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II.Theories of Natural Law and Law of Nations
1. THE SPREAD OF THEORIES OF NATURAL LAW AND THE LAW OF NATIONS
At the beginning of the 18th century, the so-called Romandy School of Natural Law (Ecole romande du droit naturel) was established in the French-speaking part of Switzerland and achieved great influence mainly in Europe during the 18th and 19th centuries. It can be perceived as a mediation between the German natural law theories (represented, among others, by SAMUEL PUFENDORF, CHRISTIAN THOMASIUS, and CHRISTIAN WOLFF) and the French ones symbolised, most prominently, by the works of MONTESQUIEU, ROUSSEAU, and VOLTAIRE. Geneva, Lausanne, Neuchâtel, and Yverdon were the main knowledge centres in which natural law and law of nations theories circulated. The most important contributors included jurists and philosophers, such as JEAN BARBEYRAC (1674–1744), JEAN-JACQUES BURLAMAQUI (1694–1748), FORTUNATO BARTOLOMEO DE FELICE (1723–1789), and EMER DE VATTEL (1714–1767).
Although there was not an explicit “school” within the natural law movement, with the term “école” historians refer to the common features shared by those authors who, during their careers as professors and editors, played a key role in the spread of natural law theories. These scholars had a strong predisposition for Enlightenment ideas within a specific geographical context, that is, in Switzerland and particularly in the French-speaking part of Switzerland.
The Huguenot1 and French citizen JEAN BARBEYRAC was already a well-established natural law scholar by the time he arrived in Lausanne in 1711: he was renowned throughout Europe due to his widely annotated French translations of SAMUEL PUFENDORF’S major works on natural law “The Law of Nature and Nations” (“Le droit de la nature et des gens”), 1706, and “On the Duty of Man and Citizen” (“Des devoirs de l’homme et du citoyen”), 1707.2 Later, after he’d arrived and started working in Lausanne, BARBEYRAC also translated the writings of RICHARD CUMBERLAND and of HUGO GROTIUS’ “The Rights of War and Peace”, the latter translation being published as “Le droit de la guerre et de la paix” in 1724.3 JEAN-JACQUES BURLAMAQUI taught natural law in Geneva, using Barbeyrac’s French translation of PUFENDORF’S “On the Duty of Man and Citizen”. He published his manual on natural law under the name “Principles of Natural Law” (“Principes du droit naturel”), 1747. The “Principles of Political Rights” (“Principes du droit politique”), 1751, were posthumously edited by BURLAMAQUI’S friends on the basis of his notes. BURLAMAQUI’S notebooks (cahiers) provided the basis for some other scholars to publish pieces which expanded on his natural law theory. Among them was FORTUNATO BARTOLOMEO DE FELICE (1723–1789), a former Catholic priest and professor in Rome and Naples who fled to Bern in 1757, converted to Protestantism then became a major cultural mediator and publisher. In 1762, he settled in Yverdon where he founded a publishing house and directed the creation of the so-called Yverdon Encyclopedia (Encyclopédie d’Yverdon), a Protestant adaptation of the Paris Encyclopedia (Paris Encyclopédie).4 Among many other works, DE FELICE published a new edition of BURLAMAQUI’S natural law courses “The Principles of Natural Law and the Law of Nations” (“Les principes du droit de la nature et des gens”) in eight volumes between 1766 and 1768. Within this new edition, DE FELICE incorporated some of BURLAMAQUI’S unpublished thoughts, gathered from the latter’s notebooks on natural law. DE FELICE also included his own comments in these publications.
2. EMER DE VATTEL AND HIS LAW OF NATIONS (1758)
EMER DE VATTEL (1714–1767), a native of Neuchâtel, is most renowned for his treatise on the law of nations, entiteld “The Law of Nations, or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns” (Le droit des gens, ou Principes de la loi naturelle, appliqués à la conduite et aux affaires des Nations et des Souverains), 1758. He had become acquainted with natural law during his period of study in Geneva, having as professor presumably JEAN JACQUES BURLAMAQUI. Instead of harbouring a strong intention from the outset to produce a work on the law of nations, he had initially only intended to provide a French translation of CHRISTIAN WOLFF’S “The Law of Nations treated according to the Scientific Method” (“Ius gentium methodo scientifica pertractatum”), 1749.5 However, he then decided to compose a more independent piece of work on the basis of WOLFF’S theory of the law of nature and nations.
