THE POWER OF LANGUAGE IN THE MAKING OF INTERNATIONAL LAW

Developments in International Law

VOLUME 46
 STÉPHANE BEAULAC

The Power of Language

in the Making of
International Law
THE WORD SOVEREIGNTY IN BODIN AND VATTEL
AND THE MYTH OF WESTPHALIA

MARTINUS NIJHOFF PUBLISHERS

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For Olga Beaulac (née Zavitnevich)
and for Sasha, Jacob et al.
 International law was born of juristic speculation
and became a reality because that speculation gave men something
by which to make and shape international legal institutions

– Roscoe Pound –
Philosophical Theory and International Law
(1923)
FOREWORD

Three central features of a dominant form of twentieth-century philosophy were an

obsession with the problem of language, the belief that that problem was a new dis-
covery of twentieth-century philosophy, and the idea that the problem of language
challenged the very possibility of philosophy, at least philosophy in its most ambi-
tious form, that is to say, in the tradition originating in ancient Greece.
The so-called linguistic turn reflected a wider cultural phenomenon which included
modernism in the fine arts and literature, placing form on an equal footing with
content in the understanding and the experience of an artistic event, but which also
included a wide and deep disillusionment with the social and personal significance
of ideas, especially ideas of the most general kind.
What Herbert Marcuse called the masochism of twentieth-century philosophers
came to seem something much more than that, when general ideas seemed to
demonstrate their own invalidity, not to say their iniquity, as they were used and
abused in the making and management of pathological societies, especially totalitar-
ian societies. General ideas as ideology had seemed to condemn finally the idea of
general ideas as a means of human self-perfecting.
At the beginning of the twenty-first century, we are able to see that the tribulations
of twentieth-century philosophy may have had a significant therapeutic value. A postlin-
guistic turn might enable us to form a better understanding of the role of language
in the forming and communication of human consciousness. And a post-ideological
turn may enable us to form a better understanding of the role of ideas in society.
The problems of philosophy, including the problem of philosophy, are now urgently
present in relation not only to the formation of national societies, where they have
always been relevant, but also in relation to the constituting of international society,
the society of all societies. The role of language in the making of consciousness and
society reaches its limiting case in the making of universal human consciousness and
universal human society. Philosophy might even now be able to claim a universality
which is not merely logical but also practical.
It is in the intellectual context of the new possibility of philosophy, and the great
new challenge facing philosophy, that I place Stéphane Beaulac’s important book.
His work takes advantage, in particular, of several of the hard-earned lessons of
twentieth-century philosophy and social experience.
We now see that the problem of language is as old as philosophy itself. If, as
Hegel suggested, philosophy is the thinking of thinking, then it can never have ignored
the way in which thinking is expressed and communicated. In his Introduction to
Jeremy Bentham’s Theory of Fictions, C.K. Ogden, who is himself a significant figure
in Beaulac’s intellectual schema, even enlists Bacon, Hobbes, Locke, Berkeley and
Hume in a possible reassessment of the history of philosophy which would focus on
what Ogden calls their ability to recognize the linguistic basis of philosophy.We now
also see that not only ideas, but also the words in which ideas are expressed, are
themselves historical phenomena. Word-ideas have their own history.
viii FOREWORD
And, finally, we cannot escape the daunting fact that ideas, and the words in which
they are expressed, are primary social forces, not merely as surface phenomena but,
within the dynamic Marxian model of social development, as forces as powerful as
those flowing from the material basis of social relations.
As word-ideas are formed by social consciousness they form social consciousness.
It is not enough to condemn such words as ‘sovereignty’, ‘state’ and ‘nation’, or even
‘law’ and ‘international law’, as essentially illusion, fiction, or mythology, if we
understand the profound significance of the products of our richly creative minds as
they participate in the continuous self-constituting of human societies.
We may remember Herbert Marcuse’s conclusion – summarising, as it were, the
essence of Beaulac’s project. ‘The hypostatized whole resists analytic dissolution, not
because it is a mythical entity behind particular entities and performances but
because it is the concrete objective ground of their functioning in the given social
and historical context. As such, it is a real force, felt and expressed by individuals in
their actions, circumstances, and relationships.’
Or else we may recall Peter Winch’s rejection of an aspect of Karl Popper’s pas-
sionate anti-ideologism. The word ‘war’ is not merely an explanatory model. It is a
concept which belongs essentially to the behaviour of those involved in war and
helps to determine that behaviour.
Much has been written, and is being written, about the deep-structural changes
which are taking place in the nature of international society and about the histori-
cal origins of its existing features. The historiography of international ideology, of
the idea-forces of international society, is responding to what seems to be the dis-
solving of a traditional international landscape. Should we cling to the old categories –
of sovereignty and state and law, among so many others? Should we reinterpret the
old categories? Should we find new categories to match the new realities?
One of the most exciting aspects of Stéphane Beaulac’s work is that he demon-
strates that such has been the permanent condition and perennial challenge, not
only for the holders of public power who seek to use the categories as instruments
to serve their own purposes of social power, but also for those whose task in the
social division of labour is to think about ideas and whose thinking, however theo-
retical and seemingly detached, is liable itself to become an active social force.
Work of this kind is not merely a relativising of leading word-ideas. It is not merely
saying that word-ideas have an uncertain and changing content. By helping us to
understand the role of word-ideas in the formation of social reality, it is, or should
be, an empowering enterprise, enabling us to contribute more effectively to the
overwhelmingly complex process by which societies, and now even international
society, constitute themselves from day to day within human consciousness.

Philip Allott
Trinity College, Cambridge
September 2003
ACKNOWLEDGMENTS

This book is based on a Ph.D. dissertation in international law at the University of

Cambridge (Darwin College), England, under the supervision of Professor Philip Allott
(Trinity College).
The following chapters are revised versions of articles published elsewhere: Chapter
5. “The ‘Westphalian’ state system” was published in volume 2 of the Journal of the
History of International Law in 2000; Chapter 6. “Bodin’s sovereignty: Power-centraliser”
was published in volume 4 of the Melbourne Journal of International Law in 2003;
and, Chapter 7. “Vattel’s sovereignty: Authority-externaliser” was published in volume
5 of the Journal of the History of International Law in 2003.
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 CONTENTS

FOREWORD BY PROF. PHILIP ALLOTT vii

ACKNOWLEDGMENTS ix

INTRODUCTION 1

PART I: GROUNDWORK: WORDS, MYTHS, POWER

CHAPTER 1 THE FUNCTION OF WORDS

1.1. Meaning is Meaningless 7

1.2. Creating and Transforming Language 13
1.2.1. Language in time 13
1.2.2. Words as representative signs in society 17
1.2.3. Words as organic instruments 20
1.2.4. Words as social power 24
1.2.5. Summary 29

CHAPTER 2 THE LOGIC OF MYTHOLOGY

2.1. Origin Myths 33

2.2. Myths and Mythical Reality 35
2.3. Myths as Social Power 38
2.4. Summary 39

GROUNDWORK EPILOGUE 41
xii CONTENTS
PART II: LANGUAGE: AN “INWARD-OUTWARD” APPROACH

CHAPTER 3 DECONSTRUCTING DECONSTRUCTION

3.1. Deconstructionist Analysis 46

3.2. Deconstructionist Strategy 48
3.3. Summary 50

CHAPTER 4 THE HERMENEUTICS OF HERMENEUTICS

4.1. The Traditional Hermeneutics 53

4.2. The First Critique of Hermeneutics 56
4.3. The Modern Hermeneutics 58
4.4. The Second Critique of Hermeneutics 60
4.5. Summary 62

PART III: THE SOCIAL POWER OF THE MYTH OF WESTPHALIA

CHAPTER 5 THE “WESTPHALIAN STATE” SYSTEM

5.1. Heteronomous Organisation and Transcendental Institutions 71

5.2. Dynamics and War of Religion and Politics 75
5.3. The Peace Treaties 83
5.3.1. Religious issues 85
5.3.2. Territorial settlement 86
5.3.3. Treaty-making power 88
5.3.4. Recapitulation 89
5.4. Westphalia’s Aftermath 91
5.5. Summary 97

PART IV: THE SOCIAL POWER OF THE WORD SOVEREIGNTY

CHAPTER 6 BODIN’S SOVEREIGNTY: POWER-CENTRALISER

6.1. Immediate Personal Context 102

6.2. The Discourse in Les six Livres de la Republique 106
6.2.1. Perpetual and absolute power 107
6.2.2. The power to make law 112
6.2.3. General assemblies and magistrates 115
6.2.4. Recapitulation 117
6.3. Extended Historical Context 118
6.4. Summary 122
 CONTENTS xiii
CHAPTER 7 VATTEL’S SOVEREIGNTY: AUTHORITY-EXTERNALISER

7.1. Immediate Personal Context 128

7.2. The Discourse in Le Droit des Gens 133
7.2.1. Incorporation of power 138
7.2.1.1. Vattel’s predecessors on moral personality of state 138
7.2.1.2. Vattel on moral personality of state 141
7.2.2. Independence of power 149
7.2.2.1. Non-intervention 150
7.2.2.2. Vattel’s law of nations 156
7.2.3. Recapitulation 165
7.3. Extended Historical Context 166
7.4. Summary 179

CONCLUSION 185
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INTRODUCTION

The word “sovereignty” is one of those powerful words which has its own
existence as an active force within social consciousness. Through the cogni-
tive process of the human mind, not only can language represent reality, but
it may play a leading part in creating and transforming reality, including the
activity of modelling the shared consciousness of society. Such a word is thus
a form of social power.
In the first quarter of the 20th century, during the accalmie of the Great
War, Harold Laski wrote: “Nothing is today more greatly needed than clar-
ity upon ancient notions. Sovereignty, liberty, authority, personality – these
are the words of which we want alike the history and the definition; or
rather, we want the history because its substance is in fact the definition.”1
In the last quarter of that century, following the dismemberment of the
Soviet Empire, Boutros Boutros-Ghali expressed similar concerns: “A major
intellectual requirement of our time is to rethink the question of sov-
ereignty – not to weaken its essence, which is crucial to international security
and cooperation, but to recognize that it may take more than one form and
perform more than one function.”2
At the heart of these statements lie two fundamental convictions, namely,
(i) that the problem of defining sovereignty can be solved, and (ii) that there
exist identifiable meanings which can be attributed to sovereignty. Whether
or not consciously, several commentators in international law, as well as in other
disciplines,3 have indeed based their opinions on these two assumptions. For

1. H.J. Laski, The Foundations of Sovereignty and Other Essays (New York: Harcourt
Brace, 1921), at 314. [emphasis added]
2. B. Boutros-Ghali, “Empowering the United Nations” (1992-93), 71 Foreign Affairs
89, at 99. [emphasis added]
3. In political sciences and international relations, for instance, it was once said that,
“the concept of sovereignty has been used not only in different senses by different
people, or in different senses at different times by the same people, but in different
senses by the same person in rapid succession;” see M.R. Fowler & J.M. Bunck,
Law, Power, and the Sovereign State – The Evolution and Application of the Concept
of Sovereignty (Pennsylvania: Pennsylvania State University Press, 1995), at 4. See
also V.A. O’Rourke, The Juristic Status of Egypt and the Sudan (Baltimore, U.S.:
Johns Hopkins University Press, 1935), at 10, who wrote: “The word sovereignty
holds various conflicting connotations and by no means arouses identical patterns
in the minds of different students;” and, E.H. Carr, The Twenty Years Crisis, 1919-
1939 – An Introduction to the Study of International Relations, 2nd ed. (London:
Papermac, 1995), at 212, who opined that sovereignty “was never more than a con-
venient label; and when distinctions began to be made between political, legal and
economic sovereignty or between internal and external sovereignty, it was clear that
the label had ceased to perform its proper function as a distinguishing mark for a
single category of phenomena.” [emphasis added]
2 INTRODUCTION

instance, Lassa Oppenheim once noted that, “there exists perhaps no con-
ception the meaning of which is more controversial than that of sover-
eignty.”4 James Crawford, for his part, wrote: “The term ‘sovereignty’ has a
long and troubled history, and a variety of meanings.”5 Recently, Richard Bilder
provided the following semantic summary:
I think that the term sovereignty is very generally used to mean simply a state’s right
to do as it wishes, particularly within its own territory, free of external constraint or
interference. But here are some more scholarly definitions:
• The American Heritage Dictionary defines sovereignty as “supremacy of authority
or rule as exercised by a sovereign or sovereign state” or, alternatively, as “complete
independence and self-government.”
• Max Huber, as Arbitrator in the 1926 Island of Palmas case, wrote that: “Sov-
ereignty in the relations between states signifies independence. Independence in
regard to a portion of the globe is the right to exercise there, to the exclusion of
any other states, the function of a state.”
• Judge Alvarez, in his individual opinion in the Corfu Channel case, wrote that: “By
sovereignty, we understand the whole body of rights and attributes which a state
possesses in its territory, to the exclusion of all other states, and also in its relations
with other states.”
• Helmut Steinberger, in the Encyclopedia of Public International Law says that:
“Sovereignty . . . denotes the basic international legal status of a state that is not
subject, within its territorial jurisdiction, to the governmental, executive, legisla-
tive, or territorial jurisdiction of a foreign state or to foreign law other than pub-
lic international law.”
• Professor Lou Henkin, in How Nations Behave, writes that the principle holds that:
“. . . except as limited by international law or treaty, each state is master of its own
territory.”
• And at the recent ASIL meeting, Professor Tom Franck suggested, interestingly and
much more broadly, that a going definition of sovereignty is the loci of the for-
mation of rights and duties generally recognized as establishing and implementing
entitlements, distributions and obligations.6
However, the problem of defining sovereignty 7 – or any word for that mat-
ter – appears circular and can hardly be ‘solved’ finally because language can-

4. L.F.E. Oppenheim, International Law – A Treatise, vol. 1, Peace (London: Long-

mans, Green, 1905), at 103.
5. J. Crawford, The Creation of States in International Law (Oxford: Clarendon Press,
1979), at 26.
6. R.B. Bilder, “Perspectives on Sovereignty in the Current Context: An American
Viewpoint” (1994), 20 Canada-United States L.J. 9, at 10-11. [footnotes omitted]
7. See L. Henkin, “International Law: Politics, Values and Functions – General
Course on Public International Law” (1989), 216 R.C.A.D.I. 9, at 24-25, who
highlighted the problems with the word ‘sovereignty’ as follows: “States are commonly
described as ‘sovereign,’ and ‘sovereignty’ is commonly noted as an implicit, axiomatic
characteristic of Statehood. The pervasiveness of that term is unfortunate, rooted in
 INTRODUCTION 3

not transcend itself. A more promising project consists in examining the

reality-creating role of words, as organic instruments of social power within
the shared consciousness of humanity.8 Furthermore, the second conviction
that there exist ascertainable meanings inherent in the word sovereignty is
deficient as it fails to take into account the creative and transforming func-
tion of words, which is also continuous and continuing, changing in its nature
and effects over time. It follows that words like “sovereignty” have their own
history, which is not only a history of their changing meaning, their chang-
ing definition, but a history of the social effects of their changing meaning.
Myths are also powerful social productions, often expressed through lan-
guage, which provide a shared explanatory structure for substantial areas of
socially constructed reality.9 A very-large-scale myth, such as that of the
“Westphalian state system” in international law, is liable to have a very-large-
scale social effect on our consciousness and the consciousness of the world.
Indeed, the myth of Westphalia, which refers to the historical events sur-
rounding the Peace of Westphalia that ended the Thirty Years War in Europe,
is deemed the basis upon which the idea, and ideal,10 of “sovereignty” has

mistake, unfortunate mistake. Sovereignty is a bad word, not only because it has served
terrible national mythologies; in international relations, and even in international law,
it is often a catchword, a substitute for thinking and precision. It means many things,
some essential, some insignificant; some agreed, some controversial; some that are
not warranted and should not be accepted.” [footnotes omitted] [emphasis added]
8. This idea of “shared social consciousness of humanity” is borrowed from the moral
philosophy of Georg Wilhelm Friedrich Hegel, in particular from G.W.F. Hegel,
Phänomenologie des Geistes (Hamburg: Meiner, 1952), first published in 1807, §§
632-671; see also the translation by A.V. Miller, G.W.F. Hegel, Phenomenology of
Spirit (Oxford: Clarendon, 1977), at 383-409.
The idea of ‘consciousness’ associated to an ensemble of human beings was sug-
gested by G. Butler, “Sovereignty and the League of Nations” (1920-21), 1 British
Y.B. Int’l L. 35, at 42, who discussed the word sovereignty, and more particularly
the expression “external sovereignty,” by resorting, inter alia, to insights from the
new field of psychology. See also P. Allott, “Reconstituting Humanity – New International
Law” (1992), 3 European J. Int’l L. 219, at 223, who expressed the following view:
“Society exists nowhere else than in the human mind. And the constitution of a given
society exists in and of human consciousness, the consciousness of those conceived as its
members and its non-members, past and present. Wherever and whenever a structure-
system of human socializing is so conceived in consciousness, there and then a soci-
ety is conceived – family, tribe, organized religion, legal corporation, nation, state . . .”
[emphasis added]
9. Actually, “sovereignty” has been referred to as a myth: see L. Henkin, “The Mythology
of Sovereignty,” in R.St.J. Macdonald (ed.), Essays in Honour of Wang Tieya (Dordrecht:
Martinus Nijhoff, 1994), 351. Similarly, “state” has also been considered a myth:
see E. Cassirer, The Myth of the State (New Haven: Yale University Press, 1946).
10. The “imprecise word” idea was defined by Philip Allott as “a bringing-together of
units of consciousness which has an effect within consciousness greater than the
sum of the effects of the individual units which it contains,” while the term ideal
4 INTRODUCTION

developed since the 17th century. Such fabulous social power is all the more
extraordinary because, as with all myths, its historical foundation is no
longer considered relevant or is viewed as incontestable.
The purpose of the present study is to enter into the history of both of
these mental-social phenomena – sovereignty and Westphalia. The latter will
be examined to show that the events surrounding the Peace of Westphalia are
substantially remote from what the myth of Westphalia has stood for,
namely, the consecration of state sovereignty and the beginning of a new era
of international relations. As regards “sovereignty,” the history of the word –
as opposed to the history of the concept 11 – will be considered by looking
at two of the most important early doctrinal contributions on the issue, namely,
those of Jean Bodin and Emer de Vattel. The objective is to uncover the
function that “sovereignty,” the word, has played in the formation of socially
constructed reality and the role it is playing in the present-day reality-creat-
ing, that is to say, in the present understanding of the world as it is and the
world as it might be in the near future.
Before embarking upon such a journey into the challenging, and often con-
tradictorily-mapped, historical lands of Westphalia (part 3) and sovereignty
(part 4), it is absolutely crucial to establish some groundwork.12 This will include
the issues, already alluded to, of the meaning of meaning, the nature and func-
tion of words, as well as the question of myth and mythology (part 1). Out
of this morass will be suggested an approach to the problem of analysing
language, which will treat as useful sources the well-established, if radically
obscure and controversial, intellectual methods known as deconstruction and
hermeneutics (part 2).

would mean “what reality should be (the ideal);” see P. Allott, Eunomia – New Order
for a New World (Oxford: Oxford University Press, 1990), at 14 & 190. [emphasis
added] [hereinafter Eunomia]
11. This proposal of distinguishing between the history of the word and the history of
the concept was inspired by Philip Allott, Eunomia, 9: “Social history is thus as
much the history of words as it is the history of deeds. The history of words has as
much explanatory power as any history of politics or diplomacy or law or economic
life.”
12. The terminology of “groundwork” is borrowed from Immanuel Kant’s philosophical
works, in particular, I. Kant, Grundlegung zur Metaphysik der Sitten, 4th ed. (Riga:
Hartfnoch, 1797), first published in 1785. See also the translation by M. Gregor,
I. Kant, Groundwork of the Metaphysics of Morals (Cambridge: Cambridge Univer-
sity Press, 1998).
PART I:

GROUNDWORK: WORDS, MYTHS, POWER

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CHAPTER ONE

THE FUNCTION OF WORDS

Words are the origins of everything, of all aspects of human reality, which
they both represent and create. For Christianity, “in the beginning was the
Word.”13 As Bertrand Russell pointed out, this originalist view underscores
the philosophies of Plato and Carnap and, also, of most intermediate meta-
physicians.14 Philip Allott opined that words are indivisible units of the
mind, of human consciousness.15 Indeed, words and expressions constitute
irreducible neurones, which are necessary to communication within the shared
consciousness of society.

