The moral person of the state: Emer de Vattel and the foundations of international legal order

History of European Ideas 37 (2011) 438–445

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The moral person of the state: Emer de Vattel and the foundations of international legal order Ben Holland * School of Politics and International Relations, University of Nottingham, University Park, Nottingham, NG7 2RD, United Kingdom

A R T I C L E I N F O

A B S T R A C T

Article history: Available online 16 July 2011

Emer de Vattel was the first writer systematically to combine three arguments in a single work, namely: that states have a fundamental duty of self-interestedness; that they nonetheless have reason to see themselves as inhabiting a kind of society; and that this society is held together by positive agreements between its members on rules that shall regulate their interactions. This article explores how Vattel arrived at his vision of international order. It points to the significance of his understanding of the state as being a ‘moral person’. This was a description of the state introduced by Samuel von Pufendorf, who argued that the state was a moral person because it possessed the moral faculties of intellect and will. This helped to ground a constitutionalist theory of the state, for intellect and will, being represented by separate institutions of the state, in effect balanced each other. But the notion of the state as a moral person was later taken up in a rival intellectual tradition that allotted no independence to the will. This was the philosophical tradition to which Vattel belonged. In this altered context, the notion of moral personality was transformed. I argue that this was critical to the formulation of Vattel’s theory. ß 2011 Elsevier Ltd. All rights reserved.

Keywords: Emer de Vattel Samuel von Pufendorf Christian Wolff International law International theory International society

Writing for the first time about ‘the Grotian tradition in international law’, Hersch Lauterpacht claimed that Emer de Vattel (1714–1767), above all other international jurists, ‘gave emphatic and lucid expression to this analogy . . . of states and individuals’.1 Vattel imputed to states what were imputed to individuals in liberal theory: equal rights. From this, according to Andrew Hurrell, followed ‘the principle of sovereign equality, that all states possess equal rights – or an equal capacity for rights’, which Vattel was ‘the first writer to elucidate clearly’.2 He therefore envisaged ‘a structure of coexistence, built on the mutual recognition of states as independent and legally equal members of society’.3 Thus did Vattel develop a conception of what he called ‘the great society established by nature between all nations’.4 Lauterpacht, however, also detected in Vattel’s writings ‘a hallmark of what is considered to be the realist approach to expatiate on the lower morality of states as compared with that of individuals’.5

* Tel.: +44 1158468610. E-mail address: [email protected]. 1 H. Lauterpacht, ‘The Grotian Tradition in International Law’, British Year Book of International Law 23 (1946), 27. 2 A. Hurrell, ‘Vattel: Pluralism and its Limits’, in: Classical Theories of International Relations, ed. I. Clark, I. B. Neumann (Basingstoke, 1996), 239. 3 Hurrell, ‘Vattel’, 233. 4 E. Vattel, The Law of Nations, Or, the Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, ed. B. Kapossy, R. Whatmore (Indianapolis, 2008), 73. 5 Lauterpacht, ‘The Grotian Tradition in International Law’, 28, fn. 3. 0191-6599/$ – see front matter ß 2011 Elsevier Ltd. All rights reserved. doi:10.1016/j.histeuroideas.2011.03.001

With Vattel we get the mere ‘appearance of a recognition of a legal order among nations’, when in fact by an ‘elegant manner of evasion’ he has invested states with such an inviolate sovereignty that the principles and instruments necessary to furnish such an order are excluded from the analysis.6 Similarly, Andrew Linklater charges Vattel with endorsing a ‘radical state-libertarianism’ and ‘a voluntaristic international order’,7 while Philip Allott traces to Vattel a ‘spiritually and psychologically dislocated’ vision of a world ‘which requires each of us to be two people – with one set of moral judgements and social aspirations and legal expectations within our national society, and another set . . . for everything that happens beyond the frontiers of our national society’.8 Vattel appears to have articulated two fairly different framings of the character of international legal order. Some recent scholarship on Vattel has tried to account for the Janus-faced character of his writings. For Richard Tuck, Vattel belongs full-square in a liberal tradition which, on the one hand, emphasises the autonomy of all political agents, including states, but which, on the other, took as its paradigmatic case of the political agent ‘the belligerent

6 H. Lauterpacht, The Function of Law in the International Community (Oxford, 1933), 7. 7 A. Linklater, Men and Citizens in the Theory of International Relations, 2nd edn (Basingstoke, 1990), 87, 90. 8 P. Allott, The Health of Nations: Society and Law Beyond the State (Cambridge, 2002), 418.

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post-Renaissance state’, so that the respect for autonomy ended up being severely curtailed.9 Following Reinhart Koselleck’s suggestive remarks, Dan Edelstein argues that Vattel, having established an internally consistent and bounded system of rules intended to describe an international morality, had to argue that on occasions when those rules did not apply international conduct was unconstrained by moral considerations. The amplification of the moral limitations on war ‘entailed an inversely proportional damnation of those who disrespected the law of nations’.10 This article also attempts to account for the discrepant nature of Vattel’s work on international order, but it does so by examining his notion of state personality. Why did Vattel arrive at the notion that each state has a personality? What kind of persons are states? What are their rights and duties? Answering these questions, I maintain, takes us some way to understanding Vattel’s work. The argument begins by setting out briefly two rival perspectives on the character of human freedom, voluntarism and intellectualism, which impacted on the respective worldviews of Samuel Pufendorf and Christian Wolff, on both of whose shoulders Vattel was precariously perched. Vattel adopted the notion of the ‘moral personality’ of the state from Pufendorf, but embedded this conception in a narrative of the purposes of human life, taken from Wolff, which was fundamentally at odds with Pufendorf’s Weltanschauung. The resulting vision of international law and order was not rendered inconsistent on the basis of its combination of these opposing perspectives, but it goes some way to explaining the tension in his thinking that should be evident from the interpretations mentioned above. The contest of the faculties During the high Middle Ages, a debate raged concerning the priority of the two ‘spiritual’ faculties of mind: intellect and will. It was by virtue of possessing these faculties that human beings were thought capable of free or moral action; but then the question arose as to which of these faculties ‘formally’ secured the agent’s freedom. The answer given depended on what the respondent considered to be constitutive of freedom. For intellectualists, true freedom entailed acting in accordance with the dictates of reason; one could not be regarded as free if one were acting irrationally. These writers argued that freedom was secured by the intellect, for this was the faculty that apprehended and processed the dictates of reason. For voluntarists, freedom had to involve choice; one was not free unless one could choose to act irrationally. Such choice was the province of the will. Most prominent among intellectualists was St. Thomas Aquinas (1225–1274), while the two greatest medieval voluntarists were John Duns Scotus (1265–1308) and William of Ockham (1288– 1348). Aquinas regarded the intellect as the ‘nobler’ faculty. The will, he maintained, is an appetitive faculty, and thus its end is to cease willing by attaining the sought-after object – which, put another way, means that its end is to extinguish itself. The intellect, on the other hand, does not seek to put an end to itself, and for this reason it is nobler.11 Duns Scotus was the first philosopher after Aquinas to argue the opposite. For Scotus, the will can affirm or repudiate whatever confronts it; it can ‘transcend everything’, and it is by virtue of this that we appear to have been created in God’s image. Without the will, we would be ‘intellectual beasts’, certainly 9 R. Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford, 1999), 195. 10 D. Edelstein, ‘War and Terror: The Law of Nations from Grotius to the French Revolution’, French Historical Studies, 31 (2008), 238. See also R. Koselleck, Critique and Crisis: Enlightenment and the Pathogenesis of Modern Society (Cambridge, MA, 1988), 46–7. 11 H. Arendt, The Life of the Mind, 2 vols. (New York, 1978), ii, 113–25.

