Public Law of Europe_160112-b

THE PUBLIC LAW OF EUROPE (Droit public de l’Europe):

Reflections on a French 18th century Debate

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 however

more familiar to international lawyers from the title of Carl Schmitt’s polemical

analysis of the territorial order that was centred on Europe during

approximately three hundred years 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 situation and

relative power, and so to avoid the calamities that in the past excessive ambition,

greed and fear among monarchs had caused. 4

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

three-volume treatise with its lengthy introduction. Did it express the nature of a

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.

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Europe-wide legal order? In contemplating this, it has to be first noted that the

history of early modern political and legal thought in Europe is sharply divided

in two departments. One focuses on the tradition of natural law and natural right

in England and Germany. The key figures are the Englishmen Thomas Hobbes

and John Locke, the Dutchman Hugo Grotius and a whole list of German

university scholars from Samuel Pufendorf and Christian Thomasius to

Immanuel Kant, the trajectories converging in the Scottish Enlightenment and

especially in the work of Adam Smith. Another department is interested in the

development of French political institutions, especially absolutism and the march

to the revolution. Names that stand out are the politique proponent of

sovereignty, Jean Bodin, writers in raison d’état tradition from Giovanni Botero

to Cardinal Richelieu, enlightenment pamphleteers from Fénélon to Voltaire, the

work of encyclopaedists and physiocrats from Diderot to Quesnay and left

republicans from Rousseau to Robespierre. While the vocabulary of the law of

nature and of nations plays a key role in the former, its significance in the latter

seems either negligible or appears idiosyncratic to the environment of the

collapse of the ancien régime.

Of course, the departmental wall is porous. Hume, Montesquieu and Smith are

outstanding examples of cross-cutting influences. Much of “modern” natural law

penetrated France through Huguenot writings from Germany and Switzerland.

Mably himself was impressed by English ideas of liberty – but like most of his

interlocutors he rejected the (English) turn to commercial society. But in general,

the hostility and mutual incomprehension between Richelieu and Grotius was

reflected in the relative absence in France of the kind of politico-legal debate

focused on natural law that took centre-stage in England (and Scotland) and at

German universities. Many reasons have contributed to this. Differences in

political and constitutional history and culture have been important. Religious

differences, the role of the Church and the position of universities have played a

role. So have different attitudes to law and lawyers. In this essay I will use the

theme of “European public law” (Droit public de l’Europe) to examine more

closely the French debates about the international political world in the century

leading up to the revolution. I am especially concerned to enquire to what extent

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the French debate was carried out through themes and positions that were not

shared with the rest of Western Europe at the time. The tradition of jus naturae

et gentium that developed from Spanish neo-scholasticism, via Grotius to the

civil and metaphysical philosophies in Germany and to political economy in

England (Hume and Smith), was paralleled in the French quarrel between

“ancients” and “moderns”, in the debates about the roles of virtue and luxury in

the government of European polities and about the omnipresent metaphor of

“balance” of military, political and economic power in Europe. Though “law” was

omnipresent in these debates, what it meant and how it was to operate in the

government of Europe brought out striking differences.

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 in the 16th century as “[t]he state

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

factions which warred with royalty itself”.5 This prompted anxious theorization

on such matters as the powers of the king vis-à-vis the nobility and the estates as

well as on the role of provincial parlements in the administration of the country.

On all three sides of the controversy – Catholic, Protestant and politique – jurists

were putting forward historically founded constitutional theses in support of

their respective positions. 6 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

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

The theory of sovereignty – which was by no means invented by Bodin –

articulated in legal terms the needs of a strong central power that could put an

end to the internal chaos in France by uniting the country around a strong

kingship. 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

5 Frank W Church, Constitutional Thought in Sixteenth Century France. A Study in the Evolution of Ideas (Boston 1941), 74.6 See further Church, Constitutional Thought in Sixteenth Century France, 74-178. 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).

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constitutional limits of supreme power. Bodin had regarded sovereignty

compatible with the ruler being bound by a robust set of fundamental laws,

natural law and the law of nations. Speculation on such constraints became,

however, politically impossible during the dictatorship of Richelieu and his

follower, Cardinal Mazarin (1602-1661). French public law in the 17th century

was charactersised by loyal support to the monarch. In Charles Loyseau’s (1564-

1627) Traité des seigneuries (1610), monarchy, sovereignty and the state were

united in a single whole as the “puissance absolue”. Three types of limits were

still foreseen to it, namely those following from divine law, the rules of natural

justice and the “fundamental laws of the realm”. Sovereignty was understood in a

territorial fashion and the prince “doit user de son souverainetié selon sa proper

nature, et en la forme et aux conditins qu’elle est établie”.8 Two devades later,

Cardin Le Bret (1558-1655) had in his De la souveraineté du Roi (1632)

removed sovereignty completely fro any standards of assessment. Th French

monarchy was in no way dependent on any secylar rules – “sa première marqye

est de ne dépendre que de Dieu seul”.9 Absolutism in Le Bret was sityated

outside temporality altogether including any form of temporal control – only the

salic law that governed succession governed it. For the absolutist Le Bret, all

legal sources for determining the power of the king came from Roman law –

absolutist as it was. The per to wage war conclude or break treaties came only

from sovereignty; there was no international order but everyihg came from

inside the sovereignty of the “most Christian king”.-

By the time of the turn to absolutism by Louis XIV in 1661 there was no longer

any live tradition of constitutional debate in France. The field was fully occupied

by the religiously grounded apologetics of Louis’ reign by his crown jurist,

Jacques-Bénigne Bossuet (1627-1704).

Grotius, Hobbes and Pufendorf all wrote their naturalist rracts as scientific

pieces, intended to universal application, as part of general theories of the law

and state. The French wrote in awholly different way. Their reference was

French law and French history and French monarchy. Even Domat’äs naturalist 8 Cornette, Fiction, 33. 9 Le Bret De la souverainété, I.9 (cited on p 36).

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tract did not propose to set out a general theory of statehood or of sovereignty.

To some extent, this resulted from divine law: France was its subject. And Loysay

and de Bret spent much time congratulating the French for the excellence of the

French monarchy and the glories of France’s history. If something was said of

other countries, this was only by way of comparison and invairaibly to France’s

advantage. There was a just war tradition, but under the divine Kingship

paradigm “justice” tended to coalesce with what the King wanted (De Bret,

Loyseau, Domat, Bossuet).

By the end of the 17th century, the naturalist tradition had begun to appear

largely as a preserve of Protestantism. After the revocation of the Edict of Nantes

by Louis in 1685, Huguenots would use the vocabulary of natural law to vent

their anti-French sentiments and attack Louis’ alleged efforts at “universal

monarchy”. 10 There was something to this of course. The motives for Louis’

endless wars changed in the course of his reign, but the search for La gloire

remained predominant among them even as the actual operations turned

increasingly from conquest to protecting the security of the realm.11 By the last

decade of the century, France itself was financially and psychologically

exhausted by the diversion of all available public resources to endless warfare.

The countryside had been abandoned and bad harvests in 1693-94 contributed

to widespread famine in parts of the country. Wanton destruction in the course

of the war effort – especially the destruction of the Palatinate in the winter of

1688/89 – had created an anti-French coalition in Europe further contributing to

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

Even a privileged observer, such as Archbishop Fénelon (1651-1715), the

preceptor of the royal princes at Versailles, had to circulate his famous “Letter to

Louis XIV” in the 1690s secretly among friends and refrain from ever sending it

to the king himself.

