Grotius, Vattel, and Locke: An older view of liberalism and nationality

Review of Politics

Volumn 59, Issue 2, 1997, Pages 293-322

  Rabkin, Jeremy ^a  

^a NONE

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EID: 0010158666     PISSN: 00346705     EISSN: 17486858     Source Type: Journal    
DOI: 10.1017/S0034670500026644     Document Type: Article

References (37)

1. See, e.g., P. C. Jessup, A Modern Law of Nations (New York: Macmillan Co., 1948), p. 90, which argues that the UN system, of "protection of human rights [by national authorities] subject to review by an international authority," has already laid the groundwork for "a situation analogous to that in the federal system of the United States, where constitutional rights may be first considered by the state courts and ultimately reviewed by federal courts" [so that international authorities would ultimately be able to overrule the interpretations of national courts in cases involving human rights].
2. See, e.g., Nataly Kaufman, Human Rights Treaties and the Senate: A History of Opposition (Chapel Hill, NC: University of North Carolina Press, 1990), attributing opposition to human rights conventions to the influence of southern segregationists.
3. For a quite different contemporary view, see G. A. Finch, "The Need to Restrain the Treaty-making Power of the United States Within Constitutional Limits," American Journal of International Law 47 (1954): 57.
4. M. J. Sandel, Democracy's Discontents, America in Search of a Public Philosophy (Cambridge, MA: Harvard University Press, 1996), pp. 344-346
5. Yael Tamir, Liberal Nationalism (Princeton: Princeton University Press, 1994). Similar, in its defense of minority "national" communities, is Will Kymlicka, Liberalism, Community and Culture (Oxford: Clarendon Press, 1991).
6. For one version, see Habermas, "Citizenship and National Identity: Some Reflections on the Future of Europe," in The Nationalism Reader , ed. Omar Dahbour and Micheline R. Ishay (Atlantic Highlands, NJ: Humanities Press, 1995).
7. Liah Greenfeld, Nationalism, Five Roads to Modernity (Cambridge, MA: Harvard University Press, 1992).
8. For example, Kenneth Thompson uses the phrase quite unapologetically in Fathers of International Thought: The Legacy of Political Theory {Baton Rouge: Louisiana State University Press, 1994), p. 69.
9. A complete English translation of the work, by Francis Kelsey, was published by the Carnegie Institute in 1925. Its index of authors cited by Grotius runs to 40 pages (in two columns of citations on each page); the index to subjects treated by Grotius runs to barely 15 pages. Divisions of the text by book, chapter, subchapter (and where numbered, by paragraph) are the same in the Latin original (also published by Carnegie) as in this English translation.
10. See Knud Haakonssen, "Hugo Grotius and the History of Political Thought," Political Theory 13 (1985): 240
11. also, Richard Tuck, National Rights Theories: Their Origins and Development (Cambridge: Cambridge University Press, 1979), pp. 66-69, on how this view follows from the rejection of broader notions of distributive justice.
12. Cf., II. xx. 40: where punishment for "impiety toward their [own] parents" is cited as one occasion for a "just war"; II. xx. 51: where Grotius, after previously disclaiming that it can be just to wage war to impose true religion, still allows that "war may justly be waged against those who show impiety toward the gods they believe in"-even if these are not the gods "believed in" by the states which resort to war for the punishment of such impiety. The general doctrine is that "punishment for the good of the wrong-doer may be exacted by any one at all according to the law of nature" and "likewise [by third parties] for the good of him who has been wronged, where it concerns vengeance permitted by universal common law" (II. xx. 7,8) and the consequences of such punishment may be extended to the children of the sinning people under the "distinction between [punishment) which is inflicted directly and that which comes as a consequence" (II. xxi. 10).
13. Regarding "the opinion . . . that it is permissible for the people to restrain and punish kings, whenever they make a bad use of their power," Grotius admonishes that "no wise person can fail to see how many evils this opinion has given rise to and can even now give rise to if it sinks into men's minds" (I. iii. 8, §1). Grotius does, it is true, allow that, in those states where public law provides for a sharing of sovereignty with the people, the people may enforce their political rights, even, it seems, by force (I. iii. 17). As Michael Zuckert points out, this made Grotius an appealing authority for English Whigs, urging the claims of the English constitution against absolutist pretensions in the Restoration monarchy (Natural Rights and the New Republicanism [Princeton: Princeton University Press, 1994], pp. 111-115). It is characteristic of Grotian legalism-in notable contrast to Hobbes's reasoning from the primacy of the right to self-preservation-that, in the Grotian scheme, even the claims of civil peace must give way to the legal claims arising from a particular domestic legal arrangement. Grotius in this sense holds to an even more positivistic view of law than does Hobbes. (cf. Leviathan, chap. 21: "Sovereign power ought in all Commonwealths to be absolute;) At the same time, Hobbes acknowledges an inalienable individual right to self-preservation, so that individuals are always entitled to try to escape from governmental threats to their lives, notwithstanding their prior "authorization" for everything the sovereign may do (Leviathan, chap. 14: "a man's covenant not to defend himself is void" and chap. 21: "Subjects have Liberty to defend their own bodies, even against them that lawfully invade them")