1.1. MEANING IS MEANINGLESS

It is said that what distinguishes words – be they spoken, written or else –

from other classes of noises or shapes resides in the fact that they invariably
have meaning.16 This raises the question of what it means to mean some-
thing, which has long been the subject of philosophical studies and, more
recently, of linguistic inquiries.17

13. See the Holy Bible, New Testament, Book of John, 1:1.
14. See B. Russell, An Inquiry into Meaning and Truth (London: Unwin Hyman, 1980),
at 23.
15. See Eunomia, at 3-13. See also P. Allott, “Language, Method and the Nature of
International Law” (1971), 45 British Y.B. Int’l L. 79.
16. See B. Russell, supra, note 14, at 25. See also J. Hospers, An Introduction to Philosophical
Analysis (New York: Prentice-Hall, 1953), at 2-3, who wrote: “Words are symbols,
and every language (English, French, Sanskrit, and so forth) is a system of symbols.
Every symbol in these systems stands for something because human beings have made
them do so. Human beings have devised noises and made them into symbols.
Unless people had taken and made them stand for things in the world, they would
be merely noises, not words. Different noises are made to stand for different things,
and a large body of people comes to use these noises in the same way. In this way,
the words, begun as arbitrary symbols, become conventional symbols. When they
are thus given meanings, the noises become words; the noise is, as it were baptized
into a word.” [emphasis in original]
17. See, for instance, the following contemporaries: H.P. Grice, “Meaning” (1957), 66
Philosophical Rev. 377; H.P. Grice, “Utterer’s Meaning and Intentions” (1969), 78
Philosophical Rev. 147; H. Putnam, “The Meaning of ‘Meaning’,” in K. Gunderson
(ed.), Language, Mind, and Knowledge (Minneapolis, U.S.: University of Minnesota
Press, 1975), 131; M.A.E. Dummett, “What is a Theory of Meaning?,” Part 1, in
S. Guttenplan (ed.), Mind and Language (Oxford: Clarendon Press, 1975), 97; and,
M.A.E. Dummett, “What is a Theory of Meaning?,” Part 2, in G. Evans & J. McDowell
(eds.), Truth and Meaning – Essays in Semantics (Oxford: Clarendon Press, 1976), 67.
8 CHAPTER 1

At the centre of the debate on the meaning of words is the metaphysical

question of whether or not language can describe itself, can explain itself,
can in effect transcend itself. Put another way, are words and expressions
capable of being theoretically circumscribed and semantically ascertained? This
question must be answered in the negative having regard to what will be
referred to here as the circularity of language.
Pursuant to the line of thought suggested by Ludwig Wittgenstein, the
following is not about seeking a theory of meaning per se.18 As the Austrian
philosopher put it: “The mistake is to say that there is anything that mean-
ing something consists in.”19 Rather, the objective of this section is to show,
in a sense, the circularity of such an endeavour. In his Tractatus Logico-
Philosophicus,20 published in 1921, Wittgenstein claimed that language was
able to represent reality,21 a position he later categorically revised.22 “Propositions

18. See C. McGinn, Wittgenstein on Meaning – An Interpretation and Evaluation

(Oxford: Basil Blackwell, 1984), at 1.
19. L. Wittgenstein, Zettel (Oxford: Basil Blackwell, 1967), at 5.
20. L. Wittgenstein, Tractatus Logico-Philosophicus (London: Routledge & Kegan Paul,
1961), at 51. [hereinafter Tractatus] See also, on the origin of Tractatus, G.H. von
Wright, Wittgenstein (Oxford: Basil Blackwell, 1982), at 63 ff.
21. See A. Kenny, Wittgenstein (London: Allen Lane, 1973), at 159 ff.; and, M.
Williams, Wittgenstein, Mind and Meaning – Toward a Social Conception of Mind
(London & New York: Routledge, 1999), at 15 ff.
22. Initially, the Tractarian position was to the effect that words could represent reality,
that language offered, as it were, a picture of the world; see Tractatus, at 15 ff. & 51
ff. See also H. Schwyzer, “Wittgenstein’s Picture Theory of Language” (1962), 5
Inquiry 46; J.F. Rosenberg, “Wittgenstein’s Theory of Language as Picture” (1968),
5 American Philo. Q. 18; and, P.M.S. Hacker, “The Rise and Fall of the Picture
Theory,” in I. Block (ed.), Perspectives on the Philosophy of Wittgenstein (Oxford:
Basil Blackwell, 1981), 85. Later in Philosophical Investigations, infra, note 25, how-
ever, the Austrian philosopher categorically revised his position on the question and
argued that words and expressions do not merely provide a representation of reality
but, in effect, language would be an activity happening within reality, that it is
indeed a participant in human consciousness – “Here the term ‘language-game’ is
meant to bring into prominence the fact that the speaking of language is part of an
activity, or of a form of life;” id., at 11. [emphasis in original] See also W. Sellars,
“Some Reflections on Language Games” (1954), 21 Philosophy of Science 204; E.K.
Specht, The Foundations of Wittgenstein’s Late Philosophy (Manchester: Manchester
University Press, 1969), at 39 ff.; J. Hintikka, “Language-Games” (1976), 28 Acta
Philosophica Fennica 105; and, D. Cornell, “The Problem of Normative Authority
in Legal Interpretation,” in R. Kevelson (ed.), Law and Semiotics, vol. 1 (New York
& London: Plenum Press, 1987), 149.
This Tractatus idea that a proposition constitutes a picture of the reality it repre-
sents was no doubt one of the things Wittgenstein had in mind when he wrote, in
the preface of Philosophical Investigations, id., at x: “For since beginning to occupy
myself with philosophy again, sixteen years ago, I have been forced to recognize
grave mistakes in what I wrote in that first book.” [emphasis added] He added that
 CHAPTER 1 9

can represent the whole of reality, but they cannot represent what they must
have in common with reality in order to be able to represent it.”23 For one to
do this, he wrote, one would have to place oneself “outside the world.”24
In Philosophical Investigations,25 posthumously published in 1953, Wittgenstein
famously wrote: “For a large class of cases – though not for all – in which
we employ the word ‘meaning’ it can be defined thus: the meaning of a
word is its use in the language.”26 He also developed the argument that
words, although capable of representing and creating reality, were in turn inca-
pable of explaining language.27 He wrote:
In giving explanations, I already have to use language full-blown (not some sort of
preparatory, provisional one); this by itself shows that I can adduce only exterior facts
about language.
Yes, but then how can these explanations satisfy us? – Well, your very questions
were framed in this language; they had to be expressed in this language, if there was
anything to ask!
And your scruples are misunderstandings.
Your questions refer to words; so I have to talk about words.
You say: the point isn’t the word, but its meaning, and you think of the meaning
as a thing of the same kind as the word, though also different from the word. Here
the word, there the meaning. The money, and the cow that you can buy with it.
(But contrast: money, and its use.)28

he was helped to realise such mistakes by the stimulus provided by Frank Ramsey
and Piero Sraffa. It is the latter, in fact, who made Wittgenstein repudiate his orig-
inal position on language and reality. See R. Monk, Ludwig Wittgenstein – The Duty
of Genius (London: Jonathan Cape, 1990), at 260-261, who recorded the story in
the following terms: “One anecdote that illustrates this was told by Wittgenstein to
both Malcolm and von Wright, and has since been retold many times. It concerns
a conversation in which Wittgenstein insisted that a proposition and that which it
describes must have the same ‘logical form’ (or ‘grammar’, depending on the version
of the story). To this idea, Sraffa made a Neapolitan gesture of brushing his chin
with his fingertips, asking: ‘What is the logical form of that?’ This, according to the
story, broke the hold on Wittgenstein of the Tractarian idea that a proposition must
be a ‘picture’ of the reality it describes.” [emphasis in original]
23. Tractatus, at 51. [emphasis added]
24. Tractatus, at 51. He further wrote: “Propositions cannot represent logical form: it is
mirrored in them. What finds its reflection in language, language cannot represent.
What expresses itself in language, we cannot express by means of language. Propositions
show the logical form of reality. They display it;” ibid. [emphasis in original]
25. L. Wittgenstein, Philosophical Investigations (Oxford: Basil Blackwell, 1958). [here-
inafter Philosophical Investigations]
26. Philosophical Investigations, at 20. [emphasis in original]
27. See, generally, S. Cavell, “Excursus on Wittgenstein’s Vision of Language,” in A. Crary
& R. Read (eds.), The New Wittgenstein (London & New York: Routledge, 2000),
21.
28. Philosophical Investigations, at 49. [emphasis added] Another relevant passage reads
10 CHAPTER 1

All that language does, and indeed can possibly do, is to describe what it
may be utilised for within human consciousness; it cannot be resorted to in
order to describe itself.29 Put another way, words cannot transcend themselves.
As a consequence, there is an inherent and fundamental problem in attempt-
ing to use language to scientifically circumscribe and ascertain words and
expressions.30 This is, however, the self-described mission of linguistics,31 or
more particularly of semantics, which is said to pursue the study of the
meaning of language.32 Traditionally, such contended rationalisation through
definitions was the province of the school known as essentialism.33 In more

thus: “One might think: if philosophy speaks of the use of the word ‘philosophy’ there
must be a second-order philosophy. But it is not so: it is, rather, like the case of ortho-
graphy, which deals with the word ‘orthography’ among others without then being
second order;” ibid. [emphasis added]
29. “Philosophy,” wrote Wittgenstein, “may in no way interfere with the actual use of
language; it can in the end only describe it;” Philosophical Investigations, at 49. [em-
phasis added]
30. See P. Allott, “The Nation as Mind Politic” (1992), 24 J. Int’l L. & Pol. 1361, at
1361-1362, who appositely expressed the following view: “With Wittgenstein, we
have been forced to face the possibility that human communication is not the
transfer of something called Truth through a neutral medium called Language.
Communication would then have to be regarded as simply another form of human
activity, sharing in the intrinsic and irreducible ambiguity of all human activity.”
31. Theoretical linguistics, the scientific study of language, can be divided into the fol-
lowing categories: (i) phonetics and phonology, (ii) morphology and syntax, (iii) prag-
matics, and (iv) semantics.
32. See, for example, A. Akmajian, R.A. Demers, A.K. Farmer & R.M. Harnish, An
Introduction to Language and Communication, 3rd ed. (Cambridge, U.S.: MIT
Press, 1990), at 193, who wrote: “In the field of linguistics, semantics is generally
considered to be the study of meaning (and related notions) in languages, whereas
in the field of logic, semantics is generally considered to be the study of linguistic
reference or denotation and truth conditions in languages. [. . .] Although there is some-
times tension between these conceptions of semantics, the dispute is really one of
emphasis: in the end, an adequate semantic description of natural languages must
record facts of meaning and denotation.” [emphasis in original] See also R. Larson
& G. Segal, Knowledge of Meaning – An Introduction to Semantic Theory (Cam-
bridge, U.S.: MIT Press, 1995), at 25 ff.
33. In its original Aristotelian conception, “essentialism” pertained to the belief that
there exist classifications that reveal real properties of things, that is, attributes that
are both necessary and sufficient for a thing to be a thing of that kind. In short,
according to Aristotle, the definition of a thing is a phrase signifying a thing’s essence,
which would involve an analysis based on its genus (i.e. common element in the
category of essence) and differentia (i.e. distinguishing part of the essence). See
M.R. Cohen & E. Nagel, An Introduction to Logic and Scientific Method, abr. ed.
(London: Routledge, 1939), at 125; and, A. Edel, Aristotle and His Philosophy (Chapel
Hill, U.S.: University of North Carolina Press, 1982), at 244-245; and, G.L.
Hallett, Essentialism – A Wittgensteinian Critique (Albany, U.S.: State University of
New York Press, 1991).
 CHAPTER 1 11

recent works in linguistics and in so-called ‘linguistic philosophy,’ semantics

has taken new orientations with, for instance, Noam Chomsky’s opera-
tional explanation of language,34 as well as Richard Rorty’s communicative
pragmatism.35
However, for language to be able to explain and describe itself, that is, to
be truly transcendental, one would require something outside language, out-
side consciousness, outside reality, or “outside the world”36 as Wittgenstein
suggested.37 Donald Davidson, who initially dwelled upon theories of truth
to rationalise the meaning of meaning,38 realised this problem of circularity
in explaining words and expressions. That brought him to suggest, more
recently, that, “there is no such thing as a language, not if a language is any-
thing like what many philosophers and linguists have supposed.”39 What he

As a modern metaphysical theory, ‘essentialism’ is interested “in the ‘quiddity’ of

a thing, [in the] character of a thing whereby that thing is what it is;” see A. Shimony,
“The Status and Nature of Essences” (1948), 1(3) Rev. Metaphysics 38, at 38. Similarly,
for the logician, ‘essentialism’ concerns “the view that some attributes belong to an
object by necessity whereas others belong to it contingently;” J. Agassi & P.T. Sagal,
“The Problem of Universals” (1975), 28 Philosophical St. 289, at 293. See also, gen-
erally, F. Mayer, Essentialism – A New Approach to a One-World Philosophy (London:
Hampton Hall Press, 1950); and, P.A. French, T.E. Uehling Jr. & H.K. Wettstein
(eds.), Studies in Essentialism (Minneapolis, U.S.: University of Minnesota Press, 1986).
34. Chomsky put forward the revolutionary theory of ‘generative/transformational/uni-
versal grammar’ in Syntactic Structures (The Hague: Mouton, 1957). He addressed
questions of semantics and theories of meaning more particularly in N. Chomsky,
New Horizons in the Study of Language and Mind (Cambridge: Cambridge
University Press, 2000), at 46 ff.; N. Chomsky, Knowledge of Language: Its Nature,
Origin, and Use (New York: Praeger, 1986), at 246 ff.; N. Chomsky, Rules and
Representations (New York: Columbia University Press, 1980), at 109-122; and, N.
Chomsky, Essays on Form and Interpretation (New York: North-Holland, 1977), at
35 ff. On Chomsky’s work in general, see N. Smith, Chomsky – Ideas and Ideals
(Cambridge: Cambridge University Press, 1999); and, J. Lyons, Chomsky (London:
Fontana, 1977).
35. Rorty defined meaning as “the property which one attributes to words by noting stan-
dard inferential connections between the sentences in which they are used and
other sentences;” see R. Rorty, Essays on Heidegger and Others – Philosophical Papers,
vol. 2 (Cambridge: Cambridge University Press, 1991), at 13.
36. Tractatus, at 51.
37. See also D.G. Stern, Wittgenstein on Mind and Language (New York & Oxford: Oxford
University Press, 1995), at 43-47; and, generally, C. McGinn, supra, note 18, at 6 ff.
38. See, in particular, D. Davidson, “Truth and Meaning” (1967), 17 Synthese 304;
and, D. Davidson, “On Saying That” (1968), 19 Synthese 130; as well as, generally,
some of his other essays gathered in D. Davidson, Inquiries into Truth and Interpretation
(Oxford: Clarendon Press, 1984).
39. D. Davidson, “A Nice Derangement of Epitaphs,” in E. LePore (ed.), Truth and
Interpretation – Perspective on the Philosophy of Donald Davidson (Oxford: Basil Blackwell,
1986), 433, at 446. [emphasis added]
12 CHAPTER 1

meant is that language, as a separate and distinct thing outside itself (i.e.
outside reality), which may be theoretically described and ascertained, does
not and cannot exist.
So it is that we may say that the phrase ‘the meaning of meaning’ is itself
meaningless if it refers to an attempt to overcome the intrinsic circularity of
language40 – “There can be no such thing as meaning anything by any word.”41
And this problem haunts, in particular, abstract ideas encapsulated in words42
and, above all, in words of great power and social effect,43 such as “sovereignty.”

40. In recent linguistic philosophy, Samuel Wheeler metaphorically called “magic lan-
guage” the utopian project of theoretically describing words with words. See S.C.
Wheeler, Deconstruction as Analytic Philosophy (Stanford: Stanford University Press,
2000), at 3, where he explained: “This is the language of nous, a language that is,
in Wittgenstein’s terms, self-interpreting. The magic language is the language in which
we know what we mean, think our thoughts, and form intentions. There is no
question of interpreting sentences in the magic language, since the magic language
is what interpretation is interpretation into. Furthermore, there is no question of
discovering what the terms of the magic language mean, since the terms of the
magic language are nothing but the meanings expressed by words of natural lan-
guages.” [emphasis in original]
41. S.A. Kripke, Wittgenstein on Rules and Private Language – An Elementary Exposition
(Cambridge, U.S.: Harvard University Press, 1982), at 55. See also R. Read, “What
‘There Can Be No Such Thing as Meaning Anything by Any Word’ Could Possibly
Mean,” in A. Crary & R. Read (eds.), The New Wittgenstein (London & New York:
Routledge, 2000), 74; and, C. McGinn, supra, note 18, at 59 ff. Contra, see W.W.
Tait, “Wittgenstein and the ‘Skeptical Paradoxes’” (1986), 83 J. Philosophy 475.
42. See, for instance, on the word ‘law,’ G. Williams, “The Controversy Concerning
the Word ‘Law,’ ” in P. Laslett (ed.), Philosophy, Politics and Society, 1st series
(Oxford: Basil Blackwell, 1963), 134; and, A. D’Amato, “Is International Law
Really ‘Law’?” (1985), 79 Northwestern U. L. Rev. 1293; and, on the word ‘state’
(‘état’ in French), H.C. Dowdall, “The Word ‘State’” (1923), 39 Law Q. Rev. 98;
J.-P. Brancourt, “Des ‘estats’ à l’Etat: évolution d’un mot” (1976), 21 Archives Philo.
D. 39; and, O. Beaud, “La notion d’État” (1990), 35 Archives Philo. D. 119, at
120-125. For a modern example, see on the word ‘globalisation’ or ‘mondialisation,’
B. Stern, “How to Regulate Globalization?,” in M. Byers (ed.), The Role of Law in
International Politics – Essays in International Relations and International Law (Oxford:
Oxford University Press, 2000), 247; and, E. Hey, “Globalisation and International
Law” (2002), 4 Int’l L. Forum 12.
See also, generally, T.D. Weldon, The Vocabulary of Politics (Harmondsworth, U.K.:
Penguin, 1953); and, M. Macdonald, “The Language of Political Theory,” in
A. Flew (ed.), Logic and Language (Garden City, U.S.: Anchor, 1965), 174.
43. This point was made by W.B. Gallie, “Essentially Contested Concepts” (1955-56),
56 Proc. Aristotelian Soc. 167, who, dwelling upon the disputed character of some
political concepts encapsulated in words, considered inter alia the extremely power-
ful word ‘democracy;’ id., at 183 ff. See also J.N. Gray, “On the Contestability of
Social and Political Concepts” (1977), 5 Pol. Theory 331; D. Miller, “Linguistic
Philosophy and Political Theory,” in D. Miller & L. Siedentop (eds.), The Nature
of Political Theory (Oxford: Clarendon Press, 1983), 35; and, W.E. Connolly, The
Terms of Political Discourse, 3rd ed. (Princeton: Princeton University Press, 1993).
 CHAPTER 1 13

However, words may be considered other than semantically, other than

for what they are deemed to ‘mean.’ Language can be studied for the func-
tion it fulfils in human life, that is, for the role it plays as an active force
within the shared consciousness of human society.

1.2. CREATING AND TRANSFORMING LANGUAGE

The proposition central to the present study is that words and expressions,
far from meaning anything by themselves, are instruments,44 they are in effect
organic45 instruments, within a linguistic sign-system, that can both represent
and create human reality. Further, they can demonstrate, and may actually
be used to carry, fabulous power within the shared consciousness of society.
Language, as a form of human communication, has long attracted inves-
tigations and been the subject of scholarship. Already in Ancient Greece and
Ancient Rome, with the art of rhetoric and oratory, the social power of lan-
guage was recognised.46 As well, in Ancient India, the works in Sanskrit, that
culminated with P9anini’s grammar known as the “Afisfit9adhy9ay9ı ” (or “Eight
Books”), is deemed an appropriate starting point to trace the genesis of lan-
guage studies.47 However, given the focus of the present discussion on the
nature and function of certain words and expressions in the post-medieval
world, the brief review of the role of language in time will start with the rebirth
of the study of language during the Renaissance in Europe.

1.2.1. Language in time

Michel Foucault looked at how the conceptualisation of language has
changed over time in Les mots et les choses,48 published in 1966. He went

44. See Philosophical Investigations, at 151, which reads: “Language is an instrument. Its
concepts are instruments.” [emphasis added]
45. The term ‘organic’ is used here to denote a property of language that allows words
and expressions to be, simultaneously, autonomous from and intertwined with the
reality they represent. This idea will become clearer when the so-called ‘Ogden &
Richards’ Triangle’ is examined; see infra, at footnotes 93 ff. and accompanying text.
46. Rhetoric and oratory was in fact the only element of the complex Greek system of
education that the Romans retained, “because knowing how to make persuasive
speeches was the way to success in business and politics;” see C. van Doren, A History
of Knowledge – Past, Present, and Future (New York: Balatine Books, 1992), at 66.
On the role of rhetoric in social sciences and in law, see O. Ballweg, “Analytica
Rhetoric, Semiotic and Law,” in R. Kevelson (ed.), Law and Semiotics, vol. 1 (New
York & London: Plenum Press, 1987), 25.
47. See R.H. Robins, A Short History of Linguistics (London: Longmans, 1967), at 135-
137. The author also opined: “Linguistics in India goes back further than in
Western Europe;” id., at 136.
48. M. Foucault, Les mots et les choses – Une archéologie des sciences humaines (Paris:
14 CHAPTER 1

back to the 16th century and identified four periods in the evolution of lan-
guage studies, four periods of epist9em9e,49 namely, (i) the Renaissance, (ii) the
Classical, (iii) the Modern, and (iv) the post-Modern ages.
Foucault explained that, in the first phase that led to the end of 16th
century, language and things were inseparable. As a result, words and expres-
sions were not at all considered as part of a distinct system of representative
signs during the Renaissance period:
In its raw, historical sixteenth-century being, language is not an arbitrary system; it
has been set down in the world and forms a part of it, both because things them-
selves hide and manifest their own enigma like a language and because words offer
themselves to men as things to be deciphered.50
Language was studied as any other natural object, with the emphasis not
upon the meaning of words, but upon the intrinsic properties of letters, syl-
lables, and terms.51
During the 17th century and the 18th century, the status of language
considerably changed and words began to be viewed as organising repre-
sentative signs; it was a period of transparency, neutrality and order for lan-
guage studies. This occurred, “because words have been allotted the task
and the power of ‘representing thought’”52 during the Classical (or Baroque)
period. The purpose of language was no longer to materially write things,
but was rather to represent representation. “From an extreme point of view,”
Foucault added, “one might say that language in the Classical era does
not exist. But that it functions: its whole existence is located in its repre-
sentative role.”53 Thus this period is one where, for the first time, words
were considered as providing an order of representative signs within human
consciousness.

