development is that it for the first time portrayed governing as a matter of applying professional
techniques instead of either mass politics or princely intuition. It became the language of authority
for a small group of experts that could use it to discipline the subjects and the Prince alike. 40 The
force of this literature was epistemological; it claimed to capture the real – “sociological” –
conditions within which the Prince had to act in order to preserve his realm. The books usually
accepted the view that in human matters, nothing could be predicted with 100 per cent accuracy;
fortuna was omnipresent. To deal with it, the Prince had to develop the appropriate mindset, a
coolness and ability to reason.41 This was not at all against Christian virtues as taught by Erasmus,
for example, to the young Charles V.
36
See Pagden, Lords, 29 et seq, and on Charles V and Gattinara, 41-46.
For two useful histories, see Michael Stolleis, Staatsraison jne.
38
Sometimes concern with the exceptional was projected to a ragione di guerra that allowed deviation from a morality
of peace Munkler, 218.
39
Giovanni Botero, The Reason of State (P.J. and D.P. Waley transl., London, Routledge 1956), p. 66.
40
Münkler, supra note 1, 148-158.
41
Skinner, Foundations I, p. 118-123.
37
14
Now reason of state spoke predominantly of the internal conditions of the realm; the external
conditions were articulated in terms of State interest. What did that external world look like? The
world we now call international? Now students of Renaissance thought emphasise the emergence of
ragion di stato and Florentine civic republicanism precisely from the collapse of Christian
universalism. They were sceptical about universal truths but even more so of the claims of
particular actors – the pope or the empire – to represent it. Against this they set Roman greatness
that lay not so much in the universal reach of Roman laws as in the virtue of its citizens. The full
separation of grace and politics, religion and rule made it impossible for Machiavelli and others to
think in terms of an independent “internationals”, even less “universal” realm. It was always only
the extension of some power, some technique of rulership with ambitious goals. This is why
Machiavelli’s ideal is a militarized way of life as part of the virtù on which the freedom and security
of the republic are based. It was only natural that this militarised virtue would extend beyond the
original boundaries of the city; this was the case of republican Rome. In Machiavelli, the only
thinkable life outside the city that was anything but unfreedom was life in a brilliant empire such as
Rome became. Rome, as Pocock has pointed out, seems to have achieved subordination without
conscious loss of freedom.42 The secret of that equation lay in republican virtue, the only solid
secular universal Machiavelli could find – and one that could later integrated in Christian political
theory, too, after the Augustinian distinction between a Civitas Dei and Civitas Terrena had been
made.
Of course, Machiavelli knew of and had participated in North Italian diplomacy. By 1500 it had
been formalised as a permanent practice of ambassadors and permanent archives were established
from diplomatic despatches in order to design foreign policy. 43 The emergence of the diplomatic
profession tied Princes to the expert advise they received from ambassadors and their secretaries. In
Venice that was ruled in an oligarchic vein this advise led to the constant search for a balance of
power. Machiavelli believed in fortuna and virtù – not balance of power; empire was a far safer
basis for government. The contrast between republicanism and elitism – Florence and Venice – is
also that of empire and the status quo, military virtue and capitalism. This contrast spread to the
idea of law: either it is given by a benevolent law-giver such as the grand council in Venice – at the
same time a collection of trading interests geared towards growth and welfare. Or then it is given by
the people; but this must be a people of virtù, a militarized and a conquering people.
42
43
Pocock, The Machiavellian Moment, 216.
Münkler, Nicholson
15
For Machiavelli as well as Guicciardini their principles of government are equally relevant for the
internal and the external world. Neither has a view of the international, or the universal, as an
independent social space, detachable from the ambition or fear of this or that ruler. But their
political projects differ: for Machiavelli’s popular republics, the world outside the City is either that
of fear or empire. For Guicciardini’s commercial oligarchy, it could always be manipulated by
diplomats and Condottieri into a reasonable balance. Machiavelli saw the balance at most a
temporary breathing space as the “international” remained a space for expansive designs of
ambitious princes. For Guicciardini’s commercial republics, the use of Condottieri and a highly
professionalised diplomacy as well as neutrality in war whenever possible would guarantee the
republic’s constant growth. For both, just war is that war which is “necessary”.44
When lawyers start debating the possibility of the prince’s external actions in rules of law, their
focus is on the two ways in which Princes communicate with each other – diplomacy and warfare.
The first such lawyer of note – Alberico Gentili from Italy who made his practice as a Protestant
refugee in Britain – “openly praised Machiavelli in his De legationibus of 1585”.45 In his main book
on war Gentili fully accepts that wars must be waged when that is necessary. “No-one ought to wait
to be struck, unless he is a fool”.46 Gentili’s argumentative basis is Roman law and the very wide
latitude that he gives to princes to enforce their policies against each other and against the infidel,
and to colonize barbarians’ lands and to break treaties with enemies reads like a reason of state
manual written in a legal vocabulary. For diplomacy, the state of exception remained omnipresent.
War and conflict was the reality of 16th and 17th century. Even Grotius and Althusius allow
preventive war and recognise the need to killing civilians in a just war – now conceptualised in
completely reason of state terms, as a vindication of rights. Also the move from the law ad bellum
to the law in bello is a reason of states move. No substantive normative order regulates this.
Scholastic authors or even Grotius had little to say about those external conditions – apart from
suggesting a set of morally based legal rules to limit warfare. Only Hobbes drew briefly the
consequence that the rejection of scholasticism entailed: States are in a condition of state of nature
among themselves, that is to say, poised as gladiators against each other.47 However, Hobbes did
not annex this view with any sociology of the international. His dictum was largely forgotten and
emerged only in the 20th century to epitomise the “anarchic” theory of social life among States.48
44
Boucher, Political Theories 133.