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not God-like.12 For William of Ockham, too, it is the will that allows humans to live within the sphere of permissions that God’s law has left us.13 Between the fourteenth and sixteenth centuries, the controversy died down considerably. During the Renaissance, the recovery of Graeco-Roman ideas about fate and fortuna, coupled with later Protestant notions of predestination, meant that writings about human freedom in this period were concerned with whether human beings could be said to be free at all, rather than the priority of intellect and will in securing liberty.14 When discussion about intellect and will resurfaced in the second scholastic in late sixteenth century Spain, theorists were concerned rather to reconcile intellectualism and voluntarism than assign priority to one faculty over the other.15 But as the stimulus of Greek philosophy again began to give way in the seventeenth century, the debate was stirred up anew. Samuel von Pufendorf In his highly influential work On the Laws of Nature and of Nations (1672), Samuel von Pufendorf (1632–1694) elaborated on the roles played in determining moral action by the human cognitive faculties of intellect, or ‘understanding’, and will.16 The ‘initiative for any voluntary action, without exception, proceeds from man’s understanding’.17 The intellect, that is, apprehends objects, considers the nature of the objects apprehended, and passes judgement on the best course of action. Nonetheless, ‘when all the requisites of action are given’ (when the intellect has shown to the will what may be done), the will may freely ‘select one or more among a number of given objectives and reject the rest, or if but one objective is given, to accept and do it or not’.18 Reason itself cannot determine the acts of the will of a rational agent, for if a human being possesses no faculty by which he may determine his own actions independently of the intellect, then he can bear no moral responsibility for his actions: ‘the chief affection of the will . . . is that it is not restricted intrinsically to a definite, fixed, and invariable mode of acting . . . And this must be maintained all the more firmly because upon its removal the morality of all human actions is at once destroyed’.19 Pufendorf thus espoused a mitigated voluntarism, according to which it was the will’s ‘indifference’ to the exercise of its own actions that ultimately secured human liberty.20 This faculty psychology feeds into Pufendorf’s conception of the powers of the state. His book opens with a treatment of the discipline of natural jurisprudence as a science. The natural sciences dealt with material substances, and Pufendorf argued that entities to which moral laws applied could be ‘conceived analogously to substances’. These entities he called ‘moral 12

J. Duns Scotus, Philosophical Writings, ed. A. Wolter (Indianapolis, 1987), 54–5. A. Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (Cambridge, 1997), 50–68. 14 A. Poppi, ‘Fate, Fortune, Providence and Human Freedom’, in: The Cambridge History of Renaissance Philosophy, ed. C. B. Schmitt, Q. Skinner (Cambridge, 1988). 15 A. J. Freddoso, ‘Suarez on Metaphysical Inquiry, Efficient Causality, and Divine Action’, in: F. Sua´rez, On Creation, Conservation, and Concurrence: Metaphysical Disputations 20, 21, and 22, ed. A. J. Freddoso (South Bend, IL, 2002); W. M. F. Stone, ‘The Scope and Limits of Moral Deliberation: Ratio Recta, Natural Law, and Conscience in Francisco Sua´rez’, in: Imagination in the Later Middle Ages and Early Modern Times, ed. L. Nauta, D. Pa¨tzold (Leuven, 2004). 16 This section on Pufendorf and moral personality draws on the author’s forthcoming article ‘Pufendorf’s Theory of Facultative Sovereignty: On the Constitution of the Soul of the State’, which readers are advised to consult in order to fill in the detail about what I can present here only sketchily. 17 S. Pufendorf, De Jure Naturae et Gentium Libri Octo, ed. C. H. Oldfather, W. A. Oldfather, 2 vols. (Oxford, 1934), ii, 38. 18 Pufendorf, De Jure Naturae, ii, 53. 19 Pufendorf, De Jure Naturae, ii, 54. 20 Pufendorf, De Jure Naturae, ii, 53. 13

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persons’, and these could be either simple – a wife, a sovereign – or composite – a church or a state, for instance.21 Like any biological person, the composite moral person of the state can move itself to action because it possesses an intellect and a will. The decisive attribute of sovereignty is will: it is in virtue of the submission of the individual wills of the citizens to the will of one simple moral person that the state emerges, and the exercise of one efficacious will in the state makes its bearer sovereign. But Pufendorf was clear that no people with any sense would set up an uncontrollable sovereign.22 A ‘council of the people or leading men’ without whose consent the sovereign could will nothing was an essential part of a well-governed state. This did not represent an autonomous will in the state but a ‘conditio sine qua non’ for a sovereign act of will. ‘For surely all things that the state wills, it wills through the will of the king, even if it is with the limitation that unless a certain condition exists, the king cannot will certain things, or wills them in vain’.23 Those members of the community charged with intendancy of the sovereign constitute the intellect of the moral person of the state. The sovereign simply cannot will something on behalf of the state if that particular act of will is not deemed reasonable by the council; or if he wills it, then he does so merely as a private person. The notion of the state as a moral person is crucial to understanding Vattel’s political theory. Another element of the Pufendorfian vocabulary that we need to understand in order to grasp Vattel’s contribution is the distinction between perfect and imperfect duties.24 According to Pufendorf, perfect duties are those which give rise to precisely specifiable obligations on the part of others, and are enforceable. Contracts, for example, give rise to perfect duties, for the terms of the agreement are clearly enumerated, and a contractor can appeal to a court of law to compel another party to that contract to comply with this law. Imperfect duties, however, cover our obligations outside the domain of those duties entailed by strict obligations. In fulfilling imperfect duties, the point is only that we provide some other person some good or other, ‘without observing whether the service furnished is equal to, or less than, that which was the reason for the obligation’. Pufendorf provided the examples of coming to someone’s aid ‘with counsel, goods, or personal assistance’, or performing a service of ‘piety, respect, gratitude or generosity’ where one is indebted in some way to the person thus served.25 The point is to insist that, although we cannot specify exactly certain standards of conduct required at a given moment, we still have a duty under natural law to treat others with some consideration of their common humanity.26 Christian Wolff Before Vattel took hold of it, Pufendorf’s conceptual lexicon came under the scrutiny of Christian Wolff (1679–1754). Posterity