14. Grotius insists that there is a moral obligation to submit to punishment, even to slavery and death, if that is what the law requires.
15. The Carnegie Institute of Washington published a reprint of the original French text and an English translation by Charles G. Fenwick in a separate volume in 1916. Divisions into books, chapters and paragraphs are the same in both versions.
16. More likely, however, Vattel refers here-with bitter irony-to the "authority" of sheer, overpowering force.
17. De Jure Belli ac Pads (1625); Le Droit des Gens (1758). Locke's Two Treatises (1690) appeared almost precisely mid-way between these two. whenever there is a question of resisting a prince who has become a tyrant, the rights of the people are always the same, whether by law that prince be absolute or not; these rights are derived from the object of every political society, the welfare of the Nation which is the supreme law. . . . If the sovereign does a wrong to anyone, he acts without any real authority. . . . A subject ought to bear patiently from the prince all acts where the injustice is doubtful and where it is supportable. . . . But when it is a case of clear and glaring wrongs ... who will question the right to resist him? The care of our existence is not only a matter of natural right but of natural obligation, as well, and no man may give it up entirely and absolutely
18. and even though he could give it up, is it to be thought that he has done so by the compact of civil society, when he entered it for the sole purpose of obtaining greater security for his personal safety? (I. iv. §51, 54).
19. "If, then, there should be found a restless and unprincipled nation, ever ready to do harm to others, to thwart their purposes and to stir up civil strife among their citizens, there is no doubt that all the others would have a right to unite together and subdue such a nation, to discipline it and even to disable it from further harm" (II. iv. §53). This doctrine is quite parallel to Locke's "strange doctrine" of a right to punish for offenses against the law of nature, which also seems to limit the reach of that law-if not the power to enforce it in the state of nature-to defensive concerns about warding off aggression: cf. Second Treatise, §6-8, §11. Tuck's claim (Natural Rights Theories, p. 63) that the Grotian doctrine is "identical to John Locke's 'very strange doctrine' of punishment" is true, only in the sense that both Grotius and Locke posit a general or "natural" right to punish, inherent in all men, prior to the establishment of governments. But they differ markedly on the content of the "law of nature" which may be enforced in this way: Locke's law seems limited to preserving life and property against aggression, whereas Grotius posits a whole series of moral claims which nations may enforce against each other on the basis of a primal right to punish. (See note 10, supra) This difference may reflect the greater commitment of Grotius to an older view of human "sociability," implying the need for more of a moral consensus among men and a consequent right to punish for infractions against that consensus.
20. Vattel recommends "universal toleration" in religious matters, as "the most certain and equitable means of preventing the disorders that may be occasioned by differences in religion" (I. xii. §135). He acknowledges that "when a form of religion is being oppressed in any country, foreign nations professing that form" must limit themselves to verbal protests "for their brethren," lest they violate the principle of noninterference in the sovereign affairs of others. But he adds, characteristically, that if "the persecution be carried to an intolerable degree, when it becomes a case of evident tyranny . . . all nations may give help to an unfortunate people"-supposing that the "unfortunate people" stage a revolt and plunge their nation into a war of rival claimants, neither of which has any preemptive claim to international recognition (II. iv. §62, §56).
21. One of Vattel's illustrations of this claim is the glorious resistance shown by the Swiss in their battle for freedom against the Austrians in the fourteenth century-that is, some four centuries earlier (I. xv. §190; I. xi. §124). Vattel takes it for granted that nations can live for a long time on the memory of past glories. Or more precisely, he takes it for granted that the memory of past glories may be quite relevant to inspiring the capacity for later resistance, hence relevant to the estimate that rival powers may make of a nation's capacity for resistance. Some Swiss leaders remembered the lesson: in the summer of 1940, the Swiss army's commander-in-chief summoned 650 top officers to hear plans for defending the nation's mountain passes against German invasion and chose to announce these plans in a remote meadow where the first Swiss cantons launched their medieval revolt against the Hapsburgs.