10 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); Leibniz, ‘Mars Christianissimus’, (1683) in Political Writings (P Riley ed., Cambridge University Press 1972), 121-145. 11 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.

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Fénelon’s letter summarised the main points of the early criticisms against Louis:

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

population, the uses of glory and vengeance as motives of war, the appeal to

French security for action that undermined the security of everyone else and

drove them to unite against France, as well as the imposition of unjust conditions

of peace for the vanquished: the “une guerre injust n’en est pas moins injuste

pour être heureuse”.12 Even the ostensibly just causes invoked to “reunite”

frontier regions with France was no good – “[c]onsultez des gens instruits et

droits, ils vous diront que ce que j’avance est clair comme le jour”.13 What

Fénelon had to suggest to change this state of affairs 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 prohibition of morally

dangerous trade of “luxuries”.14 The theme of the corrupting influence of luxuries

together with an attack of Colbert’s economic policies as ruinous for the

country’s morale were key themes 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.15 In the narrative, as

Telemachus arrived on the Island of Crete, admired by visitors and famous for its

hundred prosperous villages, he found out that the only reason for unhappiness

in the country was created by the desire for superfluities. Hence, Minos, the

wisest of kings and lawmakers, had decreed that children should be educated in

the simple life, to only to compete in the excellence of virtue and the

achievement of glory. “Courage” was associated not only with fearlessness in war

but trampling excess riches underfoot. “Ici on punit trois vices qui sont impunes

chez les autres peoples: l’ingratitude, la dissimulation et l’avarice”.16

12 Francois de Salignac de la Mothe-Fénelon, ‘Lettre à Louis XIV’, in Lettre à Louis XIV et autres écrits politiques (Paris, Bartillat 2011), 49. 13 Id. 50. 14 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. 15 Id. 101. 16 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.

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Fénelon rejected the separation of private and public morality that had been

inextricable from the neo-Machiavellian doctrine of arcana imperii promoted by

Richelieu and the publicists of the raison d’état tradition.17 In his view, what was

needed, and 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 trade of

superfluities.18 A State that would grow prosperous by relying on domestic

resources, he argued, would also be stronger in its foreign policy and would have

no need for demonstrations of militarism.19 In the upcoming battle between the

“ancients” and the “moderns” among French intellectuals after Louis’ death in

1715, Fénelon would be immediately classed among those looking to examples

of virtue taken from antiquity against the supporters of an emergent commercial

modernity. As such, however, he would remain on the sidelines on the

eighteenth-century debates on the principles of European government,

including the role and character of the law of nature and of nations. The language

of virtuous rule would re-emerge only towards the end of the century, and then

no longer in the context of reforming monarchy.

2. The Peace of Utrecht – crystallization of the Public Law of Europe

The Treaties of Utrecht of April 1713 that ended the Spanish war of succession

(1700-1714) provided the first clear articulation, at a diplomatic level, of

European public law. The death of Charles II of Spain had created the danger of

the union of French and Spanish crowns – something that other powers were not

going to accept. In this context, Féneleon composed a series of memoranda for

friends in the court, such as the Duke of Chevreuse, to speak against the war as

17 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. 18 Istvan Hont, Jealousy of Trade. International Competition and the Nation-State in Historical Perspective (Harvard University Press 2006), 25-27. 19 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.

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contrary to French interests and in favour of a rapid and just peace.20 As the

peace talks began in 1710, he lamented their slowness and proposed to include

in the delegations alongside professional diplomats also men of “substantive

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

take place in regular peace talks.21 It was not to be so. The French minister

Colbert de Torcy filled the delegation with 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 went through a number

of phases involving precisely the kind of secret bargaining, often outside the

negotiation room, and sometimes directly between the ministers, that Fénelon

wished to exorcise from virtuous policymaking but that was an essential part of

the system of public law and diplomacy among Europe’s absolutist sovereigns.22

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

treaty “to affirm the list of derivative titles in international law that had already

been laid out by Grotius”.23 But the treaties famously contained a broader legal

principle, too:

“The Treaty of Utrecht of 1713, together with the earlier Peace of Westphalia and the Vienna Treaties of 1815, belongs to the series of great peace instruments that formed the constitution – so to speak – of Europe. In 1713 as in 1648 and 1815, the European balance of power was restored…The principle of just balance of power (iustum potentiae aequilibrium) was explicitly included in the text of the treaty of Utrecht. It was thus elevated into the rank of a principle of international law and became a fundamental constitutional principle of the Droit public de l’Europe”.24

Situated approximately mid-way between the conferences of Westphalia (1648)

and Vienna (1815), Utrecht has come to be known as the event when the search

for equilibrium between the powers became the cornerstone of the European

20 For the Memoranda, see Oevres de Fénelon, Achevêque de Cambrai. (Tôme 3, Paris, Lefevre, 1835), 410-441. 21 See Lucien Bély, L’art de la paix en Europe. Naissance de la diplomatie moderne XVIe – XVIII siècle (Paris, PUF 2007), 433, 452. 22 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. 23 Wilhelm Grewe, Epochs of International Law (Berlin, De Gruyter 2000), 395.24 Grewe, Epochs, 282.

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order. In this regard, Fénelon was successful. Alongside writing appeals against

the war he produced a memorandum as an annex to his instructions to the young

crown prince regarding the need for European powers to ally against the

inevitably hegemonic design of the strongest among them. Such leagues, whether

defensive or offensive, would serve the role that laws and magistrates serve in

domestic contexts against excessively powerful families. To work for equilibrium

is thus to work “à la liberté, à la tranquillité, eu salut public”. It is to operate a

kind of “loi naturelle de la sûreté de…nations”.25 As Emer de Vattel put it half a

century later in his Law of Nations (1758), had the powers during the Spanish

succession crisis allowed the union of the two crowns, they would “according to

all the rules of human foresight have been nothing less than delivering Europe to

servitude, or at least to the most critical and precarious situation”. Hence he

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”.26

The peace of Utrecht consists of a large number of treaties but they are

distinguished by three aspects. First is the diplomatic organization of Europe

after the settlement of the crisis over the Bourbon succession in Spain and

France that provided occasion to state the principle of the balance of power as

the heart of European public law. The Treaty also affirmed the global reach of

that law by containing provision on the freedom of the seas (the end-point of the

hundred-year “war of books”) and on the Anglo-French colonial settlement in

North America.27 France lost Newfoundland, Acadia (Nova Scotia) and Hudson’s

Bay but retained the Cape Breton coast and French fishermen received the right

to fish off the coast of Newfoundland. The third aspect and the arguably most

coveted prize of the settlement was the fate of the asiento – the transfer of the

25 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 Oeuvres complètes, tome 3, 360-363, 361a-b. 26 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). 27 Schmitt, Nomos, 153-156.

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monopoly of Atlantic slave trade to the English South Sea Company.28 In

addition, there were territorial arrangements under which Britain received

Gibraltar and France parts of the Habsburg inheritance in Spanish Netherlands,

Milan and Sardinia. The treaties thus set up a principle of European security,

settlement of problems relating to colonial rivalry, and the organization of the

Atlantic slave trade.

Utrecht was no utopian peace arrangement but diplomacy as usual. But the

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

permeated European intellectual life at the turn of the century was slowly

passing. The novel spirit of the early Enlightenment viewed many aspects of the

ancien regime, including its absolutist ideas of kingship and its endless 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. Early eighteenth-century spirits wanted to aim higher,

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

values of secularism and enlightened rule over European populations.29 The

latter part of the reign of the Sun King had demonstrated that the problems of

domestic absolutism became international problems. Something had to be done

to tackle them.