Tuck, The Rights of War and Peace, 17.
46
Tuck, 18.
47
Hobbes, Leviathan,
48
See Armitage, in Brett-Tully
45
16
However, as Quentin Skinner suggests, the view of the State as an “artificial person” bearing
“sovereignty” that is not only separate from the ruler but also the focus of normative demands that
are posed both to the citizens and the ruler is crucial to Hobbes’ De cive (1642) and Leviathan
(1651).49 As Skinner also observes, in continental political theory, this position emerged in Samuel
Pufendorf whose De Jure naturae et gentium of 1672 provided a description of the state as a
compound moral person. I would like to suggest, that in Pufendorf emerges also a sociological view
about the international world that puts is sharp focus the nature of an international law that is
supposed to take that sociology seriously.
III GERMANY
Reason of states thrives in periods of crisis, and what Paul Hazard calls the “crisis of the late-17th
century” was felt most acutely in Germany. The Thirty-Year’s war had done away with up to 50 per
cent of the rural and around one third of the urban population.50 The cultural life of local
communities was wiped out, its economic base destroyed. The peace of 1648 consolidated the
fragmentation of the Holy Roman Empire into a patchwork of estates – larger and smaller territorial
units enjoying de facto independence from the imperial centre. It located the confessions –
Lutheran, Calvinist and Catholic – within particular territorial regimes, thus fostering “doctrinal
distinctiveness, distrust and misunderstanding”. 51 As the historian Rudolf Vierhaus concludes: “it
forced a search for meaning and created profound anxieties about the meaninglessness of
existence”. 52
One of the vocabularies that offered promise of a better life was natural law, introduced in Germany
by Hugo Grotius and Thomas Hobbes. For the former, emerging forms of State power were to be
analysed by reference to a sociability existing naturally in the human heart. The quest for peace and
order coalesced with the pursuit of the good. The natural law proposed by Hobbes, again, was a
mechanism through which human beings – by extension, their states – were moved by passion,
desire and self-love and thus could be tamed only by fear.53 In the one case love, in the other
overwhelming force. Neither was in evidence in the Holy Roman Empire of the German Nation,
49
Quentin Skinner, Liberty before Liberalism (Cambridge University Press, 1998), 4-5.
The number of inhabitants in Germany declined from 15-16 million in 1620 to 10 million in 1650. Rudolf Vierhaus,
Germany in the Age of Absolutism (Cambridge University Press, 1988), p. 3. It took more than 100 years, until the
1720s for the population levels to reach pre-war status, id. p. 14.
51
Id. 62.
52
Id. p. 6.
53
For the marginal role that inter-state relations played in Hobbes, see however, Armitage, in Brett & Tully
50
17
the largest chunk of organised authority on the continent. The Empire had been weakened in the
peace of Westphalia by the right given to the territorial estates to form alliances with outside powers
and the position of France and Sweden as guarantors of the agreement. But the Landeshoheit of
territorial rulers was also limited by imperial law and institutions. Neither Grotius nor Hobbes could
quite be used to capture the complex constitutional reality. Instead, natural law amalgamated with
the ragion di stato in a way that provides the appropriate context for understanding not only
German law but also the law of nations that we have inherited from these European debates.
The first German work on the reason of states – Arnold Clapmarius’ De arcanis rerum publicarum
libri sex of 1605 – already suggested that particular constitutional forms, that is, monarchies,
aristocracies and democracies, had their proper reason of state and distinguished this from what he
called arcana dominationis – namely what was needed to preserve the rule of a particular ruler.
Like Botero and others, he made the Tacitean distinction between “good” and “bad” reason of
States, thus making room for an instrumentally oriented technique of government within an idiom
of Christian morality. 54 Towards the end of the Thirty-Year war, a veritable flood of reason of states
literature – often under the banner of arcana imperii – emerged in Germany. 55 The most significant
participant in this debate, Hermann Conring, argued that each constitutional form had its own
reason of state, understood as its telos.56 For Conring, navigating between good and bad Staatsräson
became a policy for seeking moderate compromises between constitutional alternatives – something
that had already figured in the Florentine debates. Conring’s oeuvre marks a turning-point in
German law to history and context, away from abstract principles of Roman law, including the old
theory of imperial translation. It now becomes a scientific vocabulary for debating the proper way
to govern particular types of States.57 Conring’s training as a political scientist – but he was also a
medical doctor – pushed him towards analyses of statehood in terms of health or sickness in view of
the provision of welfare and happiness – Glückseeligkeit – to the population. Perhaps the same
background suggested to him to view the practice of government not as a theoretical science but a
practical craft, Staatskunst or Staatskugheit.58 To put this practice on firm ground, he suggested the
development of empirically based analyses of particular states – notitia rerumpublicarum – on the
basis of which each State could be governed in a scientific way.
54
See Michael Stolleis, Staat und Staatsräson in der frühen Neuzeit, 51-55.
Id.
56
Id. 76-77.
57
See Willoweit, in Stolleis, p. 134-140. Stolleis, 82-3.
58
Willoweit, 132.
55
18
Soon after the middle of the 17th century, the vocabulary of reason of state – though not the idea –
began to disappear. With the growth of absolutism, political culture changed. Territorial states with
powerful rulers were in place. “Die Macht schweigt”.59 Clarity and order, peace and security
replaced the vocabulary of secrecy and treachery. The ideal law was constructed more geometrico.60
Reason of state became an ancillary doctrine, dealing with moments of crisis where means available
in normality no longer suffice.61 The politics it helped to create was about keeping crowds passive,
using the secret police at home and espionage abroad.62 European statecraft had internalised
Machiavelli’s dictum that while it is not at all necessary that the prince have the virtues of honesty,
generosity and fairness, it is absolutely necessary that he appears to have them. 63 But Machiavelli’s
republican awareness was lost as European populations become governed through the national idea.
