History of European Ideas 37 (2011) 438–445

The moral person of the state: Emer de Vattel and the foundations ofinternational 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

Article history:

Available online 16 July 2011

Keywords:

Emer de Vattel

Samuel von Pufendorf

Christian Wolff

International law

International theory

International society

A B S T R A C T

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.

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Writing for the first time about ‘the Grotian tradition ininternational law’, Hersch Lauterpacht claimed that Emer de Vattel(1714–1767), above all other international jurists, ‘gave emphaticand lucid expression to this analogy . . . of states and individuals’.1

Vattel imputed to states what were imputed to individuals inliberal theory: equal rights. From this, according to AndrewHurrell, followed ‘the principle of sovereign equality, that all statespossess equal rights – or an equal capacity for rights’, which Vattelwas ‘the first writer to elucidate clearly’.2 He therefore envisaged ‘astructure of coexistence, built on the mutual recognition of statesas independent and legally equal members of society’.3 Thus didVattel develop a conception of what he called ‘the great societyestablished by nature between all nations’.4

Lauterpacht, however, also detected in Vattel’s writings ‘a hall-mark of what is considered to be the realist approach to expatiate onthe lower morality of states as compared with that of individuals’.5

* Tel.: +44 1158468610.

E-mail address: Benjamin.Holland@nottingham.ac.uk.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 � 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 alegal order among nations’, when in fact by an ‘elegant manner ofevasion’ he has invested states with such an inviolate sovereigntythat the principles and instruments necessary to furnish suchan order are excluded from the analysis.6 Similarly, AndrewLinklater charges Vattel with endorsing a ‘radical state-libertarian-ism’ and ‘a voluntaristic international order’,7 while PhilipAllott traces to Vattel a ‘spiritually and psychologically dislocated’vision of a world ‘which requires each of us to be two people – withone set of moral judgements and social aspirations and legalexpectations within our national society, and another set . . . foreverything that happens beyond the frontiers of our nationalsociety’.8

Vattel appears to have articulated two fairly different framingsof the character of international legal order. Some recent scholarshipon Vattel has tried to account for the Janus-faced character of hiswritings. For Richard Tuck, Vattel belongs full-square in a liberaltradition which, on the one hand, emphasises the autonomy ofall 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.

12 J. Duns Scotus, Philosophical Writings, ed. A. Wolter (Indianapolis, 1987), 54–5.13 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. Suarez, 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 Suarez’, in: Imagination in the Later Middle Ages and Early

Modern Times, ed. L. Nauta, D. Patzold (Leuven, 2004).16 This section on Pufendorf and moral personality draws on the author’s

B. Holland / History of European Ideas 37 (2011) 438–445 439

post-Renaissance state’, so that the respect for autonomy endedup being severely curtailed.9 Following Reinhart Koselleck’ssuggestive remarks, Dan Edelstein argues that Vattel, havingestablished an internally consistent and bounded system ofrules intended to describe an international morality, had toargue that on occasions when those rules did not applyinternational conduct was unconstrained by moral consider-ations. The amplification of the moral limitations on war‘entailed an inversely proportional damnation of those whodisrespected the law of nations’.10 This article also attempts toaccount for the discrepant nature of Vattel’s work on interna-tional order, but it does so by examining his notion of statepersonality. Why did Vattel arrive at the notion that each statehas a personality? What kind of persons are states? What aretheir 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 perspec-tives on the character of human freedom, voluntarism andintellectualism, which impacted on the respective worldviews ofSamuel Pufendorf and Christian Wolff, on both of whose shouldersVattel was precariously perched. Vattel adopted the notion of the‘moral personality’ of the state from Pufendorf, but embedded thisconception in a narrative of the purposes of human life, taken fromWolff, which was fundamentally at odds with Pufendorf’sWeltanschauung. The resulting vision of international law andorder was not rendered inconsistent on the basis of its combinationof these opposing perspectives, but it goes some way to explainingthe tension in his thinking that should be evident from theinterpretations mentioned above.

The contest of the faculties

During the high Middle Ages, a debate raged concerning thepriority of the two ‘spiritual’ faculties of mind: intellect and will. Itwas by virtue of possessing these faculties that human beings werethought capable of free or moral action; but then the questionarose as to which of these faculties ‘formally’ secured the agent’sfreedom. The answer given depended on what the respondentconsidered to be constitutive of freedom. For intellectualists, truefreedom 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, forthis was the faculty that apprehended and processed the dictates ofreason. For voluntarists, freedom had to involve choice; one was notfree unless one could choose to act irrationally. Such choice was theprovince of the will.