has not been kind to Wolff. An epigone of the great polymath Gottfried Wilhelm Leibniz, Wolff’s attempt to work into systematic form his master’s copious and fragmentary papers and notes has not endeared him to many of Leibniz’s admirers. For Matthew Stewart, Wolff’s ‘shelf-bending series of works . . . provide ample evidence in support of the truism that none can wreak more damage on a philosopher’s reputation than his followers’. Wolff’s works ‘were exceeded in their volume only by their banality’.27 For the exhausted editor of one of Wolff’s 920-page tomes, Wolff is ‘the most prolix and dreary author of his century, even of the whole of modernity’.28 However, we cannot understand Vattel without a prior comprehension of Wolff. We have seen that for Pufendorf it was critical that the will had some functional independence from the intellect in determining human action. In the intellectualist tradition in which Leibniz and Wolff stood, however, the will had no such autonomy. According to Leibniz, the thesis that motivational responses to rational cognition take place in the will was incorrect, for ‘a clear and distinct perception of a truth contains within itself the affirmation of this truth: thus the understanding is necessitated in that direction’.29 It did not concern Leibniz that the denial of the independence of the will seemed to eliminate the possibility of free human action. ‘It is this chimera of an imaginary independence which revolts us against the consideration of determination, and brings us to believe that there are difficulties where there are none’.30 Leibniz’s metaphysical system was teleological. A human being who perceives the truth will assent to the truth, and thereby will contribute to his own ‘perfection’. In Leibniz’s philosophical system, all substances strive towards perfection, and that means they are drawn to the Deity: ‘since the divine happiness is the confluence of all perfections, and pleasure is the feeling of perfection, it follows that the true happiness of a created mind is in its sense of the divine happiness’.31 The striving for perfection was an exertion for union with God, a progression ‘to our master, and to the final cause, which must be the entire goal of our wills’.32 According to Timothy Hochstrasser, Wolff, while still stressing the teleology of perfection, argued more limitedly that substance strives ‘merely for self-perfection instead of its shaping out its individual characteristics in the direction of reunion with the divine’.33 Perfection was less a movement towards a higher order of perfection – God’s nature – than a form of self-perfection. ‘For since the human soul is receptive to the operation of grace – otherwise it could not accept grace, when confronted by it – there should be, in the essence and nature of the soul, some reason, some disposition, that enables it to receive this into itself’.34 In other words, the recognition that the human intellect contained its own resources for recognising God’s grace, and thereby for improving itself, rendered it feasible to set up human nature as a sufficient guide to what was entailed by human perfection.

21

Pufendorf, De Jure Naturae, ii, 11–3. C.f. R. Devetak, ‘Between Kant and Pufendorf: Humanitarian Intervention, Statist Cosmopolitanism and Critical International Theory’, Review of International Studies, 33 (special issue) (2007). 23 Pufendorf, De Jure Naturae, ii, 1070. 24 J. Salter, ‘Grotius and Pufendorf on the Right of Necessity’, History of Political Thought, 26 (2005). 25 Pufendorf, De Jure Naturae, ii, 119. 26 For the argument that Locke’s political thought also operates with this distinction, see R. Lamb, ‘‘Locke on Ownership, Imperfect Duties, and ‘the Art of Governing’’’, British Journal of Politics and International Relations, 12 (2010). It is interesting to note that an important work of contemporary moral philosophy orientates its argument around the same distinction. Onora O’Neill ‘revive[s]’ a distinction made in ‘older discussions of obligations’ to argue that the requirements of perfect duties are matters of justice, falling upon everyone and being specifiable in rights, while the requirements of imperfect obligations are matters of virtue, falling upon everyone but specifying no precise recipients. See O. O’Neill, Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge, 1996). 22

27 M. Stewart, The Courtier and the Heretic: Leibniz, Spinoza, and the Fate of God in the Modern World (New Haven, 2005), 308. 28 M. Thomann, ‘Vorwort’, in: Grundsa¨tze des Natur- und Volckerrechts, ed. C. Wolff (Hildesheim, 1980), v. 29 G. W. Leibniz, New Essays on Human Understanding, ed. P. Remnant, J. Bennett (Cambridge, 1996), 314, my emphasis. 30 G. W. Leibniz, Textes Ine´dits, ed. G. Grua, 2 vols. (New York, 1985), ii, 482. 31 G. W. Leibniz, Philosophical Papers and Letters, ed. L. E. Loemker, 2nd edn (Dordrecht, 1970), 676. 32 G. W. Leibniz, Philosophical Texts, ed. R. S. Woolhouse, R. Francks (Oxford, 1998), 281. 33 T. J. Hochstrasser, Natural Law Theories in the Early Enlightenment (Cambridge, 2000), 161; see also K. Haakonssen, ‘German Natural Law’, in: The Cambridge History of Eighteenth-Century Political Thought, ed. M. Goldie, R. Wokler (Cambridge, 2006). 34 C. Wolff, ‘Discourse on the Practical Philosophy of the Chinese’, in: Moral Enlightenment: Leibniz and Wolff on China, ed. J. Ching, W. G. Oxtoby (Nettetal, 1992), 160.

