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INTRODUCTION

Life of Vattel

Emer¹ de Vattel’s Le droit des gens. Ou Principes de la loi naturelle, appliqués à la conduite & aux affaires des nations & des souverains (The Law of Nations, or Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns) (1758) was the most important book on the law of nations in the eighteenth century. It was in great measure thanks to this work that the practical and theoretical influence of natural jurisprudence was extended down through the Revolutionary and Napoleonic eras. Indeed, it was Vattel who was cited as a major source of contemporary wisdom on questions of international law in the American Revolution and even by opponents of revolution, such as Cardinal Consalvi, at the Congress of Vienna.

Emer de Vattel was born at Couvet, in Neuchâtel, a principality ruled by the kings of Prussia, on April 25, 1714, as the youngest son of David Vattel and Marie de Montmollin.² His father, ennobled in 1727 by the king of Prussia, Friedrich Wilhelm I, was a Protestant clergyman and head of the local congregation of ministers; his mother was the daughter of the principality’s ambassador to the Prussian court. From 1728 to 1730 Vattel was enrolled as a student of the humanities at the University of Basel, where he seems to have attended courses on Samuel Pufendorf given by the Huguenot minister Pierre Roques. In 1733 he went to Geneva to pursue theological and metaphysical studies; one of his teachers was Jean-Jacques Burlamaqui, and it was under Burlamaqui’s tutelage that Vattel first studied in detail the principles of natural law and the law of nations. Little is known of the following years, but in 1740 and 1741 Vattel wrote a series of essays, several of which appeared in Switzerland’s leading literary journal, the Neuchâtelbased Journal Helvétique.³ The same year also saw his lengthy defense of the philosophy of Leibniz against the accusation of atheism made by the Lausanne professor of philosophy and mathematics Jean-Pierre de Crousaz.⁴ Vattel’s Défense, which he dedicated to Friedrich II (“the Great”), earned him an invitation from the French ambassador in Berlin to come to the court of the prince whose subject he was by birth. However, he failed to obtain a diplomatic position and, pressed by financial difficulties, in 1743 he moved to Dresden, where he was promised employment by Count Brühl, first minister of Elector Friedrich August II of Saxony (who as August III was also the elective king of Poland). Vattel spent the next three years in Neuchâtel, writing essays and studying the works of the German philosopher Christian Wolff, while waiting for orders from Dresden. These essays, which included his Dissertation sur cette question: Si la loi naturelle peut porter la société à sa perfection, sans le secours des loix politiques (Dissertation on This Question: Can Natural Law Bring Society to Perfection Without the Assistance of Political Laws?) as well as the Essai sur le fondement du droit naturel, et sur le premier principe de l’obligation où se trouvent tous les hommes, d’en observer les loix (Essay on the Foundation of Natural Law and on the First Principle of the Obligation Men Find Themselves Under to Observe Laws), were published in 1746.⁵ In 1747, finally, after dedicating the second edition of the Pièces diverses to Brühl,⁶ he was granted a modest annual pension of 500 écus and sent as a permanent minister to Berne. The purpose of his mission remains unclear; some of his compatriots speculated that it was to negotiate the acquisition of Neuchâtel by the elector of Saxony,⁷ but it is more likely that he was to facilitate renegotiation of a loan of 700,000 Reichsthaler that Saxony had received from the city the year before. In fact, Vattel’s stay in Berne lasted no longer than a few weeks.

For much of the next ten years Vattel remained in Neuchâtel. From here he sent a stream of letters to Brühl complaining of his ill health and dire financial circumstances. Nevertheless, this turned out to be the most productive period of his life. In 1757 he published a further collection of essays that included dialogues between Diogenes and Marcus Aurelius and between Henry IV of France and his adviser Sully.⁸ Also during this period he wrote his masterpiece, Droit des gens, which appeared in Neuchâtel at the end of 1757, though the title page says London 1758.⁹ The work quickly established Vattel as a major authority on natural jurisprudence.¹⁰ It also changed his personal situation. In 1759 the elector of Saxony finally recalled Vattel to Dresden, appointed him to the Privy Council, and made him chief adviser to the government of Saxony on foreign affairs. During his stay at Dresden, Vattel published two further works, Mélanges de littérature, de morale, et de politique (1760, reprinted in 1765 as Amusemens de littérature, de morale, et de politique) and Questions de droit naturel et observations sur le traité du droit de nature par le Baron de Wolf (1764), a detailed critique of Wolff’s Ius gentium methodo scientifica pertractatum that Vattel had completed already in 1753. In 1764 he married Marie de Chêne, the daughter of a Huguenot noble family, with whom he had a son. Due to ill health, Vattel was unable to cope with his office and retired to his native Neuchâtel, where he died in December 1767 at the age of fifty-three.