Most prominent among intellectualists was St. Thomas Aquinas(1225–1274), while the two greatest medieval voluntarists wereJohn Duns Scotus (1265–1308) and William of Ockham (1288–1348). Aquinas regarded the intellect as the ‘nobler’ faculty. Thewill, he maintained, is an appetitive faculty, and thus its end is tocease willing by attaining the sought-after object – which, putanother 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 thisreason it is nobler.11 Duns Scotus was the first philosopher afterAquinas to argue the opposite. For Scotus, the will can affirm orrepudiate whatever confronts it; it can ‘transcend everything’, andit is by virtue of this that we appear to have been created in God’simage. 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.

not God-like.12 For William of Ockham, too, it is the will that allowshumans to live within the sphere of permissions that God’s law hasleft us.13

Between the fourteenth and sixteenth centuries, the controver-sy died down considerably. During the Renaissance, the recovery ofGraeco-Roman ideas about fate and fortuna, coupled with laterProtestant notions of predestination, meant that writings abouthuman freedom in this period were concerned with whetherhuman beings could be said to be free at all, rather than the priorityof intellect and will in securing liberty.14 When discussion aboutintellect and will resurfaced in the second scholastic in latesixteenth century Spain, theorists were concerned rather toreconcile intellectualism and voluntarism than assign priority toone faculty over the other.15 But as the stimulus of Greekphilosophy 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 onthe roles played in determining moral action by the humancognitive faculties of intellect, or ‘understanding’, and will.16 The‘initiative for any voluntary action, without exception, proceedsfrom man’s understanding’.17 The intellect, that is, apprehendsobjects, considers the nature of the objects apprehended, andpasses judgement on the best course of action. Nonetheless, ‘whenall the requisites of action are given’ (when the intellect has shownto the will what may be done), the will may freely ‘select one ormore among a number of given objectives and reject the rest, or ifbut one objective is given, to accept and do it or not’.18 Reason itselfcannot determine the acts of the will of a rational agent, for if ahuman being possesses no faculty by which he may determine hisown actions independently of the intellect, then he can bear nomoral responsibility for his actions: ‘the chief affection of the will. . . is that it is not restricted intrinsically to a definite, fixed, andinvariable mode of acting . . . And this must be maintained all themore firmly because upon its removal the morality of all humanactions is at once destroyed’.19 Pufendorf thus espoused amitigated voluntarism, according to which it was the will’s‘indifference’ to the exercise of its own actions that ultimatelysecured human liberty.20

This faculty psychology feeds into Pufendorf’s conception of thepowers of the state. His book opens with a treatment of thediscipline of natural jurisprudence as a science. The naturalsciences dealt with material substances, and Pufendorf argued thatentities to which moral laws applied could be ‘conceivedanalogously to substances’. These entities he called ‘moral

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.

B. Holland / History of European Ideas 37 (2011) 438–445440

persons’, and these could be either simple – a wife, a sovereign – orcomposite – a church or a state, for instance.21 Like any biologicalperson, the composite moral person of the state can move itself toaction because it possesses an intellect and a will. The decisiveattribute of sovereignty is will: it is in virtue of the submission ofthe individual wills of the citizens to the will of one simple moralperson that the state emerges, and the exercise of one efficaciouswill in the state makes its bearer sovereign. But Pufendorf was clearthat no people with any sense would set up an uncontrollablesovereign.22 A ‘council of the people or leading men’ withoutwhose consent the sovereign could will nothing was an essentialpart of a well-governed state. This did not represent anautonomous will in the state but a ‘conditio sine qua non’ for asovereign act of will. ‘For surely all things that the state wills, itwills through the will of the king, even if it is with the limitationthat unless a certain condition exists, the king cannot will certainthings, or wills them in vain’.23 Those members of the communitycharged with intendancy of the sovereign constitute the intellect ofthe moral person of the state. The sovereign simply cannot willsomething on behalf of the state if that particular act of will is notdeemed reasonable by the council; or if he wills it, then he does somerely as a private person. The notion of the state as a moralperson is crucial to understanding Vattel’s political theory.

Another element of the Pufendorfian vocabulary that weneed to understand in order to grasp Vattel’s contribution is thedistinction between perfect and imperfect duties.24 According toPufendorf, perfect duties are those which give rise to preciselyspecifiable obligations on the part of others, and are enforceable.Contracts, for example, give rise to perfect duties, for the termsof the agreement are clearly enumerated, and a contractor canappeal to a court of law to compel another party to that contractto comply with this law. Imperfect duties, however, cover ourobligations outside the domain of those duties entailed by strictobligations. In fulfilling imperfect duties, the point is only thatwe provide some other person some good or other, ‘withoutobserving whether the service furnished is equal to, or less than,that which was the reason for the obligation’. Pufendorfprovided the examples of coming to someone’s aid ‘withcounsel, goods, or personal assistance’, or performing a serviceof ‘piety, respect, gratitude or generosity’ where one is indebtedin some way to the person thus served.25 The point is to insistthat, although we cannot specify exactly certain standards ofconduct required at a given moment, we still have a duty undernatural law to treat others with some consideration of theircommon humanity.26