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This made it possible ‘to assess ethical systems by their conformity to the nature of the human mind’.35 Wolff considered that ‘the human being who makes use of the strength of nature can distinguish good and evil, being drawn to the sweetness of the good and avoiding the bitterness of evil’.36 This entailed that the reason for the goodness or not of an action could be found in the nature of man. Actions are good or bad to the extent that they assist the perfection or imperfection of the individual.37 One basic law therefore guides human conduct: ‘Do what makes you and your state more perfect, and refrain from what makes you and your state less perfect’. (This was not the political state, but meant the position that a person found themselves in at any given time.) This is the ‘Law of Nature’, for ‘since this rule applies to all the free actions of men there is no need for any other law of Nature’.38 We can know this law by reason, and ‘a reasonable man needs no further law, for because of his reason he is a law unto himself’.39 Wolff was clear that perfection could not be obtained through selfish behaviour. Humans are social beings and therefore moral perfection will entail showing kindness towards others. Moreover, it is rational to assist the perfection of others in the hope of ascertaining their assistance when needed. Reason dictates that men come together so that each individual is in a more favourable position for his individual perfection. But any obligations contracted to one another Wolff described as imperfect duties. They are imperfect for two reasons. First, obligations contracted with others, being in effect contingent human constructions, are not accessible to individual conscience, the term Wolff used to refer to ‘our general ability to know what is good or bad in action’.40 Second, as befits a metaphysics of individual perfectionism, reason is fundamentally a matter of what each individual deems, on reflection, to be reasonable, so that there can be no way of sorting out controversies in respect of different reasons given by different people. The best we can hope for is that diverse individuals nonetheless come to the same conclusion about what is reasonable. Making a promise to another person binds only because of the good that promising will bring about; if someone’s conscience should tell them to break a promise, then they should simply break it. What Wolff called ‘perfect duties’ were duties of conscience, and they more or less precluded entirely any fabricated human agreement. Perfect duties were to oneself and one’s own perfection. Wolff then discriminated between a ‘necessary’ and a ‘voluntary’ law of nature, between the law of nature as it applied to the realm of perfect and imperfect duties respectively. Pufendorf’s perfect/imperfect duties distinction, which Wolff made crucial use of, saw its bases entirely reversed. How, then, did Wolff justify civil authority whilst maintaining the priority of individual conscience over promises to others? He did so by elevating the conscience of the state itself over the conscience of the individual agent. For Wolff, the mind has no dispositions to act other than its motives, and a representation of something as perfect, whether that representation arises from distinct or clouded perceptions, is enough of a reason for activity. We are determined by the reason which most strongly moves us. Errors and sins are excusable as they follow from indistinct representations – the sinner is closer to being mad than bad – but we still ought to do as much as we can to ensure that our 35 M. Larrimore, ‘Orientalism and Antivoluntarism in the History of Ethics: On Christian Wolff’s Oratio de Sinarum Philosophia Practica’, Journal of Religious Ethics, 28 (2000), 197. 36 Wolff, ‘Philosophy of the Chinese’, 167. 37 Wolff, ‘Philosophy of the Chinese’, 178. 38 Wolff quoted in T. P. Saine, The Problem of Being Modern, or the German Pursuit of Enlightenment from Leibniz to the French Revolution (Detroit, 1997), 144. 39 Wolff quoted in J. B. Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (Cambridge, 1998), 439. 40 Schneewind, Invention of Autonomy, 439.

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conscientious judgements are as accurate as possible. This is where the state comes in. Men have contracted with one another to establish states in order to furnish themselves with a security unobtainable in the state of nature. Now, it might be true that nature has not imposed on men the precise obligation of uniting together in civil society. But Wolff followed Pufendorf in holding that such a state, once instituted, was ‘a moral person’; and once this moral person was created, it had its own conscience that was not refragable on the basis of another person’s conscientious injunctions.41 The positive law propagated by the state obliges men by connecting a motive to will or refrain from willing a particular action; a magistrate’s threat of death, for example, obliges someone afraid of the gallows not to steal.42 No right of resistance is reserved to any individual. In his treatise on the law of nations (1749), Wolff made more use of the distinction between necessary and voluntary natural law, between the law of nature as it applied to the realm of perfect and imperfect duties respectively. He began by broadly agreeing with Hobbes: the law of nature and the law of nations are the same thing.43 ‘Since nations are regarded as individual persons living in a state of nature, moreover, as men in a state of nature use nothing except natural law, nations also originally use none other than natural law; therefore the law of nations is originally nothing except the law of nature applied to nations’.44 But Wolff did not want fully to endorse this position. For one thing, moral persons were a different class of entity than real ones, and this had to be recognised in any account of the obligations they owed under it. A second point was that the Hobbesian picture failed to distinguish between necessary and voluntary natural law. There was a valid analogy between the perfect obligation of conscience and the sovereign’s duties to his subjects, and also between imperfect obligations and the duties corresponding to treaties made between sovereigns. States as moral persons were bearers of ‘natural’ obligations of conscience, but the nature implicated here was their nature qua states, not ‘natural’ as it applied to biological persons. This correspondingly altered the basis of the kinds of contract that state-persons, as against natural persons, made with one another. On this basis, Wolff differentiated between the ‘necessary’ and ‘voluntary’ law of nations. Wolff had one more step to take in his argument. He claimed that it was not enough for states to observe the necessary and voluntary law of nations. A civil authority had been required in order to end the potential chaos corresponding to the precedence of individual conscience over promises between individuals living together in a community. Likewise, a means had to be found to mitigate a state of war between states. The necessary law of nations was not sufficient because it only dictated the sorts of obligations owed by a state to its own citizens in respect of that state’s external affairs; not being to citizens of other states, these obligations were scarcely adequate to restrain a sovereign who conceived of his internal duties as entailing aggrandisement in the international domain. The voluntary law of nations fell into two categories. ‘Stipulative’ law, consisting in treaties entered into 41 C. Wolff, Jus Gentium Methodo Scientifica Pertractatum, ed. J. H. Drake, 2 vols. (Oxford, 1934), ii, 10. 42 Schneewind, Invention of Autonomy, 438. 43 As Hobbes wrote in Leviathan, ‘Concerning the Offices of one Sovereign to another, which are comprehended in that Law, which is commonly called the Law of Nations, I need not say any thing in this place; because the Law of Nations, and the Law of Nature, is the same thing’: T. Hobbes, Leviathan, ed. G. A. J. Rogers, K. Schumann, 2 vols. (London, 2005), ii, 279. For excellent expositions of other ways in which this statement exerted a great influence on the developing field of international law, see N. Malcolm, Aspects of Hobbes (Oxford, 2002), 432–56; and D. Armitage, ‘Hobbes and the Foundations of Modern International Thought’, in: Rethinking the Foundations of Modern Political Thought, ed. A. Brett, J. Tully, H. Hamilton-Bleakley (Cambridge, 2007). 44 Wolff, Jus Gentium, ii, 9.

