Web viewSaint-Pierre’s plan was based on a realist, even a Hobbesian view of human nature and European politics. It relied on utilitarian,

THE PUBLIC LAW OF EUROPE

Reflections on a French 18th century Debate

Published in: Helena Lindemann et al. Erzählungen vom Konstitutionalismus

(Baden-Baden, Nomos 2012), 43-73.

Martti Koskenniemi

The Max Planck Institute in Heidelberg brought out recently a massive four-

volume work on the Ius publicum europaeum, containing comparative essays on

the history and situation of public law in the various European countries.1 The

expression “Ius publicum europaeum” – the “Public law of Europe” – is also

familiar, at least to international lawyers, from the title of Carl Schmitt’s

polemical analysis of the territorial order that was centred on Europe between

the 16th and 19th centuries.2 But as both a product and a critique of that order, the

expression originates in France where its first widely published appearance took

place in the title of a collection of treaties between European nations from the

Peace of Westphalia to the mid-18th century, namely Abbé Gabriel Bonnot de

Mably’s Droit public de l’Europe (1746).3 Mably published the treaties together

with commentaries on the context of their conclusion and their objectives and

later supplemented this work with a long essay in which he sketched a “science

of negotiations” the mastery of which would enable European monarchs and

diplomats to pursue their fundamental interests in peace and war rationally, in

accordance with their relative power, and so to avoid the calamities that their

ambition, greed and fear had caused in the past.4

1 Armin von Bogdandy, Pedro Cruz Villalón & Peter M. Huber, Handbuch Ius Publicum Europaeum (4 vols., Heidelberg, Müller 2008). 2 Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (Berlin, Duncker & Humblot, 1988 [1950]).3 Gabriel Bonnot de Mably, Le droit public de l’Europe. Fondé sur les traitez conclus jusqu’en l’année 1740 (2 vols, The Hague, Duren 1746). The work had many subsequent editions. One with Mably’s last version of the famous introductory essay came out as Le droit public de l’Europe. Fondé sur les traitsés. Précédés de Principes des négociations pour servir d’introduction. Nouvelle édition (Amsterdam & Leipzig, Arkstée et Merkus 1773). 4 Modern edition: Gabriel Bonnot de Mably, Principes de négociations pour servir d’introduction au droit public de l’Europe.(Intr. & notes par Marc Bélissa, Paris, Kimé 2001), 45. It is to this edition that references below will be made.

1

The present essay is a brief reflection of the context in which Mably published his

three-volume treatise with its lengthy introduction. I am especially concerned to

show that the topos of Droit public de l’Europe in 18th century France differed

significantly from the way the tradition of natural law and the law of nations as

we know it from Hobbes, Grotius and Pufendorf developed elsewhere on the

continent or in Britain. Mably’s “science of public law” employed a vocabulary of

naturalism but focused on the enlightened interests of monarchs and their states,

suggesting that “Europe” might be best conceived analogously to a market where

everyone’s regard for their own security and welfare would bring out the

greatest good of all. The demise in Germany of the natural law tradition at this

time led, among other things, to a conception of positive treaty-based European

international order. In Britain, it led to Adam Smith and the rise of political

economy. In France, however, Droit public de l’Europe became a mixed bag of

traditional raison d’état and modern economic providentialism that finally

crystallised in a doctrine of Jacobine virtue that ended up eating proverbially its

own children. By 1815, the Public law of Europe had become another name for

the system of restoration enshrined in the Vienna treaties as reported and

analysed especially by German academics.5

1. The Time of Absolutism

French jurists played a central role in the development of constitutional law and

political theory during the wars of religion. That “[t]he state rapidly

disintegrated into a composite of local seigneuries, city-states and factions which

warred with royalty itself”6 prompted anxious theorization on the powers of the

king vis-à-vis the nobility and the estates and on the role of provincial

parlements. On all sides of the controversy – Catholic, Protestant and politique –

jurists put forward historically informed constitutional theses in support of their

respective positions. The most famous product of the debates was Jean Bodin’s

(1530-1596) Six livres de la république (1576) that laid out the theory of

5 See my ‘Into Positivism: Georg Friedrich von Martens (1756-1821) and Modern International Law’ in 15 Constellations. An International Journal of Critical and Democratic Theory (2008), 189-2076 Frank W Church, Constitutional Thought in Sixteenth Century France. A Study in the Evolution of Ideas (Boston 1941), 74.

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sovereignty as the “absolute and perpetual power over the commonwealth”.7

This theory – by no means invented by Bodin – articulated in legal terms the

need of a strong central power that could put an end to the internal chaos by

uniting the country around a strong monarchy. It was used to full effect by

Cardinal Richelieu whose long reign (1616-1642) contributed to the silencing of

further debate on public law and the constitutional limits of supreme power.

Bodin had regarded sovereignty compatible with a robust set of fundamental

laws, natural law and the law of nations.8 Half a century later Cardin Le Bret

(1558-1655) had in his De la souveraineté du Roi (1632) removed French

sovereignty from being subordinated to any secular standards – “sa première

marque est de ne dépendre que de Dieu seul”.9 There was no international

normative order, indeed no secular normativity at all. The power to wage war, to

conclude or to break treaties came from the inside of the divine sovereignty of

the “Most Christian King”.

In the 17th century, the place of jurists as articulators of the political reality was

taken by intellectuals and courtiers writing in a raison d’état mode such as the

Duke of Rohan (1579-1638), focusing on techniques whereby the ruler could

solidify or enlarge his realm. A new political category of the “interest” developed

as a guide to government and policy, “the tyrant of tyrants”.10 Ever since

Giovanni Botero’s (1544-1617) first venture in this genre, it became axiomatic to

think that this interest would differ from state to state and between monarchs so

that an in-depth discussion of it would require a separate treatment of different

types of state – great powers, small powers, maritime and land powers and so on.

The “reason of state” would not be expressed in general rules but directives that

would be specific to the situation of every state or a dynasty.11 This undermined

7 Jean Bodin, On Sovereignty. Four Chapters from the Six Books of the Commonwealth (J. Franklin ed., Cambridge University Press1992 [1576]), Bk I Ch 8 (1). 8 See e.g. Jean-Fabien Spitz, Bodin et la souverainété (Paris, PUF 1998), 11-30. 9 Cardin Le Bret ‘De la souverainété’. In Les Œuvres de Messire C Le Bret (Paris, Du Bray 1643), I.II (5). 10 Bocciali as quoted in Etienne Thuau, Raison d’état et la penseé politique a l’époque ei Richelieu (Paris, Albin Michel 2000), 313.11 See further Thuau, Raison d’état and the excellent Christian Lazzeri, ‘Introduction’ to Henri de Rohan, De l’intérêt des princes et des Etats de la chrétienté (Paris, PUF 1995), 1-152. I have dealt with this matter also in ‘International Law and raison d’état: Rethinking the Prehistory of International Law’, in Benedict Kingsbury & Benjamin Straumann, The Roman Foundations of the Law of Nations. Alberico Gentili and the Justice of Empire (Oxford University Press 2010), 305-320.

3

theorization over public law or the law of nations. Grotius, Hobbes and Pufendorf

had written their naturalist tracts as scientific pieces, intended for universal

application. By contrast, the reference in French public law was always France

itself.12 If something was said of other countries, this was only by way of

comparison and invariably to France’s advantage. De Bret lavishly congratulated

the French for the excellence of the monarchy and the glories of France’s history.

Under divine kingship even the just war tradition tended to coalesce with what

the (French) King wanted.

Moreover, natural law had begun to appear largely as a preserve of

Protestantism, used by the Huguenots to attack Louis’ alleged efforts at

“universal monarchy”. 13 There was something to this of course. The search for La

gloire remained predominant as a war motive even as the actual operations

turned from conquest to protecting the security of the realm.14 By the end of the

century, however, France was exhausted by its endless wars. The countryside

had been abandoned and bad harvests in 1693-94 contributed to widespread

famine in rural areas. Wanton destruction in the course of the war effort had

created an anti-French coalition in Europe further contributing to dissatisfaction

at home for which there was no open channel of expression.

Even a privileged observer, Archbishop Fénelon (1651-1715), the preceptor of

the royal princes at Versailles, had to summarise the early criticisms in terms of

the malevolence of Louis’ courtiers, indifference towards the suffering of the

population, the uses of glory and vengeance as motives of war: “une guerre

injuste n’en est pas moins injuste pour être heureuse”.15 What Fénelon suggested

in his instructions to his royal student was adherence to “common rules of

justice and humanity”, faithfulness and modesty in public and private life and the 12 On the intense connection between the (knowledge of) public law and absolutism in 17th century France, see also Michel Foucault, Il faut defender la société. Cours au College de France 1976 (Paris, Gallimard/Seuil 1997), 109-112, 156-158. 13 See e.g. Samuel Pufendorf, Of the Nature and Qualification of Religion in Reference to Civil Society (1687) (Indianapolis, Liberty Fund 2002), 11-12, § 5-6 (17-18); Gottfried W. Leibniz, ‘Mars Christianissimus’, (1683) in Political Writings (P Riley ed., Cambridge University Press 1972), 121-145. 14 On the predominant role of “glory” in Louis’ wars, see John A. Lynn, The Wars of Louis XIV 1667-1714 (London, Longmans, 1999), 27-43. 15 Francois de Salignac de la Mothe-Fénelon, ‘Lettre à Louis XIV’, in Lettre à Louis XIV et autres écrits politiques (Paris, Bartillat 2011), 49.