Only in Germany, reason of states continues in the constitutional debates about the division of
authority between the imperial centre and the territorial estates, a debate that waged in the
vocabulary of natural law.
The key person is Samuel Pufendorf, son of a Lutheran Minister from Saxony. His project was
designed to articulate the reality of Early Modern Germany against the efforts to squeeze it into the
Aristotelian categories as well as to provide a scientific language to analyse the structures of human
authority, including claims of power between princes. Pufendorf was aware that he was treading in
the footsteps of Grotius and Hobbes. He found a middle-position in a sociologically expressed
reason of states that gave provide pragmatic guidance for the resolution of actual political problems.
In an often hostile academic environment, he found support not only from Conring but in Karl
Ludwig, the Electoral prince of the Palatinate who appointed him to the chair of the law of nature
and of nations in Heidelberg in 1660. Like most German public lawyers, Pufendorf was employed
as professional advisors to territorial rulers or as university professors receiving their salary from
the prince. Understandably, they were expected to teach their princes about how one should act so
as to preserve and extend princely rule. In this, they, like Machiavelli, continued the medieval
tradition of the Fürstenspiegel but on a scientific basis, receiving authority from their mastery of the
epistemic constraints of princely rule. 64
59
Münkler 299.
Stolleis, Staatsräson, 71.
61
Münkler 299.
62
Münkler, 300-321.
63
Machiavelli, The Prince
64
See also Stolleir, Staatsräson, 45-49.
60
19
Pufendorf’s most famous contemporary work was his analysis of the constitution of the German
empire under the Pseudonym of the Italian nobleman Severinus de Monzambano (1667). 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 position of the Empire as a
monarchy, with some of the monarch’s powers divided among the imperial estates. For Pufendorf,
none of these conceptualisations were historically credible. They did not accommodate a more
complex reality. The sentence that everyone remembers from Pufendorf’s analysis is that of the
Reich as monstrum simile, resembling a monster. 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 systema communitatis, series of de facto
relationships between moral persons that would not cease to develop, and for which the appropriate
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. This was the
only way to defend the community when danger was near – and Pufendorf was certainly aware of
the danger commonly discussed as efforts at universal monarchy by Louis XIV.
In Monzambano, Pufendorf sought to give a sociologically credible legal view of Germany. In his
De jure naturae et gentium (1672), he universalised this approach, laying out a scientific way to
speak not about the laws of particular periods or locations but of laws in general. He did this
through his vocabulary of natural law that spoke of what he called “moral entities”, situated
alongside physical entities and attached to particular situations, “offices”, forms of status and
behaviour. The world of physical entities was governed by the laws of physics. The world of moral
entities was governed by natural law. This was a wholly secular law, created through the will and
intellect of human beings as they sought to realize their natural self-love in the actual conditions of
human society. Moral entities – good and bad, right and wrong and so on – did not reside in things
or actions themselves. They were projected on things by human beings. People did not “know” the
rules of natural law as babies, and then had come to forget it, as Pufendorf ironically liked to put it
against Grotius. They were learned by experience in social life and taught by natural law.
The world of moral entities was the social or cultural world constantly created and transformed by
human brings. In founding law on a study of how that world operated, Pufendorf opened a
sociological view of law. Of course, he derived law from ultimately God. But nothing about its
substance depended on God. As Pufendorf himself put his methodological dictum:
20
“For the nature of man has always been determined to sociality in general by the
Creator, but the establishment of and entry into particular societies were left to men to
decide in accordance to the guidance of reason...this discipline concerns not Christians
alone but the race of all mortals”. 65
In Pufendorf the science of natural law received a sociological independence that harked back to an
empirical anthropology - that is, observation of human beings as they are now – and a historical
view of civil society developing from immaturity (the state of nature) to maturity (culture, including
modern statehood).66 Pufendorf built on Grotius and Hobbes without collapsing his law either to the
innate and thus religious notion of sociality in the former or to the mechanistic naturalism of the
latter. He was able to avoid Hobbes’ extreme conclusions by agreeing with Grotius on the presence
of what both called “sociality”. True, as Hobbes had argued, human behaviour was governed by
self-love. But this was not independent from the human capacity to reason. And reason showed that
self-love in a world of pathetically weak human beings can only be realised by cultivating sociality.
In this way the realm of the “social” and of “civil society” emerge from human reason outside of,
and independently from either nature or faith.
The discipline of natural law emerged in Pufendorf as knowledge of the laws of sociality, of the
conditions that govern the realisation of self-love – welfare – in society. To produce a universally
applicable account of these conditions – that is, to speak of human society as such – Pufendorf used
the intellectual devise of the “state of nature” on the basis of the empirical observation of actual
human behaviour he could witness around himself. This allowed him to construct something like a
natural history of human society as a learning process in which the inconveniences of the state of
nature persuade rational humans to create entia moralia – social and cultural institutions, including
public power to do two things: 1) to provide peace and order – that is protection, and 2) to create
conditions in which generalised self-love would create common welfare. That power is called
sovereignty. It is distinguished by its capacity to command and by the obligation among citizens to
obey. That obligation, again, emerges from nature understood in a both factual and normative way:
On the one hand, the duty to obey signifies is the capacity of the sovereign to exert punishment in
case of non-obedience. On the other, it emerges from the natural gratitude citizens have towards the
one that provides protection. This two-sidedness reflects Pufendorf’s eclecticism, his often noted
wish to combine apparently opposite things. Whatever its weaknesses – and they highlighted by
Leibniz among others – this combinatory approach is absolutely crucial in an effort to found an
65
66
Pufendorf, On the Law of Nature, Preface, p. 97-98.