Christian Wolff

Before Vattel took hold of it, Pufendorf’s conceptual lexiconcame under the scrutiny of Christian Wolff (1679–1754). Posterity

21 Pufendorf, De Jure Naturae, ii, 11–3.22 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).

has not been kind to Wolff. An epigone of the great polymathGottfried Wilhelm Leibniz, Wolff’s attempt to work into systematicform his master’s copious and fragmentary papers and notes hasnot endeared him to many of Leibniz’s admirers. For MatthewStewart, Wolff’s ‘shelf-bending series of works . . . provide ampleevidence in support of the truism that none can wreak moredamage on a philosopher’s reputation than his followers’. Wolff’sworks ‘were exceeded in their volume only by their banality’.27 Forthe exhausted editor of one of Wolff’s 920-page tomes, Wolff is ‘themost prolix and dreary author of his century, even of the whole ofmodernity’.28 However, we cannot understand Vattel without aprior comprehension of Wolff.

We have seen that for Pufendorf it was critical that the will hadsome functional independence from the intellect in determininghuman action. In the intellectualist tradition in which Leibniz andWolff stood, however, the will had no such autonomy. Accordingto Leibniz, the thesis that motivational responses to rationalcognition take place in the will was incorrect, for ‘a clear anddistinct perception of a truth contains within itself the affirmationof this truth: thus the understanding is necessitated in thatdirection’.29 It did not concern Leibniz that the denial of theindependence of the will seemed to eliminate the possibility offree human action. ‘It is this chimera of an imaginary indepen-dence which revolts us against the consideration of determina-tion, and brings us to believe that there are difficulties where thereare none’.30 Leibniz’s metaphysical system was teleological. Ahuman being who perceives the truth will assent to the truth, andthereby will contribute to his own ‘perfection’. In Leibniz’sphilosophical system, all substances strive towards perfection,and that means they are drawn to the Deity: ‘since the divinehappiness is the confluence of all perfections, and pleasure is thefeeling of perfection, it follows that the true happiness of a createdmind is in its sense of the divine happiness’.31 The striving forperfection was an exertion for union with God, a progression ‘toour master, and to the final cause, which must be the entire goal ofour wills’.32

According to Timothy Hochstrasser, Wolff, while still stressingthe teleology of perfection, argued more limitedly that substancestrives ‘merely for self-perfection instead of its shaping out itsindividual characteristics in the direction of reunion with thedivine’.33 Perfection was less a movement towards a higher orderof perfection – God’s nature – than a form of self-perfection. ‘Forsince the human soul is receptive to the operation of grace –otherwise it could not accept grace, when confronted by it – thereshould be, in the essence and nature of the soul, some reason, somedisposition, that enables it to receive this into itself’.34 In otherwords, the recognition that the human intellect contained its ownresources for recognising God’s grace, and thereby for improvingitself, rendered it feasible to set up human nature as a sufficientguide to what was entailed by human perfection.

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: Grundsatze 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 Inedits, 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.

41 C. Wolff, Jus Gentium Methodo Scientifica Pertractatum, ed. J. H. Drake, 2 vols.

(Oxford, 1934), ii, 10.

B. Holland / History of European Ideas 37 (2011) 438–445 441

This made it possible ‘to assess ethical systems by theirconformity to the nature of the human mind’.35 Wolff consideredthat ‘the human being who makes use of the strength of nature candistinguish good and evil, being drawn to the sweetness of thegood and avoiding the bitterness of evil’.36 This entailed that thereason for the goodness or not of an action could be found in thenature of man. Actions are good or bad to the extent that they assistthe perfection or imperfection of the individual.37 One basic lawtherefore guides human conduct: ‘Do what makes you and yourstate more perfect, and refrain from what makes you and your stateless perfect’. (This was not the political state, but meant theposition that a person found themselves in at any given time.) Thisis the ‘Law of Nature’, for ‘since this rule applies to all the freeactions of men there is no need for any other law of Nature’.38 Wecan know this law by reason, and ‘a reasonable man needs nofurther law, for because of his reason he is a law unto himself’.39

Wolff was clear that perfection could not be obtained throughselfish behaviour. Humans are social beings and therefore moralperfection will entail showing kindness towards others. Moreover,it is rational to assist the perfection of others in the hope ofascertaining their assistance when needed. Reason dictates thatmen come together so that each individual is in a more favourableposition for his individual perfection. But any obligationscontracted to one another Wolff described as imperfect duties.They are imperfect for two reasons. First, obligations contractedwith others, being in effect contingent human constructions, arenot accessible to individual conscience, the term Wolff used to referto ‘our general ability to know what is good or bad in action’.40