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prohibition of morally dangerous trade of “luxuries”.16 This was also a key theme

in Fénelon’s most famous book, The Adventures of Telemachus, Son of Ulysses

(1699). Here Fénelon celebrated ancient virtues as the proper directions to

govern France, consisting above all of moral adroitness, modesty, love of truth

and justice, keeping one’s word even to one’s enemies and following the laws of

war and humanity.17 As Telemachus arrived on the Island of Crete, admired by

visitors and famous for its prosperous villages, he found out that the only reason

for unhappiness on the island emerged from the desire for superfluities. Hence,

Minos, the wisest of lawmakers, had decreed that children should be educated in

the simple life, to compete in the excellence of virtue. “Courage” was associated

not only with fearlessness in war but trampling excess riches underfoot. “Ici on

punit trois vices qui sont impunies chez les autres peoples: l’ingratitude, la

dissimulation et l’avarice”.18

Fénelon rejected the separation of private and public morality that had

accompanied the doctrine of arcana imperii promoted by Richelieu and the

raison d’état publicists.19 In his view, what was lacking was moral leadership

under the king that would educate the country in peacefulness and virtue;

economic resources, for example, ought to be oriented towards flourishing

agriculture and not wasted in superfluities.20 A State that would grow prosperous

by relying on domestic resources, he argued, would also be stronger in its foreign

policy and have no need for demonstrations of militarism.21 In the upcoming

intellectual battle between the “ancients” and the “moderns”, Fénelon would

epitomise those looking to examples of antique virtue against the supporters of

commercial modernity. This put him on the minority in eighteenth-century

16 Francois de Salignac de la Mothe-Fénelon, ‘Examen de conscience sur les devoirs de royauté. Mémoire pour le duc de Bourgogne’ (c. 1708-9) , in Lettre à Louis XIV, 75, 80-85. 17 Id. 101. 18 Francois de Salignac de la Mothe-Fénelon, ‘Les aventures de Télémaque, fils d’Ulysses,’ in Ouvres de Fénelon, Archevêque de Cambrai, (Tome 3, Paris, Lefevre, 1835 [1699]), 26. 19 See further Martti Koskenniemi, ‘International law and Raison d’État. Rethinking the Prehistory of International Law’, in Benedict Kingsbury & Benjamin Strumann (eds), The Roman Foundations of the Law of Nations. Alberico Gentili and the Justice of Empire (Oxford University Press 2011), 308-310. 20 Istvan Hont, Jealousy of Trade. International Competition and the Nation-State in Historical Perspective (Harvard University Press 2006), 25-27. 21 For a comment, see Michael Sonenscher, Before the Deluge. Public Debt, Inequality, and the Intellectual Origins of the French Revolution (Princeton University Press 2007), 110.

5

French debates. The language of virtuous rule would re-emerge towards the end

of the century, but then in a wholly different context.

2. The Peace of Utrecht

The death of Charles II of Spain in 1700 created the danger of the union of

French and Spanish crowns. The war that followed opposed the “Grand

Coalition” of Austria, Britain and the Netherlands (later joined by Savoy and

Portugal) against France. In this context, Féneleon composed a series of

memoranda for friends in the court to speak against the war.22 He also lamented

the slowness of the peace talks and proposed to include in the delegations men

of “substantive reputation” who would be alien to the kinds of scheming that he

assumed would take place in regular peace talks.23 It was not to be so. The

French minister Colbert de Torcy (1665-1746) used seasoned courtiers whom

he could trust to outmanoeuvre their counterparts in the best tradition of ancien

regime diplomacy. The negotiations lasted for many years and involved precisely

the kind of secret bargaining, sometimes directly between the ministers, that

Fénelon wished to exorcise from virtuous policymaking.24

The expression “droit public européen” appeared in the Franco-Dutch Peace

treaty, one of the many instruments forming the Peace of Utrecht (1713) to

recognize the types of derivative title in international law that had been familiar

already to Grotius.25 But the notion was also linked to the principle of the balance

of power that underlay the whole effort of treaty-making at Utrecht, marking a

shared desire to work against “universal monarchy”.26 Already Fénelon had

advocated the need for European powers to ally against the inevitably

22 For the Memoranda, see Oevres de Fénelon, Achevêque de Cambrai. (Tôme 3, Paris, Lefevre, 1835), 410-441. 23 See Lucien Bély, L’art de la paix en Europe. Naissance de la diplomatie moderne XVIe – XVIII siècle (Paris, PUF 2007), 433, 452. 24 Bély, L’art de la paix, 503-524. A good account of the conduct of the peace talks from the French perspective is in Dale Miquelon, ‘Envisioning the French Empire: Utrecht 1711-1713’, 24 French Historical Studies (2991), 653-677. 25 Wilhelm Grewe, Epochs of International Law (Berlin, De Gruyter 2000), 395.26 See also Marc Bélissa, Fraternité universelle et intérêt national (1713-1795). Les cosmopolitiques du droit des gens (Paris, Kimé 1998), 85-86.

6

hegemonic designs of the strongest among them. Such leagues, he wrote, would

serve the role that laws and magistrates served in domestic contexts. To seek

equilibrium was to work “à la liberté, à la tranquillité, et salut public”. It was to

operate a kind of “loi naturelle de la sûreté de…nations”.27 As Emer de Vattel put

it half a century later, had the powers allowed the union of the two crowns, they

would have delivered “Europe to servitude, or at least to the most critical and

precarious situation”. Vattel concluded that Europe now formed a “political

system” with closely connected interests that can be best preserved by

maintaining a “political equilibrium” and “forming confederacies in order to

oppose the more powerful potentate, and prevent him from giving law to his

neighbours”.28

Alongside the diplomatic organization of Europe the Utrecht treaties also

contained provision on the Anglo-French colonial settlement in North America as

well as other territorial issues (Britain received Gibraltar and France parts of the

Habsburg inheritance in Spanish Netherlands, Milan and Sardinia) and on the

fate of the asiento – the transfer of the monopoly of Atlantic slave trade to the

English South Sea Company.29 It was no utopian peace arrangement. But the

world around it was in full change. The “crisis of European conscience” that had

permeated intellectual life at the turn of the century was slowly passing.30 Early

Enlightenment intellectuals viewed many aspects of the ancien regime, including

its dynastic wars, with a critical eye. The peacemakers at Westphalia three

quarters of a century earlier had been content in consolidating the state system

as a response to the religious crisis. Eighteenth-century spirits aimed higher,

speculating on science, history and a universal law of nations, debating the

values of secularism and enlightened rule over European populations.31 The last

27 Francois de Salignac de la Mothe-Fénelon, ‘Sur la necessité des former des alliances, tanst offensives que defensives contre une puissance étrangère qui aspire manifestement à la monarchie universelle’, in Œuvres De Fénelon, 3, 360-363, 361a-b. 28 Emer de Vattel, The Law of Nations (Ed & intr by B .Kapossy and R. Whatmore, (Indianapolis, Liberty Fund 2008 [1758]), Bk III Ch III § 44,47, 48 (493, 496-7). 29 The point about the centrality of the trade aspects of the treaty arrangements especially for France is made in Dale Miquelon, ‘Envisioning the French Empire’, in 24 French Historical Studies (2001), 654-655. 30 See Paul Hazard, Le crise de la conscience européenne 1680-1715 (Paris, Fayard 1961), especially 225 et seq. 31 See especially Marc Bélissa, Fraternité universelle et intérêt national (1713-1795). Les cosmopolitiques du droit des gens (Paris, Kimé 1998) 7-18, passim.

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years of the Sun King’s rule had demonstrated the international extension of

domestic absolutism. Something had to be done to tackle it.

3. Abbé de Saint-Pierre: between Reason and Passion

One of the participants in this debate was Charles Irenée Castel, Abbé de Saint-

Pierre (1658-1743). 32 In the context of the negotiations to the Treaty of Utrecht,

Saint-Pierre produced the most widely read proposal in the 18th century

concerning the establishment of an international institution designed to secure

peace in Europe, the Mémoire pour rendre la paix perpetuelle en Europe.33 This

“memorandum” was followed up by successive editions of the much larger 3-

volume Projet pour rendre la paix perpetuelle en Europe.34 It is not known

whether the author himself had been present in Utrecht. There is no mention of

him in the Acta diplomatica. But he was a friend and assistant to the Cardinal de

Polignac who was one of the French negotiators.35 There is no doubt that the

reference in the peace plan to “the present peace” – which Saint-Pierre says

cannot be believed to be lasting – was precisely to the treaties made at Utrecht in

1713.36 As a literary achievement, the Projet was unimpressive. It consisted of

32 Saint-Pierre had been educated in Jesuit colleges but never joined the clergy. Instead he moved to Paris where he received powerful mentors close to the court of Louis XIV. His early years were devoted to science and he was appointed to the Académie française in 1695 from which, however, he was later expelled owing to his attacks on the regime. He had been appalled by the clientelism and inefficiency of the last years of the reign of the Sun King. In a number of articles and letters, Saint-Pierre proposed fiscal reforms and the introduction of proportional taxation as remedies to the crisis. See Merle J. Perkins, The Moral and Political Philosophy of the Abbé de Saint-Pierre (Geneva, Droz 1959), 73-81. He believed that financial mismanagement had led to a situation where the State could no longer receive credit at levels that would enable carrying out of even normal administrative tasks. He advocated turning state administration into an impersonal bureaucracy to prevent its use for the purposes of corruption. The rule of law was needed for concerns of efficiency and for the preservation of the liberty of the citizens. See Thomas E. Kaiser, ‘The Abbé de Saint-Pierre, Public Opinion, and the Reconstitution of the French Monarchy’, 55 Journal of Modern History (1983), 618-643. Saint-Pierre was no enthusiast of the abstract and unorganised debates on natural law. An effectual politics was to be based on “evidence” and “esprit de raisonnement”; it would need to be of practical use in the administration of the state. In order to teach political science methodologically he suggested the establishment of an Académie politique that would teach a new science, namely a science de government. 33 Charles Castel de Saint-Pierre, Mémoire du projet pour rendre la paix perpetuelle (pour le ministre M. de Torcy, 1 septembre, 1712). 34 Projet pour rendre la paix perpetuelle entre les Souverains Chretiens, (Utrecht, Schouten 1717). The version usually referred to, and on which Rousseau, for example, based his “Extract” and “Judgment”, is the shortened version, Abregé du projet de paix perpetuelle (Rotterdam, Beman 1729). 35 Perkins, Moral and Political Philosophy, note 32 supra, at 51. 36 Abbé de Saint-Pierre, Abregé du projet de paix perpetuelle (Rotterdam, Beman 1729). As a literary achievement, the Projet was unimpressive. It consisted of three volumes of poorly

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three volumes of poorly organised, repetitive arguments in defence of a

permanent organisation in Europe to guarantee the peace and security among

European sovereigns and for resolving any disputes through arbitration. Perhaps

for this reason, Saint-Pierre produced an Abregé of the plan in 1729 that then

remained the focus of debate on the nature and possibility of peace in Europe

throughout the 18th century.