Influence of Swiss Heritage

Although a subject of the king of Prussia by birth, and a servant of the elector of Saxony by profession, Vattel was first and foremost Swiss. However, that description was more complicated in the eighteenth century than it is today. What foreign observers often referred to as the Swiss republic was in fact a loose federation of independent and highly diverse entities, some aristocratic, some democratic, some monarchical, all of them small, some no bigger than a town. The federation was held together by fear of foreign aggression, a complex web of treaties, jointly ruled territories, and military and trade agreements to contain conflict between individual cantons. Although Swiss thinkers frequently invoked a universal society of nations, they remained highly suspicious of projects for perpetual peace in Europe, whether a benevolent hegemony or a European federation. Instead, they saw their best chances of survival in the more fragile order provided by a balance of power between large commercial nations constantly in need of Swiss mercenaries for their armies and Swiss investments for their public coffers. Swiss attachment to state autonomy was so great that, during the 1750s and 1760s, a small but highly vocal minority flirted with Rousseau’s ideas of strict isolationism as the only way to defend Swiss liberty from the aggressiveness of modern commercial politics. Like Vattel, the majority of eighteenth-century Swiss thinkers, however, saw clear military and cultural benefits in commercial progress and ridiculed Rousseau and his followers’ infatuation with the alleged virtuousness of ancient Sparta.¹¹ They hoped to adapt the humanist heritage of Swiss politics to the realities of a modern economy by showing how new forms of Christian patriotism, assisted by wide-reaching legislative reforms, were able to arrest and dissolve the dangerously “unsocial” tendency of commercial states.¹²

Vattel’s Theory of Natural Law as Applied to the Law of Nations

Against the background of this Swiss debate, we can understand not only Vattel’s vision of a workable European order but also the importance he attributed to political economy for establishing and maintaining a regime of international justice. In a famous passage, Vattel claimed that commerce had transformed Europe from a “confused heap of detached pieces” into a kind of large republic, where all members were united “for the maintenance of order and liberty” (bk. III, §47). An “eternal and immutable law of nature” obliged a state not only to respect and to treat other states as equals but also to provide mutual aid “so far as that other stands in real need of its assistance, and the former can grant it without neglecting the duties it owes to itself” (bk. II, §3). Here Vattel claimed to be following Christian Wolff who, in his Ius gentium methodo scientifica pertractatum, derived the duty to mutual aid from analogy between the state of nature and the realm of international relations: the law of nations was simply the law of nature of individuals in the state of nature applied to states (Prelim. §3–9). The primary duties of states were, first, to preserve and perfect themselves, and, second, to assist each other in fulfilling those duties each state owed to itself. States should “cultivate human society,” primarily through trade, as long as the development of commerce did not conflict with their primary duties to themselves. Vattel argued that states that acted upon the principles of natural law alone would ultimately come to form a universal republic: “A real friendship will be seen to reign among them; and this happy state consists in a mutual affection” (bk. II, §12).