See Medick, 40-63.
21
autonomous legal discipline that would neither become branch of natural science (pure factuality)
nor (Christian) morality (independent normativity).
This is law understood as the practice of wise government. “Let the welfare of the people be the
supreme law”, Pufendorf writes,67 and thereby lays out a fully functionalistic notion of sovereignty,
fully submerged in a raison d’état world. Here the sovereign is both completely free and completely
bound at the same time. He is free to choose any course of action that seems necessary to take for
the protection of citizens and providing for their welfare. This is highlighted in his not being bound
by positive law. How could he be? For Pufendorf writes: “human laws are nothing else than
decrees of the supreme sovereignty about those things which subjects must observe for the welfare
of the state”. 68 On the other hand, he is completely bound by natural laws, understood as the social
conditions within which those purposes may be realized. Let me quite him again: “A King cannot
by right order more things than are consistent with, or are judged to be consistent with, the end for
which civil society was instituted”.69
Later liberals have often attacked early modern natural law as it has seemed to contain no efficient
jurisdiction over the secular prince. Yet this is an anachronistic misunderstanding, derived from the
modern view that legal constraint means being under the jurisdiction of secular magistrates,
educated at law schools in the dictates of positive law. But for Pufendorf and his colleagues, wise
government under natural law cannot possibly fall into the purview of secular magistrates.
Magistrates rule on matters having to do with relations between citizens as well as between citizen
and sovereign under positive law, not on the duties of princes under natural law. 70 For the latter
purpose, other kinds of experts are needed – experts in statecraft and raison d’état, that is to say,
experts in natural law. For it is natural law alone that has “society” as its object – that is to say, the
normative meanings projected on things that can be reduced nether to morality (this is the departure
from Grotius and scholasticism) nor to natural science (this is the departure from Hobbes).
For, Machiavelli, Pufendorf and the whole system of reason of state, positive law cannot possibly
constrain the ruler in his pursuit of the salus populi. It is part of the definition of positive law to be
an assessment by the sovereign of what is needed to bring it about. The charge that this freedom
leads into princely arbitrariness is carefully countered by the distinction between the prince’s public
67
DJN
Pufendorf, DJN Bk VII, Ch 6 § 3.
69
Pufendorf, DJN Bk VII, Ch 2 § 11
68
22
and his private will, and casting the prince as he acts under public will as the representative of the
population. To quote Pufendorf again, “it seems most suitable to define the state as a composite
moral person whose will, a single strand woven out of many people’s pacts, is considered the will
of all, so that it can use the strength and faculties of individuals for the common peace and
security”. 71 Machiavelli and Pufendorf are equally adamant that in times of tranquil normality, the
prince ought to set an example, and not raise the envy or wrath of his people by breaking the law.72
The relationship between tranquil normality (and the expectation that the prince will follow positive
law like any of his subjects) and the need to reach beyond the law in crisis may change in time, of
course. Different commentators have varied in their assessment of the relative significance of these
two moments and the costs and benefits attending to each alternative. Much of the distinction
between realism and idealism reflects such different assessments. But the important point is that the
distinction between the two moments follows from a sociological reading of the world. This is
embodied in the notion of “necessity”, or being subjected to the overwhelming power of the
circumstances. Such necessity is not an extraneous intrusion from a world outside the law. It is
implied in the view that law’s point is to realise social purposes, call them welfare, salus populi,
happiness, whatever. For some moments are more conducive to their realization than others, when
exceptional measures are needed.
Now liberal international legal theory has sought to push this problem to the margin – this is what
the very expression “the state of exception” means. Yet every centre is dependent on the margin
that defines and delimits it. Whether one is a theorist of tranquillity or crisis is a question of taste or
sensibility but Hobbes, Schmitt and Rumsfeld can never be fully exorcised from the stage of
modern statehood. In early modernity, it was precisely the point of sociologically oriented natural
law to integrate such figures – and thereby to discipline them – though opening vocabularies such as
“practica politica” and “Weltgklugheit” and raison d’état as part of modern law and modern
government.
Antigone’s position in the mythology of modern liberalism suggests a persistent effort to see natural
law and positive law as distinct, even opposed. But for a truly sociological view, they are never so.
For Pufendorf and his colleagues, positive law is merely an adaptation of natural law to a particular
situation and the business of “adaptation” is the task of legislative sovereignty in view of the salus
70
Pufendorf, DJN 1301 § 10.
Pufendorf, DJN Bk VII, Ch 2 § 13.
72
Pufendorf, DJN Bk VII Ch 6 § 2.
71
23
populi. For this reason, too, it would inconceivable to have secular magistrates rule on the princes.
For the prince is not only entitled to break positive law. Natural law positively obligates him to do
so when that is necessary. As soon a one says the words “welfare and happiness of the people” one
has already produced a complete justification for looking beyond positive law to its “spirit”.
The same applies to external relations. Contrary to Hobbes, Pufendorf never thought that the fact
that the prince’s duties were grounded in the provision of protection and welfare for the population,
instead of wishes about universal justice, meant a constant state of war. The same principles of
socialitas and scientific government applied in the prince’s behaviour to the world outside as to the
world inside his realm. For example, unlike Grotius, Pufendorf rejected the view that anybody had
the authority to enforce natural law if no direct injury was involved. 73 No war was to be waged on
the American Indians on the basis of their alleged cannibalism – only if they actually caused
injury. 74 Wars were not punishment – “since they neither proceed from a superior as such, not have
their direct object the reform of the guilty party but the defence and assertion of my safety, my
property, and my rights”.75 And the evils we do in war must be compatible with future peace and
security.