Saint-Pierre did not believe in a universal peace system. In the first version of the

project he included both Turkey and Russia, but later on dropped Turkey and

even came to advocate joint European war against it. Adopting the plan, Saint-

Pierre wrote, Europe’s monarchies could guarantee their safety and external and

internal dangers – in fact the plan was more concerned with domestic rebellion

than interstate war. The plan would also enable peaceful growth of trade and

industry, and thus also contribute to the prosperity of the ruling dynasties.37

Mutual promises among sovereigns, truces, commercial treaties, guarantees and

alliances, he wrote, were fragile and easily overridden. They, like the balance of

power, were dependent on the whims of princes and changes of national fortune:

“Il est impossble de que le Système de l’Équilibre rende la paix durable en Europe; qu’ainsi les malheurs de la Guerre se renouvelleront incessamant & dureront tant qu’il n’y aura pas entre les Souverainetez Chrétiennes une Société permanente qui leur donne sûreté suffisante de l’execution des promesses fairtes dans les Traitez…”38

Saint-Pierre thus proposed the establishment of a permanent institution, a Union

européenne with 18 or 24 sovereign members (the number varied in different

parts of the plan) all of which would be Christian, European States.39 The draft

organised, repetitive arguments in defense of a permanent organisation in Europe to guarantee the peace and security among European sovereigns and for resolving any disputes through arbitration. Perhaps for this reason, the Abbé produced an Abregé of the plan in 1729 that then remained the focus of much debate of the nature and possibility of peace in Europe throughout the 18th century.37 Saint-Pierre, Mémoire, Troisième discours, 153. 38 Saint-Pierre, Mémoire, Deuxième disocurs, 73. 39 In making his proposal, Saint-Pierre wrote that he was following the examples of the constitution of the German-Roman Empire and the famous plan of the foreign minister of Henry IV, the Duke of Sully. Both claims were dubious. Saint Pierre believed – wrongly – that the German estates had entered the empire as sovereigns and that Sully’s specific had not really been to direct the plan against Austria. In Fact, the German estates had never been sovereign and the hegemonic purposes of Sully’s design were well-known. See Patrick Riley, ‘The Abbé de St. Pierre and Voltaire on Perpetual Peace in Europe’, 137 World Affairs (1974), 187-189.

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Treaty on the European Union contained 12 “fundamental” and 8 “important”

articles that included five principal elements. 40

First, the members of the union would agree to preserve the existing territorial

and dynastic status quo in Europe. The Union was not to intervene in the affairs

of its members for any other reason than for implementing the guarantees,

including the suppression of any domestic dissent (“à soumettre les esprits

rebelles”).41 The plan included an engagement – taken in view of the problem of

Spanish succession – that no sovereign could rule over two or more States.

Peaceful changes were allowed, and territorial or succession disputes were to be

resolved through arbitration. Second, the permanent institution of the European

Union was to be set up in which the sovereigns would be represented in a Senate,

each of them having one vote.42 The fundamental articles could be amended only

by unanimous vote while the “important” ones required a three quarters’

majority. Thirdly, the Senate was to organise European commerce on the basis

of a general most-favoured nation treatment. It would also set up a Chamber of

Commerce in each major town that would have alternate jurisdiction to

adjudicate trade disputes. The members of the union would see to the

enforcement of any judgment thus made. Fourthly, the Senate would also

arbitrate between sovereigns. A member taking arms or refusing to execute a

judgment would be declared the enemy of all. 43 Fifthly, there would be a joint

military force to protect the Union from external dangers – particularly against

the Turks – as well as internal dangers, rebellion and civil war. All costs would be

collected as contributions from members, allocated in accordance with their

relative wealth at the conclusion of the treaty.

Despite his reputation as idealist and a pacifist, Saint-Pierre was actually neither

one nor the other. His proposals were not written in the form of utopias in the

manner of a More or a Campanella. Unlike Fénelon, he had a bleak view of human

40 Saint-Pierre, Mémoire, Quatrième discours, 271-366. 41 Saint-Pierre, Mémoire, Quatrième discours, 273. Article 2 provided that the union could take action to see to it that the monarchic or republican form is maintained but also that the internal electoral laws and capitulations are honoured (276-277) and article 3 that during periods of regency or othereise weakness in ruling house, nothing threatens its security (279-281). 42 Article 1, Saint-Pierre, Mémoire, Quatrième discours, 271. 43 Saint-Pierre, Mémoire, Quatrième discours, 308.

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nature. We are slaves of our passions, he held, and when carried away by them,

the only thing that can restrain us is

“…la crainte d’un mal plus fâcheux et plus terrible que le bien qu’il desire de ne peut paraître desirable”. 44

Like many contemporaries, Saint-Pierre felt that the bonds of virtue were

loosening and that moral education or the example of the ancients would not halt

this. His experience as the Chaplain of the Duchess of Orléans from 1692 had

convinced him of the decisive role of passions in public life. They could not be

tamed by mere appeals to reason, the standards of Christian piety or natural law.

The proposal was therefore not to get rid of passions but to turn them for

virtuous purposes. 45 As suggested by Spinoza (1632-1677): “An affect cannot be

restrained or taken away except by an affect opposite to, and stronger than, the

affect to be restrained”.46

Saint-Pierre’s plan was based on a realist, even a Hobbesian view of human

nature and European politics. It relied on utilitarian, self-interested calculations

of the sovereigns themselves. “Mon dessein est de montrer avec évidence que

tous les Souverains ont plus d’intérêt de signer la Traité fondamentale, que de

réfuser de signer”.47 Saint-Pierre even made his own the famous saying of the

proto-realist Duke of Rohan – “princes command peoples, but interest

commands princes”.48 He did not try to reform princes but to convince them that

they had a genuine interest in peace, that peace, rather than war, was the best

way for European monarchs to preserve their security and well-being. They

could, of course, continue to wage wars and sign peace treaties. But in so doing

they could never be certain that their neighbours might not immediately breach

their promises once they felt they had developed the capacity for victory.

44 Abbé de Saint-Pierre, as cited in Merle L. Perkins, ‘Civil Theology in the Writings of the Abbé de Saint-Pierre’, 18 Journal of the History of Ideas (1957), 245. 45 This is the classic point in Albert Hirschmann, The Passions and the Interests. Political Arguments for Capitalism before its Triumph (Princeton University Press 1997[1977]). 46 Benedict de Spinoza, Ethics (trans E Curley, intr. S Hampshire, Harmondsworth, Penguin 1996 [1677]) II/215 (120).47 Saint-Pierre, Abregé, 42. 48 Saint-Pierre, Projet, 66-71.

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Moreover, even if princes could guarantee peace for themselves, they could not

guarantee it to their dynasties in the future.49

As long as sovereigns could breach their promises with impunity, nothing could

make them feel safe. As with humans in general, the only way to durable peace

was to set up a formidable authority that could launch revenge immediately

when unjust passions take over. This, of course, is what Hobbes had been saying

in the context of the English civil war half a century earlier. Saint-Pierre was

careful not to refer to Hobbes but what he was saying about international peace

amounted to the same.50 The only way to restrain monarchs was to provide for a

supranational authority that can take action against them in case they violate the

peace. But this introduced a tension in the proposal: if they really were

passionate runners after instant gratification – why would they suddenly become

rational interest-maximisers?

4. Rousseau: the politics of irony

The Projet was widely circulated among French elites who generally regarded

them as hopelessly inadequate and contradictory. As Voltaire saw it, it was as

likely that peace could be maintained among European sovereigns “as the peace

between elephants and rhinoceros, wolves and dogs. Carnivorous animals will

tear each other apart at the first occasion”.51 When the project was

communicated to the Cardinal Fleury, the effective ruler of France during the

period of the Regency, the latter read it sympathetically, responding only: “Vous

avez oubliez un article essentiel, celui d’envoyer des missionaries pour toucher

les coeurs des princes et les persuader d’entrer dans vos vues”. 52 The self-49 Saint-Pierre, Abregé, 12-13. 50 He was, as Celine Spector has put it, “’hobbesien’ à l’intérieur mais utopiste a l’extérieur” – while Rousseau, for his part, was “utopian” from the inside but “realist” from the outside, ‘Le projet de paix perpetuelle: De Saint-Pierre à Rousseau’, in Jean-Jacques Rousseau. Principes du droit de la guerre. Ecrits sur la paix perpetuelle (B Bachofen & C Spector (dir), B Bernardi & G Silvestrini (eds), Paris, Vrin 2008), 275-276. On Saint-Pierre’s Hobbesianism, see Perkins, The Moral and Political Philosophy of the Abbé de Saint-Pierre, 52-62. See also Thomas Kaiser, ‘The Abbé de saint-Pierre, Public Opinion and the Reconstruction of the French Monarchy’, 55 Journal of Modern History (1983), 626-627.51 Quoted in Jean-Pierre Bois, L’Europe à l’époque moderne: origines, utopies et réalités de l’idée d’Europe (Paris, Colin 1999), 211. 52 Quoted in Frank L. Schuman, ‘The Ethics and Politics of International Peace’, 42 International Journal of Ethics (1932), 149.