3. Abbé de Saint-Pierre

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

Pierre (1658-1743) who produced in 1712-1713, in the context of the

negotiations to the Treaty of Utrecht, the most widely read proposal in the 18th

century concerning the establishment of an international institution designed to

secure peace in Europe. Saint-Pierre’s design was debated in by Leibniz, Voltaire

and by Rousseau and most of French political elite was aware of it. Despite his

reputation as a idealist and a pacifist, Saint-Pierre was actually neither one nor

28 The point about the centrality of the trade aspects of the treaty arrangements especially for France is made in Miquelon, ‘Envisioning the French Empire, 654-655. 29 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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the other. Unlike Fénelon and the “ancients”, he had a bleak view of human

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

what he called an “unjust passions”, 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”. 30

Together with many contemporaries, Saint-Pierre felt that the bonds of ancient

virtue were loosening and that moral education or the example of the ancients

would not suffice to halt this process. His experience as the Chaplain of the

Duchess of Orléans from 1692 had opened to him the gates to the court in

Versailles and convinced him of the decisive role that passions played in public

life. Mere appeals to “reason”, the standards of Christian piety or to the altruism

of natural law would remain without effect in the conditions of modern France.

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

virtuous purposes. This was the idea of countervailing passions. As had been

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”.31 In the early 18th century, passion was increasingly understood as

an ineradicable aspect of human life. Humans could not be made saints by

uprooting their passions. Instead, passionate energy and “affects” were to be

turned to virtuous purposes by supporting constructive passions against wicked

ones.32 As it was put by Montesquieu in the middle of the century: “It is fortunate

for men to be in a situation where, though their passions may prompt them to be

wicked, they have nevertheless an interest in not being so”. 33

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

nature and of the nature of 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

30 Abbé de saint-Pierre, Projet de paix perpetuelle, I & III, 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. 31 Spinoza, Ethics, 120.32 This is the classic point in Albert Hirschmann, The Passions and the Interests.33 Montesquieu, The Spirit of the Laws

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Traité fondamentale, que de réfuser de signer”.34 It was in their own best interest

to set up a permanent union that could arbitrate their differences and enforce

their promises to each other. Saint-Pierre even made his own the famous saying

of the proto-realist Duke of Rohan from Richelieu’s time – “princes command

peoples, but interest commands princes”.35 He did not try to reform princes but

to convince them that they themselves 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 wholly certain that their

neighbours might not immediately breach their promises once they felt they had

developed the capacity for victory. One is, as he put in a series of elaborate

passages, always dependent on the one is afraid of.36 Moreover, even if princes

could guarantee peace for themselves, they could not guarantee it to their

dynasties in the future.37

As long as sovereigns could breach their promises and treaties 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 a 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. Only a

Leviathan could guarantee civil peace. Saint-Pierre was careful not to refer to

Hobbes but what he was saying about international peace amounted to the same.

Monarchs were irrational, passionate creatures, dangerous to themselves and

their peoples. The only way to restrain them was to provide for a supranational

authority that can take action against them in case they violate the peace. This

was not pacifism: it was a system of constant, institutionalised threat of force.38

34 Abbé de Saint-Pierre, Abregé du projet de paix perpetuelle (Rotterdam, Beman 1729), 42. 35 Abbé de Saint-Pierre, Projet pour render la paix perpetuelle entre les Souverains Chretiens, (Utrecht, Schouten 1717), 66-71. 36 37 Saint-Pierre, Abregé, 12-13. 38 On Saint-Pierre’s Hobbesian political theory, see Merle J. Perkins, The Moral and Political Philosophy of the Abbé de Saint-Pierre (Geneva, Droz 1959), 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

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Saint-Pierre was born in 1658. He was educated in Jesuit colleges in Rouen and

Caen but soon gave up the plan to join the clergy. Instead he moved to Paris

where he participated in fashionable society, receiving 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 corruption of the regime. On the strength of

his experience close to the court he began to write profusely on the

reconstitution of the French monarchy. He had been appalled by the clientelism

and inefficiency of the last years of the reign of the Sun King. State finances lay in

ruins and the countryside was gripped in widespread misery . In a number of

articles and letters, Saint-Pierre proposed fiscal reforms and the introduction of

proportional taxation as remedies to the crisis.39 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 the turning state administration into an impersonal

bureaucracy, a machine, to prevent its use for the purposes of clientelism and

corruption. For this purpose, the rule of law was needed not only for concerns of

efficiency but for the preservation of the liberty of the citizens.40 Saint-Pierre was

disappointed at the abstract and unorganised nature of prior debates on politics

and natural law. An effectual politics was to be based on “evidence” and “esprit

de raisonnement”, and it would need to be of practical use in the administration

of the state. In order to tech political methodologically he suggested the

establishment of an Académie politique that would teach a new science, namely a

science de gouvernment.41

Saint-Pierre was a monarchist and a defender of the thèse royale in the

contemporaneous constitutional debates. This did not mean that he was in

favour of absolutism. He knew that monarchs were as vulnerable to irrational

passions as other humans, having surveyed the consequences of the last years of

39 On his economic plans and his design for restructuring French administration, see Perkins, The Moral and Political Philosophy, 73-81. 40 See especially 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. 41 It can be noted that a diplomatic school, was set up in the Louvre by the Marquise de Torcy, the Foreign Minister, in the Louvre, but it operated less than ten years, after which it had to be closed.

13

Louis’ reign. He did not have faith in preaching virtue to the king, and chose the

argument from enlightened self-interest instead. It was in the monarch’s own

interest possess a well-functioning administrative machinery. The same

arguments underlay Saint-Pierre’s famous plan for European reorganisation and

peace. The first edition of this work appeared in 1712, as the talks on ending the

wars of Spanish succession had been under way already for many years, as

Mémoire pour rendre la paix perpetuelle en Europe.42 This was followed up the

following year – the year of the Treaty – by Projet pour rendre la paix perpetuelle

en Europe. As soon as the latter publication had come out, Leibniz sent a letter to

the Abbé congratulating him of the “passion and rationality” of the proposal as a

contribution to European politics. It is not known whether Saint-Pierre 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 and very well aware of the course of the negotiations. 43

There is no doubt that the reference in the peace plan to “the present peace” –

which the Abbé says cannot be believed to be lasting – was precisely to the

treaties made at Utrecht in 1713.

As a literary achievement, the Projet was unimpressive. It consisted of 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, 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. 44

The Projet consisted of seven separate “discourses”. Like the two other proposals

of the period to which it is usually compared – those of the Englishmen William

Penn and John Bellers – they were limited to Europe. Saint-Pierre did not believe

in the realism of any universal peace system. In the first version, he included

42 Charles Castel de Saint-Pierre, Mémoire du projet pour render la paix perpetuelle (pour le ministre M. de Torcy, 1 septembre, 1712). 43 Perkins, Moral and Political Philosophy, 51. 44 Abbé de Saint-Pierre, Abregé du projet de paix perpetuelle (Rotterdam, Beman 1729).