Gallimard, 1966). [hereinafter Les mots et les choses] See also the translation M. Foucault,
The Order of Things – An Archaeology of the Human Sciences (London: Tavistock
Publications, 1970). [hereinafter The Order of Things]
49. That is, knowledge.
50. The Order of Things, at 35. [emphasis added] See also the original Les mots et les choses,
at 49-50: “Dans son être brut et historique du XVIe siècle, le language n’est pas un
système arbitraire; il est déposé dans le monde et il en fait partie à la fois parce que
les choses elles-mêmes cachent et manifestent leur énigme comme un language, et
parce que les mots se proposent aux hommes comme des choses à déchiffrer.” [emphasis
added]
51. See G. Gutting, “Michel Foucault: A User’s Manual,” in G. Gutting (ed.), The
Cambridge Companion to Foucault (Cambridge: Cambridge University Press, 1994),
1, at 16.
52. The Order of Things, at 78. See also the original Les mots et les choses, at 92:
“puisque les mots ont reçu la tâche et le pouvoir de ‘représenter la pensée.’”
53. The Order of Things, at 79. [emphasis added] See also the original, Les mots et les
choses, at 93: “A la limite, on pourrait dire que le langage classique n’existe pas.
Mais qu’il fonctionne: toute son existence prend place dans son rôle représentatif.”
[emphasis added]
 CHAPTER 1 15

Foucault then showed that a third epist9em9e began at the turn of the 19th
century, following the French Revolution. This is when the representative
role of words diminished and, more importantly, when there was a return to
the formalistic approach to language.54 Initially through theories relating to
word inflection, the emphasis was gradually brought back to grammatical
dimensions:
[L]anguage no longer consists only of representations and of sounds that in turn rep-
resent the representations and are ordered among them as the links of thought
require; it consists also of formal elements, grouped into a system, which impose upon
the sounds, syllables, and roots and organization that is not that of representation.55
Grammar compared languages not based on what words designated, but on
the means linking words together. Foucault wrote that, “the independent analy-
sis of grammatical structures, as practised from the nineteenth century, iso-
lates language, treats it as an autonomous organic structure, and breaks its
bonds with judgements, attribution, and affirmation.”56 Thus during the Modern
age, language went back to being a mere object of technical knowledge
among other subjects, like biology or economics.57 It returned to its Renaissance
character, studied through the analysis of grammatical, and now also histor-
ical, resemblances and connections.
The last period identified as post-Modern, from the turn of the 20th
century to our time, is deemed to involve a revival of language as represen-
tative sign.58 Nietzsche and Mallarmé contributed greatly to the reunification
of the fragmented being of words, which had occurred during the 19th century
with the detachment of form from representation. According to Foucault,

54. See also H. Aarsleff, The Study of Language in England, 1780-1960, 2nd ed.
(London: Athlone Press, 1983), at 127, who wrote: “It is universally agreed that the
decisive turn in language study occurred when the philosophical, a priori method
of the eighteenth century was abandoned in favor of the historical, a posteriori method
of the nineteenth.”
55. The Order of Things, at 235. [emphasis added] See also the original Les mots et les
choses, at 248: “[L]e language n’est plus constitué seulement de représentations et de
sons qui à leur tour les représentent et s’ordonnent entre eux comme l’exigent les
liens de la pensée; il est de plus constitué d’éléments formels, groupés en système, et qui
imposent aux sons, aux syllabes, aux racines, un régime qui n’est pas celui de la
représentation.” [emphasis added]
56. The Order of Things, at 295. See also the original, Les mots et les choses, at 308:
“L’analyse indépendante des structures grammaticales, telle qu’on la pratique à par-
tir du XIXe siècle, isole au contraire le langage, le traite comme une organisation
autonome, rompt ses liens avec les jugements, l’attribution et l’affirmation.”
57. Such a demotion of language, Foucault said, was compensated for in three impor-
tant ways, namely, (i) by becoming the necessary medium for any scientific dis-
course, (ii) through its newly acquired critical value, and (iii) because of the appearance
of literature; see The Order of Things, at 296-300; and, Les mots et les choses, at 309-
313.
58. See G. Gutting, supra, note 51, at 17.
16 CHAPTER 1

“thought was brought back, and violently so, towards language itself, to-
wards its unique and difficult being.”59 At the present time, the most en
vogue question is still very much how language can be conceptualised in its
unified plenitude, with both form and representation, that is, words as both
objects and representative signs.
In an interview concerning Les mots et les choses, which was published in
Les lettres françaises,60 Foucault was asked to comment on the situation of
language today. His answer is worth reproducing in full:
At the moment we find ourselves in a very ambiguous situation. Man has existed
since the beginning of the nineteenth century only because discourse ceased to have
the force of law over the empirical world. Man has existed where discourse was silenced.
Yet with Saussure, Freud, and Hegel, at the heart of what is most fundamental in the
knowledge of man, the problem of meaning and the sign reappeared. Now, one can
wonder if this return of the great problem of the sign and meaning, of the order of signs,
constitutes a kind of superimposition in our culture over what had constituted the
Classical Age and modernity – or, rather, if it’s a question of omens announcing that
man is disappearing – since, until the present, the order of man and that of signs
have in our culture been incompatible with each other. Man would die from the
signs that were born in him – that’s what Nietzsche, the first one to see this, meant.61
Rightfully associated with the contemporary return to the problem of mean-
ing and the sign is Ferdinand de Saussure, whose work is absolutely pivotal
to the present proposition that words constitute organic instruments of so-
cial power within human consciousness.

59. The Order of Things, at 306. See also the original Les mots et les choses, at 317: “la
pensée fut reconduite, et violemment, vers le langage lui-même, vers son être
unique et difficile.”
60. R. Belfour, “Michel Foucault, ‘les mots et les choses’” (1966), 1125 Lettres françaises 3.
61. Translation by F.D. Faubion, M. Foucault, Aesthetics, Method, and Epistemology
(London: Penguin, 1994), 261, at 265. [emphasis added] See also the original in
Les lettres françaises, id., at 4: “Actuellement, on se trouve dans une situation très
ambiguë. L’homme n’a existé depuis le début du XIXe siècle que parce que le dis-
cours avait cessé d’avoir force de loi sur le monde empirique. L’homme a existé là
où le discours s’est tu. Or voilà qu’avec Saussure, Freud et Husserl, au coeur de ce
qu’il y a de plus fondamental dans la connaissance de l’homme, le problème du
sens et du signe réapparaît. C’est-à-dire qu’on peut se demander si ce retour du
grand problème du signe et du sens, et de l’ordre des signes, constitue une sorte de
superposition dans notre culture de ce qui avait constitué l’âge classique et la
modernité, ou bien s’il s’agit de marques annonciatrices que l’homme va disparaître,
puisque jusqu’à présent l’ordre de l’homme et celui des signes avaient été dans notre
culture incompatible l’un avec l’autre. L’homme mourrait des signes qui sont nés en
lui, c’est ce que, le premier, Nietzsche avait voulu dire.” [emphasis added]
 CHAPTER 1 17

1.2.2. Words as representative signs in society

At the beginning of the 20th century, Saussure is deemed to have formally
founded a new discipline:62 semiology (from the Greek s9emeîon, i.e. ‘sign’) –
referred to as semiotics in American English. His seminal contribution to the
theory of language is found in his posthumously published lecture notes, Cours
de linguistique générale.63 This new approach is, in effect, a reintroduction of
the concept of language as an order of representation.64
As Foucault pointed out, the idea of words as representative signs was aban-
doned in the 19th century with the rise of linguistic studies, such as those
by Diez, Whitney, Braun, Brugmann, Osthoff, Sievers, Paul, and Leskien.65
From a sign, the word then became a mere form. Linguistics, “sought only
facts, evidence, demonstration; it divorced the study of language from the
study of the mind.”66 The interest for words shifted from the examination of
their representation to the comparison of words with other words so that
grammatical links between languages, as forms of communication, could be
established.
Saussure’s semiotics was to bring back, albeit in a more sophisticated
version, the 18th century problem of language as representative sign and,
at least implicitly, thus revived the connection between language and the
mind.67 He regarded semiotics as a “science that studies the life of signs within

62. See R. Carrión-Wam, “Semiotica Juridica,” in D. Carzo & B.S. Jackson (eds.), Semiotics,
Law and Social Science (Rome & Liverpool: Gangemi Editore & Liverpool Law Review,
1985), 11, at 12.
63. C. Bally & A. Sechehaye (eds.), Ferdinand de Saussure – Cours de linguistique
générale (Paris: Payot, 1916). [hereinafter Cours] See also the translation by R.
Baskin, F. de Saussure, Course in General Linguistics (London: Peter Owen, 1960).
[hereinafter Course] The manuscript is entirely based on the lectures on general lin-
guistics given between 1907 and 1911 at the University of Geneva, which were edited
and published by Saussure’s students and colleagues after his death in 1913.
64. Originally, Saussure’s writings (the only manuscript he himself published is F. Saussure,
Mémoire sur le système primitif des voyelles indo-européennes (Leipsick: Teubner,
1879)) fell within a 1870s current called Neo-Grammarian, which brought into
historical sequence the results of such comparative grammatical studies. But neo-
grammarians were still concerned with the comparison of language and, consequently,
could not address fundamental questions about the nature of language and its rela-
tions to the mind. It is William Dwight Whitney, in Language and the Study of
Language: Twelve Lectures on the Principles of Linguistic Science (London: Trübner,
1867), and, The Life and Growth of Language (London: King, 1875), who, still
working within the framework of neo-grammarians, initially referred back to the ques-
tion of sign in language. He prompted Saussure to return to the idea of words as
representative signs to anchor his study of language. See J. Culler, Saussure (Sussex:
Harvester Press, 1976), at 68-70.
65. See J. Culler, id., at 58; and, Y. Tobin, Semiotics and Linguistics (London & New
York: Longman, 1990), at 34.
66. H. Aarsleff, supra, note 54, at 127.
67. See J. Culler, supra, note 64, at 58-59.
18 CHAPTER 1

society.”68 In its original broad conception, semiotics constitutes a limitless

science of human behaviour and cognition,69 which insights have been used
in other disciplines.70 It includes not only spoken and written language, but
also gestures, mathematics, pictures, myths, television, graffiti, et cetera. All
these elements that make up communication within human consciousness
have things in common, and things which distinguish them, that semiotics
attempts to identify and investigate.
Semiotics is interested in the conventions underlying such systems of
signs whereby human beings communicate. “In fact,” wrote Saussure, “every
means of expression used in society is based, in principle, on collective behav-

68. Course, at 16. [emphasis in original] See also the original Cours: “science qui étudie
la vie des signes au sein de la vie sociale.” [emphasis in original]
69. See D. Sless, In Search of Semiotics (London: Croom Helm, 1986), at 1, who wrote:
“Semiotics occurs whenever we stand back from our ways of understanding and
communication, and ask how these ways of understanding and communication
arise, what form they take, and why. Semiotics is above all an intellectual curios-
ity about the ways we represent our world to ourselves and each other.” See also
U. Eco, A Theory of Semiotics (Bloomington, U.S. & London: Indiana University
Press, 1976), at 7.
Indeed, everything which has meaning in human consciousness can be viewed as
a sign and, therefore, can be explained semiotically. See, for instance, R. Barthes,
“Inaugural Lecture, Collège de France,” in S. Sontag (ed.), A Roland Barthes Reader
(London: Jonathan Cape, 1982), 457, at 471: “It seemed to me (around 1954) that
a science of signs might stimulate social criticism, and that Sartre, Brecht, and Saussure
could concur in this project.” See also the original French version, R. Barthes,
Leçon inaugurale de la chaire de sémiologie littéraire du Collège de France (Paris: Édi-
tions du Seuil, 1978), at 32: “[I]l m’a semblé (alentour 1954) qu’une science des
signes pouvait activer la critique sociale, et que Sartre, Brecht et Saussure pouvaient
se rejoindre dans ce projet.” Another important contributor to the discipline of
semiotics is A.-J. Greimas, Sémantique structurale – recherche de méthode (Paris: Larousse,
1966).
70. In the 1960s, the method associated with Saussure’s semiotics began to be used in
other disciplines, such as anthropology and even law. In anthropology, for instance,
see C. Lévi-Strauss, Anthropologie structurale (Paris: Plon, 1958), at 27 ff. [herein-
after Anthropologie structurale] – translated as C. Lévi-Strauss, Structural Anthropology
(Middlesex, U.K.: Penguin Books, 1972), at 20 ff. [hereinafter Structural Anthropology]
Law and semiotics appeared somewhat more recently: see, for example, A.-J.
Greimas & É. Landowski, “Analyse sémiotique d’un discours juridique – la loi com-
merciale sur les sociétés et les groupes de sociétés,” in A.-J. Greimas (ed.),
Sémiotique et sciences sociales (Paris: Éditions du Seuil, 1976), 79; D. Carzo & B.S.
Jackson (eds.), Semiotics, Law and Social Science (Rome & Liverpool: Gangemi Editore
& Liverpool Law Review, 1985); R. Kevelson (ed.), Law and Semiotics, vol. 1 (New
York & London: Plenum Press, 1987); D. Milovanovic, Postmodern Law and Dis-
order – Psychoanalytic Semiotics, Chaos and Juridic Exegeses (Liverpool: Deborah
Charles Publications, 1992); and, B.S. Jackson, Semiotics and Legal Theory (Liverpool:
Deborah Charles Publications, 1997); see also the legal periodical entitled International
Journal for the Semiotics of Law.
 CHAPTER 1 19

ior or – what amounts to the same thing – on convention.”71 Language is

actually just one instance of a system of representative signs.72 According to
the Swiss theorist: “Language is a system of signs that express ideas and is thus
comparable to the system of writing, to the alphabet of deaf-mutes, to sym-
bolic rituals, to forms of etiquette, to military signals, etc.”73 Therefore, the
study of language is the study of the conventions underlying this particular
system of signs that are linguistic signs.
What linguists attempt to do pursuant to the semiotic approach consists
in putting explicitly the implicit process that allows communication within
the shared consciousness of society. In effect, when one analyses language semi-
otically, one is actually considering social conventions or, as Saussure put it,
“collective behaviour.”74 This amounts to considering social facts, that is, the
use of words in society.75 The relevant features in a semiotic theory of lan-
guage are the conventions implicitly or explicitly agreed upon in a society in
order to communication within consciousness. Therefore, the study of lin-
guistic signs may allow human beings to understand better what makes com-
munication possible among members of society.76
Indeed, the lives we live in consciousness are lives shared in society through
the use of words and expressions. 77 Language is the primary common
denominator of signs and symbols for communication in society. It follows
that Humpty Dumpty is utterly wrong in arguing that when he, himself,
uses a word, “it means just what I choose it to mean – neither more nor less.”78

71. Course, at 68. [emphasis added] See also the original Cours, at 102-103: “En effet
tout moyen d’expression reçu dans une société repose en principe sur une habitude
collective ou, ce qui revient au même, sur la convention.” [emphasis added]
72. Roland Barthes disagreed with Saussure that linguistics was a mere branch of semi-
otics: see J. Culler, Barthes (London: Fontana Press, 1990), at 73.
73. Course, at 16. [emphasis added] See also the original Cours, at 33-34: “La langue est
un système de signes exprimant des idées, et par là, comparable à l’écriture, à l’al-
phabet des sourds-muets, aux rites symboliques, aux formes de politesse, aux sig-
naux militaires, etc.” [emphasis added]
74. Course, at 68. See also the original Cours, at 103: “habitude collective.”
75. See, for example, Structural Anthropology, at 56, where Lévi-Strauss opined: “Language
is a social phenomenon.” See also the original Anthropologie structurale, at 65: “Le
language est donc un phénomène social.”
76. As J. Culler, supra, note 64, at 51-52, put it, the sign-oriented approach to lan-
guage should thus be conceptualised “as a system of socially determined values, not
as a collection of substantially defined elements.”
77. See B. de Jouvenel, Sovereignty – An Inquiry Into the Political Good (Indianapolis,
U.S.: Liberty Fund, 1997), at 49, who wrote: “Vocabulary is, if ever there was one,
a social thing; in acquiring it, members of the group are assured of landmarks in
common.” [emphasis added]
78. L. Carroll (i.e. C.L. Dodgson), Through the Looking-Glass, and What Alice Found
There (London: Macmillan, 1872), in chapter 6, at 124: “ ‘When I use a word’,
Humpty Dumpty said, in a rather scornful tone, ‘it means just what I choose it to
mean – neither more nor less.’” [emphasis in original]
20 CHAPTER 1

This anecdote, to which philosophers and linguists alike refer regularly,79 is

essentially flawed as it fails to recognise that communication within shared
consciousness would be impossible if language was thus unsettled, arbitrary,
and aléatoire.
When one resorts to a word, he or she must be deemed to refer to what
it is usually and customarily accepted to represent in a highly complex sys-
tem of (linguistic) signs within his or her society.

1.2.3. Words as organic instruments

In his Essay Concerning Human Understanding, published in 1689, John Locke
wrote: “God, having designed man for a social creature, made him not only
with an inclination and under a necessity to have fellowship with those of
his own kind, but furnished him also with language, which was to be the
great instrument and common to tie of society.”80 By virtue of this “great in-
strument,” human beings enjoy the means to communicate within the
shared consciousness of their society. It is necessary at this point to further
discuss this nominalist81 conceptualisation of words as organic instruments,
separate and distinct from reality.
Going back to Saussure, the crux of the semiotic approach is that all
signes or “signs” (linguistic or else) consist of a signifiant or “signifier” and a
signifié or “signified,” which are together and intertwined like the recto and
verso of a sheet of paper.82 A signifier is an image or pattern, which can be
visual, acoustic, et cetera; a signified is a concept, that is, not a thing but a
mental representation of the thing. Roland Barthes put it in the following
terms: “The plane of the signifiers constitutes the plane of expression and that
of the signifieds the plane of content.”83 It is the relationship between the sig-

79. See, among many authors, D. Davidson, supra, note 39; and, K. Donnellan,
“Putting Humpty Dumpty Together Again” (1968), 77 Philosophical Rev. 203. This
episode was referred to by Justice L’Heureux-Dubé of the Supreme Court of
Canada, dissenting in 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool),
[1996] 3 S.C.R. 919, at 995, who emphasised on the importance of setting out the
rules of statutory construction in order to avoid “a Humpty-Dumpty-like interpre-
tation exercise.”
80. J. Locke, An Essay Concerning Human Understanding, 35th ed. (London: William
Tegg, 1867), at 321. [spelling modernised] [emphasis in original]
81. Nominalism – that is, belonging to a name – was a medieval philosophy, most
often associated with William of Ockham, which took the view that abstract con-
cepts are merely words and do not refer to anything that exists in the way that par-
ticular things exist.
82. Course, 65 ff.; and also Cours, 99 ff. For a critical assessment of Saussure’s binary
concept of the sign, see J. Derrida, Positions, infra, note 165, at 18 ff.; and the
French original, J. Derrida, Positions, supra, note 165, at 28 ff.
83. R. Barthes, Elements of Semiology (New York: Hill & Wang, 1977), at 39. [empha-
sis in original] See also the original French version, R. Barthes, “Éléments de sémi-
ologie,” in R. Barthes, L’aventure sémiologique (Paris: Éditions du Seuil, 1985), 19,
 CHAPTER 1 21

nifier and the signified which would amount to a sign84 – a linguistic sign
(i.e. a word) in the case of language.85
At this crucial point in the Cours, however, little explanation was offered
to support this cornerstone argument.86 The only example given is taken
from the Latin arbor (‘tree’), which is supposed to show the relationship be-
tween the signifier and the signified with the help of a diagram.87 Saussure
thus meant to demonstration that the linguistic sign arbor should be construed
through a mental process which combines a certain acoustic image or
pattern (i.e. signifier) with a certain concept or mental representation (i.e.
signified).
This bi-planar analysis of language was criticised and discredited for
omitting to take into consideration the more complex relationships among the
elements involved in expressing and understanding language. Indeed, although
Saussure correctly identified the shortcomings of the name-and-thing model,
he wrongly supposed that the solution was to transpose such a duality into
the mental sphere with a single relation between two elements – signifier
and signified.88 Charles Ogden and Ivor Richards, in The Meaning of Meaning89
published in 1923, wrote that Saussure’s bi-partite theory suffered an irre-
mediable flaw: “[T]his theory of signs, by neglecting entirely the things for which
signs stand, was from the beginning cut off from any contact with scientific
methods of verifications.”90
Ogden and Richards suggested to remedy Saussure’s omission by includ-
ing a third element in the sign-oriented scheme of language analysis.91

at 39: “Le plan des signifiants constitue le plan d’expression et celui des signifiés le
plan de contenu.” [emphasis in original] In this book, Barthes experimented the
semiotic prospects and attempted to apply this approach to other signifying phe-
nomena, such garments, food, cars, and furniture.
84. See R. Barthes, id., at 35 ff.; see also the French original, id., at 36 ff.
85. In linguistics, Saussure based his theory on a dichotomy between, on the one hand,
langue or “language,” which is both the institution and system of language, and, on
the other, parole or “speech,” which is an individual act of language actualisation.
See Course, at 14 ff.; see also the original Cours, at 32 ff.
86. See R. Harris, Reading Saussure – A Critical Commentary on the Cours de Linguistique
Générale (London: Duckworth, 1987), at 58 ff.
87. For a critique of the diagram, see T. de Mauro (ed.), Ferdinand de Saussure – Cours
de linguistique générale (Paris: Payot, 1972), at 441-448 (notes).
88. See R. Harris, supra, note 86, at 62.
89. C.K. Ogden & I.A. Richards, The Meaning of Meaning – A Study of the Influence of
Language upon Thought and of the Science of Symbolism, 2nd ed. (London: Kegan Paul,
1927).
90. Id., at 6. [emphasis added]
91. The idea of using a triadic structure to explain the relations between language and
reality appears to have been first articulated at the beginning of the 20th century
by Charles Sanders Peirce, considered as the founder of pragmatic semiotics, as opposed
to Saussure’s structuralist semiotics. By “semiotics,” Peirce meant, “an action, or
22 CHAPTER 1

Preliminarily, on the general question of meaning, they also wrote that lan-
guage was an “instrument:” “It is only when a thinker makes use of them
[words] that they stand for anything, or, in one sense, have ‘meaning.’ They
are instruments.”92 The two English authors proposed the following diagram
to illustrate the process of expressing and understanding language, now gen-
erally known as the “Ogden & Richards’ Triangle:”93

THOUGHT OR REFERENCE

SYMBOL REFERENT

A “symbol” is a word arbitrarily taken; a “thought or reference” is the con-

cept formed through the human mind; and, a “referent” is an object or
thing in reality. There are direct causal relations between a thought or refer-
ence and a symbol. There are also causal relations, more or less direct,
between a thought or reference and a referent. However, between a symbol and
a referent, there are no relations other than indirect. Put another way, words
and reality are not connected directly, but only indirectly around the two
sides of the triangle, that is, through the cognitive process. It appears, there-
fore, that this diagram illustrates well the present argument – language is an
organic instrument, within a linguistic sign-system, which represents reality
through the human mind, within the shared consciousness of society.94

influence, which is, or involves, a cooperation of three subjects, such as a sign, its
object, and its interpretant, this tri-relative influence not being in any way resolv-
able into actions between pairs;” [emphasis in original] see C. Hartshorne & P.
Weiss (eds.), Collected Papers of Charles Sanders Peirce, vol. 5 – Pragmatism and
Pragmaticism (Cambridge, U.S.: Harvard University Press, 1934), at 332. For a dis-
cussion of the relationship between Peirce’s work and Ogden and Richards’ theory,
see U. Eco, supra, note 69, at 59 ff. Authors who have continued Peirce’s pragmatic
semiotics tradition includes C. Morris, Signification and Significance – A Study of
the Relations of Signs and Values (Cambridge, U.S.: MIT Press, 1964).
92. C.K. Ogden & I.A. Richards, supra, note 89, at 10.
93. Id., at 11.
94. For the sake of completeness, one must add that Ogden and Richards divided the
functions that language can fulfill into two categories, namely, the ‘symbolic’ use of
 CHAPTER 1 23

A similar representativeness theme can be found in Bertrand Russell’s

Principles of Mathematics,95 published in 1903, where he expressed the fol-
lowing view: “To have meaning is a notion confusedly compounded of log-
ical and psychological elements. Words all have meaning, in the simple sense
that they are symbols which stand for something other than themselves.”96
Later in The Analysis of Mind,97 published in 1921, Russell further explained
his approach to language thus: “The essence of language lies, not in the use
of this or that special means of communication, but in the employment of
fixed associations. [. . .] Whenever this is done, what is now sensible may be
called a ‘sign’ or ‘symbol,’ and that of which it is intended to call up the
‘idea’ may be called its ‘meaning.’”98
This conceptualisation of language and reality as separate and distinct is
also shared by J.L. Austin, who wrote that, in choosing words, “we are look-
ing again not merely at words (or ‘meaning’, whatever they may be) but also
at the realities we use the words to talk about.”99 Glanville Williams, in his
article entitled “The Controversy Concerning the Word ‘Law,’” noted like-
wise: “The word ‘law’ is simply a symbol for an idea.”100 With Ogden and
Richards, therefore, these authors acknowledged the indirect relations between
language and reality – words are symbols, they are organic instruments, con-
necting with reality, representing reality, through the human mind, within
the shared consciousness of society.
The proposed semiotic approach to language borrows heavily from the
tri-partite analysis suggested by Ogden and Richards, whereby words and
expressions do not mean anything by themselves, but are rather viewed as
organic instruments within a linguistic sign-system, in which linguistics signs

words and the ‘emotive’ use of them. See id., at 149, where the authors wrote:
“The symbolic use of words is statement; the recording, the support, the organi-
zation and the communication of references. The emotive use of words is a more
simple matter, it is the use of words to express or excite feelings and attitudes. It is
probably more primitive.” [emphasis added] Essentially, the first function is the one
just examined, with the tripartite relations of symbol-thought/reference-referent.
In its second function, language is used by the speaker merely as a means to
express an emotion or to evoke one in him or herself, without intending to carry
a communicative statement; such words became known as the ‘Hurrah!’ words
and the ‘Boo!’ words because of the feelings, good or bad, that they bring to the
speakers and/or listeners. However, this distinction is not instrumental to the pre-
sent study and, in effect, does not appear fundamental in itself because, as Ogden
and Richards admitted themselves, “[t]he two functions under consideration usu-
ally occur together [are interwoven they said later] but none the less they are in
principle distinct;” id., at 150.
95. B. Russell, The Principles of Mathematics (London: Routledge, 1992).
96. Id., at 47. [emphasis in original]
97. B. Russell, The Analysis of Mind (London: Unwin Hyman, 1989).
98. Id., at 191.
99. J.L. Austin, “A Plea for Excuses,” in V.C. Chappell (ed.), Ordinary Language
(Englewood Cliffs, U.S.: Prentice-Hall, 1964) 41, at 47. [emphasis in original]
100. G. Williams, supra, note 42, at 136.
24 CHAPTER 1

(Ogden & Richards’ “symbols”) indirectly representing reality (Ogden &

Richards’ “referent”) through the cognitive process of the human mind (Ogden
& Richards’ “thought or reference”), all of which for the purpose of com-
munication within the shared consciousness of society.
This sign-oriented theory of language is thus essentially based on the
nominalist idea of the distinct representative status of words and expressions.
Furthermore, such a Cartesian approach – separating the world of the mind
from the world of physical reality – is also useful for the next section, which
attempts to explain that language, as an organic instrument, can exercise
tremendous social power within human consciousness.