12

defeating character of the proposal seemed obvious to many. It was based on the

assumption that Europe would be ruled by monarchical absolutists who were

now suggested to give up a part of their absolute powers for an international

Union. The most famous comments were those by Jean-Jacques Rousseau,

written respectively as Extract of the Plan for Perpetual Peace in 1756 and

published five years later and the Judgment on Perpetual Peace, written in that

same year but published only in 1782. The former was a popularization of the

plan, the latter a statement of Rousseau’s own view on it.53

Rousseau used much ink to express his admiration of Saint-Pierre – so much so

in fact that the reader is left some doubt about whether the praise was intended

seriously. He began his critique by noting that “[i]f ever moral truth were

demonstrated, I should say that it is the utility, national no less than

international of this project”.54 But how he actually viewed the Abbé’s plan and

what his own suggested resolution was has been the object of endless

commentary. Two aspects of this critique are noteworthy.

On the one hand, Rousseau attacked the view that the plan could operate with

the present system of European government. Neither the monarchs nor their

states represented what was “reasonable”: of this the books of “savants and

jurisconsults” knew nothing.55. The natural lawyers – Hobbes, Grotius and

Pufendorf – had suggested that sovereigns were needed as a rational response to

the violence in the state of nature.56 Even Grotius, though acknowledging natural

sociability, thought sovereigns necessary to maintain civil peace and that citizens

therefore had only the most limited right of resistance. All this was perversion.

Humans were not naturally warlike; even as egoists, they did not seek to destroy

each other. In producing a justification for state power, the tradition actually

created the situation from which it claimed to produce an exit. “All ran towards

53 Both now published and commented in Rousseau. Principes du droit de la guerre. 54 Jean-Jacques Rousseau, ‘Jugement de paix perpetuelle’, in Principes du droit de la guerre, 116 55 Rousseau, ‘Principes du droit de la guerre’, in Principes du droit de la guerre, 69-81. 56 In Du contrat social (1762) Rousseau attacked Grotius’ “characteristic method of reasoning [which] is always to offer fact as proof of right. It is possible to imagine a more logical method, but not one more favourable to tyrants”. Jean-Jacques Rousseau, The Social Contract (M. Cranston transl. & intr. Harmondsworth, Penguin 1958), 51 The target here was the weight Grotius attached to customs and treaty practices as evidence of the content of the law – his famous “a posteriori” method.

13

their chains believing that they were securing their liberty”.57 War did not end

with the establishment of States, but began with it. The law of nations was

powerless in this respect: it was followed only when that seemed useful.58 The

ambitions of states and sovereigns (unlike that of humans) were unlimited and

their incessant suspicion of each other rendered all quarrels dangerous,

compelling a circle of mutual destruction.59

But Rousseau’s proposal to correct this state of things was anything but straight-

forward. Monarchs will never sign into a federation, not even a confederation

that went beyond momentary interests. But a revolution would not repair this

state of things, either. The sovereignty of the people being inalienable and

indivisible, it was unthinkable that the peoples could conclude a world

federation among themselves. True, small republics might form confederations

to find safety against great powers. But this arrangement would operate under

the old system of treaties and still be based on the interests of the parties and not

in any general interest of humanity or even of “Europe”. So Rousseau came to the

melancholy conclusion that the proposal for perpetual peace in Europe remained

“the illusions of a truly human heart”, admirable but unworkable and not capable

of being resuscitated in a reviewed form. Rousseau thus took leave from any

project of perpetual peace. Under the present conditions, it was realisable only

by violence.

“Enfin les préjugés sont tellement contraires à toute espèce de changement qu’à moins d’avoir la force en main il faut être aussi simple que l’Abbé de Saint-Pierre pour proposer la moindre innovation dans quelque gouvernement que se soit”. 60

For Rousseau, the price of internal peace attained through the social contract is

the externalisation of aggression – that is endemic, structurally determined

warfare between nations.61 In the longest part of his judgment of Saint-Pierre’s 57 Jean-Jacques Rousseau, A Discourse on Inequality (M. Cranston transl. & intr., Harmondworth, penguin 1984), Part II (122). 58 Rousseau, ‘Principes du droit de la guerre’, in Principes du droit de la guerre, 70. 59 Jean-Jacques Rousseau, ‘Principes du droit de la guerre’, in Principes du droit de la guerre, 77-78.60 Jean-Jacques Rousseau, ‘Fragment sur le projet de paix perpetuelle’, in Principes du droit de la guerre, 127. 61 Rousseau, A Discourse on Inequality, 122-123..

14

proposal, Rousseau produced a mini-history of European politics from Charles V

onwards. This proved that the public interest was never anyone’s particular

interest. Even the peace plan attributed to Henry IV was in fact an effort to make

France Europe’s greatest power. The best moments have been those when an

equilibrium has existed, and for this, there had often been reason to thank the

Holy German Empire. 62

5. The Encyclopaedists

Like Rousseau, the philosophes were generally critical of the natural law

tradition.63 The thick works on ius naturae et gentium produced at German

universities were usually commented no further than to note the flagrant

contradiction between their heavy and repetitive style and the stylistic ideals of

the salon. Voltaire’s attitude is typical, and expressed with characteristic

sharpness. Instead of reading Grotius and Pufendorf, people should take up the

ancient writers on the topic of natural law and the law of nations:

“Croyez-moi, lisez les Offices de Cicéron. Rien ne contribuera peut-être plus à rendre un esprit faux, obscure, confus, incertain, que de lecture de Grotius & Puffendorf, & de Presque tous les commentaires sur le Droit public”.64

But Voltaire himself could not avoid making frequent reference to natural law, as

indeed did all of his colleagues. This is understandable. What could have become

of the Déclaration de droits de l’homme et du citoyen without a literary culture

that habitually received all good things from “nature” and its laws? The

philosphes had no choice but to resuscitate ancient notions of law and morality.65

But these references appeared predominantly as rhetorical devices, appealing to

the readers’ recognition of the self-evident truth of what was being said, clearing

the way for the work of reform they were interested in.66 If a more elaborate

62 Rousseau, ‘Jugement sur la paix perpetuelle’, 122-125. 63 See generally Marc Bélissa, Fraternité, 69-84. 64 Voltaire, Dictionnaire philosophique (nouvelle edition, tome III, Amsterdam, Rey, 1789), 513. 65 Carl Becker, The Heavenly City of the Eighteenth-Century Philosophers (2nd edn., Yale University Press 2003 [1932]), 33-70. 66 See Peter Gay, ‘Voltaire and Natural Law’, in Voltaire’s politics. The Poet as Realist (Princeton University Press 1959), 343-346 and The Party of Humanity. Essays in the French Enlightenment (New York, Norton 1959), 60-62, and (an express response to Becker), 198-202 and further Marc Bélissa, Fraternité, 69-70.

15

grounding was needed, they utilised the analytical method that suggested that

society, like nature, ought to be dissolved into its composite parts in order to

examine its operation – that it was to be analysed by interpreting individual

behaviour empirically by reference to the “passions” that they assumed guided

human motivation.67

In the Preliminary Discourse to his and Diderot’s Encyclopaedia (1751), for

example, d’Alembert recounted practically the whole of cultural progress in

terms of utilitarian need-fulfilment. The development of arts and sciences

emerged from “[t]he necessity of protecting our own bodies from pain and

destruction”, especially from the effort of the body to provide for “its endlessly

multiplying needs”.68 The historical progress of arts would begin from the more

immediately necessary (such as agriculture and medicine) and develop into

increasingly more abstract forms – physics, geometry and so on. Through this

process we also discover “that natural law which we find within us, the source of

the first laws which men must of necessity have created”. Its origin he attributed,

as a good empiricist, to the universal experience of oppression suffered by the

weak in the hands of the strong.69 Among aspects of d’Alembert’s vision of

general cultural progress was also a universal system of morality. Its origin

would no longer be looked for with God, however, but with the experience of

injustice whose expression natural law was.70

The encyclopaedists were not a homogeneous group. Nevertheless, their

analytical-compositive method invariably made them return to individual human

nature, to the urge to avoid pain and to find pleasure, from which they would

proceed to a long-term, “enlightened” sense of self-preservation that would

encompass concern for humans not only at home but everywhere.71 In their

recurrent recourse to the vocabulary of natural law and natural rights, usually

67 For this method, see e.g. Ernst Cassirer, The Philosophy of the Enlightenment (Princeton University Press, 1979 [1951]), 18-27, 234-248, 254-256. 68 Jean Le Rond d’Alembert, Preliminary Discourse to the Encyclopedia of Diderot (R Schwab transl. & intr., Chicago University Press 1995), 11, 14. 69 d’Alembert, Preliminary Discourse, 14-15. For the Encyclopedia as a part of a process of creating a single, hierarchical system of knowledges, see Foucault, Il faut défendre la société, 161-162. 70 See d’Alembert, Preliminary Discourse, 12-13, 44. 71 See further, Marc Bélissa, Fraternité, 23-49.

16

without express acknowledgment of the tradition itself, the encyclopaedists

found the simplest way to defend their programme of reform.72 The public

lawyers had sought the principles of government from the histories about Franks

and Gauls, thereby supporting the role of the nobility. By contrast 18th century

intellectuals discarded history and derived their principles from their notion of

the “natural” human being they assumed to exist as a rational egoist.73 The most

radical of the group, Baron d’Holbach (1723-1789), for example, produced a fully

naturalist structure of universal morality in which all rights and duties were

determined in view of the search for happiness, understood as continuous

pleasure.