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between nations, is not enough because it is not universal: ‘just as the private law for citizens, derived from agreements entered into between themselves, is considered as having no value at all as civil law for a particular state, so also the law for nations, derived from agreements entered into with other nations, it seems cannot be considered as the [universal] law of nations’. ‘Customary’ law, resting on ‘the tacit consent of the nations, or, if you prefer, upon a tacit stipulation’ is again only ‘a particular law’.45 What is required, according to Wolff, is a ‘positive law of nations’, or ‘what reason itself teaches is to be observed as law among all nations’. There should exist, therefore, a person of international standing, a rector, ‘who, following the leadership of nature, defines by the right use of reason what nations ought to consider as law among themselves, although it does not conform in all respects to the natural [or necessary] law of nations’.46 Such a person would not be a world sovereign, but simply the head of the civitas maxima, or maximal association of civitates, where these civitates are sovereign states. He would not lay down the positive law applying within each state, only a positive law regulating their conduct directed externally. In Platonic style, Wolff argued that the civitas maxima would be an epistemocracy, where a philosopher would be king.47 Vattel Emer de Vattel was Wolff’s greatest and most influential disciple. His Le droit des gens (1758) is essentially a treatment of the law of nations that makes use of Wolffian vocabulary to extend an argument that is in many respects akin to that of Vattel’s selfconfessed master. But there was one thing that Vattel wished to see purged from the picture, and that was the civitas maxima. Vattel hailed from the principality of Neuchaˆtel, today a Swiss canton, but whose precarious existence as a pawn in the game of dynastic politics during Vattel’s lifetime is directly relevant to understanding his renunciation of the civitas maxima. According to a long tradition, Neuchaˆtel was an hereditary principality, but in 1707, with the death of Mary, princess of Neuchaˆtel, the throne fell vacant with no direct line of succession. The most credible candidate for the crown was one of the many French princes, the claim of one of whom was supported by Louis XIV. However, recent French annexations of parts of the Holy Roman Empire provoked fears of French designs on Neuchaˆtel’s political autonomy, while the revocation of the Edict of Nantes in 1685 had prompted large numbers of Huguenot refugees into exile in Switzerland, stoking up yet more resentment of France. Vattel’s family was deeply involved in arranging that one of France’s enemies in the War of the Spanish Succession should assume the throne. An ancient feudal right was discovered in support of William III of England, which he relinquished to his nephew Frederick I of Prussia. Frederick’s title was officially recognised in November, 1707. Vattel himself, having studied law in Geneva under the famous Swiss proponent of Pufendorfian philosophy, Jean-Jacques Burlamaqui, sought employment in a diplomatic post. Unable to secure one in Prussia, he was eventually employed by the First Minister of Saxony in 1743. Vattel was promoted six years later to the position of Minister Plenipotentiary of Saxony. Whilst serving in this office, Saxony was invaded by Prussia, for Frederick the Great considered that Saxony had formed an alliance with his enemy, Maria Theresa of Austria. Vattel’s own sympathies appear to have been with his native king rather than his employer. Nevertheless, he was again promoted in 1759, this time to chief advisor on foreign affairs to 45

Wolff, Jus Gentium, ii, 18–19. Wolff, Jus Gentium, ii, 19. 47 C. Wolff, ‘On the Philosopher King and the Ruling Philosopher’, in: Moral Enlightenment ed. J. Ching, W. G Oxtoby; F. Grunert, ‘Absolutism(s): Necessary Ambivalences in the Political Theory of Christian Wolff’, Tijdschrift voor Rechtsgeschiedenis, 73 (2005). 46

the government of Saxony, on the back of the praise lavished on his Le droit des gens, which he had written during the Seven Years’ War.48 These were the circumstances – internecine warfare amongst different constituents of what was ostensibly one political community under one Emperor – that propelled Vattel to declare the death of the civitas maxima. This was the idea of something that seemed not to be on firm footing outside the political assumptions of a Holy Roman Empire that was gone for good. ‘This idea does not satisfy me; nor do I think the fiction of such a republic either admissible in itself, or capable of affording sufficiently solid grounds on which to build the rules of the universal law of nations which shall necessarily claim the obedient acquiescence of sovereign states’.49 In Le droit des gens Vattel set out the law of nations as it applied to legally equal and independent states. As Frederick G. Whelan points out, ‘to assert the existence of a generic type of sovereign state as the basic political unit in eighteenthcentury Europe required a rather daring act of the theoretical imagination on Vattel’s part’. Europe comprised large consolidated states like France and Britain, city-states in Italy and elsewhere, the Holy Roman Empire, confederacies in Switzerland and the Netherlands, as well as bundles of diverse territories united in the persons of dynastic rulers. Neuchaˆtel itself was at once a county of the Holy Roman Empire, part of the Swiss Confederacy, a territory in which movement was afoot to weld it into what was gradually coming to be recognised as the ‘state’ of Prussia, but also an allegedly ‘sovereign’ state by itself. For Vattel, overlapping authority could no longer be sustained in European politics. The ‘abstract quality [of Le droit des gens] is so pronounced as to make clear its (certainly intentional) normative import’.50 However much he may have taken issue with the idea of a civitas maxima, Vattel still considered Wolff the greatest writer on the law of nations. Wolff had realised, wrote Vattel, that the law of nations was the law of nature as it applied to ‘moral persons [who] necessarily differ, in many respects, from the nature and essence of the physical individuals, or men, of whom they are composed.’ Wolff thus saw that the law of nations, whilst inextricably connected to natural law, still required a distinct treatment.51 And Wolff had also demonstrated that nature established a necessary and voluntary law, and consequently a necessary and voluntary law of nations. Vattel endorsed this position entirely: ‘The necessary and the voluntary law of nations are therefore both established by nature’.52 The necessary law of nations is ‘the internal, and consciential law’, while the voluntary is that ‘which the general welfare and safety oblige them to admit in their transactions with each other’.53 The Pufendorfian distinction, now in its Wolffian form, between ‘perfect and imperfect duties’ is held to correspond to the necessary and voluntary laws respectively.54 48 For these biographical details, see S. Beaulac, ‘Emer de Vattel and the Externalization of Sovereignty’, Journal of the History of International Law, 5 (2003); and B. Kapossy, R. Whatmore, ‘Introduction’, in: Vattel, Law of Nations. 49 Vattel, Law of Nations, 14. 50 F. G. Whelan, ‘Vattel’s Doctrine of the State’, History of Political Thought, 9 (1988), 76–7. 51 Vattel, Law of Nations, 12. 52 Vattel, Law of Nations, 17. Pace N. G. Onuf, The Republican Legacy in International Thought (Cambridge, 1998), 77. 53 Vattel, Law of Nations, 16–7. 54 Vattel, Law of Nations, 16. Isaac Nakhimovsky claims in his interpretation of Vattel that the ‘necessary law of nations consisted of the law of nature as strictly applied to states, while the voluntary law of nations reflected the limitations of the analogy between states and individuals’: I. Nakhimovsky, ‘Vattel’s Theory of the International Order: Commerce and the Balance of Power in the Law of Nations’, History of European Ideas, 33 (2007) 160. This cannot be right, because it fails to recognise that there is a voluntary as well as a necessary law of nature according to Vattel, and that each version of the law of nations maps onto one of these. Charles Covell, The Law of Nations in Political Thought: A Critical Survey from Vitoria to Hegel (Basingstoke, 2009), 96, makes the same error.