1.2.4. Words as social power

Justice Holmes, of the United States Supreme Court, once expressed the
opinion that language should be approached not as something static but, rather,
as something dynamic, fulfilling functions in a continuously changing soci-
ety. He wrote the following, in the context of statutory interpretation: “A word
is not a crystal, transparent and unchanged, it is the skin of a living thought
and may vary greatly in color and content according to the circumstances
and the time in which it is used.”101
These “living thoughts,” however, can accomplish more than the mere
representation, for the convenience of the human mind, of a continuously
shifting reality; indeed, words may also play a leading part, through the cog-
nitive process of the mind, in the transformation of reality. Put another way,
language can be viewed as representing or describing reality and, as reality
changes, words may be required to adjust accordingly (Holmes J.’s state-
ment); but language can also be viewed as influencing or modelling reality
and, as words change, reality will adjust accordingly. The first role of lan-
guage will be referred to as the passive function of language, while the sec-
ond one will be called the active function. It is particularly in relation to the
latter role that words have carried enormous social power in humanity.
In the Ogden & Richards’ Triangle discussed above, the symbol (i.e.
word or linguistic sign) is deemed to represent the referent (i.e. object or
thing in reality) through the thought or reference (i.e. cognitive process of
human mind). When reality changes, it is perceived as such by the human
mind, and language must adjust accordingly to represent the new reality through
the cognitive process. The sequence of change can be put in the diagram as
follows: REFERENT – THOUGHT OR REFERENCE – SYMBOL –
THOUGHT OR REFERENCE.

101. Towne v. Eisner, 245 U.S. 418 (1919), at 425. [emphasis added] See also G. Williams,
supra, note 42, at 152, who wrote: “Arising out of the proper-meaning fallacy is
the idea that words have not only a proper meaning but a single proper meaning.
This involves a denial of the fact that words change their meanings from one con-
text to another.” [emphasis added]
 CHAPTER 1 25
THOUGHT OR REFERENCE

SYMBOL REFERENT

However, words as organic instruments may initiate the transformation. Then,

through the human mind, reality will adjust accordingly and will be per-
ceived as such by the cognitive process. This second sequence can be put in
the diagram as follows: SYMBOL – THOUGHT OR REFERENCE –
REFERENT – THOUGHT OR REFERENCE. Thus, our language
changes as our reality changes and, vice versa, our reality changes as our lan-
guage changes.
The suggested active role of language is easier to visualise by including
this dynamic dimension to the equation, that is, by illustrating that a change
in words may, through the cognitive process, influence and modify reality. The
proposition remains true, however, when the dynamic aspect of language is
taken away. Indeed, words and expressions, as organic instruments within a
linguistic sign-system, are involved not only in changing reality, but also in
the very process of creating reality. In fact, it can reasonably be argued that,
in all cases (reality creation or modification), what language does is to create
reality – without the dynamic dimension, words contribute to the creation
of reality and, when language is viewed dynamically (i.e. reality modifica-
tion), words contribute to the creation of new reality, which remains essen-
tially a process of creation.
Again, here, the Ogden & Richards’ Triangle illustrates well this contention.
Be it to fulfill the passive role or the active role of words, the sequences of
the elements at work stay the same with or without the dynamic dimension
of language:
(i) the passive role – REFERENT – THOUGHT OR REFERENCE – SYMBOL –
THOUGHT OR REFERENCE;
and,
(ii) the active role – SYMBOL – THOUGHT OR REFERENCE – REFERENT –
THOUGHT OR REFERENT.
Therefore, just as linguistic signs, through the mind, indirectly describe and
represent reality (passive function), linguistic signs also model and change real-
ity through the same cognitive process (active function). Or, turning the coin
to its other side, just as reality is mirrored and reflected in linguistic signs
26 CHAPTER 1

through the human mind (passive role), reality is created and transformed,
through the same cognitive process, by linguistic signs (active role). It is in
fulfilling its active function that language, as organic instrument within a
linguistic sign-system, may carry the most power within the shared consciousness
of society.
In philosophy, sociology, and anthropology, the thesis that words both
represent and create reality is something of a truism.102 Among other things,
it constitutes the cornerstone of the so-called “speech-act theory,” first elab-
orated by J.L. Austin in How to do Things with Words.103 His main con-
tention is that language can be studied not as a set of propositions, but as
an act, that is, as an act of speech.104 Further, what appears to be the author’s
underlying objective, not openly stated,105 concerns the argument that the
traditional model of language describing the world neglects the perhaps
more important function of words, namely, to act in the world and thus
influence the world’s social environment. In the present scheme, this latter
role of language is referred to as the active function of words.
According to Austin, then, the things one can do through the use of lan-
guage can be gathered into three categories:106 (i) locutionary acts, the utter-
ing of a word conveying a reference; (ii) illocutionary acts, utterances which
have a conventional impact (informing, ordering, warning, undertaking);
and, (iii) perlocutionary acts, the result or outcome achieved by saying some-
thing (convincing, persuading, deterring, misleading). Especially when deemed
an act of the last category, language can create and transform reality (i.e.
active function of words), and thus carry great power within the shared con-
sciousness of society.
A whole series of works in different disciplines acknowledge the power of
language, or simply assume the incontestable validity of the semiotic thesis.107

102. In fact, the proposed distinction between the passive and active roles of words
and expressions is strongly linked to Wittgenstein’s theory of language, especially
his later writings in Philosophical Investigations; see supra, at footnote 22.
103. J.L. Austin, How to do Things with Words (Oxford: Clarendon Press, 1962).
104. See id., at 20. See also Q. Skinner, “ ‘Social Meaning’ and the Explanation of
Social Action,” in P. Laslett, W.G. Runciman & Q. Skinner (eds.), Philosophy, Politics
and Society, 4th ser. (Oxford: Basil Blackwell, 1972), 136, at 141, who wrote:
“Austin’s central contention is that any agent, in issuing any serious utterance, will
be doing something as well as merely saying something, and will be doing some-
thing in saying what he says, and not merely as a consequence of what is said.”
[emphasis in original]
105. However, throughout his work, J.L. Austin gave some indications of this under-
lying argument, like the following passage at the beginning of the book, id., at 1:
“It was for too long the assumption of philosophers that the business of a ‘state-
ment’ can only be to ‘describe’ some state of affairs, or to ‘state some fact,’ which
it must do either truly or falsely.”
106. See id., at 108.
107. For instance, in sociology, see T. Luckmann, The Sociology of Language (Indiana-
polis, U.S.: Bobbs-Merrill, 1975); and, P.L. Berger & T. Luckmann, The Social
 CHAPTER 1 27

However, there seems to be few books that have attempted an actual empir-
ical demonstration of the argument. Jeanne Favret-Saada’s Les mots, la mort,
les sorts,108 written in the context of an anthropological study, convincingly
accomplished just that by showing that words can indeed be used to carry
great power in a society. It tells the personal story of an ethnographer who
goes to Bocage, in Western France, to investigate contemporary cases of witch-
craft in a small and remote rural community of peasants.
Witchcraft has been studied by folklorists, psychiatrists, occultists, jour-
nalists, but in a way that was denying the possibility of truth – witchcraft “is
just a belief, it is not true.”109 It is a nonsense, everybody agrees, which really
only concerns credulous, backward, marginal people, incapable of rationalisation.
Favret-Saada challenged this assumption and showed how the spoken words
of witchcraft can have the most direct impact on the lives of ordinary peo-
ple. Indeed, central to her argument was that, “witchcraft is spoken words;
but these spoken words are power, and not knowledge or information.”110 It

Construction of Reality – A Treatise in the Sociology of Knowledge (Garden City,

U.S.: Doubleday, 1966). In pragmatics, see S.C. Levinson, Pragmatics (Cam-
bridge: Cambridge University Press, 1983); and, S. Davis (ed.), Pragmatics – A
Reader (New York & Oxford: Oxford University Press, 1991). In linguistics, see
R. Williams, Keywords – A Vocabulary of Culture and Society (London: Fontana Press,
1988). Even in law, see T. Scassa, “The English Language and the Common Law:
China and Hong Kong after 1997,” in R.St.J. Macdonald (ed.), Essays in Honour
of Wang Tieya (Dordrecht: Martinus Nijhoff, 1994), 655.
108. J. Favret-Saada, Les mots, la mort, les sorts – La sorcellerie dans le Bocage (Paris:
Éditions Gallimard, 1977). See also the translation J. Favret-Saada, Deadly Words –
Witchcraft in the Bocage (Cambridge & Paris: Cambridge University Press & Édi-
tions de la Maison des Sciences de l’Homme, 1980).
109. Id., at 4. See also the French original, id., at 14: “si c’est une croyance, ce n’est
pas vrai.”
110. Id., at 9. [emphasis added] See also the French original, id., at 21: “la sorcellerie,
c’est de la parole, mais une parole qui est pouvoir et non savoir ou information”
[emphasis added] She also wrote, id., at 9-10: “To talk, in witchcraft, is never to
inform. Or if information is given, it is so that the person who is to kill (the
unwitcher) will know where to aim his blows. ‘Informing’ an ethnographer, that
is, someone who claims to have no intention of using the information, but
naïvely wants to know for the sake of knowing, is literally unthinkable. For a sin-
gle word (and only a word) can tie or untie a fate, and whoever puts himself in a
position to utter it is formidable. Knowing about spells brings money, brings more power
and triggers terror: realities much more fascinating to an interlocutor than the
innocent accumulation of scientific knowledge, writing a well-documented book,
or getting an academic degree.” [emphasis added] See also the French original, ibid.:
“Parler, en sorcellerie, ce n’est jamais pour informer. Ou si l’on informe, c’est
pour que celui qui doit tuer (le désenvouteur) sache où faire porter ses coups. Il
est littéralement incroyable d’informer un ethnographe, c’est-à-dire quelqu’un qui
assure ne vouloir faire aucun usage de ces informations, qui demande naïvement
à savoir pour savoir. Car c’est une parole (et seulement une parole) qui noue et
28 CHAPTER 1

was thus shown that words may actually participate in reality – linguistic
signs can create and transform reality within the shared consciousness of a
society and, as such, they are a form of empirically provable social power.
In his book entitled Eunomia, Philip Allott adopted a similar approach to
language as he wrote that words are human “consciousness-creating-con-
sciousness,” which both create and are created by individual and collective
subjective consciousness.111 When individuals or collectivities give a meaning
to a word, they create a reality for themselves.112 Likewise, when they attrib-
ute a new meaning to a word or alter its given meaning, they create a new
or altered reality for themselves.113 Consequently, Allott also seems to opine
that language does not only represent and describe reality (passive role), lan-
guage creates and transforms reality as well (active role), within what he referred
to as the “continuing process of consciousness.”114
What is most relevant for the present discussion is the English theorist’s
remarks on the power of language.115 In the following passage of Eunomia,
he unequivocally recognised and eloquently illustrated that words and
expressions may indeed be instruments of great social power:
The life we live in words is, as we know from the whole of recorded human history,
a life of tremendous energy. We live and die for words; we create and kill for words; we
build and destroy for words; wars and revolutions are made for words.116

dénoue le sort, et quiconque se met en position de la dire est redoutable. Le savoir sur
les sorts attire l’argent, accroît la puissance, déclenche la terreur : réalités autrement
fascinantes aux yeux de l’interlocuteur que l’innocente accumulation du savoir sci-
entifique, la rédaction d’un ouvrage bien documenté ou l’obtention d’un grade
universitaire.” [emphasis added]
111. Eunomia, at 7. He further wrote: “Our current store of available words, with their
current meanings, is thus a reflection of the current state of our consciousness-
creating-consciousness;” id., at 8.
112. “The reality within which a life is lived in words is a world of its own. Our words
make our worlds. To choose our words is to choose a form of life. To choose our
words is to choose a world;” Eunomia, at 6.
113. “We can make new forms of social life, new social worlds by choosing new words
communally, including the new words constantly created through the redefinition
of old words;” Eunomia, at 6.
114. Eunomia, at 8, where the author wrote: “The meanings of our words determine
their practical utility to us, the uses to which we may put them within the con-
tinuing process of consciousness.”
115. His general comments on the question were made in relation to the words soci-
ety and law, although the scope of application does not appear to be restricted to
them; see Eunomia, at 4.
116. Eunomia, at 5. [emphasis added] See also C. van Doren, supra, note 46, at 226,
who wrote the following concerning the power of language: “Power, as Mao Zedong
said, is in the muzzle of a gun. But it is also in words, and in the long run, words
triumph over guns.”
 CHAPTER 1 29

Interestingly, he gave “sovereignty” as an instance of a word carrying such

fabulous social power; other examples included the words “people,” “faith,”
“law,” “father-land,” “nationality,” “self-determination,” “independence,” “secu-
rity,” “land,” “freedom,” “slave,” “infidel,” “tyranny,” “imperialism,” “jus-
tice,” “right,” “rights,” “crime,” “equality,” “democracy.”117 To borrow from
Fouillée’s “idées-forces,”118 all these linguistic signs constitute “mots-forces.”119
On such a view, therefore, words and expressions, as linguistic signs
within a system, constitute organic instruments that not only represent and
describe reality for the convenience of the human mind but, most importantly,
may also play a leading part in creating and transforming reality through the
same cognitive process of the mind, including the activity of the shared con-
sciousness of society. As such, language may demonstrate and, actually, can
be strategically utilised to carry, enormous social power, which will model
and potentially influence considerably human reality.

1.2.5. Summary
To sum up, language was conceptualised following Saussure’s semiotic approach,
according to which words are part of a system of linguistic signs. However,
drawing from Ogden and Richards’ work, the proposed theory of language
is based on a tri-partite analysis pursuant to which words, as organic instru-
ments within a linguistic sign-system, indirectly represent reality through the
human mind, within the shared consciousness of society. Finally, it was
shown that language has both a passive role and an active role, that is, it
does not only represent and describe reality through the human mind, but
also creates and transforms reality through this cognitive process. It is mostly

117. See Eunomia, at 5.

118. That is, “ideas-forces.” See A. Fouillée, L’évolutionnisme des idées-forces (Paris: Félix
Alcan, 1890), at XI: “Si nous avons adopté cette expression très générale d’idée-
force, c’est précisément pour y envelopper tous les modes d’influence possible que
l’idée peut avoir, en tant que facteur, cause, condition de changement pour d’autres
phénomènes, etc., en un mot toutes les formes d’efficacité quelconque, par opposi-
tion aux idées-reflets, aux idées-ombres qui n’entrent pour rien dans le résultat
final et n’en sont que des symboles ou des aspects.” [emphasis in original] See also
A. Fouillée, Morale des idées-forces (Paris: Félix Alcan, 1908).
On ideas, idea-acts and idea-forces, in the context of self-determination, see
P. Allott, “Self-Determination – Absolute Right or Social Poetry?,” in C. Tomuschat
(ed.), Modern Law of Self-Determination (Dordrecht: Martinus Nijhoff Publishers,
1993), 177, at 185 & 188. See also the following commentators who used the
terminology of idée-force in relation to self-determination: M. Bourquin, “Règles
générales du droit de la paix” (1931), 35 R.C.A.D.I. 1, at 169 ff.; and, R. Stavenhagen,
“Self-Determination: Right or Demon?,” in D. Clark & R. Williamson (eds.),
Self-Determination – International Perspectives (Hampshire, U.K. & London: Macmillan,
1996), 1, at 3.
119. That is, “words-forces.”
30 CHAPTER 1

in fulfilling their latter function that words and expressions may show fabu-
lous social power in humanity.
Sovereignty provides an ultimate example of a word which, far from
meaning anything by itself, constitutes an organic instrument carrying great
social power. This linguistic sign, while both representing and creating real-
ity through the human mind within the shared consciousness of society, has
undoubtedly constituted a forceful political tool and a rhetorical weapon,
similar to construction tools such as hammers and nails or to destruction
weapons such as shells and nuclear bombs.
Before examining the history of the word sovereignty, however, the mighty
myth upon which it originally developed must be considered, namely, the
myth of the “Westphalian state system.” Therefore, the related issue of
myths and mythology must now be addressed as a final groundwork matter.
CHAPTER TWO

THE LOGIC OF MYTHOLOGY

Like ordinary words, myths are also powerful social productions, often
themselves expressed through language, which provide a shared explanatory
structure for substantial areas of socially constructed reality. In the last cen-
tury and a half, myths and mythology have been the subject of numerous
scholarly works in different disciplines,120 including not only theology and phi-
losophy, but also psychology, anthropology, semantics, literary criticism, soci-
ology, and political science.121

120. See M.I. Steblin-Kamenskij, Myth (Ann Arbor, U.S.: Karoma, 1982), at 21; and,
J. Waardenburg, “Symbolic Aspects of Myth,” in A.M. Olson (ed.), Myth, Symbol,
and Reality (Notre Dame, U.S. & London: University of Notre Dame Press,
1980), 41, at 60-61.
121. See, for instance, F.W.J. von Schelling, Philosophie der Mythologie (Stuttgart &
Augsburg: n.b., 1857), reprinted in M. Schröter (ed.), Schellings Werke, 5th ed.
(Munich: Beck’sche Verlagsbuchhandlung, 1959), 1; F.M. Müller, “On the Philosophy
of Mythology,” in F.M. Müller, Introduction to the Science of Religion (London:
Longmans, Green, 1873), 335; J.G. Frazer, The Golden Bough – A Study in Comparative
Religion, 2 vols. (London: Macmillan, 1890); S. Freud, Die Traumdeutung (Leipzig
& Vienna: Franz Deuticke, 1900); É. Durkheim, The Elementary Forms of the Religious
Life – A Study in Religious Sociology (London: Allen & Unwin, 1915); J.E.
Harrison, Mythology (London: Harrap, 1925); B. Malinowski, Myth in Primitive
Psychology (London: Kegan Paul, 1926), reprinted in B. Malinowski, Magic,
Science and Religion, and Other Essays (New York: Doubleday, 1955); L. Lévy-
Bruhl, La mythologie primitive – Le monde mythique des Australiens et des Papous,
2nd ed. (Paris: Félix Alcan, 1935); S.H. Hooke (ed.), Myth and Ritual – Essays on
the Myth and Ritual of the Hebrews in Relation to the Culture Pattern of the Ancien
East (London: Oxford University Press, 1933); E. Cassirer, supra, note 9; A.W. Watts,
Myth and Ritual in Christianity (London & New York: Thames & Hudson, 1953);
C. Lévi-Strauss, “The Structural Study of Myth” (1955), 68 J. American Folklore
428, reprinted in Structural Anthropology, at 206, and also in the original Anthropologie
structurale, at 227; P. Wheelwright, “The Semantic Approach to Myth” (1955), 68
J. American Folklore 473; N. Frye, Anatomy of Criticism – Four Essays (Princeton:
Princeton University Press, 1957); R. Graves, The Greek Myths (London: Cassell,
1958); C.G. Jung, Man and His Symbols (London: Aldus Books, 1964); P. Gay,
The Enlightenment: An Interpretation – The Rise of Modern Paganism (London:
Weidenfeld & Nicolson, 1967); P. Ricoeur, The Symbolism of Evil (Boston:
Beacon, 1969); G.S. Kirk, The Nature of Greek Myths (Harmonsworth, U.K.: Penguin
Books, 1974); J. Campbell, The Masks of God: Creative Mythology (London: Souvenir
Press, 1974); G.W. Egerton, “Collective Security as Political Myth: Liberal
Internationalism and the League of Nations in Politics and History” (1983), 5
Int’l History Rev. 496; I. Strenski, Four Theories of Myth in Twentieth Century
History – Cassirer, Eliade, Lévi-Strauss and Malinowski (London: Macmillan, 1987);
and, P. Hegy, Myth as Foundation for Society and Values – A Sociological Analysis
(Lewiston, U.S.: Edwin Mellen Press, 1991).
32 CHAPTER 2