“…nous fonderons la science des moeurs sur notre sensibilité physique, sur les désirs dont nous sommes constamment animés, sur l’amour continuel que chacun de nous a pour lui-même, sur nos vrais intérêts”.74

The task of law was to lead humans from the pursuit of blind passions to seeing

“the necessity to be useful for those whose assistance is needed for our own

felicity”.75 The social contract and the binding force of legislation were likewise

received from calculations of long-term utility.76 There was in d’Holbach no

normative difference between natural and positive law at all; the legislator

merely declared what natural law said. Only scientific and technical questions

remain about how to reach general happiness, interpreted as always also

compatible with enlightened individual interests.77 This was the basis of the law

of nations, too:

“Une nation est obligée, pour son propre intérêt, de partager les mêmes vertus que tout homme doit montrer à son semblable, fût-il étranger ou inconnu”. 78

72 Joseph Schumpeter, Histoire de l’analyse économique. I – L’age des fondateurs (Paris, Gallimard 1983 [1953]), 196-197. 73 See further, Foucault, Il faut défendre la société, 186-187. 74 Baron D’Holbach, Système social ou principes naturels de la morale et de la politique. Tome I (Paris, Niogret, 1822), 77.75 D’Holbach, Système social tome I 9276 D’Holbach, Système social tome I 308. 77 D’Holbach, Système social tome I 310-311. 78 Baron D’Holbach, La morale universelle, ou les devoirs de l’homme, fondés sur la nature. Tome second (Paris, Masson 1820), tome II, 2. This was obviously very close to Montesquieu’s formulation, namely that “different nations ought in time of peace to do one another all the good they can, and in time of war as little injury as possible, without prejudicing their interests”, The

17

All nations had a duty of humanity towards each other, none may do to others

anything that is not within the boundaries of the equitable: “Tels sont les

principes du droit des gens, qui n’est au fond que la morale des peoples”.79

Sovereigns did not exist in a state of war with each other; all humans were joined

as members of their nations in a moral community where war was only an

expression of the vain search for glory, the avarice of tyrants. But history showed

that conquests were rarely useful, that large military forces were economically

destructive and wars always created injustice.80

D’Holbach may have been extreme as materialist but the logical consequences he

drew from his naturalism were widely shared among the encyclopaedists. There

was a general problem at the heart of that sentiment, however. On the one hand,

d’Holbach and others rejected the universal truth of Christianity. Morality and

law differed by time and place; each community had its own history and its own

values that were reflected in the “spirit” of its laws and customs. On the other

hand, they also persisted in arguing about a shared human nature on the basis of

which it would be possible erect a structure of universal rights and duties. This

famous ambivalence also extended to an uncertainty in all of this literature about

the nature of treaties and the positive practices of the law of nations. The first

intuition was to follow Pufendorf and Barbeyrac and to deny any validity to

them; they were after all the products of ancient regime diplomacy. On the other

hand, what else than formal treaties concluded between sovereign nations could

found the egalitarian European order they were advocating?81

Perhaps it was this problem that led the jurist Antoine-Gaspard Boucher d’Argis

(1708-1791) to write the essays on “natural law” and the “law of nations” in the

Encyclopaedia as wholly conventional accounts of ius naturae and ius gentium

from the Digest to Grotius and other modern writers. This was a restatement of

Spirit of Laws (T Nugent transl. New York, Halpern 1949), 5. 79 D’Holbach, Morale universelle II, 4. 80 D’Holbach, Morale universelle II, 2-21. On this point among the philosophes generally, see Bélissa, Fraternité, 79-84. 81 See also Bélissa, Fraternité, 27-32.

18

many of the positions the philosophes had been vehemently attacking.82 Probably

for this reason Diderot inserted an essay on Droit naturel by himself in the

Encyclopaedia in the form of a brief philosophical discourse. If the law of nature

was universal, and could be found by reasoning, what was it? A person who

reasons, Diderot claimed, will find it as the same as the “general will” of

humankind: “elle serait toujours relative à la volonté générale & au désir

commun de l’espèce entire”. “Of the whole species” – this meant that the

“general will” was not “voluntary”, but a scientific statement of what might be

useful for the human race. In this form, it was also compatible with d’Alembert’s

preliminary discourse. Diderot expressly rejected pure voluntarism. “Les

volontés particulières sont suspectes; elles peuvent être bonnes ou méchantes,

mais la volonté générale est toujours bonne”.83 The “general will” was not a real,

psychological will but a scientific proposition about the needs of the species,

what was useful for humankind a whole. 84 All this seemed true and appealing –

but exorbitantly general. What would it mean to speak of the good of humanity if

humanity seemed to be completely divided on this?

6. Into Economic Naturalism

This view became eventually the heart of a new naturalism that integrated the

law of nations within a series of assumptions about the operation of the

economic system. In early 18th century, “Colbertism” had been finally

undermined by the financial chaos of the last years of the Sun King’s reign, and

new types of policy advice began to emerge from French intellectuals. This was

the context, also, of the rise in France of the quarrel between the “ancients” and

82 Boucher d’Argis, ‘Droit des Gens’ and ‘Droit de la Nature ou Droit naturel, Diderot & d’Alembert, Encyclopédie, ou dictionnaire raisonné des arts et des métiers etc., University of Chicago ARTFL Encyclopedia Project (Robert Morissey ed.: http://encyclopedie.unchicago.edu), 5: 126 and 131. In particular, Boucher d’Argis rehearsed the themes about the relative overlap between natural law and the law of nations since their confusing definitions in the Digest. His own position was that natural law was a law of reason, universally valid among humans, and that the law of nations was divided into “primary” and “secondary”, the former dealing with rules of public and private law valid everywhere, the latter containing those conventional rules that nations have agreed or followed in practice. Most of the entries were written as overviews of the doctrines of Pufendorf and Burlamaqui. 83 Diderot, Droit naturel, in Encyclopédie 5: 115-116. 84 For Diderot’s (and d’Alembert’s) utilitarianism see Catherine Larrière, L’invention de l’économie au XVIIIe siècle (Paris, PUF 1992), 51-57, 67-75; Cassirer, Philosophy of Enlightenment, 246-248.

19

the “moderns” one aspect of which focused on the role of “luxury” in political

community. Was the development of a “commercial society” of the kind that was

emerging in England a beneficial or a corrupting influence? The “moderns”

embraced Montesquieu’s doux commerce thesis according to which “[p]eace is

the natural effect of trade”.85 This meant, among other things, that commerce was

“always necessarily connected to the affairs of the public”.86

Many Frenchmen were impressed by England’s commercial spirit which they

saw as an essential part of the nation’s power. Economic wealth came to be seen

as part of the calculation of the balance of power. But this did not mean that

trade necessarily operated as a zero-sum game. Free trade might actually benefit

everyone – at least within certain limits.87 In a hugely successful work on the

politics of commerce the jurist and political commentator Jean-Francois Melon

(1675-1738) emphasized both the dangers of economic dependency that might

be created by the intensification of commerce – especially commerce on

“necessities” – but also the advantages that would follow for all nations from

their specialization in particular trades. Trade policy, he suggested, was an

absolutely central aspect of a nation’s foreign relations and “[t]he greatest of all

Maxims, and the best understood, is, that Commerce requireth only Liberty, and

Protection”. 88 As long as the nation could take care of its subsistence, it would

have no reason to fear trading with others. Moreover, “The Spirit of Conquest

and the Spirit of Commerce, mutually exclude each other, in a Nation”. 89 Through

active commerce, especially trade of “superfluities”, nations could benefit much

more efficiently and with less cost than through warfare.

Like Melon, a new generation of political thinkers such as Pierre le Pesant, Sieur

de Boisguilbert (1646-1714) and Richard Cantillon (c. 1680-1743) stressed the

importance of combining efficient domestic agriculture with free trade on

“luxuries” (i.e. on non-necessities) as the best way for national strength. They

85 Montesquieu, Spirit, 316. 86 Montesquieu, Spirit, 318. 87 The leading work today on this is Istvan Hont, Jealousy of Trade. International Competition and the Nation-State in Historical Perspective (Harvard University Press 2006).88 Jean-Francois Melon, Political Essay upon Commerce (D Bindon transl. Dublin, Crampton, 1738), 42-43. 89 Melon, Political Essay, 136.

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were followed by the Physiocrats whose leading lights, Marquis de Mirabeau

(1715-1789) and Francois Quesnay (1694-1774) borrowed extensively from the

natural law tradition, arguing that the economy possessed its own intrinsic laws

distinct from the rules of political government. The economy would work best if

left to its own devices, while it was the task of legislation to see to it that no

obstacles were introduced to the use of property rights.90

One of the most outspoken members of the group was Paul-Pierre Le Mercier de

la Rivière (1719-1801) who sought to lay out the “natural order” of political

societies in which he integrated the economic system through the unfortunately

labelled doctrine of ”legal despotism”. There was, he wrote in Natural and

Essential order of Political Societies (1767), a “natural order” for societies. “Cet

ordre n’est qu’une branche de l’ordre physique”.91 By grasping this humans

could realise the two objects of all their actions: enjoyment of pleasure and

avoidance of pain.92 The first right of all was the right of self-preservation. This

right was absolute, as was its concomitant, the right to acquire for oneself

whatever was useful. For every right, there was a duty, and society could be

articulated in terms of the absolute rights and duties of individuals towards each

other.93

Societies were based on the search of happiness, and greatest happiness was

abundance:

“…le plus grand bonheur possible consiste pour nous dans la plus grande abondance possible d’objets propres à nos jouissances…”.94

To achieve this, production had to increase. This, again, was possible only in a

regime of liberty – through the free use of our forces and our properties.95 In this

way, social order was part of the physical world. Awareness of its laws provided

90 For the natural law basis of the Physiocrat theory, see especially David McNally, Political Economy and the Rise of Capitalism. A Reinterpretation (University of California Press 1990), 85-151 and Catherine Larrère, L’invention de l’économie au XVIII siècle (Paris, PUF 1992), passim. 91 Le Mercier, L’ordre naturel, 37. 92 “…la nature…a voulu que [les hommes] ne connussent que deux mobiles, l’appétit des plaisirs & l’aversion de la douleur”, Le Mercier de la Rivière, L’ordre naturel et essentiel des sociétés politiques (Nourse, Londres 1767), 33. 93 Le Mercier, L’ordre naturel, 11-17. 94 Le Mercier L’ordre naturel, 27 (emphasis in original). 95 Le Mercier, L’ordre naturel, 33.

