CONSTITUTIONAL INTERPRETATION: THE INTERNATIONAL JURISTS

 

The balance of power was a constitutional concept for the society of European states, and also, as we saw in Book I, played a similar role in ordering the internal relationships of the states that composed that society. Indeed historians have only recently come to appreciate the complicated means by which the territorial states that were later characterized as the states of the ancien régime maintained the principles of an internal balance of power, in contrast to the absolutism that preceded them. But why did the balance of power, a concept long antedating the modern state, 17 achieve such a pervasive dominance in the society of territorial states?

Territorial states are so named owing to their preoccupation with the territory of the state. As part of the Treaty of Utrecht, the first agreements were introduced fixing customs duties levied at the state frontier and diminishing the role of internal customs duties. The “most favored nation” clause makes its appearance at Utrecht. This attentiveness to commercial matters—the peace was accompanied by an extensive series of commercial treaties among the signatories—is also characteristic of the territorial states. Rather than focusing on the communities and towns that defined the boundaries of the kingly state, the territorial state attempts to fix a frontier boundary, a line, that marks the jurisdiction of the state. These boundaries are crucial if bartering is to take place, and dynastic rights to be ignored, in maintaining the balance of power, so we may say that for this reason also the territorialism of the eighteenth century state favored a system of perfecting the balance of power among states—but why did these states seek such a system in the first place?

The territorial state aggrandizes itself by means of peace because peace is the most propitious climate for the growth of commerce. Maintaining the balance of power was believed to be the way to maintain peace; and in fact the so-called cabinet wars fought for strictly limited territorial objectives replaced the religious wars of the previous century that were potentially limitless in their destruction. As this new constitution took hold in Europe, a new international jurisprudence accompanied it. International law, which had, as we have seen, been influenced by Catholic theology in the period of the princely states and by Protestant theology in the time of kingly states, now found itself in the hands of deists, those empirico-rationalists who believed in a divine order that ordained and was constrained by the rules of reason. The most powerful and influential of the philosophers of this period, Berkeley and Leibniz, took a very different view of the human condition than had Hobbes and Spinoza. This new perspective, with its emphasis on human freedom and the role of human perception, was crucially influential in the work of the two writers who dominated international jurisprudence during the era of the territorial state: Christian Wolff and Emmerich de Vattel.

The political theories that supported absolutism, like those of Thomas Hobbes, were consistent with assumptions about the behavior of individuals: because, like the State, the individual sought only to preserve himself in a conflict over the resources necessary for self-preservation, and to aggrandize himself at the expense of others in order to better ensure his survival, he would unceasingly pose violent threats unless prevented from doing so by an even more powerful individual. Only an all-powerful person could bring order to the natural and otherwise inevitable and continual chaos of human conflict. These ideas were the intellectual basis for the kingly state; Grotian ideas of a society of states had to contend with the wilful elements of which that society was composed.

The Westphalian settlement, which affirmed the absolute and mutual independence of all the sovereigns, created an uncivilized system. It encouraged war because differences between princes must be resolved by the right of the strongest. Insecurity reigned.18

 

In contrast, the settlement at Utrecht depended upon very different ideas about the nature of states, though these too were consistent with, perhaps even extrapolated from, assumptions about individuals. Leibniz held, for example, that the naturalistic view of human nature given by Hobbes was too fragmentary to be accurate. The key to human behavior was not compulsion and inevitability, but free will, and the society of free human beings was characterized not only by self-preservation, but by development. Leibniz opposed Hobbes's view that absolute sovereignty was essential to justice because Leibniz saw in human nature a will to cooperate that had its basis in the need for individual development. Law was not founded on the exercise of raw power, but rather it reflected practical arrangements that enabled the pursuit of human happiness. Thus the operation of reason, which Grotius saw as the unifying element in international law, was for Leibniz the tangible expression of this inner human desire for pursuing and nurturing happiness.

Much about the Grotian order appealed to Leibniz: he approved of the essential Grotian premise that there were deep principles of human nature that were reflected in experience but were independent of that experience. Moreover, he endorsed the most controversial of Grotius's positions, that natural law would be the same even if there were no God, a view that Pufendorf derided as “impious and idiotic.” Actually, this position made good sense if, as I have argued, natural law for Grotius was not a set of substantive rules but rather the operation of reason itself, of rule making. But Grotius had agreed with his contemporaries about the need for a domestic absolutism; he was, after all, the international spokesman for the kingly state. Leibniz rejected this necessity (and the views of human nature on which it was founded) and replaced Grotius's deterministic account with concepts of free will. It was the paradox of free will, by which happiness was maximized but the possibility of error enshrined, that drove justice, according to Leibniz. Therefore there was no necessity for an overarching sovereign on an international scale. The division of the society of states into separate sovereignties was not fatal to international law because all the constituent members were moved to act in accord in order to develop; their very freedom to act, in which Hobbes saw the state's will to war, instead made possible the realization of peace and cooperation. True, it also made war possible, but there was no condition of international relations in which this was not the case, because the possibilities of free will always included the option of error, and even the pursuit of evil. For this reason, moral values were an inescapable part of the natural order—they played a role when men were free to choose.