22. Arthur Nussbaum, A Concise History of the Law of Nations (New York: MacMillan Co., 1954), p. 161. As Nussbaum reports, a study of American court rulings between 1789 and 1820 found 38 citations to Vattel and only 11 to Grotius (with 92 and 16 citations, respectively, in the pleadings). The Supreme Court still cited Vattel as its prime authority for the decision of a case as late as 1887. Besides, as Nussbaum rightly says of Vattel's style, "There is in his language a tinge of excitement and flourish which foreshadows later revolutionary phraseology" (p. 158). Twenty-three English-language editions have been published-thirteen of them American-compared with twenty-one editions of the original French text (p. 163).
23. M. Seliger, "Locke, Liberalism and Nationalism," in John Locke: Problems and Perspectives , ed. J. W. Yolton (Cambridge: Cambridge University Press, 1969) notes that the "nationalist" element in Locke's thought has not been generally recognized or explored in scholarly assessments. This still seems to be so. Seliger's own account seems simultaneously to slight the extent of this element in Locke's thought, by confining its analysis to the Two Treatises and at the same time to give it a straightforwardness which, on a careful reading of even these works, it does not seem to have. In particular, the connection between nationality and property hardly appears in Seliger's account.
24. It is notable, in this connection, that in Some Thoughts Concerning Education, while Locke claims to "look upon" some knowledge of Latin "as absolutely necessary to a Gentleman" (§164), he still disparages the practice of setting children to writing "themes" in Latin (§171-74) and insists that it is much more important for a student to master a sense of "style" and "grace" in English: "To speak or write better Latin than English may make a Man be talk'd of, but he would find it more to his purpose to Express himself well in his own Tongue, that he uses every moment, than to have the vain Commendation of others for a very insignificant quality" (§189, James L. Axtell, ed., The Educational Writings of John Locke [Cambridge: Cambridge University Press, 1968], p. 300 [prior §'s: pp. 268, 281-85]).
25. Filmer argued that monarchical authority in the modern world traces its authority to the monarchical authority conferred, according to the Bible, on the descendants of Noah. So Filmer reports "a common opinion that at the confusion of tongues [at the tower of Babel] there were seventy-two distinct nations erected" and claims that each was headed by a fatherly, royal ruler. But the argument only makes sense if not only the royal descendants of these original monarchs but also the nations they ruled have been preserved or in some way transposed into the modern world. Filmer indeed indicates that this is at least a plausible supposition: "Most of the civilest nations of the world labour to fetch their original from some one of the sons or nephews of Noah, which were scattered abroad after the confusion of Babel" (Patriarcha and Other Political Works of Sir Robert Filmer, ed. Peter Laslett, [Oxford: Basil Blackwell, 1949], p. 55). Locke readily acknowledges that "Scripture . . . gives an account, how mankind came to be divided into distinct Languages and Nations" (I. §147).
26. And what, then, of the foreigner who owns land in another country and seeks to have it protected under the laws of that country? Classical international law held that for a state to violate the property rights of a foreign national, as property rights are defined within the host country, would be an affront to the home state of the foreign national and a rightful cause of protest by the home state: even the rights of a foreigner depend, ultimately, on a home state to protest on his behalf. The Grecian Christians, without a home state, have no reliable support for their rights "under the Turkish yoke; This may be a part of the "common consent" by which nations give up "pretences" to claims upon the territories of other states. It is, at any rate, Vattel's account: Law of Nations, II. viii. §109. On the other hand, Locke's argument suggests that states which do not protect property within their own territory cannot exclude foreign settlement. Thus in the same passage he notes that "there are still great tracts of ground to be found, which (the inhabitants thereof not having joined with the rest of mankind in the consent of the use of their common money) lie waste and are more than the people who dwell on it do, or can, make use of, and so still lie in common" (§45)-the implication being, it seems, that wilderness land in America is rightly open to colonization by Europeans. So the Second Treatise here seems to correct the implication of the First Treatise that the Indian tribes really constitute full "political societies": separate languages may make them "distinct societies" but without property rights, they can have no claim to any defined territory. The conclusion that the Indian tribes are not a "political society" seems to be in complete agreement with Locke's claim that "government has no other end but the preservation of property" (§94). Vattel takes the same position regarding colonization rights in territory that is left to "waste" by nomadic tribes (I. xviii. §209).
27. Nathan Tarcov (in "Locke's Second Treatise and 'The Best Fence Against Rebellion,'" Review of Politics 43 [1981]: 208) rightly notes of this passage that "it is not clear" whether it should be read to include "only such a foreign power as the pope or the king of France or also one such as the European Economic Community which would provide for representation of the people; From Locke's perspective, it remains open to question whether the highly diverse populations of the European Community (or European Union, as it now seeks to be known) can be represented together as "the people