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knowledge of absolute justice and absolute injustice in the same way that the laws

of nature operated in an absolute way. 96 Everything either pointed to increased

abundance or it did not; that is, everything was either called upon or prohibited.

Private vices turn into public virtues:

“dans la système de la nature chaque homme tend perpétuellement vers son meilleur état possible, & qu’en cela même il travaille & concourt nécessairement à former le meilleur état possible de corps entier de la société”.97

The repetition over again of the italicized expression “absolute” by Le Mercier

was intended to highlight the necessary character of this order of relationships

he discussed and to justify the despotism of the laws that were expected to

express society’s natural order in a vocabulary of natural rights and duties.

This led le Mercier into an authoritarian government under laws that had the

absoluteness of physical laws. Quesnay had already written that “[t]he natural

laws of the social order are themselves the physical laws of perpetual

reproduction of those goods necessary to the subsistence, the conservation, and

the convenience of men”.98 From this, Quesnay had developed a very rigorous

notion of the rule of law. His “legal despotism” was not monarchic absolutism,

however. The “laws” that would govern society were the intrinsic laws of the

social order. Their “absoluteness” meant that they “had already been written” by

nature itself. The only task was to discover them and to “dictate” them to society

at large.99 Thus there was no basis to distinguish between legislative and

executive power, either: one was merely the extension of the other. “Partager

l’autorité, c’est l’annuller”.100 A multitude of opinions would create chaos, while

the power and correctness of legislation would be guaranteed by the proof of the

laws of the social order (“la force intuitive et déterminante d’évidence”).101 Such

evidence also operated against misuse of authority: arbitrary despotism would

always fail in the long run.102

96 Le Mercier, L’ordre naturel, 11. 97 Le Mercier, L’ordre naturel, 35. 98 Quesnay, ‘Despotisme de la Chine’, quoted in McNally, Political Economy, 123. 99 Le Mercier, L’ordre naturel, 75-78., 105, 113. 100 Le Mercier, L’ordre naturel, 129. 101 Le Mercier, L’ordre naturel, 100, 101-104, 130. On the Physiocrat doctrine of legal despotism, see further McNally, Political Economy, 121-129. 102 Le Mercier, L’ordre naturel, 163-165, 170-178.

22

Exactly the same principles were operative at the international level. In the first

place, the natural society that preceded the establishment of particular societies

was not destroyed by the latter. When visiting distant peoples in peaceful

conditions, the same hospitality was found as at home. The expansion of

commercial relations relied on a wholly unthinking respect for rights and duties

all over the world. Different political societies were not fundamentally different

but best seen as branches of the same tree, parts of the universal human

society.103 A federation of Europe was no chimera. In fact, it was already in

existence.

“…on doit la supposer toujours faite, ou plutôt toujours existente sans l’entremise d’aucunes conventions expresses à cet égard, & par la seule force de nécessité don’t elle est la sureté politique de chaque Nation en particulier”.104

Short-sighted passions had driven nations to war in the past. But nature

compelled them to regard each other as brothers, possessing the same rights and

duties as individuals possessed at home. The prosperity of nations lay in the way

they followed the “essential order of societies” that called upon respecting the

rights of each other. 105

In the hands of les économistes natural law developed into increasingly technical

propositions about how society ought to be organised so that the productive

cycle would create optimal wealth; free trade was an essential aspect of this,

especially once domestic self-sufficiency in “necessities” had been guaranteed.

After that point, free trade with the surplus agricultural product and especially

with “luxuries” (i.e. non-necessities) would unite the participating nations in an

increasingly peaceful world of commerce.

7. Droit public as analysis and critique: Mably

103 Le Mercier, L’ordre naturel, 318-320. 104 Le Mercier, L’ordre naturel, 323. 105 Le Mercier, L’ordre naturel, 331-333.

23

Not everyone was convinced of the desirability of such a world. The Mandevillian

hypothesis about private vice and public benefit flew in the face of ideas about

republican virtue and community and tended to reduce the state into a passive

instrument of private interests. Concentrating on commercial benefit and the

search of “luxury” was also widely seen as leading to corruption and the slow

decline of the nation in relation to more vigorous neighbours. For example,

popular speculation about the causes of the fall of the Roman and Spanish

empires pointed precisely to the corrupting influence of riches on the ruling

elites and society at large.

In the debates about the governmental reform that commenced at the end of the

reign of Louis XIV Saint-Pierre, as we have seen, represented the thèse

monarchique. He insisted that the monarchy ought to be rationalized and

brought within legal rules, projecting this view at the international level by

arguing that a peaceful “union” would actually be in the educated self-interest of

European monarchs. A different perspective on European peace was taken by

another abbé, namely Gabriel Bonnot de Mably (1709-1785) whose Droit public

de l’Europe (1746) became an immediate commercial success; it was published

in several editions, translated into German and Italian and used in England as a

university text.106 It also solidified the name of the European political order since

the Treaty of Westphalia. The work was essentially a compilation of treaties,

with commentaries on the context and purpose of each treaty in view of the

fundamental interests of the parties. It was supplemented in 1757 with a long

preface, entitled “Principes de négocations pour servir d’introduction au droit

public de l’Europe” that provided both a critique of the short-sighted egoism of

monarchic diplomacy and a theoretical articulation of “European public law” in

terms of the search for their fundamental (in contrast to arbitrary) interests of

European rulers.

Mably came from a relatively modest family of provincial noblesse de robe. Like

his brother the philosopher Etienne Bonnot de Condillac, he had been taken into

the protection of Madame de Tencin in whose salon he was introduced to 106 Johnson Kent Wright, A Classical Republican in Eighteenth-Century France. The Political Thought of Mably (Stanford University Press, 1997), 36-37.

24

Parisian elites. Through this means he also achieved in 1742 a position as

Secretary to Cardinal Tencin who served as Minister of State in Fleury’s

government. Until his sudden break with Tencin five years later, Mably had

followed and participated in the diplomacy of the day, reflecting on his

experiences in the Droit public de l’Europe and especially its extended theoretical

introduction.107 The book was not the first of its kind – large compilations of

treaty-texts had existed since mid-17th century. But it was distinguished by its

relative conciseness, its rational organization and above all by the commentaries

through which Mably introduced the treaties as parts of a European foreign

policy system. Although the commentaries pretended to neutrality, they included

criticisms of the policy of Louis XIV that prevented the publication of the work in

France until the intervention of the Marquis d’Argenson who had just left his

post as France’s foreign minister.108 The principal importance of the work lay,

however, in the introduction that was appended to the editions after 1757 and in

which Mably could freely launch hic critiques of the short-sightedness and

irrationality of the diplomacy of ancien régime Europe.109

Like Saint-Pierre, Mably had commenced his career as a royalist. By the time of

the publication of the Principes de négociations, however, he had made a sharp

turn and now preached republican values. His publications from this time

onwards have preserved his name in French intellectual history alongside Jean-

Jacques Rousseau among the most vocal critics of the “parti des modernes”,

including the économistes and other advocates of commercial society. Mably

resented a society based on the search for “luxuries”. He was especially critical of

the inequality among citizens that it brought along, and lamented the associated

demise of patriotic virtue. Like Rousseau, too, he was critical of modern natural

law that was founded on self-preservation. Instead of following Hobbes, Grotius

and Pufendorf, Mably drew on the Ciceronian heritage for which humans were

naturally endowed by reason and virtue, and argued that the best way to learn

107 See Wright, A Classical Republican, 35-38; Marc Bélissa, ‘Introduction’, in Gabriel Bonnot de Mably, Principes de négiciations. Pour servir d’Introduction au Droit public de l’Europe (Paris, Kimé 2001), 8-10. 108 Bélissa, ‘Introduction’, 14. 109 Wright, Classical Republican, 54.

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them was to examine the events of Roman and Greek antiquity. 110 Mably would

ground his critique of inequality and private property on neo-Stoic themes that

would be later integrated in the Jacobin doctrine of virtue. Although he has

received the reputation of belonging with the early utopian socialists, he was

dubious of the realism of any project to return communal property, describing it

as no more than an “agreeable dream”.111

Mably’s Principes de négociations was an attempt to provide the basis for a

rational science of diplomacy – a “science morale” – that would focus on the

fundamental interests of all European States. Like Saint-Pierre, Mably was

frustrated by the lack of organization of the rational study of politics in France.

In Germany, such study had been organised under the topic of natural law and

the law of nations at the universities, and in Britain a flourishing natural law

debate followed on the writings of Locke, Pufendorf, and others. Nothing of the

kind existed in France. Law schools were devoted to the practical training of

magistrates and universities were so tightly controlled by the Church that

intellectuals wanted to have nothing to do with them. Any public reflection on

the principles of natural and the law of nations was excluded. One could talk

politics only in the court and with the king.112 There had been a short-lived

experiment by Louis’ foreign minister Colbert de Torcy (1665-1746) to set up a

diplomatic academy in the Louvre in 1711-1719 with the motive of regularising

the careers of younger attachés. The handful of students who had been admitted

to the school studied Grotius and Pufendorf under the school’s director, the

distinguished jurist Yves Saint-Prest (c. 1640-1720), with practical exercises in

diplomatic correspondence and periods of traineeship at embassies abroad. The

school was terminated during the Regency at Cardinal Dubos’ request, however,

and no similar institution was set up in the course of the 18th century.113

110 On Mably’s “about face” in the course of 1747-50 from the “Parti des Modernes” to the “Parti des Anciens”, see Wright, Classical Republican, 39-65. 111 Wright, Classical Republican, 103.112 Johan Heilbron, The Rise of Social Theory, (trans Sheila Gogol, Univ. Minnesota Press, 1995) 68. 113 For a thorough study of the school, see Guy Thuilier, La première école d’administration. L’Académie politique de Louis XIV (Genève, Droz 1996). Predominant reasons for the school’s closure were the resistance of ambassadors to the inauguration of a practice whereby they could no longer choose their younger assistants, as well as the lack of interest in regular study shown by many of the students. In addition, an organized study of politics inside the administration was regarded with suspicion by a part of the king’s entourage.