The term “mythology” (from “m<uthologí<a ”) combines the Greek “mûthos”

and “lógos,” both of which originally referred to the ideas of “speech” and
“story.”122 In its earliest sense, mûthos was the thing spoken, uttered by the
mouth.123 Only later did it come to connote “speech” and, with Herodotus
in the 5th century B.C., mûthos was relegated to fictitious narrative.124 For
its part, lógos (relating to “légein”) denotes demonstrable facts, formal con-
ceptualisation, the rational explanation of things.125 When lógos evolved to
the sense of logical reasoning, however, mûthos became somewhat problem-
atic – “Mythos came to be seen not as a relevant presentation of the world
but as simply a story which has an emotional effect on listeners and thus not
a decisive account (logos).”126
This opposition between mûthos as story-telling and fiction, on the one
hand, and lógos as rational explanation, on the other, remains relevant today
and explains that, in everyday usage, a myth is often taken to involve an
imagined, untrue account.127 As a result, works on myth invariably contain
the caveat according to which one must not confuse the popular, pejorative
sense of the term “myth” as a synonym for methaphor, falsehood and dis-
tortion, with the scholarly and technical sense which considers myths as
valid and true within the shared consciousness of a society.128 Similarly, here,

122. See, generally, H. Levin, “Some Meanings of Myth,” in H.A. Murray (ed.), Myth
and Mythmaking (New York: Braziller, 1960), 103.
123. See P. Stambovsky, Myth and the Limits of Reason (Amsterdam & Atlanta: Rodopi,
1996), at 32; and, T.F. Hoad (ed.), The Concise Oxford Dictionary of English Etymology
(Oxford: Clarendon Press, 1986), at 307.
124. See J.-P. Vernant, Myth and Society in Ancient Greece (Brighton, U.K.: Harvester,
1980), at 186 ff.
125. See J.A.K. Thomson, The Art of the Logos (London: Allen & Unwin, 1935), at 17-
19; P. Stambovsky, supra, note 123, at 33-34; and, T.F. Hoad (ed.), supra, note
123, at 270.
126. L.J. Hatab, Myth and Philosophy: A Contest of Truths (La Salle, U.S.: Open Court,
1990), at 334, note 30. See also W.G. Doty, Mythography – The Study of Myths
and Rituals (Tuscaloosa, U.S.: University of Alabama Press, 1986), at 3, who wrote
that, “logos gained the sense of referring to those words making up doctrine or the-
ory, as opposed to mythos for those words having an ornamental or fictional, nar-
rative function. The outcome of this development was that the mythological came
to be contrasted with logic (the logos-ical) and later with ‘history’ in the sense of
an overview or chronicle of events.”
127. See C.G. Flood, Political Myth (New York & London: Garland, 1996), at 6. See
also J-P. Vernant, supra, note 124, at 186, who wrote: “The concept of myth we
have inherited from the Greeks belongs, by reason of its origins and history, to a
tradition of thought peculiar to Western civilisation in which myth is defined in
terms of what is not myth, being opposed first to reality (myth is fiction) and, sec-
ondly, to what is rational (myth is absurd).”
128. For instance, see E. Leach, Lévi-Strauss (London: Fontana/Collins, 1970), at 54,
who explained that, “the special quality of myth is not that it is false but that it is
divinely true for those who believe, but fairy-tale for those who do not.” See also,
 CHAPTER 2 33

it is the allegorical value and the semiotic significance of myths that interest
the present study.129

2.1. ORIGIN MYTHS

Myths may be classified according to their topics, based on what they are
about, although any such attempt is somewhat dubious as the categories are
not mutually exclusive and the borders between them remain vague.130 Gener-
ally speaking, however, one can identify the following five types of myth:
(i) aetiological myths, concerning the origin of things; (ii) eschatological
myths, about the final end of things; (iii) soteriological myths, pertaining to
momentous saving and salvation; (iv) ritual myths, combining rites with
narratives; and, (v) heroic myths, relating to accounts of glorious deeds and
accomplishments.131

A. Dundes, “Introduction,” in A. Dundes (ed.), Sacred Narrative – Readings in the

Theory of Myth (Berkeley & Los Angeles: University of California Press, 1984), 1,
at 1; and, W.G. Doty, supra, note 126, at 7-8.
129. See E. Cassirer, supra, note 9, at 45, who makes the point as follows: “Myth is not
only far remote from this empirical reality; it is, in a sense, in flagrant contradic-
tion to it. It seems to build up an entirely fantastic world. Nevertheless even myth
has a certain ‘objective’ aspect and a definite objective function. Linguistic symbol-
ism leads to an objectification of sense-impressions; mythical symbolism leads to an
objectification of feelings.”
130. See, for instance, the definition of myth suggested by R.W. Brockway, Myth from
the Ice Age to Mickey Mouse (Albany, U.S.: State University of New York Press,
1993), at 15, which tries to reconcile all types of myth and the major scholarly
contributions on the subject: “Myths are stories, usually, about gods and other super-
natural beings (Frye). They are often stories of origins, how the world and
everything in it came to be in illo tempore (Eliade). They are usually strongly struc-
tured and their meaning is only discerned by linguistic analysis (Lévi-Strauss).
Sometimes they are public dreams which, like private dreams, emerge from the
unconscious mind (Freud). Indeed, they often reveal the archetypes of the collec-
tive unconscious (Jung). They are symbolic and metaphorical (Cassirer). They ori-
ent people to the metaphysical dimension, explain the origins and nature of the
cosmos, validate social values, and, on the psychological plane, address themselves
to the innermost depths of the psyche (Campbell). Some of them are explanatory,
being prescientific attempts to interpret the natural world (Frazer). As such, they
are usually functional and are the science of primitive peoples (Malinowski).
Often, they are enacted in rituals (Hooke). Religious myths are sacred histories
(Eliade), and distinguished from the profane (Durkheim). But, being semiotic expres-
sions (Saussure), they are a ‘disease of language’ (Müller). They are both individ-
ual and social in scope, but they are first and foremost stories (Kirk).”
131. See M.S. Day, The Many Meanings of Myth (Lanham, U.S. & London: University
Press of America, 1984), at 21-27.
34 CHAPTER 2

Aetiology (spelt “etiology” in American English) – from “aitiolog9ı9a”, Greek

for the description of a cause132 – is interested in the beginning of things
and the reason for things.133 Mythology in general, and aetiological myths in
particular, are usually instrumental in religion, forming part of the belief-
system within which deity-related activities are pursued.134 Mircea Eliade spoke
of myths in the following aetiological terms:
Speaking for myself, the definition that seems least inadequate because most embrac-
ing is this: Myth narrates a sacred history; it relates an event that took place in pri-
mordial Time, the fabled time of the “beginnings.” In other words, myth tells how,
through the deeds of Supernatural Beings, a reality came into existence, be it the
whole of reality, the Cosmos, or only a fragment of reality – an island, a species of
plant, a particular kind of human behavior, an institution. Myth, then, is always an
account of a “creation”; it relates how something was produced, began to be. Myth
tells only of that which really happened, which manifested itself completely. The
actors in myths are Supernatural Beings. They are known primarily by what they did
in the transcendent times of the “beginnings.”135
Many authors have in fact restricted mythology to origin myths – also re-
ferred to as “myths of beginnings” or “creation-myths.”136 The aetiological

132. See S. Blackburn (ed.), The Oxford Dictionary of Philosophy (Oxford & New York:
Oxford University Press, 1996), at 9; and, T.F. Hoad (ed.), supra, note 123, at 7.
133. See E. Thomas Lawson, “The Explanation of Myth and Myth as Explanation” (1978),
46 J. American Academy Rel. 507.
134. See M.S. Day, supra, note 131, at 21. See also R. Pettazzoni, Essays on the
History of Religions (Leiden: Brill, 1954), at 30, who wrote the following about
aetiology: “The idea of God as Creator of the world is so deeply rooted in our
religious tradition, and the concept of creation so closely linked to our idea of
God, that it is hard for us to realise these essential data of our faith as playing, in
other historical settings, a much humbler part, or none at all.”
135. M. Eliade, Myth and Reality (London: Allen & Unwin, 1964), at 5-6. [emphasis
in original] See also the French original, M. Eliade, Aspects du mythe (Paris: Gallimard,
1963), at 16-17: “Personnellement, la définition qui me semble la moins impar-
faite, parce que la plus large, est la suivante: le mythe raconte une histoire sacrée;
il relate un événement qui a eu lieu dans le temps primordial, le temps fabuleux
des « commencements ». Autrement dit, le mythe raconte comment, grâce aux exploits
des Etres Surnaturels, une realité est venue à l’existence, que ce soit la réalité
totale, le Cosmos, ou seulement un fragment: une île, une espèce végétale, un
comportement humain, une institution. C’est donc toujours le récit d’une « créa-
tion »: on rapporte comment quelque chose a été produit, a commencé à être. Le
mythe ne parle que de ce qui est arrivé réellement, de ce qui s’est pleinement man-
ifesté. Les personnages des mythes sont des Etres Surnaturels. Ils sont connus surtout
par ce qu’ils ont fait dans le temps prestigieux des « commencements ».” [empha-
sis in original]
136. See, for instance, F.M. Müller, supra, note 121; A. Lang, Myth, Ritual and
Religion, 2 vols. (London: Longmans, Green, 1887); and, British Association for
the Advancement of Science, Notes and Queries on Anthropology, 4th ed. (London:
Royal Anthropological Institute, 1912).
 CHAPTER 2 35

category would include: a) theogonic myths, pertaining to the origin of gods;

b) cosmogonic myths, concerning the origin of the world; and, c) anthropogo-
nic myths, relating to the origin of human kind.
Mythology constitutes one of the many ways that society may explain
itself to itself. Society can use aetiological myths to explain its genesis to
itself, thus building a religious-like belief-system about the whens, wheres
and hows of its becoming and its being.137 Further, similar to ordinary
words, myths are involved both passively and actively in reality, reflecting
but also inventing dynamic structures within social consciousness.138 Therefore,
aetiological myths like the myth of Westphalia would not only represent real-
ity, but would also create and transform reality through the human mind,
within the shared consciousness of society.139

2.2. MYTHS AND MYTHICAL REALITY

Roland Barthes explored questions of myth and mythology in an essay enti-

tled Le mythe, aujourd’hui,140 which concluded a collection of mythical sto-
ries written for Les lettres nouvelles. Following Saussure’s semiotic approach to
language and other sign-systems,141 the French philosopher opined that,
“myth is a type of speech.”142 Mythology would be a sign-system and would
consist in the relation between a “signifier” (i.e. image or pattern) and a

137. See C.G. Flood, supra, note 127, at 35, who wrote: “Myths offer charters, war-
rants, validations, legitimations, and authoritative precedents for beliefs, attitudes,
and practices in any important domain of social existence.”
138. See B. Malinowski, supra, note 121, at 23: “Myth fulfills in primitive culture an
indispensable function: it expresses, enhances, and codifies belief; it safeguards and
enforces morality; it vouches for the efficiency of ritual and contains practical rules
for the guidance of man. Myth is thus a vital ingredient of human civilization; it
is not an idle tale, but a hard-worked active force; it is not an intellectual explana-
tion or an artistic imagery, but a pragmatic charter of primitive faith and moral
wisdom.” [emphasis added]
139. See W.G. Doty, supra, note 126, at 44, who wrote: “Since Malinowski’s time, we
operate with a broader perspective: essentially we may differentiate between
models of society, setting out in a Dukheimian sense a particular mirror image
of the culture, and models for society, as when the model makes visible the
ideal standards to which a society aspires.” [emphasis in original] See also
C. Kluckhohn, “Myths and Rituals: A General Theory” (1942), 35 Harvard Theological
Rev. 45, at 64-66.
140. R. Barthes, “Le mythe, aujourd’hui,” in R. Barthes, Mythologies (Paris: Éditions du
Seuil, 1957), 213. [hereinafter Mythe] See also the translation, R. Barthes, “Myth
Today,” in R. Barthes, Mythologies (London: Vintage, 1972), 109. [hereinafter Myth]
141. Myth, at 111. See also Mythe, at 217-218.
142. Myth, at 109. [emphasis in original] [footnotes omitted] See also the original
Mythe, at 215: “le mythe est une parole” [emphasis in original] [footnotes omitted]
36 CHAPTER 2

“signified” (i.e. concept or mental representation).143 Essentially, therefore,

mythology would constitute a form of communication, similar to language
and other systems of signs.
However, unlike other sign-systems, myths are said to involve not a direct
system of representation, but one of a second-order.144 Indeed, Barthes wrote
that, “myth is a peculiar system, in that it is constructed from a semiologi-
cal chain which existed before it: it is a second-order semiological system.”145
The original system of signs (linguistic or else) would thus metamorphose into
a mythical sign-system. It is in that context that Lévi-Strauss noted that
myth, “is both the same thing as language, and also something different
from it.”146 Thus the sign consisting in a signifier and a signified in the orig-
inal representative order would become the signifier in the second order of
representation, and then be combined to a signified to constitute a mythical
sign. “[T]he materials of mythical speech,” Barthes wrote, “are reduced to a
pure signifying function as soon as they are caught by myth.”147
Taking Barthes’ example of the myth according to which “wrestling” is a
spectacle not a sport,148 semiotics will of course be interested in the relation
between the image conveyed and the corresponding concept. However, the
inquiry will not concern the actual mental process of combining the word
“wrestling” as an image (i.e. signifier) with the mental representation of a phys-
ical activity involving bodily contact (i.e. signified). Rather, the analysis will
focus on the second-order of representation attached to the image – which is
the myth of “wrestling,” not the word any longer – that brings up the con-
cept that “wrestling” is a mere entertaining show not a real sport.149
Now, in order to transpose this reasoning to the suggested, more com-
prehensive, tripartite analysis of language, it is useful to refer again to the
Ogden & Richards’ Triangle:150

143. Cours, at 65 ff. See also the translation Course, at 99 ff.

144. See J. Culler, supra, note 72, at 35.
145. Myth, at 114. [emphasis in original] See also the original Mythe, at 221: “le mythe
est un système particulier en ceci qu’il s’édifie à partir d’une chaîne sémiologique
qui existe avant lui: c’est un système sémiologique second .” [emphasis in original]
146. Structural Anthropology, at 209. See also the original Anthropologie structurale, at 230:
“est simultanément dans le language, et au delà.”
147. Myth, at 114. See also the original Mythe, at 221: “[L]es matières de la parole
mythique [. . .] dès lors qu’elles sont saisies par le mythe, se ramènent à une pure
fonction signifiante.”
148. Myth, at 15 ff. See also the original Mythe, at 11 ff.
149. See also J. Culler, supra, note 72, at 35, who, referring to Barthes’ example that
the excellence of wine is a myth (Myth, at 158, and also Mythe, at 267), wrote:
“The mythologist is concerned with the image of wine – not its properties and
effects but the second-order meanings attached to it by social convention.”
150. C.K. Ogden & I.A. Richards, supra, note 89, at 11.
 CHAPTER 2 37
THOUGHT OR REFERENCE

SYMBOL REFERENT

In the authors’ original conception,151 which concerns the sign-oriented

analysis of language, a “symbol” is a word arbitrarily taken; a “thought or
reference” is the concept formed through the human mind; and, a “referent”
is an object or thing in reality. Preliminarily adapting the diagram to myth-
ology, the mythical sign (i.e. symbol) would indirectly represents reality (i.e.
referent) through the cognitive process of the human mind (i.e. thought or
reference), all of which for the purpose of communication within the shared
consciousness of society.
The Ogden & Richards’ Triangle appears to provide a clearer model to
explain the relations among the elements involved in mythology than Saussure’s
bi-planar analysis of language used by Barthes to introduce a second-order of
representation in myth. Indeed, a sign (linguistic or else) needs not reach a
second level of rationalisation to become a mythical sign, conceptually dis-
tinct and separate from the initial sign. Instead, any sign (linguistic, mythi-
cal, or else) could simply be deemed to represent reality (material, mythical,
or else) through the human mind by reference to a concept or mental rep-
resentation. Given the dynamic dimension of a sign-system like language, a
word (i.e. linguistic sign) can become a myth (i.e. mythical sign) because mate-
rial reality has transformed into mythical reality.
Moreover, because of the active role of a sign-system like language, the
relevant symbol should be viewed not only as representing and describing
reality, but also as creating and transforming reality, through the cognitive
process of the human mind, within the shared consciousness of society.
Accordingly, when the material sign (linguistic or else) modifies reality through
the mind, the material sign can be deemed a myth and, through this cogni-
tive process, can cause material reality to adjust and become mythical reality,
that is, mythology. As a result, a word can be deemed a myth after it has
been changed by reality (passive role), or after it has itself changed reality

151. Id., at 10-11.

38 CHAPTER 2

(active role), through the cognitive process of the mind – material reality is
thus metamorphosed into mythology.
Going back to Barthes’ example, one can consider “wrestling” as both a
word and a myth. Initially, “wrestling” as a linguistic sign represents mate-
rial reality through the human mind, which brings up the concept associat-
ing “wrestling” with a physical activity involving bodily contact. However,
the linguistic sign “wrestling” becomes a mythical sign when reality changes
(passive role) – or, conversely, when the sign “wrestling” forces reality to
adjust (active role) – through the cognitive process and now brings up the
concept that “wrestling” is a mere spectacle not a real sport.

2.3. MYTHS AS SOCIAL POWER

Going back to Barthes, and considering also Lévi-Strauss, it is most illumi-

nating to see what they reckon is the function of mythology in humanity.
According to Barthes, “myth has the task of giving an historical intention a
natural justification, and making contingency appear eternal.”152 Later, he
further noted:
What the world supplies to myth is an historical reality, defined, even if this goes
back quite a while, by the way in which men have produced or used it; and what
myth gives in return is a natural image of this reality.153
Similarly, before illustrating his point by using the French Revolution as a
forceful example, Lévi-Strauss instructed thus:
On the one hand, a myth always refers to events alleged to have taken place long
ago. But what gives the myth an operational value is that the specific pattern described
is timeless; it explains the present and the past as well as the future.154
Indeed, in representing/creating mythical reality, a myth is generally viewed
as being at least somewhat linked to material reality found in history, which
the initial sign (linguistic or else) originally represented/created through the
human mind. As both Barthes and Lévi-Strauss pointed out, however, the
most important feature in myth is that a degree of certainty, eternity, and

152. Myth, at 142. See also the original Mythe, at 251: “le mythe a pour charge de
fonder une intention historique en nature, une contingence en éternité.”
153. Myth, at 142 [emphasis in original] See also Mythe, at 251: “Ce que le monde
fournit au mythe, c’est un réel historique, défini, si loin qu’il faille remonter, par
la façon dont les hommes l’ont produit ou utilisé; et ce que le mythe restitue, c’est
une image naturelle de ce réel.” [emphasis in original]
154. Structural Anthropology, at 209. [emphasis added] See also Anthropologie structurale,
at 231: “Un mythe se rapporte toujours à des événements passés [. . .] Mais la
valeur intrinsèque attribuée au mythe provient de ce que ces événements, censés se dérouler
à un moment du temps, forment aussi une structure permanente. Celle-ci se rapporte
simultanément au passé, au présent et au futur.” [emphasis added]
 CHAPTER 2 39

even orthodoxy, is invented and attributed to these historical events in the

process whereby the initial sign is deemed a mythical sign and, consequently,
whereby material reality changes into mythology through the cognitive process
of the mind.155
The problem is that such historical facts may be unsettled and, in effect,
can be the subject of great controversies, which a myth will hide and con-
ceal.156 As such, a myth may carry great power in society, one that is much
more extraordinary than that of ordinary words and expressions.157 Indeed,
when a myth transforms material reality into mythical reality through the
human mind, or vice versa, when mythical reality causes a word to transform
into a myth through this cognitive process, the equivocal character of the
factual basis that may exist in material reality vanishes because such histori-
cal foundations in mythical reality are no longer considered relevant or are
more or less viewed as incontestable.