Second, as befits a metaphysics of individual perfectionism, reasonis fundamentally a matter of what each individual deems, onreflection, to be reasonable, so that there can be no way of sortingout controversies in respect of different reasons given by differentpeople. The best we can hope for is that diverse individualsnonetheless come to the same conclusion about what is reason-able. Making a promise to another person binds only because of thegood that promising will bring about; if someone’s conscienceshould tell them to break a promise, then they should simply breakit. What Wolff called ‘perfect duties’ were duties of conscience, andthey more or less precluded entirely any fabricated humanagreement. Perfect duties were to oneself and one’s ownperfection. Wolff then discriminated between a ‘necessary’ anda ‘voluntary’ law of nature, between the law of nature as it appliedto the realm of perfect and imperfect duties respectively.Pufendorf’s perfect/imperfect duties distinction, which Wolffmade crucial use of, saw its bases entirely reversed.

How, then, did Wolff justify civil authority whilst maintainingthe priority of individual conscience over promises to others? Hedid so by elevating the conscience of the state itself over theconscience of the individual agent. For Wolff, the mind has nodispositions to act other than its motives, and a representation ofsomething as perfect, whether that representation arises fromdistinct 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 indistinctrepresentations – the sinner is closer to being mad than bad – butwe 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.

conscientious judgements are as accurate as possible. This is wherethe state comes in. Men have contracted with one another toestablish states in order to furnish themselves with a securityunobtainable in the state of nature. Now, it might be true thatnature has not imposed on men the precise obligation of unitingtogether in civil society. But Wolff followed Pufendorf in holdingthat such a state, once instituted, was ‘a moral person’; and oncethis moral person was created, it had its own conscience that wasnot refragable on the basis of another person’s conscientiousinjunctions.41 The positive law propagated by the state obligesmen by connecting a motive to will or refrain from willing aparticular action; a magistrate’s threat of death, for example,obliges someone afraid of the gallows not to steal.42 No right ofresistance is reserved to any individual.

In his treatise on the law of nations (1749), Wolff made moreuse of the distinction between necessary and voluntary naturallaw, between the law of nature as it applied to the realm of perfectand imperfect duties respectively. He began by broadly agreeingwith Hobbes: the law of nature and the law of nations are the samething.43 ‘Since nations are regarded as individual persons living in astate of nature, moreover, as men in a state of nature use nothingexcept natural law, nations also originally use none other thannatural law; therefore the law of nations is originally nothingexcept the law of nature applied to nations’.44 But Wolff did notwant fully to endorse this position. For one thing, moral personswere a different class of entity than real ones, and this had to berecognised in any account of the obligations they owed under it. Asecond point was that the Hobbesian picture failed to distinguishbetween necessary and voluntary natural law. There was a validanalogy between the perfect obligation of conscience and thesovereign’s duties to his subjects, and also between imperfectobligations and the duties corresponding to treaties made betweensovereigns. States as moral persons were bearers of ‘natural’obligations of conscience, but the nature implicated here was theirnature qua states, not ‘natural’ as it applied to biological persons.This correspondingly altered the basis of the kinds of contract thatstate-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 claimedthat it was not enough for states to observe the necessary andvoluntary law of nations. A civil authority had been required inorder to end the potential chaos corresponding to the precedenceof individual conscience over promises between individuals livingtogether in a community. Likewise, a means had to be found tomitigate a state of war between states. The necessary law ofnations was not sufficient because it only dictated the sorts ofobligations owed by a state to its own citizens in respect of thatstate’s external affairs; not being to citizens of other states, theseobligations were scarcely adequate to restrain a sovereign whoconceived of his internal duties as entailing aggrandisement in theinternational domain. The voluntary law of nations fell into twocategories. ‘Stipulative’ law, consisting in treaties entered into

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.

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

B. Holland / History of European Ideas 37 (2011) 438–445442

between nations, is not enough because it is not universal: ‘just asthe private law for citizens, derived from agreements entered intobetween themselves, is considered as having no value at all as civillaw for a particular state, so also the law for nations, derived fromagreements entered into with other nations, it seems cannot beconsidered as the [universal] law of nations’. ‘Customary’ law,resting on ‘the tacit consent of the nations, or, if you prefer, upon atacit stipulation’ is again only ‘a particular law’.45 What is required,according to Wolff, is a ‘positive law of nations’, or ‘what reasonitself teaches is to be observed as law among all nations’. Thereshould exist, therefore, a person of international standing, a rector,‘who, following the leadership of nature, defines by the right use ofreason what nations ought to consider as law among themselves,although it does not conform in all respects to the natural [ornecessary] law of nations’.46 Such a person would not be a worldsovereign, but simply the head of the civitas maxima, or maximalassociation 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. InPlatonic style, Wolff argued that the civitas maxima would be anepistemocracy, where a philosopher would be king.47

Vattel

Emer de Vattel was Wolff’s greatest and most influentialdisciple. His Le droit des gens (1758) is essentially a treatment of thelaw of nations that makes use of Wolffian vocabulary to extend anargument that is in many respects akin to that of Vattel’s self-confessed master. But there was one thing that Vattel wished to seepurged from the picture, and that was the civitas maxima.