Pufendorf’s De jure naturae et gentium relegated all of the law of nations into natural law. There
was no positive international law at all because there was no such superior to whom other princes
would have been obligated. Despite its name, Pufendorf’s main book deals with international
matters very briefly. Like Gentili or Grotius, he understands that world not as an independent realm
of historical factuality, and even less an autonomous repository of moral demands, but as a structure
of interactions between sovereigns – diplomacy, treaty-making and war. This is not to say he would
have seen it as a Hobbersian nightmare of constant fear. It was governed by rational sociability. In
practice, this meant that States – now described as “moral entities” – moved about in the world in a
commercial spirit. The argument from self-love and weakness portrayed Europe as egoistic but
interdependent sovereigns whose interest was to cooperate, not to fight. Thus, generally speaking,
treaties had to be kept. On the one hand, this was so because treaties only laid out the practical way
of how to realize what was already commanded by natural law. On the other hand, making treaties
was a condition of one’s trustworthiness; and without trustworthiness, one could not realise the
73
Pufendorf, DJN 1293.
Pufendorf DJN 1297 (Ch VI § 5). See Tuck, Rights of War and Peace, p. 159-160
75
Pufendorf, DJN 1298 § 7.
74
24
salus populi.76 But if this was the fundamental rule of the Prince’s external behaviour – as it was not
only in Pufendorf but the whole of the 18th century naturalist idiom, peaking in Vattel – then of
course treaties could also be broken when their underlying condition was no longer present. This
did not mean that the prince could leave a treaty whenever he felt so. On the contrary, intricate
calculations had to be undertaken to measure the advantages of leaving a treaty relationship against
the disadvantage of undermining one’s trustworthiness.
All of this meant that ruling became a truly daunting task. As Pufendorf writes, “the science of
government is so difficult that it requires all of men’s ability…”77 This is why sovereigns should
“make friends of wise men and such as are skilled in human affairs, and hold at distance flatterers,
useless fellows, and all who have learned nothing but folly”.78 Although the people may have some
intuitive knowledge of natural law, and they can be educated to some extent, they can never have
the kind of detailed knowledge about it that is needed to govern. Were this not so, no pactum
subjectionis would be needed in the natural state.79 Pufendorf’s ideal is Venice, not Florence.
Lawyers now emerged as the experts to the oligarchies governing European affairs in a
predominantly commercial spirit. This was manifested in Germany in the way the generations after
1648 worked on imperial Staatsrecht beyond the categories of Roman law, through extrapolating
from historical sources and considerations of security and economic utility. Techniques of
governing modern States were studied at law faculties on comparative basis: ius publicum
universale and statistics, rationalised by a natural law that was moving from the philosophy
faculties, to law, increasingly understood as a propadeutic to other civil sciences. 80
In other words, precisely at the moment when the prince is freed from the formal supremacy of the
church and the empire, and from the control of the estates – when his power is articulated as
sovereignty – he becomes completely dependent on the discipline and experts on natural law and
Staatsklugheit. The more the absolutist monarch centralised his rule, the more he became dependent
on his advisors’ views on what might be needed for the preservation, strengthening and expansion
of the State. At the time of finishing his main work on natural law Pufendorf himself was employed
at the courts of Sweden from where he moved to Brandenburg-Prussia, focusing his work on a
76
DJN Bk VIII, Ch. 9 (On Treaties)
Pufendorf, De jure naturae, p. 1118.
78
Pufendorf, De jure naturae, p. 1118.
79
See also Hunter p. 192-3.
80
As Ian Hunter states, Djure naturae ”functions as a clearing-house for the other civil sciences – Lipsian political
philosophy, Helmstedt political Aristotelianism, Hobbesian anti-clericalism, Bodinian sovereignty theory, positive
Staasrecht…”, Rival Enlightenments, p. 150.
77
25
study of the statecraft of particular monarchs. Enlightened absolutism meant close co-operation
between the academic advisor and the monarch – Doctor et Princeps.81 When Pufendorf and later
naturalists say that the Prince is bound by natural law – including the law of nations as part of
natural law – what they intend is that he cannot neglect or ignore the epistemic conditions for the
attainment of the welfare of the population, salus populi. As pointed out, already in mid-17th
century Conring based public law’s scientific nature on comparative studies of how different types
of state fulfilled their specific reason, the salus of a particular populus - collecting and analysing
data on territorial, economic, demographic, historical and other aspects of particular States82
Natural law turned into a science of legislation. In Germany this crystallised cameralism and
Polizeywissenschaft.
Since the 14th century, there had existed in Germany a wide network of policy-ordinances codifying
the means for preserving peace and legal order. With the expansion of economic activities in the
16th century, the provision of “welfare” – “Gemeinwohl” – was added to the functions of the
territorial “regiment” and, with reformation, becomes the central Staatszweck (objective) of the
State.83 After the Thirty Years’ war, how to achieve this becomes an intensive topic of academic
and professional discussion of which Conring’s and Pufendorf’s work is a part. A programmatic
statement of the tasks of the new rulers is Veit Ludwig von Seckendorff’s “Teutsche Fürsten-Staat”
of 1656 that unites natural law, empirical “statistics” and administrative policy into a first exposé of
something like modern Staatswissenschaft, a theory and practice of the total happiness of the
State.84 Soon, however, a gap begins to emerge between the empirically oriented public and natural
law on the one hand, and university economics on the other. As the first chairs on economics and
cameral science are set up in 1727 in Halle and Frankfurt, the University of Göttingen set up in
1734 a law faculty that was to be specifically oriented to historical and empirical studies. Here
natural law transforms into a study of effective government of modern States for the attainment of
what the leading public lawyers call “Glückseeligkeit”.