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Vattel followed Wolff in arguing that it is the perfect duty of all individuals to perfect themselves. The clearest elaboration of Vattel’s Wolffian perspective on perfection comes in his ‘Essay on the Foundation of Natural Law’ of 1746. Sensual human beings, Vattel argued, are brought to fulfil their moral obligations by physical and psychical motivations: ‘there is no will in the soul without motivation; therefore to bring about the moral necessity to undertake a particular action, some motivation must be linked to this action, which you cannot separate from it’.55 No ‘inclination, desire, or affection’ is more basic than self-love, and the motive attaching to self-love is, ‘for sure, our well-being, our expediency, our advantage’.56 It therefore appears that ‘this good, this expediency, is the first principle of all obligation, and in particular of the obligation to keep the natural law’. It would be ‘absurd’ to claim that an individual was ever under an obligation to act against his ‘self-interest’.57 Self-love ‘causes us to desire or seek for our happiness or the perfection of our condition’, and therefore it appears that our first duty under natural law, the first principle of obligation, is to seek our own perfection.58 If this is God’s will – as it surely must be, for the reasoning follows logically from consideration of our nature and essence as the beings God has created us as – then there is nothing at all dishonourable about self-interestedness:

A state is a compound moral person, whose will, intertwined and united by the pacts of a number of men, is considered the will of all, so that it is able to make use of the strength and faculties of the individual members for the common peace and security.63 On this definition of the state, the intellect of the composite moral person was not directly involved in sovereignty; its role was to ensure that acts of sovereign will did not overstep the bounds of natural law. However, in the intellectualist tradition no selfsufficiency at all was assigned to the will; its acts always followed a dictate of sufficient reason. This was so for Leibniz, for Wolff, and also for Vattel.64 There could be no functional differentiation between reason and will, and thus to posit their division in the state, as in Pufendorf’s model, was impossible. So Vattel’s definition of the state began, in Pufendorfian fashion, by stating that as a moral person it had an understanding and a will, but he did not then divide these faculties off from one another: A political society is a moral person inasmuch as it has an understanding and a will of which it makes use for the conduct of its affairs, and is capable of obligations and rights. When therefore a people confer the sovereignty on any one person, they invest him with their understanding and will, and make over to him their obligations and rights, so far as relates to the administration of the state, and to the exercise of the public authority.65

When we have a correct understanding of self-interest; when we have constituted it mainly in the perfection of the soul, a perfection that already defines our happiness in itself, and which reconciles us with good will of the Creator, what danger is there in confusing the meaning of integrity with expediency?59 As a moral person, the primary perfect duty of a state under the necessary law of nations was to strive for its own ‘perfection’. As Whelan has outlined,60 sometimes Vattel explained that this duty meant that the state should promote the pursuit of self-perfection by its individual members, ‘the individual finding in a well regulated society the most powerful succours to enable him to fulfil the task which Nature imposes upon him in relation to himself, for becoming better’.61 At other times, he suggested a more collective understanding of civil perfection: if ‘the perfection of a thing consists, generally, in the perfect agreement of all its constituent parts to tend to the same end’, then if a group of men, united in civil society, ‘all conspire to attain the end proposed in forming a civil society, the nation is perfect’.62 But more often, Vattel argued that perfection of the state, as a moral person, consisted in the development of its own faculties. Here, I believe, we come to the nub of where the intellectualist tradition in which Vattel wrote just could not accommodate the assumptions that had allowed Pufendorf to frame sovereignty, and the limits of sovereignty, in terms of faculty psychology. When Pufendorf had written about the composite moral person of the state, he had been careful to ascribe sovereignty per se to the will, and not to the faculty of intellect: 55 E. Vattel, ‘Essay on the Foundation of Natural Law and on the First Principle of the Obligation Men Find Themselves Under to Observe Laws’, in: Vattel, Law of Nations, 751. 56 Vattel, ‘Foundation of Natural Law’, 753. 57 Vattel, ‘Foundation of Natural Law’, 754. 58 Vattel, ‘Foundation of Natural Law’, 753. 59 Vattel, ‘Foundation of Natural Law’, 762. Vattel also maintains that self-perfection is our first obligation under natural law in his Questions de droit naturel, et observations sur le traite´ du droit de la nature de M. Le baron de Wolf (Berne, 1762), 5–9. 60 Whelan, ‘Vattel’s Doctrine’, 83–4. 61 Vattel, Law of Nations, 88–9. 62 Vattel, Law of Nations, 86. As Vattel put the point in an essay of 1746, the ‘perfection of a thing consists generally in the harmony or agreement of everything within it in the direction of a common goal’: E. Vattel, ‘Dissertation on this Question: Can Natural Law Bring Society to Perfection Without the Assistance of Political Laws?’, in: Vattel, Law of Nations, 773.