14

both Turkey and Russia, but later on dropped Turkey and even came to advocate

joint European war against it. The main point repeated over again was that it

was in the Monarchs’ own interest to set up a permanent organisation to free

themselves from fear of attack and rebellion. In fact, the language of the plan was

more concerned over domestic conflict than interstate war. Adopting the plan

would enable peaceful growth of trade and industry, and thus the not only the

survival but the prosperity of the ruling dynasties. “Among European States”,

Saint-Pierre concluded, “there is not one for which it would not be more

advantageous to sign the treaty for the establishment of this society than not to

sign”.45 Mutual promises among sovereigns, truces, commercial treaties,

guarantees and alliances were, history had shown, fragile and easily set aside in

preparation for war. They, like the balance of power that was now becoming the

leading European policy were precarious and dependent on the whims of princes

and on 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…”46

With these, war will always be coming.47 Saint-Pierre thus proposed the

establishment 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. 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.48 The main thrust of the

proposal was in Discourse Four that consisted of a draft Treaty on the European

45 Charles Castel de Saint-Pierre, Mémoire, Troisième discours, 153. 46 Saint-Pierre, Mémoire, Deuxième disocurs, 73. 47 Saint-Pierre, Mémoire, Primière discours, 48 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.

15

Union with 12 “fundamental” articles and 8 “important” ones. 49 These consisted

of five principal elements:

First was a promise by the members of the union that they would agree to

preserve the existing territorial and dynastic status quo in Europe and would

never seek to challenge it by arms. Because this also applied to rebellion and civil

war, the Union would take on a perpetual guarantee of the ruling dynasties. With

the guarantee provided by the Union, they would have “sûreté suffisante”. In fact,

the Union was not to intervene in the affairs of its members for any other reason

than for implementing these guarantees, including the suppression of any

domestic dissent (“à soumettre les esprits rebelles”) and guaranteeing the

maintenance of the constitution.50 But the plan did include an engagement –

taken in no doubt in view of the problem of Spanish succession – that no

sovereign could rule over two or more States. Peaceful changes were not

excluded and any disputes about borders or succession would be resolved

through arbitration by the Union.

Second was the permanent institution of the European Union after the model of

the United Provinces and the Holy Roman Empire. The sovereigns would be

permanently represented in a Senate that would meet at some “free city” where

each sovereign would have one vote. 51 However, the fundamental articles of the

union could be amended only by unanimous vote while the “important” ones for

three quarters’ majority. Thirdly, the Senate was to organise European

commerce in such a fashion that all States would draw optimal benefit from it.

There would be a general most-favoured nation treatment and the detailes of the

trading system would be based on majority votes while amendments would

require a two-thirds majority. The senate would also set up a Chamber of

Commerce in each major town that would have alternate jurisdiction with the

courts of the defendant to adjudicate any trade disputes between individual

49 Saint-Pierre, Mémoire, Quatrième discours, 271-366. 50 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). 51 Article 1, Saint-Pierre, Mémoire, Quatrième discours, 271.

16

merchants or States brought to them. The members of the union would agree to

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

also arbitrate between sovereigns either by itself or by choosing suitable

mediators for that task. A member taking arms against others or refusing to

execute a judgment or will be declared enemy of all and war will be waged

against it. 52 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. The costs of the army, like all costs of the

operation of the Union would be based on the contributions of each member in

accordance with their relative fortunes at the beginning as decided my a majority

vote and thereafter by a majority of three fourths.

Saint-Pierre’s proposals were not written in the form of a utopia in the way of a

More or a Campanella. They were based on a realistic awareness of the role of

self-interest in foreign policy and in making the argument that self-interest

among European monarchs would be best realised within the kind of union that

he proposed. Nevertheless, his contemporaries remained sceptical of the

proposals. Neither his friend, the fellow royalist and former foreign minister

Marquis d’Argenson nor the other colleagues whom he kept meeting regularly at

the famous Club Entresol of which he was one of the founding members during

its brief existence in 1723-1731 felt able to associate themselves with his peace

proposals. This is not to say that they would have regarded his other proposals –

for instance those concerning French administrative and fiscal reforms – as

unworthy of serious consideration. In fact, the proposal concerning proportional

taxation was briefly tested at a provincial level. For the rest of his life, Saint-

Pierre kept revising and re-publishing versions of his plan. But he was never able

to convince his colleagues or French political leaders of the realism of his

proposed plan. When the project was communicated to the Cardinal Fleury, the

effective ruler of France during the time of the Regency, read it sympathetically,

responding only: “Vous avez oubliez un article essentiel, celui d’envoyer des

52 Saint-Pierre, Mémoire, Quatrième discours,

17

missionaries pour toucher les coeurs des princes et les persuader d’entrer dans

vos vues”. 53

4. Rousseau’s criticism: virtue and republicanism

The Projet was widely circulated among especially French elites who generally

regarded them as hopelessly inadequate and also 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”.54 Many accused the plan

of being self-defeating. 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 in 1782. The former

was a kind popularization of the Plan, the latter a statement on it by Rousseau

himself.

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”.55 Rousseau’s main critique was that although the

Abbé was right in presuming that only a permanent union could bring about his

desired objective, there was no possibility that it could be realized in a

foreseeable future. It presumed, namely that the monarchs really were rational

egoists – namely that would be able to see their real interests and oppose them

to their short-term passions and desires. But this, as Saint-Pierre himself had had

occasion to testify, was not the case. It remained, as he said, “the illusions of a

53 Quoted in Frederick L. Schuman, ‘The Ethics and Politics of International Peace’, 42 International Journal of Ethics (1932), 149 54 Quoted in Bois, L’Europe, 211. 55 Jean-Jacques Rousseau, ‘Critique of Saint Pierre’s Project’, in A Lasting Peace. Through the Federation of Europe and The State of War (C.E. Vaughan transl. London 1917), 92-93.

18

truly human heart”, admirable but unworkable. Thus Rousseau came to the

melancholy conclusion that within a context of monarchical absolutism, it would

be intrinsically impossible to attain more than an unstable balance of power –

that perpetual peace remained a utopia. It would first be necessary to change the

constitution of the state itself – as Kant famously would argue in Perpetual Peace

– so that it would become a republican constitution. Because, as the Kantians

have argued ever since, a lasting peace can only be set among nations with a

republican constitution, it was first necessary to actually change the internal

regime of states.

In the end, then, the discussion about peace that was triggered by the Spanish

wars of succession – or perhaps more relevantly, the endless violence launched

upon Europe by Louis XIV – merged with debates concerning the well-

foundedness of monarchical rule and the possibilities of republican constitution.

Those debates, again, led to the French revolution and a different kind of sense of

when war might be not only be possible but necessary and just. Today, there is a

big debate on the democratic peace thesis. Are democracies intrinsically averse

to war? Statistics tell us that although democracies have often gone to war, they

have never done this with each other. The EU was at one point imagined as a

peace plan, with two strategies in mind: First, institutionally tie down its

members so that war among them would become unthinkable. And second, to

educate its members into becoming democratic. We may be facing a period when

the union’s own power will diminish – for that eventuality, it must be hoped that

its members remain democratic enough to carry out the Union’s pacific purpose.