Vattel hailed from the principality of Neuchatel, today a Swisscanton, but whose precarious existence as a pawn in the game ofdynastic politics during Vattel’s lifetime is directly relevant tounderstanding his renunciation of the civitas maxima. According toa long tradition, Neuchatel was an hereditary principality, but in1707, with the death of Mary, princess of Neuchatel, the throne fellvacant with no direct line of succession. The most crediblecandidate for the crown was one of the many French princes, theclaim of one of whom was supported by Louis XIV. However, recentFrench annexations of parts of the Holy Roman Empire provokedfears of French designs on Neuchatel’s political autonomy, whilethe revocation of the Edict of Nantes in 1685 had prompted largenumbers of Huguenot refugees into exile in Switzerland, stokingup yet more resentment of France. Vattel’s family was deeplyinvolved in arranging that one of France’s enemies in the War of theSpanish Succession should assume the throne. An ancient feudalright was discovered in support of William III of England, which herelinquished to his nephew Frederick I of Prussia. Frederick’s titlewas officially recognised in November, 1707.

Vattel himself, having studied law in Geneva under the famousSwiss proponent of Pufendorfian philosophy, Jean-Jacques Burla-maqui, sought employment in a diplomatic post. Unable to secureone in Prussia, he was eventually employed by the First Minister ofSaxony in 1743. Vattel was promoted six years later to the positionof Minister Plenipotentiary of Saxony. Whilst serving in this office,Saxony was invaded by Prussia, for Frederick the Great consideredthat Saxony had formed an alliance with his enemy, Maria Theresaof Austria. Vattel’s own sympathies appear to have been with hisnative king rather than his employer. Nevertheless, he was againpromoted in 1759, this time to chief advisor on foreign affairs to

45 Wolff, Jus Gentium, ii, 18–19.46 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).

the government of Saxony, on the back of the praise lavished on hisLe droit des gens, which he had written during the Seven Years’War.48

These were the circumstances – internecine warfare amongstdifferent constituents of what was ostensibly one politicalcommunity under one Emperor – that propelled Vattel to declarethe death of the civitas maxima. This was the idea of something thatseemed not to be on firm footing outside the political assumptionsof a Holy Roman Empire that was gone for good. ‘This idea does notsatisfy me; nor do I think the fiction of such a republic eitheradmissible in itself, or capable of affording sufficiently solidgrounds on which to build the rules of the universal law of nationswhich shall necessarily claim the obedient acquiescence ofsovereign states’.49 In Le droit des gens Vattel set out the law ofnations as it applied to legally equal and independent states. AsFrederick G. Whelan points out, ‘to assert the existence of a generictype of sovereign state as the basic political unit in eighteenth-century Europe required a rather daring act of the theoreticalimagination on Vattel’s part’. Europe comprised large consolidatedstates like France and Britain, city-states in Italy and elsewhere, theHoly Roman Empire, confederacies in Switzerland and theNetherlands, as well as bundles of diverse territories united inthe persons of dynastic rulers. Neuchatel itself was at once acounty of the Holy Roman Empire, part of the Swiss Confederacy, aterritory in which movement was afoot to weld it into what wasgradually coming to be recognised as the ‘state’ of Prussia, but alsoan allegedly ‘sovereign’ state by itself. For Vattel, overlappingauthority could no longer be sustained in European politics. The‘abstract quality [of Le droit des gens] is so pronounced as to makeclear its (certainly intentional) normative import’.50

However much he may have taken issue with the idea of acivitas maxima, Vattel still considered Wolff the greatest writer onthe law of nations. Wolff had realised, wrote Vattel, that the law ofnations was the law of nature as it applied to ‘moral persons [who]necessarily differ, in many respects, from the nature and essence ofthe physical individuals, or men, of whom they are composed.’Wolff thus saw that the law of nations, whilst inextricablyconnected to natural law, still required a distinct treatment.51 AndWolff had also demonstrated that nature established a necessaryand voluntary law, and consequently a necessary and voluntarylaw of nations. Vattel endorsed this position entirely: ‘Thenecessary and the voluntary law of nations are therefore bothestablished by nature’.52 The necessary law of nations is ‘theinternal, and consciential law’, while the voluntary is that ‘whichthe general welfare and safety oblige them to admit in theirtransactions with each other’.53 The Pufendorfian distinction, nowin its Wolffian form, between ‘perfect and imperfect duties’ is heldto correspond to the necessary and voluntary laws respectively.54

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.