I cannot go into any detail here. Suffice it to note that the two leading public lawyers – Johann
Stephan Pütter and Gottfried Achenwall – publish in 1750 a joint textbook – Elementa juris naturae
– where they lay out, among other things, the principles of ius publicum universale, and ius gentium
universale. The former is later known to us as the specifically German discipline of Allgemeine
81
Schneiders, p. 36-37: instead of the old alliance- Court and Altar- he suggested a new one – Court and University
Willoweit, 136; Brückner, 33-42.
83
See Brückner, 6.
82
26
Staatsrecht, elsewhere known as public law, the latter turns into Droit des gens, Völkerrecht and our
international law. In 1750, Pütter and Achenwall imagine a law that is completely embedded in the
social context, whose rules and principles not only reflect but are identical with the natural rules
governing modern States, with rulers as their chief executive officers, constantly turning to the
natural lawyers for advise on the secrets of social causality. The engine of the system is natural selflove, the search for self-perfectionment and happiness of initially separate individuals and the law’s
task is to direct this “ad salutem publicum”.85 In a parallel way, international law exists to enable
each people (“Volk”) to lead its life in search of its own perfection and happiness. In all essentials,
the international law laid out in Achenwall and Pütter corresponds to that laid out in more detail in
Emerich de Vattel in what became the most important international law book of the 18th century.
Yet Achenwall sees further than Vattel. In his own public law writings, he continued the historical
and sociological studies began by Conring. In 1749 he publishes a comparative study of the
constitutions of the most important European States that he calls “statistics”, a science of the
empirical conditions of government. On the basis of this information, each State ought to be ruled
with the assistance of a “Collegio”, usually divided into domestic and foreign sections – a group of
experts in governmental technique.86 Later his teaching turns to Staatsklugheit – elements of
statecraft. He sees the government of modern States in true enlightenment style, like operating
machines, or clocks, every part of which needs to work in harmony with every other part so as to
produce the final objective – salus populi. The political leader – the Politici – are the engineers of
this machine. The law of nations becomes the conduct of foreign affairs, conceived in a fully
utilitarian vocabulary. Again, treaties should be generally kept – not out of moral considerations but
out of self-interest, subject to the emergence of Notrecht. All of this is underwritten by a strong
economic ethos: economy is the instrument both for the internal attainment of the happiness of the
population and for constructing a useful external realm.
Now Achenwall is the person whom Immanuel Kant in his Perpetual Peace and Metaphysics of
Morals mentions as representative international lawyer of the 18th century. Inasmuch as Kant has
Wolff and Pufendorf in mind as his philosophical adversaries, it is Achenwall who he thinks
represents the ethos of modern international law, understood as the ethos of a naturalism that hovers
insecurely between the principles of Grotian love and utilitarianism.
84
Brückner 12-32.
Pütter-Achenwall, p. 222.
86
Achenwall, Staatsverfassung der heutigen Vonehmsten Europäischen Reiche... 1749
85
27
*****
Pufendorf’s natural law vocabulary was hugely ambitious in its coverage. It had a view of human
being as slaves of their passions, nevertheless capable of reason; it spoke of States as mechanisms
for governing passionate individuals through reasonable rules. And it saw the world as always
already united through principles embedded in human relationships. It spoke to late-17th century
concerns by being de facto secular and single-mindedly oriented towards order and effectiveness. It
pushed aside clerical control and opened the doors to princely chancelleries by the speakers of the
new language, the natural lawyers. It was also enormously successful. Pufendorf received his chair
at the philosophical faculty of the University of Heidelberg in 1660, this was - or became - the first
chair in jus naturae et gentium. By the end of the 17th century, natural law was taught at all German
law faculties. De jure naturae et gentium and its abbreviation De officio hominis were both
reproduced in over 30 Latin and French editions each, in 14 English editions with “sporadic
publication in German, Italian and Russian”. 87 Not surprisingly, Montesquieu celebrated his
“genius” to which, he said, his own work was heavily in dept. It was praised by Locke and
Rousseau and Adam Smith saw it as a precursor to his own work. Most 18th century European
princes received education from De officio hominis.88
It is then, I think, no wonder that the entry on the law of nations in Diderot’s Grande encyclopaedie
observes that although Grotius had written of some aspects of the laws of war in a useful way, it
was Pufendorf who ought to be seen as the father of the law of nations – international law. No doubt
he thought this because Pufendorf represented precisely the kind of proto-scientific sociology that
was the ideal of the philosophes, Montesquieu above all. To be able to say something about social
life that was valid “not excepting the Iroquois themselves” – this is Pufendorf’s project – was to
speak in a universal vocabulary that met with their ideal science. Distinguishing between law and
religion, and condemning “universal monarchy” were equally popular in Parisian salons. The fact
that translations of Pufendorf had spread in France as a part of the Huguenot diaspora campaign to
secularise the teaching and training in natural law fell in line with enlightenment ideas. Burlamaqui
and Barbeyrac were Pufendorf translated into French and constituting the necessary bridge over
which Voltaire, Direrot and Montesquieu could became what they became.
87
88
Krieger, 256.
See Krieger, 256-258.