5. The Encyclopaedists

Although Saint-Pierre occasionally referred to natural law or the law of nations,

he did not do much with either. What he had imbibed from the natural law

tradition was the sense that society was composed of essentially self-regarding

individuals whom reason persuaded to forego immediate satisfaction of their

desires so as to attain more valuable long-term goals. This was the heart of what

19

both Hobbes and Pufendorf had been teaching and for the purposes of the plan

for perpetual peace, it sufficed for Saint-Pierre to extrapolate from them a set of

behavioural directives for sovereigns as the foundation for a new European

order. Rousseau, however, was as critical of the natural law tradition as he was

of Saint-Pierre’s effort to solidify the dynastic status quo. As is well-known, in Du

contrat social (1762) he 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”.56 The target of

Rousseau’s critique was the weight Grotius attached to customs and treaty

practices as evidence of the content of the law – his famous “a posteriori”

method. In producing a justification for state power in the warlike character of

the natural state, the tradition had actually created the situation from which it

claimed to produce an exit: “All ran towards their chains believing that they were

securing their liberty”.57 War did not end with the establishment of States,

Rousseau wrote in the brief, unfinished extract on the principles of the laws of

war, but began with it: of this the books of “savants and jurisconsults” knew

nothing.58 The law of nations was a chimera: without a guarantee beyond the

utility of the one who submitted to it, it was followed only when that seemed

useful.59

That the philosophes were generally critical of the natural law trafition is well-

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

enlightenment universities of Halle and Göttingen were usually read no further

than to note that the flagrant contradiction between heavy and repetitive style

with 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:

56 Jean-Jacques Roussseau, The Social Contract (M. Cranston transl. & intr. Harmondsworth, Penguin 1958), 51 57 Jean-Jacques Rousseau, A Discourse on Inequality (M. Cranston transl. & intr., Harmondworth, penguin 1984), Part II (122). 58 Jean-Jacques Rousseau, ‘Principes du droit de la guerre’, in Principes du droit de la guerre. Écrits sdur la paix perpetuelle (B Bernardi & G Silvestrini eds. Paris Vrin 2008), 69-81. 59 Rousseau, ‘Principes du droit de la guerre’, 70.

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“Croyez-moi, lisez les Offices de Cicéron. Rien ne contribuera peut-être dplus à rendre un esprit faux, obscure, confus, incertain, que de lecture de Grotius & Puffendorf, & de Presque tous les commentaries sur le Droit public”.60

And yet, Voltaire himself could not avoid making constant reference to natural

law, as indeed did all of his colleagues. What, for example, 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 difficulty to resuscitate ancient notions of law and morality when their

positions needed a formal defence.61 But these references were rarely connected

with robust jurisprudential arguments. Instead, they appear predominantly as

rhetorical devices, appealing to the readers’ recognition of the self-evident truth

of what is being said, clearing the way for getting on with the pragmatic work of

reform that was what Voltaire and his colleagues were mostly interested in.62 If a

more elaborate 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 – to individuals in other words – and,

interpreting individual behaviour empirically, by reference to the “passions”,

they tried to achieve a reconstruction of “rational” rules within a utilitarian

calculus.63

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”.64 The historical progress of arts, for example, would begin

from the more immediately necessary (such as agriculture) so as to develop into

60 Voltaire, Dictionnaire philosophique (nouvelle edition, tome III, rey, Amsterdam 1789), 513. 61 Carl Becker, The Heavenly City of the Eighteenth-Century Philosophers (2nd edn., Yale University Press 2003 [1932]), 33-70. 62 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. 63 For this method, see e.g. Ernst Cassirer, The Philosophy of the Enlightenment (Princeton University Press, 1979 [1951]), 18-27, 234-248, 254-256. 64 Jean Le Rond d’Alembert, Preliminary Discourse to the Encyclopedia of Diderot (R Schwab transl. & intr., Chicago University Press 1995), 11, 14.

21

increasingly more abstract forms. In 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.65 Among aspects of d’Alembert’s vision of general cultural progress was a

a universal system of morality. The universality of that system would no longer

be looked for with God or an original act of creation, however, but from the

cooperation of reason and nature unfolding for the human eye for the first time

through the vocabularies of knowledge and imagination that it was the point of

projects such as the Encyclopédie to serve.66 Hence the famous cosmopolitanism

of the mid-18th century literary class. 67

The encyclopaedists were not a homogeneous group. Nevertheless, in their use

of the law of nature and of nations, their analytical-compositive method almost

invariably made them return to individual human nature, conceived in terms of

passions and desires, the urge to avoid pain and to attain pleasure, from which

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

encompassed concern for other humans not only in particular societies, but in

humankind as a whole. As Schumpeter has pointed out, what unified this

otherwise disparate group of intellectuals was their recurrent recourse to the

vocabulary of natural law, often without express acknowledgment of the

tradition itself, as the simplest way to refer to human nature, and thereby to

their whole programme of reform, not least to the advancement of what they

called natural rights.68 The most radical of the group, Baron d’Holbach, 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.

65 d’Alembert, Preliminary Discourse, 14-15. 66 And as graphically illustrated in the “Detailed System of Human Knowledge” appended at the end of the Preliminary Discourse, d’Alembert, Preliminary Discourse, 143-157. 67 Out of a huge literature, see e.g. Peter Coulmas, Les citoyens du monde. Histoire du cosmopolitanisme (Paris, Albin Michel 1995), 206-240 and of course, Bélissa, Fraternité universelle. 68 Joseph Schumpeter, Histoire de l’analyse économique. I – L’age des fondateurs (Paris, Gallimard 1983 [1953]), 196-197.

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“…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”.69

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

enlightened interests, to “the necessity to be useful for those whose assistance is

needed for our own felicity”.70 The social contract and the binding force of

legislation are likewise based on calculations of long-term utility: the laws are

“…des decisions d’intérêt, de l’expérience, de la raison de corps contre l’intérêt personnel ou les passions aveugles des members”. 71

There is in d’Holbach no normative difference between natural and positive law;

the legislator merely declares what natural law says, and the latter may never

contradict the former. Only scientific and technical issues remain about how to

reach general happiness, interpreted as always also compatible with enlightened

individual interests.72 This was the basis of the law of nations, too:

“Une nation est obligée, pour son proper intérêt, de partager les mêmes vertus que tout homme doit montrer à son semblable, fût-il étranger ou inconnu”. 73

All nations have 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”.74 This

means that sovereigns do not exist in a state of nature with each other; all

humans are joined individually and as members of their nations in a moral

community where war, for example, is only an expression of the vain search for

glory, the avarice of tyrants. But history shows that conquests are seldom useful,

that large military forces are economically destructive and that wars create

69 Baron D’Holbach, Système social ou principes naturels de la morale et de la politique. Tome I (Paris, Niogret, 1822), 77.70 D’Holbach, Système social tome 9271 D’Holbach, Système social tome I 308. 72 D’Holbach, Système social tome 310-311. 73 Baron D’Holbach, La morale universelle, ou les devoirs de l’homme, fondés sur la nayure. Tome second (Paris, Masson 1820), tome 2, 2. 74 D’Holbach, Morale universelle 2, 4.

23

injustice. The law of nations is what reason dictates as in the interests of

humanity as a whole.75

D’Holbach may have been extreme as materialist but he did put forward the

logical consequences of a naturalism widely shared among the encyclopaedists.

There was a general problem at the heart of that sentiment, however. Their

enlighteners’ critique of metaphysics was based on the rejection of 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, as Montesquieu famously argued. But they also insisted to

argue about a shared human nature and reason on the basis of which it would be

possible to argue about universal rights and duties for which they felt they were

the mouthpiece. Which way was it going to be?

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 by wholly conventional reference to the old debates about the

relations of ius naturae and ius gentium from the Digest to Grotius and the

modern natural law writers. The canon reproduced by Boucher d’Argis

contained a restatement of many of the positions the philosphes had been

attacking as part of the politics and diplomacy of the ancien regime.76 Hence

Diderot resolved to insert in the Encyclopaedia an essay on Droit naturel by

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

universal, and can be found by reasoning, what is 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 75 D’Holbach, Morale universelle 2, 2-21. 76 Boucher d’Argis, ‘Droit des Gens’ and ‘Droit de la Nature ou Droit naturel, Diderot & d’Alembert, Encyclopédie, ou dictionnaiore raisonné dees 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.