2.4. SUMMARY

A myth triggers reality to become larger than life. Material reality expressed
in terms of lógos (logical reasoning) becomes mythical reality expressed in
mûthos terms (fictitious narrative), but it nevertheless remains considered by
society in terms of lógos, as simply representing/creating reality, full stop. Put
another way, the lógos that became a mûthos reverted back to being viewed as
lógos, that is, to being a rational explanation of the matter at hand based,
this time, on a belief-system that unquestionably holds as valid and true the
relevant historical accounts. Consciously or not, people thus cease to care about
the material facts. As a result, the power that a word carries is increased ten-
fold when it becomes a myth which, in turn, may be strategically used to
have considerable social impact upon human consciousness.
A very-large-scale myth like the aetiological myth of Westphalia is liable
to have a very-large-scale social effect, as the incontestably true legal basis of
the present international state system. In examining this myth, the historical

155. It follows also that myths can be linked to the idea of fallacies, developed by
Jeremy Bentham; see H.A. Larrabee (ed.), Bentham’s Handbook of Political Fallacies
(New York: Harper Brothers, 1962), at 3, which reads: “By the name of fallacy it
is common to designate any argument employed or topic suggested for the pur-
pose, or with the probability of producing the effect of deception, or of causing
some erroneous opinion to be entertained by any person to whose mind such an
argument may have been presented.”
156. See J. Waardenburg, supra, note 120, at 57, who wrote: “Myth then no longer
gives access to reality but rather keeps us away from it.”
157. See F.M. Müller, supra, note 121, at 355: “Mythology, in the highest sense, is the
power exercised by language on thought in every possible sphere of mental activity.”
[emphasis added]
40 CHAPTER 2

facts and events which the linguistic sign originally represented/created be-
fore it became a mythical sign will be scrutinised to show that the mythical
reality for which it now stands is substantially remote from the initial mate-
rial reality. The extraordinary social power that the Westphalian myth has
demonstrated in spite of such equivocal historical basis, especially in relation
to the idea of sovereignty and the making of international law, will also be
considered.
GROUNDWORK EPILOGUE

As a brief epilogue to this groundwork, and in order to provide an adequate

link to the discipline in which this study falls – that is, international law –
the following additional remarks are necessary. When language (words or
myths) becomes law, its social effects considerably augment again.
Philip Allott opined that law is nothing more, or less, than the continu-
ing structure-system of human socialising158 – “Law, including international
law, has a threefold social function. (1) Law carries the structures and sys-
tems of society through time. (2) Law inserts the common interest of soci-
ety into the behaviour of society-members. (3) Law establishes possible futures
for society, in accordance with society’s theories values and purposes.”159 As
Jean-Jacques Rousseau explained in Discours sur L’Œconomie Politique,160 law
indeed constitutes the ultimate organising system of society:
By what inconceivable art were the means found to subject men in order to make them
free? to employ in the service of the state the goods, the labor, and even the life of
all its members without constraining and consulting them? to bind their will with their
own approval? to let their consent prevail despite their refusal, and to force them to
punish themselves when they do what they have not willed to do? How can it be
that they obey and no one commands, that they serve without having a master; so
much freer indeed as under a seeming subjection, none loosing any of his liberty except
what may be harmful to the liberty of another? These marvels are the work of law. It
is to law alone that men owe justice and liberty.161

158. See Eunomia, 3-4. Later, the English theorist further wrote: “Law is the self-
directed becoming of society. Law is the purposive self-ordering of society. In the
law-reality, the reconciliation of impulse and necessity, desire and obligation, is actu-
alized as possibilities which may then be actualized in willing and acting. In the
law-reality, social identity is actualized as possibilities which may then be actual-
ized in willing and acting. In the law-reality, structures of power are actualized as
possibilities which may then be actualized in willing and acting. In the law-reality,
values are actualized as possibilities which may then be actualized in willing and
acting. In the law-reality, justice is actualized as possibilities which may then be actu-
alized in willing and acting;” id., 110.
159. P. Allott, “The Concept of International Law” (1999), 10 European J. Int’l L. 31,
at 31.
160. J.-J. Rousseau, Discours sur L’Œconomie Politique (Geneva: Emanuel Du Villand,
1758).
161. Translation by C.M. Sherover, J.-J. Rousseau, Of the Social Contract or Principles
of Political Right & Discourse on Political Economy (New York: Harper & Row, 1984),
at 147-148. [emphasis added] See also the original Discours sur L’Œconomie Poli-
tique, id., at 15-16: “Par quel art inconcevable a-t-on pu trouver le moyen d’assu-
jettir les hommes pour les rendre libres? d’employer au service de l’Etat les biens,
les bras, & la vie même de tous ses membres, sans les contraindre & sans les
42 GROUNDWORK EPILOGUE

Accordingly, when words or myths, as organic instruments within a linguis-

tic or mythical sign-system that can both represent and create reality, man-
age their way into the law and are thus used for the purpose of self-ordering
society,162 their power within human consciousness increases exponentially. It
will soon be seen that this is what happened with sovereignty and Westphalia,
which not only constitute normative principles governing international rela-
tions, but indeed have been and are still at the very core of our present
international law system.
Now, before moving on, it is crucial to set out an intellectual strategy
according to which will be undertaken the intended metalogical inquiry into
this word and this myth, which is the objective of the following second part.

consulter? d’enchaîner leur volonté de leur propre aveu? de faire valoir leur con-
sentement contre leur refus, & de les forcer à se punir eux-même quand ils font
ce qu’ils n’ont pas voulu? Comment se peut-il faire qu’ils obéissent & que per-
sonne ne commande, qu’ils servent & n’ayent point de Maître; d’autant plus libres
en effet, que, sous une apparente sujétion, nul ne perd de sa liberté que ce qui
peut nuire à celle d’un autre? Ces prodiges sont l’ouvrage de la loi. C’est à la loi seule
que les hommes doivent la justice & la liberté.” [emphasis added] [spelling modernised]
162. See Eunomia, at 171: “Law is connected with all the other reality-forming pro-
cesses of society (religion, mythology, art, philosophy, history, science, economy, and
morality), and hence is connected with society’s total reality-for-itself, its self-forming
relationship to consciousness itself and to its conception of all-that-is.”
PART II:

LANGUAGE: AN “INWARD-OUTWARD” APPROACH

It has been suggested that words contain complex structures and, in effect,
constitute organic instruments which not only represent reality, but may also
create and transform reality through the cognitive process of the human mind,
within the shared consciousness of society. Similarly, myths comprise com-
plex interactions and are involved both passively and actively in reality,
reflecting and inventing large-scale dynamic models within human consciousness.
It follows that the word sovereignty and the myth of Westphalia have a his-
tory, a history of the true power that they have exercised in framing the
international state system and hence the international legal system.
“What we cannot speak about,” wrote Wittgenstein, “we must consign to
silence.”163 Although this instruction is most apposite here given the unavoidable
circularity of language, one must not keep silent when the debate moves from
“semantics” to “semiotics,” that is, when one speaks not of meaningless
meanings, but of the social effects of words and expressions within human
consciousness. Therefore, the metalogical 164 inquiry into the word sovereignty
and the myth of Westphalia must be undertaken in a way that will bring out
the history of their existence as active forces within the shared consciousness
of society. The approach that will be proposed for this purpose benefits from
the insights of the deconstruction school of language analysis and the hermeneu-
tic school of historical knowledge, both of which will be considered in turn.
The following two chapters, however, should not be viewed as secondary
because, as it was explained, words spoken and written on an issue both rep-
resent and create reality through the human mind. It follows that the way
that one dwells upon questions such as “Westphalia” and “sovereignty” influ-
ences the way that one may model and transform the world of the mind
and, potentially, the world of physical reality. Accordingly, the approach adopted
for scholarly inquiries are not merely rules of intellectual games, of academic
exercises – it is part and parcel of the whole thing, that is, of the social reality-
creating of the matters at hand.

163. Tractatus, at 151.

164. That is, the second-order activity of investigating language and thought.
This page intentionally left blank
CHAPTE
HAPTER THREE

DECONSTRUCTING DECONSTRUCTION

Deconstruction refers to an intellectual current originating in continental

Europe in the late 1960s, which has been associated mainly with the French
philosopher Jacques Derrida.165 This term has increasingly been used in legal
writings, although mostly166 as a synonym for rebutting or destroying an
argument or doctrine, that is, showing that it is self-contradictory, ideologi-
cally biassed, or indeterminate.167 However, deconstruction involves a process
substantially different than merely trashing one’s position. Rather, it relates to
a particular approach in analysing and interpreting language and thought.168
One of the principal objections of this school is the structuralist tendency
to consider human experience as objective, as the product of something
that exists outside human experience itself. In fact, deconstruction origin-
ally developed in reaction to applications of structural-linguistic theories to

165. Derrida has developed his ideas on deconstruction in several books, including
J. Derrida, Positions (Paris: Minuit, 1972), [hereinafter Positions (f )] and also the
translation, J. Derrida, Positions (London: Athlone, 1981); [hereinafter Positions
(e)] J. Derrida, Marges de la philosophie (Paris: Minuit, 1972), [hereinafter Marges
de la philosophie] and the translation, J. Derrida, Margins of Philosophy (Brighton,
U.K.: Harvester Press Press, 1982); [hereinafter Margins of Philosophy] J. Derrida,
De la grammatologie (Paris: Minuit, 1967), [hereinafter De la grammatologie] and
the translation, J. Derrida, Of Grammatology (Baltimore, U.S. & London: Johns
Hopkins University Press, 1976). [hereinafter Of Grammatology]
166. There is, of course, legal literature which properly uses Derrida’s deconstructive
theory of language and thought: see, for example, M.H. Kramer, Legal Theory,
Political Theory, and Deconstruction – Against Rhadamanthus (Bloomington, U.S.
& Indianapolis, U.S.: Indiana University Press, 1991); A.C. Hutchinson, “From
Cultural Construction to Historical Deconstruction” (1984), 94 Yale L.J. 209;
and, A.C. Hutchinson, It’s All in the Game: A Nonfoundationalist Account of Law
and Adjudication. (Durham, U.S.: Duke University Press, 2000), at 163:
“Deconstruction is not about the destruction of meaning or the random imposi-
tion of arbitrary meaning but rather the effort to de-construct meaning by show-
ing how meaning is constructed through the oppositional forces of signification in
the text itself.”
167. See, for example, C. Dalton, “An Essay in the Deconstruction of Contract Doctrine”
(1985), 94 Yale L.J. 997; K.C. Worden, “Overshooting the Target: A Feminist
Deconstruction of Legal Education” (1985), 34 American U.L. Rev. 1141; M. Tushnet,
“Critical Legal Studies and Constitutional Law: An Essay in Deconstruction” (1984),
36 Stanford L. Rev. 623; and, G.A. Spann, “Deconstructing the Legislative Veto”
(1984), 68 Minnesota L. Rev. 473.
168. See J.M. Balkin, “Deconstructive Practice and Legal Theory” (1987), 96 Yale L.J.
743, at 743-744.
46 CHAPTER 3

philosophy, literary criticism, social and cultural studies, and psychoanalysis.169

Briefly, “structuralism is an attempt to isolate the general structures of [any]
human activity,”170 an approach first set out by Nikolai Trubetzkoy171 in
structural linguistics.172 The aim of structural analysis is to reconstruct the
studied object, based on pre-set standards, with a view to show the rules
governing its functioning.173 It is to this allegedly objective endeavour that
deconstruction proposes an alternative, inwardly oriented, approach.

3.1. DECONSTRUCTIONIST ANALYSIS

Deconstruction has been invoked not only to support philosophical inquir-

ies, but also as the basis for political or intellectual strategies and to propose
methods of reading.174 In its original philosophical conception, Derrida described
deconstruction as follows:
[I]n a traditional philosophical opposition we are not dealing with the peaceful co-
existence of vis-à-vis, but rather with a violent hierarchy. One of the two terms gov-
erns the other (axiologically, logically, etc.), or has the upper hand. To deconstruct the
opposition, first of all, is to overturn the hierarchy at a given moment.175

169. See M. Koskenniemi, From Apology to Utopia – The Structure of International Legal
Argument (Helsinki: Lakimiesliiton Kustannus, 1989), at XVII-XVIII, footnote 1.
170. G.C. Spivak, “Translator’s Preface,” in J. Derrida, Of Grammatology (Baltimore, U.S.
& London: Johns Hopkins University Press, 1976), ix, at lv.
171. See, in particular, N.S. Trubetzkoy, “La phonologie actuelle” (1933), 30 J. Psycho-
logie 227; and, generally, N.S. Trubetzkoy, Principes de Phonologie (Paris: Librairie
Klincksieck, 1949).
172. See Anthropologie structurale, at 39-40; and the translation Structural Anthropology,
at 33.
173. See R. Barthes, Essais critiques (Paris: Éditions du Seuil, 1964), at 213 ff.; and the
translation R. Barthes, Critical Essays (Evanston, U.S.: Northwestern University
Press, 1972), at 213 ff.
174. Indeed, although Derrida’s theory is essentially based in philosophy – following
Hegel, Nietzsche, Husserl, and Heidegger – deconstruction has been frequently
applied in other disciplines, such as literary criticism. See, for instance, V. Leitch,
Deconstructive Criticism – An Advanced Introduction (London: Hutchinson, 1983);
B. Johnson, The Critical Difference – Essays in the Contemporary Rhetoric of
Reading (Baltimore, U.S. & London: John Hopkins University Press, 1980); and,
P. de Man, Allegories of Reading – Figural Language in Rousseau, Nietzsche, Rilke,
and Proust (New Haven & London: Yale University Press, 1979).
175. Positions (e), at 41. [emphasis added] See also Positions (f ), at 56-57: “[D]ans une
opposition philosophique classique, nous n’avons pas affaire à la coexistence paci-
fique d’un vis-à-vis, mais à une hiérarchie violente. Un des deux termes commande
l’autre (axiologiquement, logiquement, etc.), occupe la hauteur. Déconstruire l’op-
position, c’est d’abord, à un moment donné, renverser la hiérarchie.” [emphasis added]
 CHAPTER 3 47

Accordingly, a deconstructionist must identify an oppositional hierarchy within

the text under examination and then reverse the elements of the opposition.
Finally, one must, “by means of a double gesture, a double science, a double
writing, put into practice an overturning of the classical opposition and a
general displacement of the system.”176
This last stage, where the elements of the opposition are considered as
mutually self-constituting, is what allows deconstruction to intervene “in the
field of oppositions it criticizes,”177 that is, within the text itself and not by
reference to some objective contextual elements. Derrida referred to this as
the process of différance,178 whereby language and thought are analysed on
their own terms, which entails looking at the reality they silence and negate
as well as the reality they are deemed to represent and create.179
Basically, then, the deconstructionist project’s kernel would be about
the inversion of an oppositional hierarchy concerning language or thought.
This endeavour would, in turn, involve three steps, namely, (i) the identifica-
tion stage – the identification within the text of two elements in opposition;
(ii) the negation stage – the reversal of the elements to show that each one

176. Margins of Philosophy, at 329. [emphasis in original] See also the original Marges
de la philosophie, at 392: “par un double geste, une double science, une double
écriture, pratiquer un renversement de l’opposition classique et un déplacement général
du système.” [emphasis in original]
177. Margins of Philosophy, at 329. See also Marges de la philosophie, at 392: “dans le
champ des oppositions qu’elle critique.”
178. Derrida introduced this term (the “a” coming from the present participle form
“différant”) in order to combine the two distinct connotations of the French verb
“différer;” see J. Derrida, “La différance,” in Théorie d’ensemble (Paris: Éditions du
Seuil, 1968), 41, at 46. First the idea of “temporisation,” that is, of detour, of
delay, of lateness in the representation of reality by a sign; and, secondly, the more
common sense of “spacing,” that is, of being discernible, of being something else,
of not being identical with the other signs representing reality. Derrida explained
as follows: “Retenant au moins le schéma sinon le contenu de l’exigence formulée
par Saussure, nous désignerons par différance le mouvement selon lequel la langue,
ou tout code, tout système de renvois en général se constitue ‘historiquement’ comme
tissu de différences;” id., p. 51. [emphasis in original] Later, he further wrote that
différance, “c’est ce qui fait que le mouvement de la signification n’est possible que
si chaque élément dit ‘présent,’ apparaissant sur la scène de la présence, se rapporte
à autre chose que lui-même, gardant en lui la marque de l’élément passé et se lais-
sant déjà creuser par la marque de son rapport à l’élément futur, la trace ne se rap-
portant pas moins à ce qu’on appelle le futur qu’à ce qu’on appelle le passé, et
constituant ce qu’on appelle le présent par ce rapport même à ce qui n’est pas lui:
absolument pas lui, c’est-à-dire pas même un passé ou un futur comme présents
modifiés;” ibid.
179. For more details on this chicken-and-egg nature of the mutual dependence and
difference in every case of oppositional hierarchy, see Margins of Philosophy, at 3
ff., and the original Marges de la philosophie, at 3 ff.; see also Positions (e), at 26 ff.,
and Positions (f ), at 37 ff.
48 CHAPTER 3

negates the other; and, (iii) the mutually self-constituting stage – the demon-
stration that the existence of each element is based on the negation of the
other within the text itself.180
Derrida’s notorious example of différance, found in De la grammatologie,
is based on the opposition he identified between speech and writing, which
he called the “logocentric” bias in Western philosophy.181 Referring to the
works of several authors, he argued that speech has consistently been valued
over writing as a form of representing reality.182 After discussing the reasons
behind the priority of speech over writing,183 Derrida reversed the elements
of the oppositional hierarchy and demonstrated that, in effect, they share the
same properties (both positive and negative) through which they negate each
other.184 Finally, it was shown that, by differentiating one another, speech
and writing constitute indeed mutually self-constituting elements which
draw their identities from each other within the studied discourse.

3.2. DECONSTRUCTIONIST STRATEGY

Jonathan Culler, who attempted to make Derrida available to a wider audi-

ence, explained that, “to deconstruct a discourse is to show how it under-
mines the philosophy it asserts, or the hierarchical oppositions on which it
relies, by identifying in the text the rhetorical operations that produce the sup-

It is noteworthy that this is linked to the idea of the “dit” and the “non-dit,” to
the effect that words and expressions contain both the stated (i.e. dit) and the unstated
(i.e. non-dit). See J. Wróblewski, “Le non-dit dans le droit: présuppositions et
conventions implicites,” in P. Amselek (ed.), Controverses autour de l’ontologie du
droit (Paris: Presses universitaires de France, 1989), 137; and the translation, J. Wróblew-
ski, “On the Unstated in Law: Implicit Presuppositions and Conventions,” in
P. Amselek & N. MacCormick (eds.), Controversies about Law’s Ontology (Edinburgh:
Edinburgh University Press, 1991), 91. See also, applied in a comparative law con-
text, P. Legrand, “Antiqui juris civilis fabulas” (1995), 45 U. Toronto L.J. 311.
180. See J.M. Balkin, supra, note 168, at 746-751.
181. See De la grammatologie, at 145 ff.; and the translation Of Grammatology, at 97 ff.
182. See De la grammatologie, at 46-64 (on Saussure) and 149-378 (on Lévi-Strauss and
Rousseau); and the translation Of Grammatology, at 30-44 (on Saussure) and 101-
268 (on Lévi-Strauss and Rousseau).
183. For instance, that speech is more present and that writing is more distant, that speech
is prior to writing as a mode of recording what people said, or that speech is more
connected to the immediate thought than writing, et cetera.
184. This conclusion would stand even if one uses the so-called “logic of the supple-
ment;” see Of Grammatology, at 141 ff., and also the original De la grammatologie,
at 203 ff. The term “supplement” comes from Rousseau’s argument that writing is
supplemental to speech, that writing represents speech. Using Saussure’s bi-planar
approach involving a signifier and signified, Derrida showed that, in fact, both speech
and writing are indeed supplemental to the other.
 CHAPTER 3 49

posed ground of argument, the key concept or premise.”185 Put another way, a
deconstructionist would work within the text analysed, not by reference to
some pseudo-objective context, and does so in order to intervene in that sys-
tem of linguistic signs. As a result, the language or thought would be consi-
dered, and potentially challenged, within the very discourse under examination.186
These deconstructive insights can prove highly relevant for legal discourse
in general, and international legal arguments in particular. The commentator
J.M. Balkin identified three purposes for which deconstruction can be useful
in law:
Lawyers should be interested in deconstructive techniques for at least three reasons.
First, deconstruction provides a method for critiquing existing legal doctrines; in par-
ticular, a deconstructive reading can show how arguments offered to support a par-
ticular rule undermine themselves, and instead, support an opposite rule. Second,
deconstructive techniques can show how doctrinal arguments are informed by and
disguise ideological thinking. This can be of value not only to the lawyer who seeks
to reform existing institutions, but also to the legal philosopher and the legal histo-
rian. Third, deconstructive techniques offer both a new kind of interpretive strategy
and a critique of conventional interpretations of legal texts.187
Accordingly, legal doctrines and rules could be more rigorously analysed and
their validity could be challenged through a deconstruction-informed approach
that examines them within the discourse in which they appear, not by refer-
ence to some pre-set contextual elements.
Furthermore, as Martti Koskenniemi suggested, the deconstructionist
project can no doubt, “be a fruitful way of understanding international legal
argument.”188 New light may thus be shed onto international law principles
through (i) the identification of an oppositional hierarchy within the rele-
vant texts themselves, (ii) the demonstration through the inversion of the
elements in opposition that each negates the other, and finally (iii) the estab-
lishment that these elements are in effect mutually self-constituting. Such an
approach to international law issues based on the idea of différance has the
advantage of working within the discourse at hand.
Indeed, it is undisputable that the language involved in international law,
like any language, “continues to mold discourse beyond the consciousness of

185. J. Culler, On Deconstruction – Theory and Criticism after Structuralism (London:

Routledge & Kegan Paul, 1983), at 86. [emphasis added]
186. See J. Bartelson, A Genealogy of Sovereignty (Cambridge: Cambridge University Press,
1995), at 20, who wrote, in the context of sovereignty: “[D]econstruction involves
a demonstration of the metaphysical or ideological character of the presupposi-
tions relied on, and the determination of their place in a wider system of meta-
physical or ideological values.” And, more importantly, it “implies a reversal of the
conceptual oppositions discovered in a text, rather than an attempt to criticise them
from an allegedly external or neutral perspective.” [emphasis added]
187. J.M. Balkin, supra, note 168, at 744.
188. M. Koskenniemi, supra, note 169, at xxi.
50 CHAPTER 3

the individual, imposing on his thought conceptual schemes which are taken
as objective categories.”189 Koskenniemi explained how deconstruction can
break this pattern:
It [international law] conveys to us a certain interpretation of the social reality to which
it is addressed, under the veil of objectivity, or naturalness. Deconstruction seeks to
bring out the conventional character of this interpretation and its dependence on certain
contestable assumptions. It becomes critical as it shows that legal argument cannot
produce the kinds of objective resolution it claims to produce.190
Therefore, in resorting to a deconstruction-like study of international law
issues, alternative descriptions and characterisations of doctrines and rules could
be suggested by working within the legal discourse at hand, thus avoid-
ing references to some artificial objective contextual standards outside human
experience.