Although Vattel claimed that this “delightful dream” was derived directly from human nature, in The Law of Nations he acknowledged that “most nations aim only to strengthen and enrich themselves at the expense of others” (bk. II, §16). Accordingly, prudence prevented existing states from making mutual aid the guiding principle of foreign politics. Instead, states ought to content themselves with a morally less appealing, but nevertheless workable, order based on the balance of power. Vattel explained this acknowledgment of the realities of modern European politics on two grounds. The first was the theoretical incoherence of previous natural law theories with regard to the duties of perfectly independent states. Here he turned against Wolff’s idea of a civitas maxima, as we will see.¹³ Vattel claimed that Wolff had rightly distinguished between two forms of the law of nations: first, an immutable or necessary law of nations, signifying the law of nature applied to individual states; second, a voluntary law of nations, which defined the necessary limitations of natural law within the realm of international relations and which, he argued, had to be tolerated in order to avoid greater harm.¹⁴ Although states, like individuals, were bound to assist others, this duty was limited by the perfect right of a state to self-preservation. The implication this had for trade was clear enough: while a state was obliged to trade with all other states and sell its products at a “fair price,” considerations of self-preservation allowed it to limit its trade, establish trading companies, or even refuse commerce with another state altogether. Wolff had also rightly recognized that since the law of nations applied to all states in the same way, those states affected by trade sanctions could merely point out breaches of the necessary law of nations. Refusal to trade, however, did not provide any legal ground for the commencement of military hostilities. The situation was different when a state was not just incapable of self-preservation but lacked any resources to exchange for vital goods. Here, the perfect right of preservation of a potential donor nation was bound to clash with the equally perfect right of preservation of a state on the brink of starvation. It is in this context that one needs to read Vattel’s often-cited justification of the appropriation of uncultivated land by European settlers in America.¹⁵

Given the increasingly economic dimension of European politics, there was a constant danger that peaceful trade would be subjected to the logic of warfare. Vattel’s main task in The Law of Nations was to define as clearly as possible the limits individual states were allowed to impose on freedom of trade. Wolff hoped to derive such understanding from the image of a civitas maxima, a universal republic instituted by nature, whose civil law was the expression of the right reason of civilized nations. In the preface, Vattel rejected Wolff’s civitas maxima as fictitious and incompatible with the idea of state sovereignty (preface, 14). While civil society could be said to be natural in that it originated in human need, no such thing could be said of the relation between sovereign states: “I acknowledge no other natural society between nations than that which nature has established between mankind in general” (ibid.). In contrast to individuals, nations enjoyed greater autonomy and because of this had no pressing reason to subject themselves to a higher authority. Furthermore, their absolute liberty was necessary “properly to discharge the duties [the state] owes to herself and to her citizens” (preface, 15).

Vattel’s defense of a natural law of nations together with his insistence on state sovereignty earned him a reputation for incoherence, the view of Kant, or, as many international law theorists writing after the First World War maintained, for being an unconditional supporter of reason of state who “disguised his evil intentions through words of sublime charity.”¹⁶ Although in The Law of Nations Vattel dealt with this issue only in passing, he discussed it at length in several of his other writings, notably his Essay on the Foundation of Natural Law and on the First Principle of the Obligation Men Find Themselves Under to Observe Laws. Here he sought to explain how humans could be under an obligation to natural law even in the absence of a punitive superior. Vattel’s main move, primarily aimed at Jean Barbeyrac, was to derive obligation not from any external source, but from what he claimed was man’s most basic motive, namely self-love and a desire for the happiness of a perfect soul.¹⁷ Ultimately it was from man’s obligation to himself to attain the highest degree of happiness, which in turn required commerce with other rational beings, that the duty of mutual aid and friendship could be derived.¹⁸ This also applied to the obedience citizens owed to the state: “The love and affection a man feels for the state of which he is a member, is a necessary consequence of the wise and rational love he owes to himself, since his own happiness is connected with that of his country” (bk. I, §120). In The Law of Nations Vattel used the same argument with regard to states. As in the case of individuals, a nation’s duty of self-preservation and of self-perfection could be derived only from its basic self-interest and its desire to attain the highest level of national happiness. Moreover, like individuals, nations could attain national happiness only by developing more enlightened forms of self-interest, forms that took into account the well-being of other nations.¹⁹ Vattel claimed that the highest degree of national happiness consisted in “true glory” (bk. I, §§186–88). It was acquired through the positive reputation a state enjoyed among well-intentioned nations, and through the respect it received from those seeking to violate the laws of nations. A truly glorious nation, Vattel hoped, would set an example others would wish to emulate. In so doing, it would gradually shift the pathological rivalry between states in the direction of a system based on virtuous competition.²⁰