24

“voluntary”, but a scientific statement of what might be useful for the human

race. In this form, it was also compatible with the naturalism of d’Alembert’s

preliminary discourse. In an argument intended to counter the Hobbesian

objection that basing natural law on a search for self-preservation will lead into a

war of all against all, Diderot expressly rejects the way of pure voluntarism. “Les

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

mais la volonté générale est toujours bonne”.77 The “general will” is a real,

psychological will but a scientific proposition about the needs of the species. It is

what is useful for humankind a whole. 78

6. Political Economy and the New Naturalism

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

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

accordance with natural laws governing the functioning of the economic system.

By mid- 18th century, the “modern” tradition of natural law had began to seem

incapable of producing concrete and credible policy advise for governments

struggling with economic difficulties often related to foreign wars. In France, the

“Colbertism” had been undermined by the financial difficulties of the last years of

the reign of Louis XIV – problems to which Saint-Pierre and his colleagues at the

Entresol, for example, had been intensively seeking a solution. This was the

context, also, of the emergence in France of the debate between the “ancients”

and the “moderns” that focused on the role of “luxury” in political community.

Was the development of a “commercial society” that could be witnessed in

England a beneficial or a corrupting influence? A new generation of political

thinkers such as Pierre le Pesant, Sieur de Boisguilbert (1646-1714) and Richard

Cantillon (c. 1680-1743) began to focus on the importance of agriculture for the

production of national wealth and to advocate free trade as the most efficient

way of making it operative between the different classes of economic actors.

They were followed by the Physiocrats who borrowed extensively from the

77 Diderot, Droit naturel, in Encyclopédie 5: 115-116. 78 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.

25

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. The leading lights of the

movement were Marquis de Mirabeau (1715-1789) and the medical doctor

Francois Quesnay 1694-1774).

But the most outspoken member of the group of Les économistes was Paul-Pierre

Mercier de la Rivière (1719-1801) whose concern was with laying out the

“natural order” of political societies in which he integrated the economic system

through the unfortunately labelled doctrine of ”legal despotism”. Le Mercier’s

Natural and Essential order of Political Societies (1767) was an effort to

operationalise the theory of natural law in the service the emerging commercial

society. There was, he wrote, a “natural order” for societies that linked physical

necessities to their object. “Cet ordre n’est qu’une branche de l’ordre physique”.79

By grasping this humans could realise the two objects of their actions: enjoyment

of pleasure and avoidance of pain.80 From these objectives it followed that the

first right of all humans was 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 – which was necessary for humans – could be

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

other.81 The repetition over again of the italicized expression “absolute” by Le

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

relationships and to justify the despotism of the laws that were expected to do

nothing but give effect society’s natural order in a system of natural rights and

duties.

Societies are 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…”.82

79 Le Mercier, L’ordre naturel, 37. 80 “…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. 81 Le Mercier, L’ordre naturel, 11-17. 82 Le Mercier L’ordre naturel, 27 (emphasis in original).

26

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:

“l’abondance ne peut s’obtenir que par lde grandes dépenses & de grands

travaux”.83 In this way property and liberty were thus both part of the “essential

order of society”. If social order was a the natural, physical world, it followed that

there was nothing arbitrary about it, and ruling society presupposed awareness

of its operative laws. This awareness gave us knowledge of absolute justice and

absolute injustice.84 Everything either pointed to increased abundance or it did

not: the necessity of social laws depended on the compelling force of natural

laws; private vices turn into public virtue:

“dans la systéme de la nature chaque homme tend perpetuellement 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”.85

From these premises Le Mercier was led to follow Quesnay into an authoritarian

notion of 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”.86 From this

premise, Quesnay developed a very rigorous notion of the rule of law. It was the

Monarch’s duty to legislate in accordance with the natural order of society.

Though he called this “legal despotism”, it was not monarchic absolutism; the

“laws” that would govern society were to be the intrinsic laws of the social order.

Any legislation deviating from this would be immediately invalid. Le Mercier

advanced exactly the same point of view. Society was to be ruled by laws that

were “absolute” in their necessity. They were natural laws with which all

positive legislation was to be in accordance. “Good positive laws”, Le Mercier

83 Le Mercier, L’ordre naturel, 33. 84 Le Mercier, L’ordre naturel, 11. 85 Le Mercier, L’ordre naturel, 35. 86 Quesnay, ‘Despotisme de la Chine’, quoted in David McNally, Political Economy and the Rise of Capitalism. A Reinterpretation ( (University of California Press 1988), 123.

27

wrote, “had already been written”, the only task was now to discover them in a

necessary calculus and the “dictate” to society at large .87

“Sous le despotisme légal, l’autorité despotique des loix & celle du Souverain, ne font qu’une seule et meme autorité”.88

In this system, there was no basis to distinguish between legislative and

executive power: one was merely the extension of the other. “Partager l’autorité,

c’est l’annuller”.89 The tutelary authority could also only be a single human being,

the monarch. 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”).90 Such evidence

also operates against misuse of authority: an arbitrary despotism can only fail in

the long run.91 In any case, the sovereign and the nation were entangled in a

symbiotic relationship: both needed each other, each had an interest in the well-

being and strength of the other.92

Exactly the same principles were operative at the international level, too. In the

first place, the same 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 and friendship are found as at home.

And commercial relations expand all over the world linking humans to each

other in a network of rights and duties they usually observe without thinking.

This means, in the second place, that different political societies are thus not

fundamentally different, either, but branches of the same tree, parts in the

natural human society that is necessarily universal.93 A European federation, for

example, is no chimera – it cannot even be created because it exists already.

87 Le Mercier, L’ordre naturel, 75-78., 105, 113. 88 Le Mercier, L’ordre naturel, 181. 89 Le Mercier, L’ordre naturel, 129. 90 Le Mercier, L’ordre naturel, 100, 101-104, 130. On the Physiocrat idea of legal despotism, see further McNally, Political Economy, 121-129. 91 Le Mercier, L’ordre naturel, 163-165, 170-178. 92 Le Mercier, L’ordre naturel, 201-203. 93 Le Mercier, L’ordre naturel, 318-320.

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“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”.94

It is true that short-sighted passions have driven nations to war. The balance of

power that European diplomacy has developed to prevent this has, Le Mercier

argued, actually led to even more struggles because it is based on the idea that

the nations are divided against each other, and should be constantly on guard

against attacks. But nature compels nations to regard each other as brothers,

having the same rights and the same duties as individuals among themselves. For

the riots of the prosperity of nations lies in the way they follow the “essential

order of societies”, and that means respecting the rights and freedoms of each

other. 95

Like Montesquieu and the other Physiocrats, Le Mercier represented the Doux

commerce thesis, advocating the beneficent character of free trade among

nations. Although there was agreement on this at home, prejudiced minds still

were apprehensive of freedom of trade among nations.