B. Holland / History of European Ideas 37 (2011) 438–445 443

Vattel followed Wolff in arguing that it is the perfect duty of allindividuals to perfect themselves. The clearest elaboration ofVattel’s Wolffian perspective on perfection comes in his ‘Essay onthe Foundation of Natural Law’ of 1746. Sensual human beings,Vattel argued, are brought to fulfil their moral obligations byphysical and psychical motivations: ‘there is no will in the soulwithout motivation; therefore to bring about the moral necessityto undertake a particular action, some motivation must be linkedto this action, which you cannot separate from it’.55 No ‘inclination,desire, or affection’ is more basic than self-love, and the motiveattaching to self-love is, ‘for sure, our well-being, our expediency,our advantage’.56 It therefore appears that ‘this good, thisexpediency, is the first principle of all obligation, and in particularof the obligation to keep the natural law’. It would be ‘absurd’ toclaim that an individual was ever under an obligation to act againsthis ‘self-interest’.57 Self-love ‘causes us to desire or seek for ourhappiness or the perfection of our condition’, and therefore itappears that our first duty under natural law, the first principle ofobligation, is to seek our own perfection.58 If this is God’s will – as itsurely must be, for the reasoning follows logically from consider-ation of our nature and essence as the beings God has created us as– then there is nothing at all dishonourable about self-interested-ness:

When we have a correct understanding of self-interest; when wehave constituted it mainly in the perfection of the soul, aperfection that already defines our happiness in itself, andwhich reconciles us with good will of the Creator, what dangeris there in confusing the meaning of integrity with expediency?59

As a moral person, the primary perfect duty of a state under thenecessary law of nations was to strive for its own ‘perfection’. AsWhelan has outlined,60 sometimes Vattel explained that this dutymeant that the state should promote the pursuit of self-perfectionby its individual members, ‘the individual finding in a wellregulated society the most powerful succours to enable him tofulfil the task which Nature imposes upon him in relation tohimself, for becoming better’.61 At other times, he suggested amore collective understanding of civil perfection: if ‘the perfectionof a thing consists, generally, in the perfect agreement of all itsconstituent parts to tend to the same end’, then if a group of men,united in civil society, ‘all conspire to attain the end proposed informing 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 intellectualisttradition in which Vattel wrote just could not accommodate theassumptions that had allowed Pufendorf to frame sovereignty, andthe limits of sovereignty, in terms of faculty psychology. WhenPufendorf had written about the composite moral person of thestate, 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.

A state is a compound moral person, whose will, intertwinedand united by the pacts of a number of men, is considered thewill of all, so that it is able to make use of the strength andfaculties of the individual members for the common peace andsecurity.63

On this definition of the state, the intellect of the compositemoral person was not directly involved in sovereignty; its role wasto ensure that acts of sovereign will did not overstep the bounds ofnatural law. However, in the intellectualist tradition no self-sufficiency at all was assigned to the will; its acts always followed adictate of sufficient reason. This was so for Leibniz, for Wolff, andalso for Vattel.64 There could be no functional differentiationbetween reason and will, and thus to posit their division in thestate, as in Pufendorf’s model, was impossible. So Vattel’sdefinition of the state began, in Pufendorfian fashion, by statingthat as a moral person it had an understanding and a will, but hedid not then divide these faculties off from one another:

A political society is a moral person inasmuch as it has anunderstanding and a will of which it makes use for the conductof its affairs, and is capable of obligations and rights. Whentherefore a people confer the sovereignty on any one person,they invest him with their understanding and will, and makeover to him their obligations and rights, so far as relates to theadministration of the state, and to the exercise of the publicauthority.65

A people invest the sovereign with their will and understanding.Pufendorf’s constitutional protections from overweening powervanish, and the moral person of the state acquires an altogethermore absolutist character.

What followed from this with respect to internationalrelations? Just as for Wolff, for Vattel the perfect duties of thestate were what adhered to the inner law of ‘conscience’. But Vattelput far greater explicit emphasis on the intellectualist equation offreedom with doing the bidding of reason. If a sovereign could becompelled by another, ‘he would no longer enjoy the freedom ofdetermination respecting the conduct he is to pursue in order toobey the dictates of his own conscience. Our obligation is alwaysimperfect with respect to other people, while we possess theliberty of judging how we are to act: and we retain that liberty onall occasions where we ought to be free’.66 Therefore, the state infact possessed a perfect duty under the necessary law of nations topursue 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 theruler of a state must protect all of the obligations and rightssubsisting within that state. Therefore, unlike a private individual,who is permitted by the necessary law of nature magnanimously toforget injuries that he has suffered, ‘generosity’ on the part of the

63 Pufendorf, De Jure Naturae, ii, 984.64 In Vattel’s early defence of Leibnizian philosophy, Defense du systeme 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.