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Informal suggestions to this effect had been made by men such as Saint-Pierre,

for example, and the Entresol club of which he had been one of the founders,

provided a forum in which a select group of men could in relative freedom

discuss the government of France’s internal and external policy. But even those

debates were too sensitive for the monarchy; they came to an end in 1731.114

For such reasons, the “moral science” of Droit public de l’Europe and especially in

the Principes de négociations in 1757 had such importance. Mably wove the

French tradition of raison d’état into a legal vocabulary with the objective of

developing rules of foreign policy that would be based on a meticulous

assessment of each country’s relative position on the political map. Mably based

his new science on an account of European history as the history of the greed of

its rulers. The great mistake in France, for example, had been to conceive ruling a

private matter, often dependent only on the ruler’s search for personal glory.115

European politics had been determined by family feuds (Habsburg/Valois;

Habsburg/Bourbon). Secret diplomacy and breaking of treaties were used to

satisfy the rulers’ passions.116 To emerge from this miserable state of things, the

latter ought to learn to design and follow policies that were appropriate to

protecting and enhancing the relative position of their countries on the European

political map. Large armies and the search for luxury were all “follies” that

undermined concentration on what is important – namely designing a policy to

respect its real, long-term interests.117 In describing this, Mably moved freely

between the language of “princes”, “peoples” and “nations” without a theory

about their relationship. Yet it was clear that he thought in terms of a “Europe” of

free nations whose people would be represented by their ruler.

Mably’s proposals follow Saint-Pierre and the raison d’état writers: for the

determination of their fundamental interests nations were to be divided in four

classes: ruling power (now France), rival power (now England), and powers of

second and third rank. Each possessed a fundamental interest, based on its

114 For the establishment, operation and closure of the club d’Entresol, see Nick Childs, A Political Academy on paris 1724-1731. The Entresol and its Members (Oxford Voltaire Foundation 2000). 115 Mably, ‘Principes de négociations’, 52-53. 116 Mably, ‘Principes de négociations’, 39-47. 117 Mably, ‘Principes de négociations’, 57-62.

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relative position that it would ignore at its peril. By aiming higher than its forces

allowed, or by neglecting constant vigilance, a nation was bound to disaster.

Balance of power would never provide sufficient protection. In fact, it would

usually favour the rival power (which is why William III had promoted it) and

might even became a predatory mechanism allowing (as in the case of the

partitions of Poland) dramatic redrawing of the political map.118 For the powers

of the second and third order Mably recommended strategies alternating

between principled pacifism and playing the principal powers against each

other, defending – as he put it – the Machiavellian nature of his suggestions by

their usefulness.119 The chapters on alliance strategies, in particular, were full of

examples of both well planned and rash negotiations. The point was to adopt a

conduct that would be consistently based on one’s relative position, and then

persist in following it (“se faire une règle certaine dans ses négociations”).120

In this regard, Mably suggested, the powers had not taken sufficient notice of the

recent emerge of economic wealth as a political asset. Wealth instead of military

had now become the new focus of policy. Territorial expansion, for example,

would no longer have much point – what use would it be to conquer a village at

the cost of expanding misery in one’s own villages? The war just began by France

and England (the seven years’ war) manifested a complete disregard of this, and

was against the fundamental interests of both.121 From now on it was necessary

for nations to concentrate on developing their wealth as the basis of their power.

This was the lesson to be learned from England’s rise to the position of rival

power and the fall of Austria and Spain from their earlier exalted status

In Mably’s view only a well-functioning agriculture was the basis of a nation’s

real and lasting economic strength.122 Trade in luxuries, by contrast, was harmful

because it would inevitably lead into increased domestic inequality. Already in

his first book Mably had argued that luxury had been a predominant cause for

118 Mably, ‘Principes de négociations’ 75-76. 119 “Je rougirais des maxims machiavéliques que je viens d’exposer, s’il n’était pas possible d’en tirer des consquences utiles aux hommes”, Mably, ‘Principes de négociations’, 85. 120 Mably, ‘Principes de négociations’, 107. 121 Mably, ‘Principes de négociations’, 79. Likewise, Mably, Droit public de l’Europe. Fondé sur les traités (tome 2, Genève, Compagnie des Librairies 1768), Ch XII, 260-265. 122 Mably, ‘Principes de négociations’,146-152.

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the decline of ancient Rome and Sparta.123 In his later work, including the

Principes de négociations, he became even more insistent of the role of virtue –

even Stoic virtue – in the government of the state. In a separate detour in the

Principes, he critiqued mercantilist ideas of warfare and the doctrine of

commercial society he associated with David Hume. Luxury might profit the

merchant, but not the society as a whole. It created inequality, increased prices

and in the long run undermined itself: “le luxe, loin d’être favorable au

commerce, est, au contraire une symptome de sa décadence prochaine”.124

Luxury both corrupts society and leads to economic decline by benefiting only a

small class of citizens. For the creation of long-term sustainable wealth it was

important for the nation to concentrate on the development of agriculture and

domestic exchange.125

In other late writings Mably would take an even stronger position against

commercial society and in favour of virtuous republicanism in a cosmopolitan

context. In a dialogue published in 1763 Entretiens de Phocion Mably put in the

mouth of the Athenian military commander his (“ancient”) view that giving in to

their passion for glory and riches provided the cause for the destruction of

ancient polities. Against this he invoked the Ciceronian concept of right reason,

recta ratio – precisely the strategy that Saint-Pierre had rejected as a utopian. A

life of avarice, greed, voluptuousness would never lead to lasting happiness. It

was true that passions could not be eradicated but they could nevertheless be

tamed by virtue and devotion to work for the happiness of one’s country.126 And

the good of one’s country must be seen in the context of humanity itself. A nation

that used violence and betrayal against its neighbours would be trapped by the

fear that it provoked in others.127 In a long “footnote” Mably attacked the violent

and unjust behaviour of European nations. The law of nations was known, but

used perversely and in support of irrational ambition. Even lately, he wrote, it

123 See Wright, A Classical Republican, 33-34. 124 Mably, ‘Principes de négociations’, 150. 125 The argument of the self-destructive nature of commercial society is also made (by reference to the writings of Richard Cantillon), in Gabriel Bonnot de Mably, Entretiens de Phocion sur le rapport du morale et la politique (Paris, Librairie de la Bibliothèque Nationale 1872), 125-131. See further, Wright, A Classical Republican, 60-64. 126 Mably, Entretiens de Phocion, 47-48. 127 Mably, Entretiens de Phocion, 52.

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had been falsely associated with passing treaties, neglecting its basis in reason

and nature.

“Pendant qu’on ignore la loi par laquelle la nature lie tous les hommes, pendant qu’on ne cherche qu’à rétablir un droit des nations favorable à l’ambition, à l’avarice et à la force, peut-on être disposé à penser avec Socrate, Platon, Phocion et Cicéron, que l’amour de la patrie, subordonné à l amour de l’humanité, doit se prendre pour son guide, ou on s’expose à produire de grands malheurs?” 128

True patriotism avoided violent conquest and sought to make one’s country

admired not because it its power – subject to the vicissitudes of fortune – but its

justice and humanity.129 The conquest by Pericles may have brought wonderful

riches to Athens. But while the prosperity of citizens grew, the republic became

poorer. As luxury brought in greed, everybody felt themselves deprived. In the

end, the corruption of the soul of the Athenians led to the collapse of their city.130

For Mably’s Phocion, the health of politics was based on virtue: “le Providence a

établi une telle liaison entre la morale et la politique que le bonheur des Etats est

attaché à la pratique des vertus”.131 Passions such as love of glory and honour,

firmness and heroism may sometimes be socially useful, just like some poisons

may be used as medicine. In the end, however, Phocion tells young Aristias, the

city can be saved only, if at all, by disciplining politics by reason, expressed in the

laws by a virtuous legislator.132

Mably’s most striking text, however, was the dialogue on the Droits et devoirs du

citoyen between a Frenchman and his English guest, Lord Stanhope, written a

year after the Droit public de l’Europe but published only posthumously at the

eve of the revolution in 1789. Here the Englishman commented on the mid-

century constitutional crisis in France, advocating the convocation of the Estates-

General but also a political “revolution”.133 Stanhope coldly dismissed the

128 Mably, Entretiens de Phocion, 104. 129 Mably, Entretiens de Phocion, 107-121. 130 Mably, Entretiens de Phocion, 122-133. 131 Mably, Entretiens de Phocion, 135. 132 Mably, Entretiens de Phocion, 141-142, 154-160. See also Wright, A Classical Republican, 80-90. 133 Abbé de Mably, Des droits et des devoirs du citoyen (Paris, Lacombe 1789). For the context, see Keith Michael Baker, ‘A Script for the French Revolution: The Political Consciousness of Mably’, in Inventing the French Revolution. Essays on French Political Culture in the Eighteenth Century (Cambridge University Press 1990), 88-91. Baker makes the useful point about Mably’s