[Istvan Hont]

7. Droit public as a language or analysis and critique: Mably

Until the 17th century jurists had been largely responsible for the development of

political and constitutional theory in France. La Boétie and Montaigne had been

lawyers and the writings of Hotman, Bodin and the author of the Vindiciae

contra tyrannos articulated or invented the constitutional principles through

which France would emerge as a political community from the religious wars. As

we have seen, their influence rapidly declined in the 17th century when most

jurists turned into private law or propounded the divine origin of French

kingship in a way that effectively prevented the emergence of a rationalist

natural law in France in the way it had developed elsewhere on the continent, in

94 Le Mercier, L’ordre naturel, 323. 95 Le Mercier, L’ordre naturel, 331-333.

29

England and among the diaspora Huguenot community. With Richelieu and Louis

XIV, the parlements were stripped of their power and jurists even formally lost

their intellectually leading position. As a result, most of them turned to

examining the positive laws of the realm to that:

“…up to the very end of the Ancien Régime, there was no place in the educational system for such approaches as natural and international law which had already been taught at Dutch and German universities for more than a century”.

The study of history in France had been inaugurated and pursued by generations

of innovative and influential jurists with the view of developing a firm basis for

the legitimacy for the monarchy, for the State and for other public institutions.

“In the seventeenth century there were no longer any jurists of comparable intellectual status, and the same was the case throughout the eighteenth century”. 96

As critiques of absolutism became to emerge at the turn of the century, they

came from men such as Fénelon, Vauban, Saint-Simon or Saint-Pierre, not jurists

but men of the clergy, military officials and courtiers worried over the state of

the monarchy and whose criticisms came from different directions but were

united by a sense of the loss of the crown’s legitimacy – a sense that would grow

in the course of the century.97 Practically the only legal texts that dealt with

fundamental constitutional issues, including the law of nature and of nations

from a modern perspective were the translations of Pufendorf and Grotius by

Jean Barbeyrac (1674-1744), the Huguenot refugee in Geneva and Berlin of

1706 and 1724. The philosophical elites in enlightenment France had a very low

opinion of jurists. Practically the only exception to this was Montesquieu whose

The Spirit of Laws (1748) dominated political and constitutional debates of mid-

century, though less owing to its juristic brilliance than the value of its historical

and sociological insights. Moreover, if its contribution to international debates

followed largely from its comparative approach, this was one that had been an

96 John Heilborn, The Rise of Social Theory (Cambridge, Polity, 1995), 67. 97 See T.C.W. Blanning, The Culture of Power and the Power of Culture. Old Regime Europe 1660-1789 (Oxford University Press 2002), 187-194.

30

intrinsic part of the raison d’état tradition since Botero and Rohan in the

previous century. Montesquieu could by no stretch of imagination be regarded as

a disciple of Fénelon – but already the latter’s brief reflections on the “natural

law” of balance of power led into a comparative typology of states with regard to

how they were positioned with respect to attaining hegemony on the continent.

Examining the international world, then, not as a community or a system but as a

platform of ambition and manoeuvring by individual states was deeply

embedded in the French world-outlook.

In the debates about French history and the government of France that

commenced at the end of the reign of Louis XIV Saint-Pierre, as we have seen,

represented the thèse monarchique. But he insisted that the monarchy it ought to

be rationalized and brought within legal rules. He projected his view at the

international level by arguing that a peaceful “union” would actually be in the

educated self-interest of European monarchs. Saint-Pierre’s colleagues at the

Entresol and elsewhere were not persuaded. 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.98 It also solidified the name of the

political order of treaty-relations that had been created in Europe 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 monarchs.

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 98 Johnson Kent Wright, A Classical Republican in Eighteenth-Century France. The Political Thought of Mably (Stanford University Press, 1997), 36-37.

31

the protection of Madame de Tencin in whose salon he was introduced to

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

Secretary to Cardinal Tencin, serving as Minister of State in the government of

Fleury, the aging counsel of Louis XV. Until his sudden break with Tencin in 1747

on a minor difference of opinion, Mably spent five years following and

participating in the diplomatic events of the day. It was largely these experiences

that prompted him to compile his Droit public de l’Europe, together with its

extended theoretical introduction.99

The collection of treaties was not the first of its kind – large compilations of

European 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

system of foreign policy of European monarchs. Although the commentaries

pretended to neutrality, they included criticisms of the policy of Louis XIV that

prevented the publication of the work until the intervention of the marquis

d’Argenson, one of Saint-Pierre’s Entresol colleagues who had just left his post as

France’s foreign minister.100 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-sighted irrationality of the

diplomacy and the warfare of ancien regime Europe..101

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 in favour of 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”

such as Voltaire or the physiocrats who had been extolling the benefits of the

commercial society. Nor did he employ the kind of “modern” natural law that

was based on self-preservation and that was associated with Hobbes, Grotius

99 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. 100 Bélissa, ‘Introduction’, 14. 101 Wright, Classical Republican, 54.

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and Pufendorf. Mably’s critiques of the ancien regime drew rather on the “old”

Ciceronian heritage according to which humans were naturally endowed by

reason and virtue, and that the best way to learn what they taught was to

illustrate their operation during the Roman and, in Mably’s case especially, Greek

antiquity. 102 Mably would ground his critique of inequality among citizens and

his critique of private property on neo-Stoic themes that would be later taken up

as part of the Jacobin doctrine of republic of virtue. Although he has received the

reputation of belonging with the early utopian socialists, in fact he was also

critical of the political project of return communal property, describing it as no

more than an “agreeable dream”.103

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.

Richelieu had set up the Académie française already in 1635 and before the end

of the century, altogether eight royal academies had been set up to produce

experts who would be expected to provide advise for the king. But there was no

place for the teaching of a science of politics. 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. As director of the academy Torcy appointed the

jurist Yves Saint-Prest (c. 1640-1720) who had had a long and distinguished

career in foreign affairs. The school had between 6 and 12 students and, under

Saint-Prest’s meticulously composed program, mixed studies of Grotius and

Pufendorf with practical exercises in the composition of diplomatic

correspondence and periods of traineeship at large embassies abroad. Despite

the obvious utility of such an school, it was terminated during the Regency at

Cardinal Dubos’ specific request, and despite proposals to that effect, no similar

institution was set up in the course of the 18th century.104

102 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. 103 Wright, Classical Republican, 103.104 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

33

This is not to say, of course, that there would not have been informal debates

about the nature and possibilities of a scientific study of politics, including of

natural law and the law of nations in early 18th century France. Saint-Pierre, for

example, always saw his efforts at the reorganisation of the monarchy and the

proposal for a European union as an extension of his interests in science. The

Club d’Entresol, too, provided a forum in which the highly select group of

members could in relative freedom ponder on the possibilities and nature of an

organised, scientific government of France as well as its external policy. But even

those debates were too sensitive for the monarchy they came to an end with the

Crown’s diktat in 1731.

At this time, law schools were completely devoted to the practical training of

magistrates and universities were so much under the control of the Church that

intellectuals, including the philosophes, wanted to have nothing to do with them.

In particular, any reflection on the principles of natural and the law of nations,

not to speak of the legal principles governing foreign policy, was excluded. One

could talk politics only in the court and with the king.105 For all such reasons,

Mably’s effort to put forward a “moral science” of politics in his Droit public de

l’Europe and especially in the Principes de négociations in 1757 had such great

importance. Here Mably wove the French tradition of raison d’état that used

comparative studies of the “status” of individual states and monarchs into a legal

vocabulary of an overall utilitarian thrust. The result was a somewhat awkward

critique of the irrationality of the diplomacy of the ancien régime that

nevertheless saw no way of fundamentally changing the basic rules with which

European foreign policy was being played. Principes de négiciations began with a

history of the relations of European nations as the history of the ambition and

greed of its rulers. European politics had been determined by family feuds

(Habsburg/Valois; Habsburg/Bourbon) in which secret diplomacy and breaking

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 entorage. 105 Heilbron, Rise of Social Theory, 68.