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

B. Holland / History of European Ideas 37 (2011) 438–445444

ruler ‘is not be exerted at the expense of others’.67 He cannotdispose of state territory, or the property of his subjects. This is theonly limit that Vattel placed on sovereigns in terms of their perfectduties inasmuch as attending to those duties was to be directedinside states. Insofar as the necessary law belongs to the state forthe maintenance of the rights internal to it, the necessary law mustalso belong to the state for its defence. In this respect, Vattelmaintained (although not on the basis of sustained argument) thatthe necessary law of nations was embodied by traditional just wardoctrine.68

Yet it is in his discussion of the laws of war that we begin to seethe consequences of Vattel’s shunning of the civitas maxima. Heheld that war

cannot be just on both sides. One party claims a right; the otherdisputes it: – the one complains of an injury, the other denieshaving done it. They may be considered as two individualsdisputing on the truth of a proposition; and it is impossible thattwo contrary statements should be true at the same time.69

Wolff had argued that a rector was the proper individual to act asthe conscience of states in their external relations. Without thecivitas maxima, there is no rector. States ‘acknowledge no superiorjudge’, so the justice of their respective causes cannot beauthoritatively weighed up.70 Equivalence of justice of cause mustthus 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 perfectduties of the necessary law of nations. The principle of theequivalence 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 Vattelin effect had it, then, that a sovereign’s conscience, in Koselleck’slapidary phrase, ‘took its bearings not from moral law alone, butprimarily from given political circumstances’.73 Or as Vattel pithilyput it, ‘Let us leave the strictness of the necessary law of nations tothe conscience of sovereigns’.74

When he wrote about imperfect duties, or the voluntary law ofnations, Vattel was referring, like Wolff, to those duties incurred bycontract, or treaty. A state’s primary perfect duty was to perfectitself. This meaning nothing more than the state having to attend toits own best interests, the state’s perfect duty to itself must takeprecedence over its duties to others. A political society cannottherefore bind itself indefinitely by a treaty, for the obligations thusincurred might stand in the way of the state’s self-perfection.

As a consequence of that liberty and independence, itexclusively belongs to each nation to form her own judgmentof what her conscience proscribes to her, – of what she can orcannot do; – of what it is proper or improper for her to do; andof course it rests solely with her to examine and determinewhether she can perform any office for another nation withoutneglecting the duty which she owes to itself.75

In Ian Hunter’s perspicuous words, treaties, or the voluntarylaw of nations, are ‘positive-law substitutes for a natural law that

67 Vattel, Law of Nations, 271.68 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.

has been suspended by each nation’s capacity to determine what isright for itself’.76 All duties brought upon the state by itself insigning treaties are imperfect duties; they are obligations for thecommon good, but they are not obligations of conscience. This is aclear inversion of the meaning that Pufendorf attached toimperfect duties: for Pufendorf, contracts laid down specifiableduties, and specifiable duties are perfect ones.

So far, on the basis of my presentation of his thinking, it appearsodd indeed that anyone could have regarded Vattel as a member ofthe so-called Grotian tradition. But Vattel did argue that all stateshad a common interest in order. Sociability was not the firstprinciple of the law of nature, but given that self-perfectiondictated that men live peaceably, it was the very ‘next principle’ ofnatural law.77 Similarly for states, their pursuit of self-interestmeant that states should cooperate to ensure that none of themcame to be a menace to the others, to which end a balance of powerhad emerged in Europe, an arrangement of affairs so that ‘no powershould be superior to the others’. The activities that went on inorder to maintain this balance – the ‘continual attention ofsovereigns to every occurrence, the constant residence ofministers, and the perpetual negotiations’ – did ‘make of modernEurope a kind of republic’, if not the ‘great republic’ imagined byWolff.78 Vattel is considered a pluralist, as the English School inInternational Relations use that term, because he maintained thatstates ‘are capable of agreeing only for certain minimum purposeswhich fall short of that of the enforcement of law’.79