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A people invest the sovereign with their will and understanding. Pufendorf’s constitutional protections from overweening power vanish, and the moral person of the state acquires an altogether more absolutist character. What followed from this with respect to international relations? Just as for Wolff, for Vattel the perfect duties of the state were what adhered to the inner law of ‘conscience’. But Vattel put far greater explicit emphasis on the intellectualist equation of freedom with doing the bidding of reason. If a sovereign could be compelled by another, ‘he would no longer enjoy the freedom of determination respecting the conduct he is to pursue in order to obey the dictates of his own conscience. Our obligation is always imperfect with respect to other people, while we possess the liberty of judging how we are to act: and we retain that liberty on all occasions where we ought to be free’.66 Therefore, the state in fact possessed a perfect duty under the necessary law of nations to pursue whatever it conscientiously considered as reasonable. Vattel stipulated certain limitations on what could count as ‘reasonable’ in this context. By the necessary law of nations the ruler of a state must protect all of the obligations and rights subsisting within that state. Therefore, unlike a private individual, who is permitted by the necessary law of nature magnanimously to forget injuries that he has suffered, ‘generosity’ on the part of the 63

Pufendorf, De Jure Naturae, ii, 984. In Vattel’s early defence of Leibnizian philosophy, De´fense du syste`me leibnitien contre les objections et les imputations de Mr. de Crousaz (Leiden, 1741), 248–50, he argued that ‘nothing exists, nor is anything done, without there being a sufficient reason for why it exists, or for why it happens in such a way’. He explicitly took issue with the notion that the faculty of the will was indifferent to its ends, and therefore had to determine itself, ‘Mr Leibniz having combated by an invincible argument this liberty of simple indifference’. 65 Vattel, Law of Nations, 99. D. Boucher, The Limits of Ethics in International Relations: Natural Law, Natural Rights, and Human Rights in Transition (Oxford, 2009), 85, is the only secondary commentary I have been able to trace on Vattel that draws attention to the connection between moral personality and the faculties in Vattel’s theory of the state. 66 Vattel, Law of Nations, 75. 64

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ruler ‘is not be exerted at the expense of others’.67 He cannot dispose of state territory, or the property of his subjects. This is the only limit that Vattel placed on sovereigns in terms of their perfect duties inasmuch as attending to those duties was to be directed inside states. Insofar as the necessary law belongs to the state for the maintenance of the rights internal to it, the necessary law must also belong to the state for its defence. In this respect, Vattel maintained (although not on the basis of sustained argument) that the necessary law of nations was embodied by traditional just war doctrine.68 Yet it is in his discussion of the laws of war that we begin to see the consequences of Vattel’s shunning of the civitas maxima. He held that war cannot be just on both sides. One party claims a right; the other disputes it: – the one complains of an injury, the other denies having done it. They may be considered as two individuals disputing on the truth of a proposition; and it is impossible that two contrary statements should be true at the same time.69 Wolff had argued that a rector was the proper individual to act as the conscience of states in their external relations. Without the civitas maxima, there is no rector. States ‘acknowledge no superior judge’, so the justice of their respective causes cannot be authoritatively weighed up.70 Equivalence of justice of cause must thus be deemed in respect of combatants, so that ‘whatever is permitted to the one in virtue of the state of war, is also permitted to the other’.71 A state has not thereby been exempted from the perfect duties of the necessary law of nations. The principle of the equivalence of causes ‘does not, to him who takes up arms in an unjust cause, give any real right that is capable of justifying his conduct and acquitting his conscience, but merely entitles him to the benefit of the external effect of the law, and to impunity among mankind’.72 Vattel in effect had it, then, that a sovereign’s conscience, in Koselleck’s lapidary phrase, ‘took its bearings not from moral law alone, but primarily from given political circumstances’.73 Or as Vattel pithily put it, ‘Let us leave the strictness of the necessary law of nations to the conscience of sovereigns’.74 When he wrote about imperfect duties, or the voluntary law of nations, Vattel was referring, like Wolff, to those duties incurred by contract, or treaty. A state’s primary perfect duty was to perfect itself. This meaning nothing more than the state having to attend to its own best interests, the state’s perfect duty to itself must take precedence over its duties to others. A political society cannot therefore bind itself indefinitely by a treaty, for the obligations thus incurred might stand in the way of the state’s self-perfection. As a consequence of that liberty and independence, it exclusively belongs to each nation to form her own judgment of what her conscience proscribes to her, – of what she can or cannot do; – of what it is proper or improper for her to do; and of course it rests solely with her to examine and determine whether she can perform any office for another nation without neglecting the duty which she owes to itself.75 In Ian Hunter’s perspicuous words, treaties, or the voluntary law of nations, are ‘positive-law substitutes for a natural law that 67

Vattel, Law of Nations, 271. C.f. S. Zurbuchen, ‘Vattel’s Law of Nations and Just War Theory’, History of European Ideas, 35 (2009). 69 Vattel, Law of Nations, 489. 70 Vattel, Law of Nations, 489. 71 Vattel, Law of Nations, 591. 72 Vattel, Law of Nations, 592. 73 Koselleck, Critique and Crisis, 45. 74 Vattel, Law of Nations, 590. 75 Vattel, Law of Nations, 74. 68

has been suspended by each nation’s capacity to determine what is right for itself’.76 All duties brought upon the state by itself in signing treaties are imperfect duties; they are obligations for the common good, but they are not obligations of conscience. This is a clear inversion of the meaning that Pufendorf attached to imperfect duties: for Pufendorf, contracts laid down specifiable duties, and specifiable duties are perfect ones. So far, on the basis of my presentation of his thinking, it appears odd indeed that anyone could have regarded Vattel as a member of the so-called Grotian tradition. But Vattel did argue that all states had a common interest in order. Sociability was not the first principle of the law of nature, but given that self-perfection dictated that men live peaceably, it was the very ‘next principle’ of natural law.77 Similarly for states, their pursuit of self-interest meant that states should cooperate to ensure that none of them came to be a menace to the others, to which end a balance of power had emerged in Europe, an arrangement of affairs so that ‘no power should be superior to the others’. The activities that went on in order to maintain this balance – the ‘continual attention of sovereigns to every occurrence, the constant residence of ministers, and the perpetual negotiations’ – did ‘make of modern Europe a kind of republic’, if not the ‘great republic’ imagined by Wolff.78 Vattel is considered a pluralist, as the English School in International Relations use that term, because he maintained that states ‘are capable of agreeing only for certain minimum purposes which fall short of that of the enforcement of law’.79 Dissenting notes have been sounded. Edward Keene, while agreeing that ‘Vattel’s description of the European political system looks remarkably like the orthodox conception of international society in use today’, maintains that his account ultimately ‘rested . . . upon natural law’ rather than ‘the normative and legal order furnished by treaties’, an order more conventionally described by the category of international society.80 However, Vattel’s application of natural law to the law of nations finally admitted only a very etiolated version of natural law to be of any import. Keene’s argument also risks downplaying too much the degree to which Vattel concretely impacted the emergence of the doctrine that treaties constitute international law. Vattel’s distinction between the necessary and voluntary law of nations was critical to the development of international legal positivism in the nineteenth century. In the new states of North America, for example, Vattel’s distinction between the necessary and voluntary laws of nations came to be of some importance. To take one example: In 1784, one Mrs. Rutgers sued under the state of New York’s Trespass Act for back rent from loyalist forces who had occupied, between 1776 and 1783, her late husband’s vacated brewery. Alexander Hamilton, defending the loyalists, argued that the law of nations was obligatory, and that under this law the right to use abandoned property without compensating its owner was assured. ‘What we have suffered’, he pleaded, ‘cannot alter the common laws of war: they are founded upon reason and humanity, and will prevail as long as reason and humanity are cultivated.’ The Mayor’s Court, 76 I. Hunter, ‘Vattel’s Law of Nations: Diplomatic Casuistry for the Protestant Nation’, Grotiana, 31 (2010), 127. Hunter offers a superb analysis of how Vattel’s seemingly abstract ‘moral person’ of the state serves the purposes of ‘a Protestant agricultural-military republic’. 77 Vattel, ‘Foundation of Natural Law’, 754. 78 Vattel, Law of Nations, 496. 79 H. Bull, ‘The Grotian Conception of International Society’, in: Diplomatic Investigations: Essays in the Theory of International Politics, ed. H. Butterfield, M. Wight (London, 1966), 69. See also M. Koskenniemi, ‘‘‘International Community’ from Dante to Vattel’’, unpublished manuscript, University of Helsinki. For more on the English School in International Relations, see especially A. Linklater, H. Suganami, The English School of International Relations: A Contemporary Reassessment (Cambridge, 2006). 80 E. Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge, 2002), 16, 20.