28
Aside from breaking law’s links with theology and Christian morality, and responding to the call to
science, natural law was powerful because it appeared to overcome the pervasive oppositions in
modern thought between rationalism and empiricism, nominalism and materialism, deduction and
induction, ideas and facts by suggesting that each pole was merely an aspect of a single and
coherent reality. Pufendorf’s natural law was rationalist in building upon deductive inferences from
the juxtaposition of human nature with its environment and its utilitarian methodology spoke the
pragmatic concerns of an individualist society. This is why it was often labelled Vernunftsrecht in
the 18th century. On the other hand, and crucially, it was empirical in deriving its idea of human
nature from observation of human beings as they were. Here lay the distinction between Pufendorf
and the later Wolff. The significance of this structure – rationalist empiricism – was that by relying
on either one of the poles one could always answer objections produced from the opposite pole. In
language that I have used elsewhere; it avoided the objection of being utopian by its rigorous
empiricism; it avoided the objection of being a merely an apology for state power, by binding states
to the objectives of order and welfare. When reason becomes nature and is applied in social life we
receive a structure that is fulfilled in Hegel’s notorious dictum:
“What is rational is real;
And what is real is rational”89
And yet, this builds on an airless, suffocating view of the world. Everything is always already
regulated by nature and the only task for politics was to find out how. Guicciardini is vindicated
against Machiavelli. First, the very point of this was to do away with fortuna; human life in
Pufendorf’s state was no longer struggle in the maze of haphazardly accumulating mystical events.
On the contrary, it now functioned like a machine.
"The over-riding purpose of states is that, by mutual cooperation and assistance, men
may be safe from the losses and injuries which they may and do inflict on each other.
To obtain from those with whom we are united in one society, it is not enough that we
make agreement with each other not to inflict injuries on each other, nor even that the
bare will of a superior be made known to citizens; fear of punishment is needed and
the capacity to inflict it immediately. To achieve its purpose, the penalty must be
nicely judged, so that it clearly costs more to break the law than to observe it; the
severity of the penalty must outweigh the pleasure or profit won or expected from
wrongdoing. For men cannot help choosing the lesser of two evils". 90
89
Hegel, Philosophy of Right, p. xxvii. .
Samuel Pufendorf, On the Duty of Man and Citizen according to Natural Law (De officio hominis, Ed. by James
Tully, CUP 1991), p. 139-140 (Bk II Ch 7).
90
29
This image has nothing of Machiavelli’s ideal of republican virtù. There are no citizens here, only
subjects. And then of course there are the counsel, the experts of natural law, the scientific
oligarchy ruling over huge masses.
Although the development of legal thought in other States was not identical, its direction was the
same. Achenwall thought that nobody had proceeded beyond Montesquieu in laying out the
conditions for the universal “statistics” that he thought essential for the government of modern
States. In France, Montesquieu’s comparative sociology was accompanied by the development of
political economy into the synthesis of Auguste Comte’s positivist religion. This became the
foundation in France of the sociological movement in law towards the end of the 19th century. In
part using Durkheimian vocabulary, political solidarism provided the foundation for the first
generation of professional international lawyers under the Third Republic, men largely responsible
of the functionalism underlying the League of Nations. In Britain, Pufendorf was domesticated by
the Scottish enlightenment utilitarians and the remarkable transformation of Adam Smith from a
theorist of moral sentiments to the founder of political economy. The most famous statement of the
Wealth of Nations is of course this: It is “not from the benevolence of the butcher, the brewer or the
baker that we expect out dinner, but from their regard to their self-interest. We address ourselves,
not to their humanity but to their self-love”. 91 This could as well have been uttered by Pufendorf –
whom Smith cites as an authority. But it could equally well have been the motto of 18th century
international law up to – but not including Kant. Pufendorf, Achenwall, Vattel – all of these
addressed themselves not to the humanity of nations but their self-love. What Albert Hirschmann
has described as the transformation of passions into interests in 16th and 17th century political
thought took the form of the transformation of raison d’état into the law of nature in 17th and 18th
century international law. State interest becomes the category that frees the State by binding the
sovereign.
The authoritative formulation of this can be received one century later from the young Austrian
public lawyer Georg Jellinek (1851-1911). In 1878 Jellinek published a small book proposing that
ethics should finally be divorced from metaphysical speculations. It should be aligned with insights
received from the workings of human drives in primitive societies by anthropologists and
ethnographers. It should have recourse to moral statistics in order to examine the emergence of
norms and the effects of social solidarity and focus on the division of labour in the formation of
91
Adam Smith, The Wealth of Nations, 13.
30
behavioural patterns of collectives. Through interdisciplinay collaboration from psychology, natural
and social sciences, there was hope that "ethics would finally be established in a scientific way" as a
social ethics.92 Late Jellinek became professor of at Heidelberg, befriending Max Weber and
providing the latter with his famous theory of the ideal-type.
But I want to focus on Jellinek’s small book from 1880 in which Jellinek sought finally to give an
explanation of the binding force of treaties. His starting point was the Pufendofian one – that as
positive law, treaties emerged from the sovereign, on the basis of Selbstverpflichtung. But then, did
they not collapse when the sovereign changed his mind? No, said Jellinek, for State will is not
arbitrary. The State is a community that seeks to fulfil human interests. Interests may be realised
only in collaboration. To break one's compacts would go against this. It would make social life
impossible. To have an interest is to will the presence of the conditions under which it can be
realised.93 If a State can fulfil its purpose only by participating in international life, then it must
keep its promises unless there is a reasonable motive - such as Notrecht - for disregarding them. 94
No State can be reasonably assumed to commit suicide! Ultimately, States are bound owing to what
Jellinek called the "living conditions of nations" ("Natur der Lebensverältnisse”) in the
international world. In his 1880 book, Jellinek countered the weaknesses of positivism by a
sociological rejoinder: law is based on will, but will is constrained by the environment, conceived in
a rationalistic manner. The need for co-operation compelled States to project each other as legal
subjects towards which they made promises that enabled co-operation for the attainment of
reciprocal and common interests.95 Although confederations and other inter-State compacts, he
argued in 1882, were based on regular treaties, and as such on Selbstverpflichtung, they were also a
socially conditioned feature of modern life. Interdependence pushed (rational) States into cooperation: "Gemeinschaft ist überall da vorhanden, wo es Verkehr gibt".96 This was a community of
interests and purposes whose internal cohesion was constantly being strengthened by cultural
development and the needs of international administration and which was expressed in legislation
but based ultimately, on "nature".97
92
Georg Jellinek, Die sozialethische Bedeutung von Recht, Unrecht und Strafe (Hildesheim, Olms, 1967, reprint of
the 1878 edition) p. 41, 1-41.