Dissenting notes have been sounded. Edward Keene, whileagreeing that ‘Vattel’s description of the European political systemlooks remarkably like the orthodox conception of internationalsociety in use today’, maintains that his account ultimately ‘rested. . . upon natural law’ rather than ‘the normative and legal orderfurnished by treaties’, an order more conventionally described bythe category of international society.80 However, Vattel’s applica-tion of natural law to the law of nations finally admitted only a veryetiolated version of natural law to be of any import. Keene’sargument also risks downplaying too much the degree to whichVattel concretely impacted the emergence of the doctrine thattreaties constitute international law. Vattel’s distinction betweenthe necessary and voluntary law of nations was critical to thedevelopment of international legal positivism in the nineteenthcentury. In the new states of North America, for example, Vattel’sdistinction between the necessary and voluntary laws of nationscame to be of some importance. To take one example: In 1784, oneMrs. Rutgers sued under the state of New York’s Trespass Act forback rent from loyalist forces who had occupied, between 1776and 1783, her late husband’s vacated brewery. AlexanderHamilton, defending the loyalists, argued that the law of nationswas obligatory, and that under this law the right to use abandonedproperty without compensating its owner was assured. ‘What wehave suffered’, he pleaded, ‘cannot alter the common laws of war:they are founded upon reason and humanity, and will prevail aslong as reason and humanity are cultivated.’ The Mayor’s Court,

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.

B. Holland / History of European Ideas 37 (2011) 438–445 445

citing Vattel, distinguished between the necessary law of nations,binding in conscience, and the voluntary law, and determined thatthe right to use abandoned property without compensating itsowner was not a necessary law, and not therefore founded, asHamilton had it, on ‘reason and humanity’. However, Mrs. Rutgersstill lost because it was decided that the Confederation hadrecognised this right in its peace treaty with Britain, meaning thatthis was a dictate of the voluntary law of nations.81 The notion thattreaties ‘constituted’ the voluntary law, as James Madison put it in1806, became a staple of international legal practice82; and Vattel,whose book, by the early years of the nineteenth century, had gonethrough twenty French, ten British and eighteen Americaneditions, was its leading light.83

Conclusion

The anthropocentric characteristics of the state have beensubjected to a good deal of examination by international theoristsover the last decade or so.84 But there is a much longer history ofdescribing states as persons, an important part of which has beenanalysed herein. The first person to describe the state not just as aperson but as a ‘moral person’ was Pufendorf. What made the statea moral person, according to Pufendorf, was its possession of themoral faculties of intellect and will, and the particular relationwhich obtained between these in determining conduct. This was arelation of dependence but by no means subservience. The will,wrote Pufendorf, required reasons, supplied by the intellect, to actat all, but once reasons had been provided then it was the provinceof the will to arbitrate between these reasons in coming to adecision on how finally to act. Applied to the state, this entailed aconstitutional arrangement where the exercise of sovereign willwas under some control by a non-sovereign council. But the moralperson of the state lost its anchor in a moderate constitutionalismwhen it came to be employed in the intellectualist tradition towhich Pufendorf had stood opposed. Intellectualists such as Wolffallotted no autonomy to the will, meaning that in their hands thebalance between the faculties of the state was eviscerated and thewill made a mere appendage of an intellect that was determined toits ends. The idea of the state as a person was nonetheless germaneto Wolff’s purposes, for it imparted to the state the corporateidentity 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).

human individual, had a duty under natural law to perfect itself.Vattel took this notion over from Wolff. He allowed no scope for arector to regulate international conduct, thereby permittinggreater scope for states to interpret for themselves what theymight do to perfect themselves. However, he still did not let go ofWolff’s notion of a voluntary law of nations comprising theagreements to which states had committed themselves, albeit withthe proviso that these pledges were only binding insofar as statescontinued 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 self-interestedness of states.85 Nor was he the first writer to describethe relations between sovereign actors in terms of society: Grotiushad arguably done this a century and a half earlier;86 and Vattel’sown teacher, Burlamaqui, had already maintained that nationsform ‘a kind of society among themselves’ in 1751.87 Neither washe the first writer to envisage international order as depending oncontracted agreements between states, something that we find inmore pronounced form in Jean Dumont’s Corps universel diplomat-

ique du droits des gens of 1726.88 But Vattel was the first authorsystematically to combine all three perspectives within the ambitof a single book. Self-interest responded to the intellectualist beliefthat the perfection demanded of all persons by the necessary law ofnature entailed following the dictates of individual conscience.Because self-perfection will necessitate the assistance of others,persons have an imperfect duty of sociability. Agreements reachedby individual persons are the province of the voluntary law ofnature, and compacts entered into by state persons fall similarlyunder the banner of the voluntary law of nations, or positiveinternational law. Thus, the category of the moral person of thestate is central to the development of Vattel’s entire argument, andto the foundations of modern international theory.

Acknowledgements

I would like to thank Richard Whatmore and the reviewers ofmy original submission for providing such encouraging andconstructive comments. I owe a special debt to Kimberly Hutchingsfor leaning on me to write this in the first place, and to EdwardKeene and Peter Wilson for offering excellent feedback on a muchearlier 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).