3.3. SUMMARY

The main point arising out of the discussion of this highly valuable, yet still
somewhat obscure and intimidating,191 intellectual method of language anal-
ysis known as deconstruction is that the most appropriate place to begin the
examination of a word is within the text itself.192 Put another way, the most
significant aspect of the method suggested by Derrida appears to be that
media of recorded expression ought to be treated on their own terms, which
entails that ideas and words be considered first and foremost within the very
discourses in which they are found.
For the intended metalogical inquiry into the power of language in the
making of international law, these insights will be most useful in deconstruct-
ing (in the proper sense of the expression) the myth of Westphalia. Indeed,
the examination of the historical facts and events surrounding the Peace of
Westphalia centres around the actual text of the treaties concluded in 1648.
Moreover, the deconstructive approach will inform the analysis of the his-
tory of the word sovereignty, which focusses on the system of discourse in
which this linguistic sign has been found since its first inception. Therefore,

189. Structural Anthropology, at 19. See also the original Anthropologie structurale, at 26:
“continue à modeler le discours en dehors de la conscience du sujet, imposant à sa
pensée des cadres conceptuels qui sont pris pour des catégories objectives.”
190. M. Koskenniemi, supra, note 169, at xxiii. [emphasis added]
191. See S.C. Wheeler, supra, note 40, at 36, who wrote: “Deconstruction has for many
years been more fashionable than understood.”
192. Similar to Koskenniemi’s humble comments about his deconstructive approach to
international legal argument, of course no claim is here made that the above con-
stitutes the deconstructive approach to language and thought; see M. Kosken-
niemi, supra, note 169, at xxi.
 CHAPTER 3 51

the use made of the word by the principal authors who developed “sover-
eignty” – Jean Bodin and Emer de Vattel – will be deconstructed following
the three-prong scheme discussed previously, which involves the inversion of
an oppositional hierarchy showing that the elements identified are mutualy
self-constituting.
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CHAPTER FOUR

THE HERMENEUTICS OF HERMENEUTICS

Hermeneutics comes from the Greek hermèneutikî and derives from the name
of the god Hermes, the wing-footed messenger of the city of Olympia. Ety-
mologically, it conveys the idea of interpretation as an assertion, explanation,
translation of recorded expressions.193
Long considered part of philology,194 hermeneutics was first developed to
ascertain, at the end of a chain of copyists, the authenticity of Christian
texts.195 Historiography adopted the approach and thus “raised the critique
of historical sources to the rank of methodical scholarship.”196 By the end of
the 18th century, hermeneutics moved beyond the technical examination of
texts and began to consider the issue of the nature of historical knowledge
and the objectives of historical accounts. In the 19th century, hermeneutics
became philosophical and was extended to the study of the irreducible con-
ditions of understanding. This evolution explains why, in modern times, the
term “hermeneutics” is open to several interpretations.197

4.1. THE TRADITIONAL HERMENEUTICS

Although the thesis can be traced back to Friedrich Ast,198 Friedrich Schleier-
macher is usually credited with the establishment of a general hermeneutic

193. See R.E. Palmer, Hermeneutics – Interpretation Theory in Schleiermacher, Dilthey,

Heidegger, and Gadamer (Evanston, U.S.: Northwestern University Press, 1969), at
12 ff.; and, T.F. Hoad (ed.), supra, note 123, at 215.
194. That is, the study of words.
195. See P. Ricoeur, Interpretation Theory: Discourse and the Surplus of Meaning (Fort
Worth, U.S.: Texas Christian University Press, 1976), at 22. It is also noteworthy
that hermeneutics later acquired a preeminent role in the Catholic-Protestant
debate on the more truthful version of the Bible.
196. See Z. Bauman, Hermeneutics and Social Science (New York: Columbia University
Press, 1978), at 7.
197. See R.E. Palmer, supra, note 193, at 33, who identified six distinct interpretations
of hermeneutics: “From the beginning the word has denoted the science of inter-
pretation, especially the principles of proper textual exegesis, but the field of hermeneu-
tics has been interpreted (in roughly chronological order) as: (1) the theory of biblical
exegesis; (2) general philological methodology; (3) the science of all linguistic under-
standing; (4) the methodological foundation of Geisteswissenschaften; (5) phenom-
enology of existence and of existential understanding; and (6) the systems of
interpretation, both recollective and iconoclastic, used by man to reach the mean-
ing behind myths and symbols.”
198. F. Ast, Grundlinien der Grammatik, Hermeneutik und Kritik (Landshut, Germany:
54 CHAPTER 4

method.199 With his Über die Religion,200 hermeneutics became an inquiry into
the experience of another person, namely, that of the historian.201 Schleiermacher’s
principal innovation was explained as follows:
Schleiermacher’s particular contribution is psychological interpretation. It is ulti-
mately a divinatory process, a placing of oneself within the mind of the author, an
apprehension of the “inner origin” of the composition of a work, a recreation of the
creative act. Thus understanding is a reproduction related to an original production,
a knowing of what has been known (Boeckh), a reconstruction that starts from
the vital moment of conception, the “germinal decision” as the composition’s point
of organization.202
Accordingly, the hermeneutics he proposed aims at reconstructing the writ-
er’s mental life203 – “to understand the discourse just as well as and even

Thomann, 1808). See also the translation of some parts of his work: F. Ast, “Her-
meneutics,” in G.L. Ormiston & A.D. Schrift (eds.), The Hermeneutic Tradition –
From Ast to Ricoeur (Albany, U.S.: State University of New York Press, 1990), 39,
especially at 48-49, where Ast referred to “hermeneutics of meaning” as the mean-
ing that the writer intended, which is determined by reference to the historical
context in which the text appeared.
199. See G.L. Ormiston & A.D. Schrift, “Editors’s Introduction,” in G.L. Ormiston &
A.D. Schrift (eds.), The Hermeneutic Tradition – From Ast to Ricoeur (Albany, U.S.:
State University of New York Press, 1990), 1, at 11. They further wrote: “Prior to
Schleiermacher, the task of textual interpretation was thought to require different
methods as determined by the type of text to be interpreted. Thus, legal texts gave
rise to a juridical hermeneutic, sacred scripture to a biblical hermeneutic, literary
texts to a philological hermeneutic, and so on;” ibid.
200. F.D.E. Schleiermacher, Über die Religion. Reden an die Gebildeten unter ihren Verächtern
(Berlin: Johann Friedrich Unger, 1799). See also the translation, F.D.E. Schleiermacher,
On Religion: Speeches to its Cultured Despisers (London: Kegan Paul, 1893).
201. See R.E. Palmer, supra, note 193, at 86.
202. H.-G. Gadamer, Truth and Method, 2nd ed. (London: Sheed & Ward, 1979), at
164. [footnotes omitted] [emphasis added]
203. Schleiermacher’s programme of “psychologische Interpretation” attempts to accomplish,
through a hermeneutic methodology, what one generally achieves in ordinary
communications without addressing one’s mind to it. Indeed, when people com-
municate – orally or by another instantaneous communication means – the words
used are woven into the context of the life they share. Put another way, their
words are exchanged, not as isolated sounds, but as intertwined elements of the
shared social consciousness. Because of the immediacy of such communication, there
can be no ambiguity as to the words’ location or habitat. In that way, adequate
understanding can be reached with little interpretation. This is impossible for non-
instantaneous forms of communication, such as written texts, works of art, math-
ematics, television, et cetera. Because they have lost the immediate link with the
reality they represent (or create), such communications require to be interpreted,
which cannot but be time and space-specific and thus different than the original.
This problem of understanding-through-interpretation in non-instantaneous com-
munication means requires an additional action from the person who receives the
 CHAPTER 4 55

better than its creator.”204 In historiography, the inquiry would thus focus on
the psychological environment of the author of historical accounts.
Wilhelm Dilthey also had a major influence on the German school of
hermeneutics with his book Einleitung in die Geisteswissenschaften.205 Like
Schleiermacher, he considered hermeneutics as a “methodology of the under-
standing of recorded expressions,”206 although he tried to broaden it to cover all
aspects of mental activity. Dilthey’s theory thus attempts to provide a basic
method for the human sciences (“Geisteswissenschaften”) generally, similar to
the scientific method for the natural sciences (“Naturwissenschaften”).207
“[T]he possibility of historical knowledge,” he wrote, “raises the question of
how the knowing subject comes to know objectively that which has been
subjectively created.”208 Therefore, Dilthey’s goal was to gain objectively valid
interpretations of history and other expressions.209
The method of understanding – simply referred to as “Verstehen”210 – con-
sists in re-living the mental state of another person which, in turn, involves
inferring by analogy based on the knowledge of one’s own experience:

information, that is, the reader in the case of written texts – it requires to place
the communication in the totality of the shared consciousness of society.
204. F.D.E. Schleiermacher, “The Hermeneutics: Outline of the 1819 Lectures,” in
G.L. Ormiston & A.D. Schrift (eds.), The Hermeneutic Tradition – From Ast to
Ricoeur (Albany, U.S.: State University of New York Press, 1990), 85, at 93. This
is a translation from F.D.E. Schleiermacher, “Die Kompendienartige Darstellung
von 1819,” in H. Kimmerle (ed.), Fr. D.E. Schleiermacher – Hermeneutik (Heidelberg:
Carl Winter, 1959), 77.
205. See, in particular, W. Dilthey, Einleitung in die Geisteswissenschaften (Leipzig:
Dunder & Humblot, 1883); and the translation W. Dilthey, Introduction to the Social
Sciences (Princeton: Princeton University Press, 1989). See also R.A. Makkreel &
F. Rodi (eds.), Wilhelm Dilthey – Selected Works, vol. 4, Hermeneutics and the
Study of History (Princeton: Princeton University Press, 1996).
206. W. Dilthey, Selected Writings (Cambridge: Cambridge University Press, 1976), at
261. [emphasis in original]
207. In this sense, Dilthey is very Kantian indeed – similar to E. Kant, Critique of Pure
Reason (London: Macmillan, 1929), which set out the epistemological foundations
for the sciences, Dilthey’s work attempted to lay down the epistemological foun-
dations for human sciences.
208. G.L. Ormiston & A.D. Schrift, supra, note 199, at 14.
209. The problem of objectivity and relativism in historical accounts has caused much
ink to flow in history. See the following contemporary authors on the question:
P. Novick, That Noble Dream – The “Objectivity Question” and the American Historical
Profession (Cambridge: Cambridge University Press, 1988); R.J. Evans, In Defence
of History (London: Granta Books, 1997); and, J.L. Gorman, “Objectivity and Truth
in History,” in B. Fay, P. Pomper & R.T. Vann (eds.), History and Theory – Contemporary
Readings (Oxford: Blackwell, 1998), 320.
210. That is, to understand. However, Dilthey used the word in a special sense – not
as referring to a rational conception, but as designating an operation of the mind
grasping the mind (i.e. Geist) of someone else.
56 CHAPTER 4
Understanding is a rediscovery of the I in the Thou: The mind rediscovers itself at ever
higher levels of complex involvement: this identity of the mind in the I and the
Thou, in every subject of a community, in every system of a culture and finally, in
the totality of mind and universal history, makes successful cooperation between dif-
ferent processes in the human studies possible. The knowing subject is, here, one
with its object, which is the same at all stages of its objectification.211
This is pivotal in Dilthey’s hermeneutics – understanding consists in the re-
discovery of oneself in somebody else. “The business of understanding,” there-
fore, “is to understand objects and events as ‘life manifestations’ of other
individuals.”212
The main point that distinguishes Schleiermacher’s hermeneutics from
Dilthey’s is the object of the historical reconstruction. The former theory
concerns itself with a psychological process whereby the reader’s goal is to
reproduce the psychic state of the writer. For his part, Dilthey directed his
hermeneutic analysis towards the reconstruction, not of the writer’s mind per
se, but of the historical product of the writer’s mind, be it about an event,
an idea, a word. Problems of psychologism213 are thus prevented, which are
unavoidable in Schleiermacher’s doctrine. Also, Dilthey’s method of under-
standing entails a larger range of factors, which include historical back-
ground, social customs, cultural and political institutions, et cetera.214

4.2. THE FIRST CRITIQUE OF HERMENEUTICS

The inherent shortcomings in Schleiermacher’s and Dilthey’s hermeneutic the-

ories were exposed by Benedetto Croce 215 and Robin Collingwood, 216
namely, the so-called problem of hermeneutic circle. Essentially, they showed
that there is no such thing as history in itself, that is, history cannot be an
abstract totality from which one can extract a self-contained episode.217 As
Collingwood explained:
The peculiarity which makes [an object] historical is not the fact of its happening in
time, but the fact of its becoming known to us by our rethinking the same thought which
created the situation we are investigating, and thus coming to understand that situa-

211. W. Dilthey, supra, note 206, at 208. [emphasis added]

212. Z. Bauman, supra, note 196, at 38.
213. That is, the philosophy of logic.
214. See R.E. Palmer, supra, note 193, at 121-122.
215. See B. Croce, Theory and History of Historiography (London: Harrap, 1921), at 11-
26; and, B. Croce, Philosophy, Poetry, History – An Anthology of Essays (London:
Oxford University Press, 1966), at 561-566.
216. See R.G. Collingwood, The Idea of History (Oxford: Clarendon Press, 1946).
217. See Z. Bauman, supra, note 196, at 42 – “There is no history apart from an ‘under-
stood history.’”
 CHAPTER 4 57
tion. [. . .] It is the historian himself who stands at the bar of judgement, and there
reveals his own mind in its strength and weakness, its virtues and its vices.218
Historical accounts are thus brought into focus solely by the present subjec-
tive interests of the person who receives the information.219 “The historian him-
self, together with the here-and-now which forms the total body of evidence
available to him, is a part of the process he is studying,”220 wrote Collingwood.
Consequently, there would be no possible objectivity in historical understand-
ing – the reader of history is, in effect, bound to re-write history.221
One way of resolving the problem of hermeneutic circle is to insist on an
inquiry into the very mind of the author which, theoretically, would contain
the ultimate accurate truth of historical accounts. Of course, this utopian
approach is doomed to fail as there exists no satisfactory rules to penetrate
the writer’s mind that would not include the reader’s own experience which,
in turn, would bring into play subjective elements. This conclusion may be
viewed as a defeat for the science of hermeneutics, but only if one seeks a
method aiming not to a reasonable comprehension of history, but at the true
comprehension of history.222 Edward Carr’s remarks are here quite pertinent:
The belief in a hard core of historical facts existing objectively and independently of
the interpretation of the historian is a preposterous fallacy, but one which is very hard
to eradicate.223

218. R.G. Collingwood, supra, note 216, at 218-219. [emphasis added]

219. See also P.D. Juhl, Interpretation – An Essay in the Philosophy of Literary Criticism
(Princeton: Princeton University Press, 1980), at 4, who wrote: “One might argue
that what a literary work means depends on the reader’s purpose.” [footnotes omitted]
220. R.G. Collingwood, supra, note 216, at 248.
221. Collingwood wrote: “Historical knowledge is the knowledge of what mind has
done in the past, and at the same time it is the redoing of this, the perpetuation
of past acts into the present. [. . .] To the historian, the activities whose history he
is studying are not spectacles to be watched, but experiences to be lived through
in his own mind; they are objective, or known to him, only because they are also sub-
jective, or activities of his own;” id., at 218. [emphasis added]
222. See C. Taylor, Philosophical Papers II – Philosophy and the Human Sciences (Cambridge:
Cambridge University Press, 1985), at 18, who wrote the following about the
hermeneutic circle: “Now one, and perhaps the only, sane response to this would
be to say that such uncertainty is an ineradicable part of our epistemological predica-
ment; that even to characterize it as ‘uncertainty’ is to adopt an absurdly severe cri-
terion of ‘certainty’, which deprives the concept of any sensible use.”
223. E.H. Carr, What is History – The George Macaulay Trevelyan Lectures delivered in
the University of Cambridge, January-March 1961, 2nd ed. (London: Macmillan Press,
1986), 6. [emphasis added] He later expressed the following view: “The facts are
really not at all like fish on the fishmonger’s slab. They are like fish swimming
about in a vast and sometimes inaccessible ocean; and what the historian catches
will depend, partly on chance, but mainly on what part of the ocean he chooses
to fish in and what tackle he chooses to use – these two factors being, of course,
determined by the kind of fish he wants to catch;” id., at 18.
58 CHAPTER 4

4.3. THE MODERN HERMENEUTICS

Informed by Collingwood’s idealist critique and building upon the phenom-

enological approach developed by Heidegger,224 Hans-Georg Gadamer pro-
posed a new philosophical hermeneutics in a book entitled Wahrheit und
Methode.225 What he did, in fact, was to change the realm of the discourse
from epistemology226 to ontology.227 Hermeneutics was extended to the study
of “the phenomenon of understanding and of the correct interpretation of
what has been understood.”228 As Palmer put it:
Gadamer is not directly concerned with the practical problems of formulating right
principles for interpretation; he wishes, rather, to bring the phenomenon of under-
standing itself to light. [. . .] What it means is that Gadamer is working on a pre-
liminary and more fundamental question: How is understanding possible, not only in
the humanities but in the whole of man’s experience of the world? This is a question
which is presupposed in the disciplines of historical interpretation but which goes far
beyond them.229
Gadamer’s philosophical hermeneutics has become a school of its own,230
with other writings by Bultmänn,231 Ebeling,232 Fuchs,233 Habermas,234 Ricoeur,235
and applications in many different disciplines,236 including law.237

224. See, in particular, M. Heidegger, Sein und Zeit (Tübingen: Max Niemeyer, 1953); and
the translation, M. Heidegger, Being and Time (Oxford: Basil Blackwell, 1967).
225. H.-G. Gadamer, Wahrheit und Methode – Grundzüge einer philosophischen Hermeneutik
(Tübingen: Mohr, 1960); and the translation H.-G. Gadamer, supra, note 202.
See also H.-G. Gadamer, Philosophical Hermeneutics (Berkely: University of California
Press, 1976); and, J.C. Weinsheimer (ed.), Gadamer’s Hermeneutics: A Reading of
Truth and Method (New Haven & London: Yale University Press, 1985).
226. That is, the study of knowledge.
227. That is, the study of what exists, of the being of things.
228. H.-G. Gadamer, supra, note 202, at xi.
229. R.E. Palmer, supra, note 193, at 164. [emphasis added]
230. See, generally, D.C. Hoy, The Critical Circle – Literature, History, and Philosophical Her-
meneutics (Berkeley: University of California Press, 1978); J.D. Caputo, Radical Her-
meneutics – Repetition, Deconstruction, and the Hermeneutic Project (Bloomington, U.S.
& Indianapolis, U.S.: Indiana University Press, 1987); and, J.-P. Resweber, Qu’est-
ce qu’interpréter – Essai sur les fondements de l’herméneutique (Paris: Éditions du
Cerf, 1988).
231. R. Bultmänn, History and Eschatology (Edingurgh: Edingurgh University Press, 1957);
and, R. Bultmänn, Jesus Christ and Mythology (London: SCM Press, 1960).
232. G. Ebeling, Word and Faith (London: SCM Press, 1963); and, G. Ebeling, Introduction
to a Theological Theory of Language (London: Collins, 1973).
233. E. Fuchs, Hermeneutik (Stuttgart: Müllerschön, 1954); and, E. Fuchs, Studies of
the Historical Jesus (London: SCM Press, 1964).
234. See J. Habermas, Knowledge and Human Interests (London: Heinemann, 1972);
J. Habermas, Theory and Practice (London: Heinemann, 1974); and, J. Habermas,
The Philosophical Discourse of Modernity – Twelve Lectures (Cambridge, U.S.: MIT
Press, 1987).
235. See P. Ricoeur, History and Truth (Evanston, U.S.: Northwestern University Press,
 CHAPTER 4 59

The theory proposed by Gadamer argues that understanding recorded

expressions cannot be accomplished by merely referring to the writer, the
surrounding circumstances, and the original targeted audience.238 Equally
important in understanding is to consider the situation of the reader who,
no less than the text, stands in a given historical context. In attempting to
understand, the interpreter cannot but approach a text with certain expecta-
tions reflecting his or her past experience, that is, his or her prejudices.239 Indeed,
all understanding, “involves projections of meaning that arise out of one’s
own situation.”240
It follows, opined Gadamer, that no interpretation can be objective in the
Cartesian sense which, however, does not mean that understanding is an entirely
subjective process.241 He avoided the objective-subjective dichotomy in the
Cartesian approach to interpretation by resorting to the ideas of tradition
and horizon.242 According to Gadamer, a reader’s prejudices come from a tra-
dition of understanding in which he or she belongs which, in turn, determines
both the possibilities for interpretation and the limits to the reader’s perspective,
that is, the reader’s horizon.243 In the end, the process of understanding is
completed when there is a fusion of the reader’s horizon and the horizon of

1965); and, P. Ricoeur, Hermeneutics and the Human Sciences – Essays on Language,
Action and Interpretation (Cambridge: Cambridge University Press, 1981).
236. Besides theology and historiography, these disciplines include literary criticism: see
E.D. Hirsch Jr., Validity in Interpretation (New Haven & London: Yale University
Press, 1967); phenomenology: see D. Ihde, Hermeneutic Phenomenology – The
Philosophy of Paul Ricoeur (Evanston, U.S.: Northwestern University Press, 1971);
and, poetry: see D. White, Heidegger and the Language of Poetry (Lincoln, U.S.:
University of Nebraska Press, 1978).
237. See D.H.J. Hermann, “Phenomenology, Structuralism, Hermeneutics, and Legal
Study: Application of Contemporary Continental Thought to Legal Phenomena”
(1982), 36 U. Miami L. Rev. 379; S.C.R. McIntosh, “Legal Hermeneutics: A
Philosophical Critique” (1982), 35 Oklahoma L. Rev. 1; R.W. Gordon, “Critical
Legal History” (1983-84), 36 Stanford L. Rev. 57; D.C. Hoy, “Interpreting the
Law: Hermeneutical and Post-Structuralist Perspectives” (1985), 58 S. California
L. Rev. 136; B. Sherman, “Hermeneutics in Law” (1988), 51 Modern L. Rev. 386;
and, G. Leyh (ed.), Legal Hermeneutics – History, Theory, and Practice (Berkeley:
University of California Press, 1992).
238. See R.E. Palmer, supra, note 193, at 176 ff.
239. See H.-G. Gadamer, supra, note 202, at 238 ff.
240. G. Warnke, Gadamer – Hermeneutics, Tradition and Reason (Cambridge: Polity Press,
1987), at 77.
241. See B. Sherman, supra, note 237, at 389, who wrote: “Gadamer’s denial of objec-
tive interpretation does not imply that he views interpretation as a subjective process,
for Gadamer explicitly rejects the Cartesian view of interpretation, which sees sub-
jective and objective interpretation as polar opposites.”
242. See J. Bleicher, Contemporary Hermeneutics – Hermeneutics as a Method, Philosophy
and Critique (London: Routledge & Kegan Paul, 1980), at 110-111.
243. See H.-G. Gadamer, supra, note 202, at 272-273, where he noted: “We started by
60 CHAPTER 4

the text under consideration.244 The task consists “in widening one’s own ho-
rizon so that it can integrate the other.”245
In sum, Gadamer’s new hermeneutics consists in a philosophical exami-
nation of the nature and requirements for all human understanding. It
addresses the question of what is understanding per se and contends that
interpretations are historical acts and are thus always connected to the pre-
sent. There is no such thing as a pure objective interpretation because it is
impossible to understand history from a perspective outside history.246 What
the interpreter must do is to situate him or herself in a tradition and fuse his
or her horizon to the horizon of the discourse at hand. Like Collingwood’s
critique, therefore, Gadamer’s ontological hermeneutics seriously calls into
question the possibility of objective historical knowledge.247

4.4. THE SECOND CRITIQUE OF HERMENEUTICS

Gadamer’s theory was strongly criticised as being standardless relativism by

the Italian legal historian Emilio Betti, in a booklet entitled Die Herme-
neutik als allgemeine Methodik der Geisteswissenschaften.248 Betti does not deny
subjectivity and, in particular, the subjective role of the interpreter of history.

saying that a hermeneutical situation is determined by the prejudices that we bring

with us. They constitute, then, the horizon of a particular present, for they represent
that beyond which it is impossible to see. [. . .] In fact the horizon of the present is
being continually formed, in that we have continually to test all our prejudices.
An important part of this testing is the encounter with the past and the understanding
of the tradition from which we come. Hence the horizon of the present cannot be
formed without the past. There is no more an isolated horizon of the present than
there are historical horizons. Understanding, rather, is always the fusion of these
horizons which we imagine to exist by themselves.” [emphasis added]
244. Gadamer wrote: “This is the truth of the effective-historical consciousness. It is
the historically experienced consciousness that, by renouncing the chimera of per-
fect enlightenment, is open to the experience of history. We described its realisation
as the fusion of the horizons of understanding, which is what mediates between the
text and its interpreter;” id., at 340. [emphasis added]
245. J. Bleicher, supra, note 242, at 112.
246. This, of course, echos the more general proposition, already considered (see supra,
chapter 1, footnotes 18 ff. and accompanying text), concerning the circularity of
language – words and expressions cannot explain themselves, cannot be truly
transcendental, because one would be required to place oneself outside reality, out-
side consciousness, “outside the world;” see Tractatus, at 51. The same reasoning
applies mutatis mutandis to historical knowledge.
247. See, generally, R.E. Palmer, supra, note 193, at 214-217.
248. E. Betti, Die Hermeneutik als allgemeine Methodik der Geisteswissenschaften, 2nd ed.
(Tübingen: Mohr, 1962); and the translation of some excerpts of this book in
R.E. Palmer, supra, note 193. See also E. Betti, Teoria generale della interpretazione,
2 vols. (Milan: Guiffrè, 1955).
 CHAPTER 4 61