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Frenchman’s proposal to accept the conditions of loss of liberty in France in view

of the “anarchy” that struggle against despotism would bring, rejecting the

submissiveness taught by Grotius, Pufendorf, Wolff and Hobbes. Humans were

born with natural rights and duties and it was the purpose of the State to protect

and strengthen them. The natural law tradition built “sophisms upon sophisms”

to suggest that without kings there would be no security, reminding his

interlocutor that Grotius had published his writings with the blessings of Louis

XIII.134 By reference to Locke’s Second Treatise, Stanhope then sketched a whole

plan for a “revolution ménageé” by the Estates-General. The executive and the

judiciary would be separated and the royalty’s position would be constitutionally

delimited. The conduct of foreign affairs would be dealt with conjointly by a

Royal Committee and the Estates-General, the latter possessing the power of

appointing ambassadors and receiving a report from the former for its criticism

or endorsement. With this, Mably has Stanhope say, “la nation aura bientôt un

droit des gens don’t les principes seront constans et uniformes”. 135

Mably’s views on natural law and the law of nations were part of an oeuvre that

was critical both of the institutions of the old regime and of the proposals to

transform France into a commercial society after the English example. They

expressed a republican emphasis on the active participation of virtuous citizens

in the ruling of the state, with solidarity to humanity in general and the equality

of all humans. He rejected both the practices of treaty-making and diplomacy of

the European states-system as well as the natural law tradition that he – like

Rousseau – saw as only offering a political legitimation to the latter. The way the

world was governed would have to be thought anew. Partial reforms would not

specifically political insistence on the dependency of political and social change on contingent will and struggle, not as a an automatic product of economic or social forces. 134 Mably, Droits et devoirs, 19-21. 135 But, Mably has Stanhope say, even after the establishment of the free republic, the dangers do not end: Sparta and Rome were delivered to tyranny by internal divisions and neglect of attention to the common good. Happiness and security also bring about negligence and lack of attention for the strict enforcement of laws – the respect of laws and magistrates diminishes and opportunities for tyranny grow. In war, too, danger is that the exceptional constitutional measures taken will remain permanent. Or then, victory makes the people negligent and lax.There has to be serious examination of governmental conditions to see to it, that the situation does not remain permanent. Mably, Droits et devoirs, 336, 356-359.

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suffice. Revolution was necessary, and this was not to be hindered by temporary

disorders and confrontations.

8. Epilogue: Abbé Grégoire and the Draft declaration of the Rights and

Duties of Nations

Droit public de l’Europe was the name given in the 18th century to the system of

treaties between European potentates and their effort to maintain balance of

power between their respective states and dynasties. In an oblique manner, it

also referred to the justifications sometimes given to this system from the

vocabulary of natural law and the law of nations. Grotius, Hobbes and Pufendorf

represented something that most mid-century enlighteners found unacceptably

conservative. But they still returned to natural law as the most readily available

platform over which to argue about liberty, equality and the rights of a universal

humanity.

In Droits et devoirs Mably put forward views that were strikingly prescient of

what the revolutionaries would be claiming in 1789. The critique of inequality

brought about by commerce and the defence of republican virtue touched on

themes that would be endlessly repeated in the National Assembly and the

Convention. But it was not clear what these ideas would entail for the conduct of

foreign affairs. The repudiation of the language of the ancien régime was not

accompanied by far-reaching calls for institutional change. This was also true of

the debates, in 1793 and 1795, when Abbé Henri Grégoire (1750-1831) tabled

his proposal for a declaration of the rights and duties of nations that had been

modelled after the Déclaration de droits de l’homme et du citoyen of 1789.

Grégoire was a provincial clergyman who had come to be known as a defender of

the Jews on the strength of a 1788 essay and an advocate of the abolition of

slavery in French colonies. A member and an occasional president of the

Assembly and the Convention, depicted in the foreground of David’s famous

Tennis Court Oath, Grégoire was a fervent Catholic but also a fighter in the

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republican cause whose cosmopolitan activism was channelled towards a view of

France as the representative of oppressed nations everywhere. 136

In the context of a debate on foreign affairs in the Constitution in the spring of

1793, Grégoire read to the Convention a proposal of 21 articles to be inserted in

the text that already contained the sentence according to which “le peuple

français est l’ami et l’allié naturel de tous les peuples libres”. According to the

proposal all peoples were “independent and sovereign” and connected to each

other by “universal morality” (Articles 1-2). From Montesquieu was derived the

rule that peoples ought to treat each other as they would wish themselves to be

treated and do in peace as much good and in war as little evil as they could

(Articles 3-4). Peoples were entitled to organise themselves as they wished; no

intervention in each other’s affairs was allowed. However, “no other government

[was] in conformity with the rights of peoples than ones that [were] based on

equality and liberty” (Article 8). Each people was master of its territory while

areas not subject to occupation (such as the seas) belonged to all (Articles 9-10).

Foreigners were to abide by the laws of the country where they stayed and a

people had the right to refuse entry to foreigners it considered dangerous to

their security (Articles 12-13) Any attack against the liberty of one people was

an attack on all of them. Offensive leagues were contrary to the “human family”

(Articles 15-16). Defensive wars were allowed but room was to be left for

negotiations (Articles 17-18). There were to be no ranks among the

representatives of peoples, and they were immune to the laws of their receiving

countries in respect of their mission (Articles 19-20). Finally, treaties among

nations were to be inviolable (Article 21).137

136 See especially Bernard Plongeron, L’abbé Grégoire ou l’Arché de la Fraternité (Paris, Letouzey & Ané 1989), 347-50. Grégoire was “Pantheonised” (i.e. his remains were transferred into the Panthéon in Paris) in 1989 in which context several biographies were published of him. See e.g. Georges Hourdin, L’abbé Grégoire. Évêque et démocrate (Paris Desclée de Brouwer, 1989); Maurice Ezran, L’abbé Grégoire. Défenseur des juifs et des noirs (Paris l’Harmattan 1992). See further Alyssa Goldstein Sepinwall, The Abbé Grégoire and the French Revolution (University of California Press 2005). The biographies concentrate on Grégoire’s activities in favour of tolerance, the reform of the Church and his many proposals for re-organising education and fighting “vandalism” and deal with the draft declaration only in passing, if at all. 137 For the articles, see Pierre Fauchon, L’abbé Grégoire. Le prêtre-citoyen (Paris, Nouvelle-République, 1989), 87-88. The best discussion of the context and a full list of the 21 articles is also in Marc Bélissa, ‘La déclaration du droit des gens de l’abbé Grégoire (join 1973, 4 floréal an III)’, in http://revolution-francaise.net/2010/10/06/399-decrlaration-droit-des-gens-abbe-gregoire-juin-1793

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In view of the tense international situation in June 1793, however, the majority

of the deputies held it sufficient to state that France declared its friendship with

all peoples; there was reason to be “political” and not to express futile

philanthropic sentiments. Grégoire repeated his proposal in April 1795, after the

signature of the Peace of Basle, condemning in his introductory words old

diplomacy anew but also the kind of abstract cosmopolitanism that was only

“vagabondage physique ou moral”. “Real patriotism”, he affirmed, would include

love for humanity, too. Though Grégoire stated that natural law should rule over

politics, he condemned the traditions of natural law and diplomacy, including

Mably’s “Principes de négociations”. This time the reception from the audience

was cool, however, and the proposal was flatly rejected. The Convention not only

decreed on the different uniforms for ambassadors and ministers (going against

Grégoire’s Article 19) but also now opened the door for offensive war.

* * * * *

Grégoire’s proposals became the target of the successive prefaces from 1796

onwards of his widely read Précis de droit international moderne de l’Europe by

the Göttingen professor, Hanover’s representative at Vienna in 1814-1815, Georg

Friedrich von Martens (1756-1821).138 Martens’ home university had

experienced Napoleon’s occupation and he saw in the declaration another

hypocritical instrument of French policy of conquest. Any declaration of

principles was meaningless without institutional or treaty-based guarantees.

Even if most people would agree to them in their abstract formulation, they

would not help when differences over their meaning arose. The world could not

be changed by abstract declarations, Martens wrote. Hence the turn to treaties

and to “positive” international law in the following decades. But if the tradition of

natural law and the law of nations was finished as part of diplomacy and public

law, it continued to flourish elsewhere.

138 See further my ‘Into Positivism’, 198-200.

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As we have seen, despite their criticisms of the naturalist tradition, the French

intellectuals were unable to rid themselves of the language of natural law and

the law of nations. In a period that admired the achievements of the natural

sciences – Bacon and Newton particularly – that language pointed to the need of

a scientific policy of human society, too. This was accomplished by the

emergence in France of “social sciences” immediately before and during the

revolution.139 If “natural history” included a large view of human societies,

“political economy” suggested rules for their immediate government. With

Physiocracy, the language of natural law helped to produce a view of economic

governance in which the old juridico-Machiavellian idea of an independent

political realm standing opposed to a civil society of autonomous individuals was

replaced, as Catherine Larrère has shown, with a view of individuality as part of

a total “system” of exchanges.140 “Private” activities (of buying or selling for

example) become part of the “public” operation of the state, and, through the

operation of free trade, of the realm, first, of a European-wide idea of law, then of

global law tout court. When everything operates in accordance with natural law

– this was Le Mercier’s “legal despotism”, a brilliant antecedent to today’s

globalization studies – then human “liberty” and “individuality” would be

conceived in terms of “rational” choices in a world of naturally self-regarding

individuals. Against this, the effort to resuscitate ancient virtues of republican

citizenship by Mably, Rousseau and others seemed even in the 18th century

quaint at best. When the tradition of law of nature and of nations learned what it

needed to become in order to provide scientific advice on how to rule, it realised

that it needed to become economics. At that point it was left for public law and

lawyers specialised in it to re-imagine the formal structures of statehood in

terms of a “rule of law” designed to make sure that the system of exchanges in

which individuality was produced and re-produced, could function with

measurable accuracy.

139 See e.g. Heilbron, Rise of Social Theory, 119-147. 140 Larrère, L’invention de l’economie (Paris, Presses Universitaires de France, 1992), 309-314.

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