As a further measure for reducing the tensions between self-preservation and mutual aid, Vattel called upon European rulers and their ministers to implement a wide range of legislative reforms that would allow modern nations to break out of the vicious cycle of public borrowing and taxation and to create a healthier balance between income and expenditure (bk. I, §183). Instead of relying on the distributive effect of luxury and conspicuous consumption, rulers should initiate a new culture of virtuous moderation and encourage agriculture so as to procure “abundance in every thing” (bk. I, §73).²¹ Although he accepted certain protectionist measures with regard to foreign trade, Vattel insisted that states should intervene as little as possible in the domestic economy and grant individual citizens the maximum amount of natural liberty: “Liberty is the soul of abilities and industry” (bk. I, §74). He also expressly recommended the role of learned societies for the dissemination of technological know-how (bk. I, §76). Vattel believed that of all modern nations Britain had come closest to implementing a system worthy of emulation, and in The Law of Nations he repeatedly singled it out as an example for the rest of Europe, not only with regard to its economy but also with respect to its “admirable constitution.” In contrast with the constitutions of patrimonial states, Britain allowed its citizens to recognize themselves as part of both the nation and the universal society of men (bk. I, §24).²²

Contemporaries would have recognized Vattel’s stance on perhaps the central issue of European politics at the time: whether Britain or France would prove the stronger in the international rivalry for supremacy. In supporting Britain’s advocacy of an ongoing European balance of power, rather than French hegemony on mainland Europe that was associated with the peace projects of the Abbé de Saint-Pierre and Victor Riqueti de Mirabeau, Vattel was taking a stand on the domestic stability of mixed government as much as he was on the consequences of such a polity for international affairs. In advocating mixed government in commercial monarchies he was going against the grain of the majority of writers, such as Montesquieu and Rousseau, for whom Britain’s mixed government, with its parties, corruption, and factions, represented an institutionalization of civil war domestically that would have dire consequences if transposed into the dominant form of state internationally. Praise of Britain also allowed Vattel to emphasize the greater modernity of Protestant states by contrast with the backwardness of the religious, moral, and economic practices that he associated with Catholicism. In an openly polemical fashion, Vattel often linked such backwardness with reason of state, or amoral policy, in the international sphere and was always ready to provide examples of the violation of natural law from the history of the papacy. Catholic writers were, however, willing to use Vattel for his broader arguments about the independence of small states. One key example is Cardinal Consalvi at the Congress of Vienna, who employed Vattel’s arguments to justify the sovereignty of the Vatican over the papal states.

Vattel was convinced that if Britain played a more active role in the relations between European states, French aspirations to universal monarchy would be countered. This was expected in turn to safeguard the sovereignty of the smaller states, and especially the Swiss republics, the legitimacy of whose existence was increasingly questioned as public credit allowed the larger monarchies to employ mercenary armies too strong for the old republics, however great their republican valor and virtue. Vattel’s case for the survival of small states in the modern world is one of his main themes, especially in The Law of Nations. Vattel’s association of the law of nations with the defense of small states against more powerful neighbors was illustrated in February 1758, after the Prussian army had destroyed castles belonging to the duke of Saxony. Vattel announced to Brühl that his recently published work proved the legitimacy of Saxony’s complaints and also showed that “all powers are obliged to unite and punish the one who wishes to introduce such wicked customs.”²³ Prussia should be held accountable, he explained in a letter addressed to the avoyer²⁴ and Small Council of Berne, for violating the established rules of war that permitted armed conflict only as a last resort after all diplomatic options had been exhausted. Given that Saxony had not only disarmed but even granted passage to Prussian troops, Friedrich’s systematic plundering of Saxony’s riches and forced enlistment of the “entire flower of youth”—a practice that Vattel described as being without precedent among Christian princes—threatened the very possibility of peaceful coexistence among European nations.²⁵

Conclusion

Vattel’s ideas of modern patriotism and encouragement of the economy are not among the most original in The Law of Nations. Nevertheless, they are important because they show the weakness of any attempt to capture Vattel’s position within the analytical framework of retrospective histories of international law or international relations.²⁶ Besides clarifying more thoroughly than previous thinkers the proper relationship between the natural law of individuals and of states, Vattel used his unusually broad intellectual interests to comment on the cultural, political, and economic conditions required for a viable system of international justice. Vattel saw his magnum opus as a contribution to a great European debate on the science of legislation, a debate that analyzed the possibilities available to modern nations to secure liberty and cultural advancement against constant interruption by war. The importance of The Law of Nations therefore resides both in its systematic derivation of international law from natural law and in its compelling synthesis of the modern discourse of natural jurisprudence with the even newer language of political economy. These features help to explain the continuing appeal of this text well into the nineteenth century among politicians, international lawyers, and political theorists of every complexion.²⁷