To give some historical context, VATTEL wrote his Law of Nations ten years after the publication of “The Spirit of Laws” (“L’esprit des lois”) by MONTESQUIEU and five years before the “The Social Contract” (“Contract Social”) by ROUSSEAU. His work made a vital contribution to the development of modern international law.6 The core of VATTEL’S “Law of Nations” was an emphasis on the tension between the law of nature and the law of nations. He criticised his predecessors for having constructed the law of nations on the basis of theoretical deductions concluded from general principles. VATTEL, in contrast, focused on the practice of states, writing exclusively for sovereigns. He wrote:
“The law of nations is the law of sovereigns. It is principally for them and for their ministers that it ought to be written. All mankind are indeed interested in it; and, in a free country, the study of its maxims is a proper employment for every citizen: But it would be of little consequence to impart the knowledge of it only to private individuals, who are not called to the councils of nations, and who have no influence in directing the public measures. If the conductors of states, if all those who are employed in public affairs, condescended to apply seriously to the study of a science which ought to be their law, and, as it were, the compass by which to steer their course, what happy effects might we not expect from a good treatise on the law of nations!”7
There are some fundamental aspects of the Law of Nations. VATTEL applied a strictly inter-state perspective: the law of nations is specifically the law governing relations between states. VATTEL relegates the individual to the position of being part of the state’s internal sphere.8 For VATTEL, the law of nations “is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights”.9 He dismissed individuals from the scene, thereby perceiving nations to be compact entities confronting each other within a distinct sphere of action. International society thus becomes a true society of sovereign, equal, and independent states – each bound by the fundamental obligation of self-preservation.10 VATTEL established the principle that sovereign states are the legal subjects of classical international law.
VATTEL unreservedly recognised the existence of a duality of norms governing the conduct of sovereign states: the norms imposed by natural law and those imposed by the positive law of nations. By virtue of their sovereign will, he argued, only states have the capacity to determine the applicability of international legal rights and obligations. In this regard it can be said that VATTEL opened the door to the modern idea of sovereignty. He theorised a law of nations that is both “liberal and pluralist” and which is very much in line with the state of European society at the time of the Enlightenment, the period within which VATTEL was writing.11 The “The Law of Nations” set the benchmark for a new political and legal science, subjected to a remarkable number of translations and commented editions published all through the 19th century in Europe and beyond. The following quote describes VATTEL’S relevance in the North American context:
“Vattel’s treaty on the law of nations was quoted by judicial tribunals, in speeches before legislative assemblies, and the decrees and correspondence of executive officials, […] it was also used as the student’s manual, the reference work of the statesman and the text from which political philosophers drew inspiration”.12
1A Huguenot was “A French Protestant of the 16th and 17th centuries. Largely Calvinist, the Huguenots suffered severe persecution at the hands of the Catholic majority, and many thousands emigrated from France” (Source: Oxford Dictionary, https://perma.cc/Z6YD-DDGH).
2SAMUEL PUFENDORF (1632–1694) was a German jurist, political philosopher, and historian who was renowned for his works on natural law and law of nations. He held the first European chair in natural law and law of nations in Heilderberg in 1661. Barbeyrac translated Pufendorfs most influential works “On the Duty of Man and Citizen” (De officio hominis et civis), 1673, and “The Law of Nature and Nations-8th book” (De iure naturae et gentium-libri octo), 1672.
3Meri Päivärinne, Translating Grotius’s De jure belli ac pacis: Courtin vs Barbeyrac, in Translation Studies Volume 5, Issue 1, 2012, pp. 33.
4Encyclopaedia, or a Systematic Dictionary of the Sciences, Arts, and Crafts (Encyclopédie ou Dictionnaire raisonné des sciences, des arts et des métiers, par une Société de Gens de lettres). It was published in France, between 1751 and 1772, under the direction of DENIS DIDEROT and JEAN LE ROND D’ALEMBERT.
5CHRISTIAN WOLFF (1679–1754) was a German jurist, philosopher, and mathematician. He belonged to the school of Rationalist philosophy of the German Enlightenment and he is considered the most eminent German thinker between LEIBNIZ and KANT.
6VINCENT CHETAIL, Vattel and the American Dream: An Inquiry into the Reception of the Law of Nations in the United States, in Pierre-Marie Dupuy/Vincent Chetail (eds.), The Roots of International Law, Liber Amicorum Peter Haggenmacher, Leiden/Boston 2014, pp. 251, p. 295.
7EMER DE VATTEL, The Law of Nations, or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, edited and with an introduction by Bela Kapossy/Richard Whatmore, Indianapolis 2008, p. 18.
8EMMANUELLE JOUANNET, Emer de Vattel (1714–1767), in Bardo Fassbender/Anne Peters (eds.), The Oxford Handbook of the History of International Law, Oxford 2012 (cit. JOUANNET, Emer de Vattel), pp. 1118. See also EMMANUELLE JOUANNET, The Liberal-Welfarist Law of Nations, A History of International Law, translated by Christoper Sutcliffe, Cambridge 2012.
9VATTEL, p. 67.
10JOUANNET, Emer de Vattel, pp. 1118.
11Jouannet, Emer de Vattel, pp. 1118.
12CHARLES G. FENWICK, The Authority of Vattel, in American Political Science Review, Volume 7, Issue 3, Baltimore 1913, pp. 395; see also for the reception CHETAIL, pp. 251.