28. E.g., "government has no other end but the preservation of property" (§94); "the great and chief end of men's uniting into common-wealths and putting themselves under government is the preservation of their property" (§124); and similar formulations at §3, §88, §95, §120, §139.
29. This is a claim which admittedly risks entanglement in a long-running, complex, scholarly dispute. One might argue against it, as, for example, does Ruth Grant ("Locke's Political Anthropology and Lockean Individualism," Journal of Politics 50 [1988]: 65), that "The premise of Locke's political argument-that men are born free-is not a sociological claim, but a moral one; Still, it is safe to say that Locke's political "morality" takes its bearings by what is most dangerous or anti-social in human nature. It is not that Locke denies the existence of "social" virtues, but he implicitly denies that citizens can safely rely on them. Paradoxically, this makes Locke more inclined to a "nationalist" outlook than Grotius, who embraces what international relations theorists have aptly described as a doctrine of "solidarism.
30. Tarcov, "Locke's Second Treatise and 'The Best Fence Against Rebellion,'" p. 217.
31. Much the same connection is affirmed in the Preface to the Two Treatises. Locke there expresses the hope that his essays may serve "to justify to the world the people of England, whose love of their just and natural rights, with their resolution to preserve them, saved the nation when it was on the very brink of slavery and ruin; What impelled the "people of England" to save their country was not patriotism or a love of their fellow countrymen but the "love of their just and natural rights; Even so, "love of natural rights" did not make the people of England set out to change the world. It is Locke, himself, who seeks to "justify to the world; For the people of England, to have "saved the nation" was enough- enough to "preserve... their just and natural rights
32. The Oxford English Dictionary reports no use of the term "race"-in the sense of a "distinct, ethnical stock"-prior to the mid-nineteenth century and no use of the terms racial, racialism, racialist, racism or racist prior to the twentieth century. Locke speaks of "the inroad of foreign force" which may "mangle societies to pieces, separating the subdued or scattered multitude" (§211)-while still seeming quite ready to concede that a new society can arise from the turmoil of conquest, if the "scattered multitude" consent to the new government or consent to be part of the enlarged "society" built by the conquerors (cf. §192), without bloodlines or descent ever arising as an issue. Locke's account suggests that the new society may be most stable precisely where the old society has been most "scattered" and "mangled to pieces.
33. E.g.: "Every species of government has its specific principles. Ours perhaps are more peculiar than those of any other in the universe. . . . To these nothing can be more opposed than the maxims of absolute monarchies. Yet, from such, we are to expect the greatest number of emigrants. . . . They will infuse into [our legislation] their spirit, warp and bias its direction, and render it a heterogeneous, incoherent, distracted mass" (Notes on the State of Virginia, Query VIII, in Jefferson, Writings, ed. Merrill D. Peterson [New York: Library of America, 1984], p. 211).
34. Representative Government, chap. 16, in J. S. Mill, Utilitarianism, On Liberty, Considerations on Representative Government, ed. H. B. Acton (Rutland, VT: Chas. E. Tuttle Co., 1987, reissue of Everyman's Library ed., 1910), pp. 392, 391.
35. This is often explained, not as the result of a theory, but as the result of a compromise with socialist and third world states. But this only puts the question further back: what is the status of a "human rights" agenda that involves compromise between states that emphasize individual rights and those that give priority to "social rights"? James Nickel, Making Sense of Human Rights (Berkeley: University of California Press, 1988), one of the more thoughtful (but still sympathetic) accounts of the theory behind the international human rights movement, summarizes the differences with "eighteenth-century conceptions" quite succinctly: "Human rights today are more egalitarian, less individualistic, and have an international focus" (p. 7 and pp. 7-12, explaining these generalizations). All of these differences can be summed up as a more "trustful" or "optimistic" view of government.
36. Andrew Linklater, Men and Citizens in the Theory of International Relations (New York: St. Martin's Press, 1982), is the most recent in a line of commentators noting that Vattel's theory, for all its stress on the natural law obligations of states, actually acknowledges that almost all these obligations are "imperfect" (in Vattel's own terminology) and contingent, in varying degrees, on each nation's judgment regarding its own needs. The "state-libertarianism" of Vattel's doctrine (to use Linklater's apt term) contrasts, at least in theoretical terms, with the "solidarist approach to international society" attributed to Grotius (pp. 80-96, esp. 86, 93).
37. For a parallel emphasis on the unreliability of international obligations in Locke's account, see Richard Cox, Locke on War and Peace (Oxford: Clarendon Press, 1960), esp. pp. 147-154