34

of treaties were use in order to allow the rulers to satisfy their irrational

passions.106

To emerge from this miserable state of things, all monarchs ought to learn, Mably

suggested, to design and follow policies that were in accordance with their

fundamental interests. All powers ought to fit their policies with their forces.

They would need to learn to comply with rules that are appropriate to protecting

and enhancing their relative position and not act on the basis of exceptional

fortunes or misfortunes of war or the wisdom or stupidity of their rulers. The

great mistake in France, for example, has been conceiving ruling a “private”

matter, dependent on the whims of the ruler, especially his search for personal

glory.107 Large armies and the search for luxury were all “follies” that

undermined the state’s concentration on what is important – namely finding a

policy that respects its real, long-term interests.108 In describing this, Mably

switched freely between the language of “princes” “peoples” and “nations”

without producing a theory about their relationship. Nevertheless, “Europe” for

him is above all a conglomerate of “nations” – but nations that were, it seems,

still unproblematically represented by its ruler.

Mably’s constructive proposal followed Saint-Pierre and the raison d’état

writers: in determining their fundamental interests nations could 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

relative position to others, that it would ignore only 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 redrawings of the political map.109 For the powers

of the second and third order Mably recommended strategies alternating

106 Mably, ‘Principes de négociations’, 39-47. 107 Mably, ‘Principes de négociations’, 52-53. 108 Mably, ‘Principes de négociations’, 57-62. 109 Mably, ‘Principes de négociations’ 75-76.

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between principled pacifism and playing the principal powers against each

other, defending the Machiavellian nature of his suggestions by their

usefulness.110 The many chapters on strategies for alliances, in particular, were

full of examples of both well thought out, and rash and dangerous negotiations.

The point was always to adopt a consistent conduct, based on one’s relative

position, and then persist in following it (“se faire une règle certaine dans ses n

´gociations”).111

In fact, Mably suggested, the powers had not taken sufficient notice of the recent

passage from military to commercial society; fundamental interests were

changing. Wealth instead of military might would become the new focus of

policy. Territorial expansion, for example, would no longer have much point –

what use it is, he asked to conquer a village if that can only take place 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 fact, and

was thus against the fundamental interests of both.112 For now on commerce and

especially flourishing agriculture would provide the basis for State power and

greatness. What Mably wanted his readers from England’s rise to the position of

rival power was the dominant role commerce now played; the fate of Austria and

Spain showed that neglect of this would bring even traditionally great powers

down.

And yet Mably was critical of “luxury”. Even a positive trade balance was

harmful if it only led to the enrichment of the few they would either put the

money in the safes or then spend it in luxuries. Luxury led to domestic inequality,

a grave danger that was to be avoided. Trade was beneficent only if its fruit were

equally distributed at home. But only a well-functioning agriculture was the basis

of a nation’s real and lasting economic strength.113 Already in his first book Mably

had argued that luxury had been a predominant cause for the decline of ancient

110 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. 111 Mably, ‘Principes de négociations’, 107. 112 Mably, ‘Principes de négociations’, 79. Likewise, Mably, Droit public de l’Europe. Fondé sur les traités (tome 2, Genève, Comapgnie des Librairies 1768), Ch XII, 260-265. 113 Mably, Principes de négociations’,, 146-152.

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Rome and Sparta.114 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 would critique

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 creates inequality, increases prices and in the long run

undermines commerce itself: “le luxe, loin d’être favorable au commerce, est, au

contraire une symptome de sa décadence prochaine”.115 Luxury corrupts society

but also leads to economic decline by benefiting only a small class of citizens.

Hence the primary importance of agriculture and domestic exchange.116

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 altogether traditional 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. Passions are only useful if tamed by virtue and devotion to

work for the happiness of one’s country.117 And the good of one’s country must

be seen in the context of humanity itself. A nation that uses violence and betrayal

against its neighbours will be trapped by the fear that it provokes in others.118 In

long “footnote” Mably attacks the violent and unjust behaviour of European

nations in the past. The law of nations was known, but used perversely and in

support of irrational ambition. Even lately, he wrote, the law of nations was

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 cheche qu’à rétablir un droit des nations favourable à

114 See Wright, A Classical Republican, 33-34. 115 Mably, ‘Principes de négociations’, 150. 116 The argument of the self-destructive nature of commercial society is also made (by reference to the writings of Richard Cantollon), 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. 117 Mably, Entretiens de Phocion, 47-48. 118 Mably, Entretiens de Phocion, 52.

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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 produre de grands malheurs?” 119

True patriotism, Mably had Phocion argue, avoided violent conquest. It sought to

make one’s country loved and admired not because it its power – subject to the

vicissitudes of fortune – but its justice and humanity.120 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, and

everybody felt themselves deprived. In the end, the corruption of the soul of the

Athenians led to the collapse of the city.121 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”.122 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 Aristias, the city can be saved, if at all, only by

disciplining politics by reason, expressed in the laws by a virtuous legislator.123

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

citoyen between a Frenchman and his English visitor, 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 comments on the mid-

century conflict between the monarchy and the provincial parlements,

advocating the calling of the Estates-General but also in fact a political

“revolution” in France.124 Stanhope takes the position of someone “whom the

words liberty and slavery never leave cold”, an English republican rejecting the

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

119 Mably, Entretiens de Phocion, 104. 120 Mably, Entretiens de Phocion, 107-121. 121 Mably, Entretiens de Phocion, 122-133. 122 Mably, Entretiens de Phocion, 135. 123 Mably, Entretiens de Phocion, 141-142, 154-160. See also Wright, A Classical Republican, 80-90. 124 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 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.

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of the “anarchy” and continuous “revolutions” that struggle against despotism

would bring. Stanhope rejects the teaching of Grotius, Pufendorf, Wolff and

Hobbes. Humans were born with natural rights and duties; the State did not

create them. On the contrary, the state and its institutions were created to

protect and strengthen pre-existing natural rights. The natural law tradition,

Mably has Stanhope suggest, was born to justify despotism. It built “sophisms

upon sophisms” to suggest that without kings there would be no security and

happiness and that anarchy would reign. After all, Grotius published his writings

in France with the blessings of Louis XIII.125 It taught absolute respect of laws –

while laws were often but unjust instruments of despots. Buy reference to

Locke’s Second Treatise, Stanhope then sketches a whole plan for a “revolution

ménageé” in which the Estates-General would carry out a complete reform of the

political order, the executive and the judiciary would be separated and the

royalty’s position would be constitutionally delimited.

Mably’s views on the Droit public de l’Europe as expressed in that three-volume

work and the Principes de négociations that served to introduce it were thus

written as part of an oeuvre that was firmly critical of the institutions of anvien

regime France but also of the proposals by the “parti des modernes” to reform it

into a commercial society in the English fashion. They were written from the

perspective of a classical republicanism that highlighted 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 be sufficient. A revolution was necessary, and this was

not to be hindered by the temporary disorders and confrontations that it

necessitated.

125 Mably, Droits et devoirs, 19-21.

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8. Abbé Grégoire and the revolution

In Droits et devoirs Mably was putting forward views that were strikingly

prescient of the what the revolutionaries would be putting forward in 1789.126

The critique of the inequality brought about by commercial society and recourse

to the ethics of republican virtue all touched on themes that would be endlessly

repeated in the debates of the Estates-General and later of the assemble

nationale.

126 This aspect is particularly highlighted in Keith

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