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citing Vattel, distinguished between the necessary law of nations, binding in conscience, and the voluntary law, and determined that the right to use abandoned property without compensating its owner was not a necessary law, and not therefore founded, as Hamilton had it, on ‘reason and humanity’. However, Mrs. Rutgers still lost because it was decided that the Confederation had recognised this right in its peace treaty with Britain, meaning that this was a dictate of the voluntary law of nations.81 The notion that treaties ‘constituted’ the voluntary law, as James Madison put it in 1806, became a staple of international legal practice82; and Vattel, whose book, by the early years of the nineteenth century, had gone through twenty French, ten British and eighteen American editions, was its leading light.83 Conclusion The anthropocentric characteristics of the state have been subjected to a good deal of examination by international theorists over the last decade or so.84 But there is a much longer history of describing states as persons, an important part of which has been analysed herein. The first person to describe the state not just as a person but as a ‘moral person’ was Pufendorf. What made the state a moral person, according to Pufendorf, was its possession of the moral faculties of intellect and will, and the particular relation which obtained between these in determining conduct. This was a relation of dependence but by no means subservience. The will, wrote Pufendorf, required reasons, supplied by the intellect, to act at all, but once reasons had been provided then it was the province of the will to arbitrate between these reasons in coming to a decision on how finally to act. Applied to the state, this entailed a constitutional arrangement where the exercise of sovereign will was under some control by a non-sovereign council. But the moral person of the state lost its anchor in a moderate constitutionalism when it came to be employed in the intellectualist tradition to which Pufendorf had stood opposed. Intellectualists such as Wolff allotted no autonomy to the will, meaning that in their hands the balance between the faculties of the state was eviscerated and the will made a mere appendage of an intellect that was determined to its ends. The idea of the state as a person was nonetheless germane to Wolff’s purposes, for it imparted to the state the corporate identity that was a necessary precursor to arguing that it, like a

81 D. J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill, 2005), 194–7. 82 Onuf, Republican Legacy, 82. 83 F. S. Ruddy, International Law in the Enlightenment: The Background of Emmerich de Vattel’s ‘Le Droit des Gens’ (Dobbs Ferry, 1975), 283. 84 A. Wendt, ‘The State as Person in International Theory’, Review of International Studies, 30 (2004); M. Luoma-Aho, ‘Political Theology, Anthropomorphism, and Person-hood of the State: The Religion of IR’, International Political Sociology, 3 (2009).

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human individual, had a duty under natural law to perfect itself. Vattel took this notion over from Wolff. He allowed no scope for a rector to regulate international conduct, thereby permitting greater scope for states to interpret for themselves what they might do to perfect themselves. However, he still did not let go of Wolff’s notion of a voluntary law of nations comprising the agreements to which states had committed themselves, albeit with the proviso that these pledges were only binding insofar as states continued to view them as such. As many a history of Realism in International Relations testifies, Vattel was by no means the first theorist to posit the necessary selfinterestedness of states.85 Nor was he the first writer to describe the relations between sovereign actors in terms of society: Grotius had arguably done this a century and a half earlier;86 and Vattel’s own teacher, Burlamaqui, had already maintained that nations form ‘a kind of society among themselves’ in 1751.87 Neither was he the first writer to envisage international order as depending on contracted agreements between states, something that we find in more pronounced form in Jean Dumont’s Corps universel diplomatique du droits des gens of 1726.88 But Vattel was the first author systematically to combine all three perspectives within the ambit of a single book. Self-interest responded to the intellectualist belief that the perfection demanded of all persons by the necessary law of nature entailed following the dictates of individual conscience. Because self-perfection will necessitate the assistance of others, persons have an imperfect duty of sociability. Agreements reached by individual persons are the province of the voluntary law of nature, and compacts entered into by state persons fall similarly under the banner of the voluntary law of nations, or positive international law. Thus, the category of the moral person of the state is central to the development of Vattel’s entire argument, and to the foundations of modern international theory. Acknowledgements I would like to thank Richard Whatmore and the reviewers of my original submission for providing such encouraging and constructive comments. I owe a special debt to Kimberly Hutchings for leaning on me to write this in the first place, and to Edward Keene and Peter Wilson for offering excellent feedback on a much earlier version.

85 J. Haslam, No Virtue Like Necessity: Realist Thought in International Relations since Machiavelli (New Haven, 2002). 86 R. Jeffery, Hugo Grotius in International Theory (New York, 2006). 87 J.-J. Burlamaqui, The Principles of Natural and Politic Law, ed. P. Korkman, T. Nugent (Indianapolis, 2006), 445. 88 E. Keene, ‘The Age of Grotius’, in: The Routledge Handbook of International Law, ed. D. Armstrong (London, 2008).