93
Jellinek, Staatenverträge, p. 44.
94
Jellinek, Staatenverträge, p. 62.
95
Jellinek, Staatenverträge, p. 48-50. For critics, the view that the State was constrained by the environment was no
legal constraint: it described a factual condition which States might or might not take account of, Nelson,
Rechtswissenschaft, p. 60-62.
96
Jellinek, Staatenverbindungen, p. 94.
97
Jellinek, Staatenverbindungen, p. 95, 109-13. Jellinek had used an analogous argument in his discussion of the
emergence of norms in primitive society in Die sozialethische bedeutung in 1878 p. 16-22, 25. There he defended a
31
Little is to be said about sociological thinking in international law after Jellinek. The point is always
that treaties have to be kept and law respected owing to the interest of the State itself understood as
the salus populi. This is no opposition between sovereignty and law; sovereignty is justified by the
law understood in a functional vein. After the Second World War these arguments have emerged in
the idea of interdependence invoked to justify this or that institution as the best guarantor of the
realisation of interests. Political realism shakes hands with legal idealism in the reconception of law
as the truth of the social.
*****
Let me finish with a parallel. I see a struggle for new vocabularies today, making reference, once
again, to the inexorable laws of globalization, that law and political theory should seize in order to
preserve their “relevance”. A managerial mindset takes over, reflected in a transformation of
vocabularies of power. The language of law is replaced by an idiolect of transnational regimes that
enforce the most varied kinds of guidelines, directives, de facto standards and expectations so as to
guarantee an optimal effect.98 Formal rules yield to amorphous "regulation" emerging from a
heterogeneous variety of sources and actors.99 "Government" becomes "governance" and the
language of legal "responsibility" is transformed into assessments of "compliance".100 "Disputes"
become "management problems" and the question of lawfulness is replaced by that of "legitimacy",
situated uncertainly between legal formality and political justice, but reducible to neither - existing
principally as a feeling of legitimacy, a warm sense of contentment looking for no further
justification.101
With new languages come new experts that speak them. The managerial jargon of "legitimate
governance" sets up an Ersatz normativity that replaces the conservatism of law and the radical
arbitrariness of justice. Two things become highlighted: the instrumental role of law and public
institutions in fulfilling desired objectives and the testing of the authoritative decisions by reference
social conception of ethics against an individualist one in a way that suggested a collective, determination of the
contents of voluntas, cf. e.g. p. 33-41. For a criticism of this as naturalism, cf. Triepel, Landesrecht p. 80-81n.
98
See e.g. Volker Rittberger (ed.) Regime Theory and International Relations (Oxford University Press, 1995).
99
See e.g. José Alvarez, International Organizations as Law-Makers (Oxford University Press, 2005); Rodney Bruce
Hall & Thomas Biersteker (eds.), The Emergence of Private Authority in Global Governance (Cambridge Universaity
Press, 2002).
100
See e.g. Judith Goldstein, Miles Kahler, Robert O. Keohane & Anne Marie Slaughter, Legalization in World Politics
(MIT Press, 2001) and Michael Zürn & Christian Joerges, Law and Governance in Postnational Europe. Compliance
beyond the Nation-State (Cambridge University Prtess, 2005).
101
On this, see further my ‘Legitimacy, Rights and Ideology. Notes towards a Critique of the New Moral
Internationalism’, 7 ASSOCIATIONS (2003), p. 349-374.
32
to what target populations might “accept”. The result is the imposition of empirical political
science, thoroughly instrumental and committed to assisting whoever is in charge, as world tribunal.
International relations as the new natural law. Pufendorf was of course, an apologist of absolutism.
So are the speakers of globalisation – namely the absolutism of this or that special knowledge,
economics, security, rights, environment, entertainment, whatever. When the floor of statehood
dropped in the late 20th century from under our feet, we did not fall into an authentic world to
encounter each other as free individuals. Instead, we fell into watertight boxes of functional
specialisation, to be managed and governed by reading our freedom as the realisation of our
interest. As our feet hit the ground, there was no Kantian federation but the naturalism of Pufendorf
and Hobbes - powerful actors engaged in strategic games with their eyes on the Pareto optimum.
I began this talk by observing that international lawyers have never been strong as sociologists. This
is because international law is not really a sociological but a political project. It is not about the
epistemological constraints on the way to realising interests. Instead, it is about freedom. The
vocabulary of freedom, however, is a vocabulary of struggle and conflict in a world where fortuna
lifts some people to powerful positions to rule others. Of course, there are different concepts of
freedom. The global governance debate harks back on the view of freedom as absence of coercion
by the state. It is ignorant of the coercion that comes from beyond the state and against which we
may need the protection and assistance of the state. But even more importantly, it is ignorant of the
way in which self-determination and participation in political decision-making are in themselves
forms of freedom. If another word needs to be substituted to this sense, perhaps Machiavelli’s virtù
could do. This is why I think the distinction between Guicciardini and Machiavelli is being played
out in today’s globalization debate: Is the right way to combat fortuna the management of human
beings by a oligarchy in possession of the secret language of the global social? A natural history of
the human species in which today’s power is legitimated by a political theology of secular progress?
Or might that oligarchy be the problem and its language the novel scholasticism against which virtù
would reside in imagining the political republic, and then bringing it about?