In spite of this, he argued that an objective interpretation of history can be

striven for and, to a large extent, accomplished.249 It is for this reason that
Betti emphasised on the distinction between Auslegung (i.e. interpretation) and
Sinngebung (i.e. the interpreter’s role in understanding).250
Furthermore, Betti rejected Gadamer’s all-inclusive approach to the his-
toricalness of understanding and condemned his confusion of different types
of understanding, such as legal and historical interpretations.251 Although
lawyers are principally interested in a practical application of legal texts to
the present, Betti explained, historians are more concerned with contempla-
tively immersing themselves in the text than to relate the text to the present.252
Contrary to Gadamer’s contention, these types of interpretation would be fun-
damentally different. In short, then, Betti brings back Schleiermacher’s and
Dilthey’s project of mental objectification – an interpretation consists in a
process in which the interpreter understands the object in a way that corre-
sponds to the original creative activity of the author.253
This return to a more traditional hermeneutics was also pursued by the
literary critic Eric Hirsch who, in 1967, published his Validity in Interpretation.254
Hermeneutics was said to concern the rules by which a valid determination
of the original meaning of a text can be reached255 – “the modest, and in the

249. See E. Betti, id., at 34-35.

250. On this distinction, Betti wrote: “The text to which the preunderstanding gives
meaning is not simply there to strengthen our previously held opinion; rather, we
must assume that the text has something to say to us, which we do of our act of
understanding. Precisely here the questionability of a subjective focus comes to light,
one which is obviously influenced by contemporary existential philosophy, and
one which strives to throw together explication [Auslegung] and understanding
[Sinngebung], with the result that the objectivity of the results of the interpretive
process in the humane studies as a whole is placed in question;” see this transla-
tion in R.E. Palmer, supra, note 193, at 58. See also the original in E. Betti, id.,
at 35: “[D]ie dem sinngebenden ,Vorverständnis‘ vorgegebenen Texte sind nicht
dazu da, um unsere vorgefaßte Meinung zu bekräftigen: vielmehr müssen wir voraus-
setzen, daß die Texte uns etwas zu sagen haben, das wir nicht schon von uns aus
wissen und von unserer Sinngebung unabhängig dasteht. Hier eben dommt die
ganze Fragwürdigkeit einer subjektivistischen Einstellung zum Vorschein, die
offensichtlich von der heutigen Existenzphilosophie beeinflußt wird und dahin strebt,
Auslegung und Sinngebung zasammenzuwerfen und den Kanon der Autonomie
des Objekts auszuschalten mit dem Erfolg, die Objektivität der Ergebnisse des
Auslegungsprozesses bei sämlichen Geisteswissenschaften in Frage zu stellen.”
[footnotes omitted]
251. See, generally, D.C. Hoy, supra, note 237, at 140-141.
252. See E. Betti, supra, note 248, at 44-48.
253. See G. Ormiston & A.D. Schrift, supra, note 199, at 19; and, J. Bleicher, supra,
note 242, at 56-57.
254. E.D. Hirsch Jr., supra, note 236. See also E.D. Hirsch Jr., “The Politics of
Theories of Interpretation,” in W.J.T. Mitchell (ed.), The Politics of Interpretation
(Chicago & London: University of Chicago Press, 1983), 321.
255. See R.E. Palmer, supra, note 193, at 61.
62 CHAPTER 4

old-fashioned sense, philological effort to find out what the author meant.”256
Hirsch also reproached Gadamer for having pushed this intellectual method
outside its proper scope by focussing on the philosophical question of whe-
ther or not objective understanding is possible.257 Similar to Betti, Hirsch’s
main problem with the new hermeneutics is the absence of a stable norma-
tive principle for valid interpretation.258

4.5. SUMMARY

What appears to be apposite for the intended metalogical inquiry into the
power of language in the making of the international legal order is the tra-
ditional hermeneutic question about the accurate understanding of history and
other recorded expressions. Gadamer’s hermeneutics does bring the debate out-
side the realm of historiography by transforming the original epistemological
issue into a broader philosophical question about the nature and conditions
for human understanding, which is of less interest for the present purposes.
Although Schleiermacher’s and Dilthey’s project of objectively valid inter-
pretation of history may appear illusory, especially in light of Collingwood’s
critique, the rationale underlying their approaches remains most worthy of
consideration. Indeed, if one totally discards the search for some objectivity
in historical accounts, the next step is Hayden White’s extremist view, accord-
ing to which historiography is merely “a form of fiction-making.”259 Be it as
it may that historical knowledge will always be somehow tainted of subjec-
tivity, the ideal of hermeneutic accuracy through an inquiry into the author’s
mind and the surrounding of his or her historical product – be it about an
event, an idea, a word – cannot but be illuminating.

256. E.D. Hirsch Jr., supra, note 236, at 57.

257. See, generally, S.C.R. McIntosh, supra, note 237, at 3-6.
258. See also S. Knapp & W.B. Michaels, “Against Theory” (1982), 8 Critical Inquiry
723; and, S. Knapp & W.B. Michaels, “Against Theory 2: Hermeneutics and
Deconstruction” (1987), 14 Critical Inquiry 49.
259. H. White, Tropics of Discourse – Essays in Cultural Criticism (Baltimore & London:
Johns Hopkins University Press, 1978), at 122. White shook the history establish-
ment by arguing that, in effect, fiction and history amounted to the same thing,
that they had the same status as forms of knowledge. See also H. White, “The
Politics of Historical Interpretation: Discipline and De-Sublimation” (1982), 9
Critical Inquiry 113; H. White, “The Question of Narrative in Contemporary
Historical Theory” (1984), 23 History & Theory 1; and, H. White, The Content of
the Form – Narrative Discourse and Historical Representation (Baltimore & London:
Johns Hopkins University Press, 1987).
For a critique of White’s position, see G.M. Spiegel, “History, Historicism, and
the Social Logic of the Text in the Middle Ages” (1990), 65 Speculum 59; R.
Jacoby, “A New Intellectual History” (1992), 97 American Hist. Rev. 405; C. Ginzburg,
“Just One Witness,” in S. Friedlander (ed.), Probing the Limits of Representation –
 CHAPTER 4 63

There exists a group of mildly hermeneutic historians,260 led by Quentin

Skinner261 and John Pocock262 at the University of Cambridge, specialising in
the history of ideas. Mutatis mutandis, therefore, their writings would appear
most relevant to the present study, which concerns the history of a word and
a myth, and their social effects on humanity. Falling within the traditional
hermeneutics as per Schleiermacher and Dilthey, and reinvigorated by Betti
and Hirsh, the Cantab theory of historical understanding of ideas was thus
explained by Skinner:
It follows from this that to understand a text must be to understand both the inten-
tion to be understood, and the intention that this intention should be understood,
which the text itself as an intended act of communication must at least have embod-
ied. The essential question which we therefore confront, in studying any given text, is
what its author, in writing at the time he did write for the audience he intended to
address, could in practice have been intending to communicate by the utterance of this given
utterance. It follows that the essential aim, in any attempt to understand the utter-
ances themselves, must be to recover this complex intention on the part of the author.263
The approach adopted to examine the word sovereignty and the myth of
Westphalia draws heavily from these insights. Such considerations indeed
help to bring out the history of their existence as active forces within the shared
consciousness of society. Where deconstruction, as it was seen, suggests an
inward perspective on language, hermeneutics proposes an outward perspec-
tive on language.
Therefore, in analysing the recorded expressions where the linguistic signs
at issue are found, the aim is to discover what the authors intended to com-
municate and what their contemporaries understood them to say. Borrowing
from the Cantab theory, the enlarged historical context of the proposed met-
alogical inquiry into the power of language should include the author’s back-
ground, the social environment and targeted audience, as well as the political
situations prevailing at the time. These elements no doubt contribute to a
reconstruction of the totality of the historical shared consciousness of soci-
ety and help reach an understanding of the discourse on “sovereignty” and

Nazism and the “Final Solution” (Cambridge, U.S.: Harvard University Press,
1992), 82; and, R. Chartier, On the Edge of the Cliff – History, Language, and Practices
(Baltimore & London: Johns Hopkins University Press, 1997), at 28 ff.
260. See P. Allott, “International Law and the Idea of History” (1999), 1 J. History Int’l
L. 1, at 18, footnote 41.
261. On Skinner’s approach to interpretation, in general, see J. Tully (ed.), Meaning
and Context – Quentin Skinner and his Critics (Princeton: Princeton University Press,
1988).
262. On Pocock’s work, in general, see J.G.A. Pocock, Politics, Language and Time – Essays
on Political Thought and History (London: Methuen, 1972).
263. Q. Skinner, “Meaning and Understanding in the History of Ideas” (1969), 8 History
& Theory 3, at 48-49. [emphasis added]
64 CHAPTER 4

“Westphalia” that corresponds, as much as human-scientifically possible, to

the original creative expression in the texts considered.264
In particular, these hermeneutic insights will help in unmaking the myth
of Westphalia, upon which the word sovereignty developed. Indeed, this part
of the study will scrutinise the historical facts and events which the linguis-
tic sign “Westphalia” originally represented before it became a mythical sign,
in order to show that the mythical reality for which it has long stood is sub-
stantially remote from the initial material reality. In doing so, it will be
important to avoid considering this historical episode through the mislead-
ingly biassed prism of modernity. Instead, the intended analysis will attempt
to put the historical accounts about the Peace of Westphalia in an enlarged
historical context, including the relevant social, political, religious, and intel-
lectual environment.
Hermeneutics will also inform the study of the history of the word sov-
ereignty and the social power it has demonstrated in humanity. Therefore, in
addition to the deconstructive considerations, which centre the analysis of
the linguistic sign around the discourse in which it exists, the hermeneutic
orientation of the approach will bring into play germane elements of its his-
torical context, including Jean Bodin’s and Emer de Vattel’s backgrounds, the
social and political situations in Europe, the intellectual milieu, and the authors’
targeted audiences. This dual examination of the word sovereignty will show
both its continuous changing inward effects, based on the changing inner-
logic within the text (deconstruction), and its continuous changing outward
effects, based on the changing outer-perspective of socially constructed real-
ity (hermeneutics).

264. See also R. Rorty, “The Historiography of Philosophy: Four Genres,” in R. Rorty,
J.B. Schneewind & Q. Skinner (eds.), Philosophy in History – Essays on the Historiogra-
phy of Philosophy (Cambridge: Cambridge University Press, 1984), 49, at 53: “Historical
reconstructions of what unre-educated dead thinkers would have said to their con-
temporaries – reconstructions which abide by Skinner’s maxim – are, ideally,
reconstructions on which all historians can agree.”
PART III:

THE SOCIAL POWER OF THE MYTH OF WESTPHALIA

This page intentionally left blank
CHAPTER FIVE

THE “WESTPHALIAN” STATE SYSTEM

In public international law, there may not be a greater orthodoxy than that
according to which the Peace of Westphalia in 1648, which ended the Thirty
Years’ War in Europe, constitutes a paradigm shift in the development of the
present state system.265 The twin congress then held is deemed the forum
where, for the first time in the history of international relations, distinct sep-
arate polities became sovereign. It is portrayed as a historical fact that Westphalia
“represented a new diplomatic arrangement – an order created by states, for
states – and replaced most of the legal vestiges of hierarchy, at the pinnacle
of which were the Pope and the Holy Roman Emperor.”266 As Mark Janis
unequivocally put it:

265. As D. Kennedy, “Primitive Legal Scholarship” (1986), 27 Harvard Int’l L.J. 1, at

1, wrote: “International legal scholars have made much of 1648.” [footnotes omit-
ted] See, among numerous international legal commentators who take that posi-
tion or assume its validity, H. Wheaton, History of the Law of Nations in Europe
and America – From the Earliest Times to the Treaty of Washington, 1842 (New
York: Gould, Banks, 1845), at 69; T. Twiss, The Law of Nations Considered as
Independent Political Communities, vol. 1 (Oxford: Oxford University Press,
1861), at iii; S. Baker (ed.), Halleck’s International Law – Rules Regulating the Intercourse
of States in Peace and War, 2nd ed., vol. 1 (London: Kegan Paul, 1878), at
13-14; J. Westlake, Chapters on the Principles of International Law (Cambridge:
Cambridge University Press, 1894), at 66 & 76; L.F.E. Oppenheim, supra, note 4,
at 60; A.P. Higging, “International Law and the Outer World, 1450-1648,” in
J.H. Rose, A.P. Newton & E.A. Benians (eds.), The Cambridge History of the
British Empire, vol. 1, The Old Empire, From the Beginnings to 1783 (Cam-
bridge: Cambridge University Press, 1929), 183, at 206; G.A. Finch, “Les sources
modernes du droit international” (1935), 53 R.C.A.D.I. 531, at 536; M. Sibert,
Traité de droit international public, vol. 1, Le droit de la paix (Paris: Dalloz, 1951),
at 48; T. Ruyssen, Les sources doctrinales de l’internationalisme, vol. 1, Des ori-
gines à la Paix de Westphalie (Paris: Presses universitaires de France, 1954), at
487 ff.; J.G. Starke, An Introduction to International Law, 5th ed. (London:
Butterworths, 1963), at 10; J.L. Brierly, The Law of Nations, 6th ed. (Oxford:
Clarendon Press, 1963), at 5-6; R.A. Falk, “The Interplay of Westphalia and Charter
Conceptions of the International Order,” in R.A. Falk & C.E. Black (eds.), The
Future of the International Legal Order, vol. 1, Trends and Patterns (Princeton:
Princeton University Press, 1969), 32; P. Daillier & A. Pellet (eds.), Nguyen Quoc
Dinh – Droit international public, 5th ed. (Paris: Librairie générale de droit et de
jurisprudence, 1994), at 49-50; W.G. Grewe, The Epochs of International Law (Berlin
& New York: Gruyter, 2000), at 7; and, R.A. Falk, “Revisiting Westphalia, Discovering
Post-Westphalia” (2002), 6 J. Ethics 311.
266. K.J. Holsti, Peace and War – Armed Conflicts and International Order, 1648-1989
(Cambridge: Cambridge University Press, 1991), at 25. [footnotes omitted] See
also the different contributions, all to that same effect, made at the international
68 CHAPTER 5
The Peace of Westphalia legitimated the right of sovereigns to govern their peoples
free of outside interference, whether any such external claim to interfere was based
on political, legal or religious principles. [. . .] Sovereignty, as a concept, formed the
cornerstone of the edifice of international relations that 1648 raised up. Sovereignty
was the crucial element in the peace treaties of Westphalia, the international agreements
that were intended to end a great war and to promote a coming peace. The treaties
of Westphalia enthroned and sanctified sovereigns, gave them powers domestically
and independence externally.267
In his essay marking the tercentenary of the Peace, Leo Gross emphasised
how much 1648 constituted a turning point in the organisation of Europe,
away from the so-called ancien régime. He wrote: “Westphalia, for better or
worse, marks the end of an epoch and the opening of another. It represents the
majestic portal which leads from the old into the new world.”268 Dionisio
Anzilotti, for his part, observed that Westphalia has been “considered, right-
fully so, as the starting point of the historical development of the present inter-
national law.”269 Recently, Richard Falk opined: “It was not until some decades
later, [after Grotius] by way of the Peace of Westphalia in 1648 that ended
the Thirty Years’ War, that the modern system of states was formally established
as the dominant world order framework.”270

symposium in commemoration of the 350th anniversary of the Peace of West-

phalia: K. Bussmann & H. Schilling (eds.), 1648 – War and Peace in Europe, vol.
1, Politics, Religion, Law and Society (Münster: Westfälisches Landesmuseum, 1998).
267. M.S. Janis, “Sovereignty and International Law: Hobbes and Grotius,” in R.St.J.
Macdonald (ed.), Essays in Honour of Wang Tieya (Dordrecht: Martinus Nijhoff,
1994), 391, at 393. [emphasis added] Likewise, see D.J. Hill, A History of Diplomacy
in the International Development of Europe, vol. 2, The Establishment of Territorial
Sovereignty (New York: Longmans, Green, 1906), at 599, who wrote that, “the Peace
of Westphalia was the most important, and in its results the most enduring, pub-
lic act of modern history, for from it dates the present political system of Europe as a
group of independent sovereign states.” [emphasis added]
268. L. Gross, “The Peace of Westphalia 1648-1948”(1948), 42 American J. Int’l L. 20,
at 28. [emphasis added] Later, id., at 28-29, he added: “In the spiritual field the
Treaty of Westphalia was said to be ‘a public act of disregard of the international
authority of the Papacy.’ In the political field it marked man’s abandonment of the
idea of a hierarchical structure of society and his option for a new system charac-
terized by the coexistence of a multiplicity of states, each sovereign within its terri-
tory, equal to one another, and free from any external earthly authority.” [footnotes
omitted] [emphasis added] See also L. Gross, Essays on International Law and
Organization, vol. 1 (Dobbs Ferry, U.S.: Transnational Publishers, 1984), 1.
269. D. Anzilotti, Cours de droit international, vol. 1, Introduction – Théories générales
(Paris: Sirey, 1929), at 5; author’s translation of: “considérés avec raison comme le
point de départ du développement historique du droit international actuel.” See
also, to the same effect, R. Redslob, Histoire des grands principes du droit des
gens – Depuis l’antiquité jusqu’à la veille de la grande guerre (Paris: Rousseau, 1923),
at 213: “Avec le traité de Westphalie commence une nouvelle époque dans l’his-
toire du droit des gens.” [footnotes omitted]
270. R.A. Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective (Ardsley,
 CHAPTER 5 69

In terms of social effect on the consciousness of humanity, the Peace of

Westphalia is said to have consecrated the principle of sovereign equality
of states,271 which has been at the core of international law ever since.272
Charles Rhyne explained it in the following terms: “The traditional Euro-
pean international law system dates from the Treaty of Westphalia of 1648,
which marked the formal recognition of states as sovereign and independent
political units.”273 Likewise, Donat Pharand wrote that “state sovereignty
came to be accepted as a principle of international law at the Peace of Westphalia,
ending the Thirty Years’ War.”274 Again, recently, Thomas Franck noted: “Since
the Reformation, the Peace of Westphalia, and the writings of Hugo Grotius,
there has been an explicit assumption that the international system is an asso-
ciation of sovereign states.”275

U.S.: Transnational Publishers, 1998), at 4. [emphasis added] He further wrote: “it

was not for another century or so that it seemed possible to appreciate that indeed
Westphalia had provided a defining threshold – of course, overgeneralized and
simplified, but yet a convenient shorthand by which to situate the transition from
the medieval to the modern;” ibid. [footnotes omitted] See also T. Ruyssen, Les
sources doctrinales de l’internationalisme, vol. 2, De la Paix de Westphalie à la Révolution
française (Paris: Presses universitaires de France, 1957), at 8-9.
271. See H. Steiger, “Concrete Peace and General Order: The Legal Meaning of the
Treaties of 24 October 1648,” in K. Bussmann & H. Schilling (eds.), 1648 – War
and Peace in Europe, vol. 1, Politics, Religion, Law and Society (Münster: Westfälisches
Landesmuseum, 1998), 437, at 440, who wrote: “Sovereignty – as a form of com-
plete external and internal independence and self-determination in relation to
every other power – became the fundamental principle of the European order. Thus,
a horizontally conceived order of powers developed, in which all powers, including
Emperor and Pope, were legally placed side by side. To a certain extent, the
treaties of Münster and Osnabrück provided the confirming conclusion to this devel-
opment, thus at the same time marking the beginning of a new era.” [footnotes
omitted].
272. See, for instance, the Charter of the United Nations, 26 June 1945, TS no. 993,
145 UKTS 805, Can TS no. 7, reproduced in M.D. Evans (ed.), Blackstone’s Inter-
national Law Documents, 3rd ed. (London: Blackstone Press, 1996), 8, at 8, which
states as its first principle, in article 2: “The Organization is based on the princi-
ple of the sovereign equality of all its Members.” See also I. Brownlie, Principles of
Public International Law, 4th ed. (Oxford: Clarendon Press, 1990), at 287.
273. C.S. Rhyne, International Law – The Substance, Processes, Procedures and Insti-
tutions for World Peace with Justice (Washington: CLB Publishers, 1971), at 9. [empha-
sis added] See also C. Fenwick, International Law, 4th ed. (New York: Appleton-Century
Crofts, 1965), at 14, who wrote that after Westphalia, “the international commu-
nity was to consist of coequal members individually independent of any higher
authority.”
274. D. Pharand, “Perspectives on Sovereignty in the Current Context: A Canadian
Viewpoint” (1994), 20 Canada-United States L.J. 19, at 20. [emphasis added] See
also L. Henkin, supra, note 7, at 25, note **, who wrote that the shift to “a devel-
oped political system with international law rules, is commonly dated from the Peace
of Westphalia (1648).”
275. T.M. Franck, The Empowered Self – Law and Society in the Age of Individualism
70 CHAPTER 5

In social sciences, Westphalia has also long been considered “the corner-
stone of the modern system of international relations.”276 One of the first advo-
cates of the realist school of international relations, Hans Morgenthau, wrote
the following about the Peace: “By the end of the Thirty Years’ War, sover-
eignty as supreme power over a certain territory was a political fact, signifying
the victory of the territorial princes over the universal authority of emperor
and pope, on the one hand, and over the particularistic aspirations of the
feudal barons, on the other.”277 The large majority of modern international
relations scholarships explicitly share that view.278
This chapter will show that the dogma according to which the Peace of
Westphalia constitutes the first case where the idea of state sovereignty was
recognised and applied is a myth. This aetiological myth of Westphalia has
carried extraordinary power within the shared consciousness of society be-
cause, on the one hand, it is viewed in terms of lógos and, on the other, it is
inherently connected to international law as the model for the modern inter-
national state system. In semiotic terms, the argument will be that the lin-
guistic sign “Westphalia,” which originally represented/created the material
reality of what took place at the 1648 congress, metamorphosed into a
mythical sign which has represented/created a new reality – a mythical real-
ity, unsupported by history – associated with the sovereign equality of states.
The careful examination of the relevant historical information – about
the material reality “Westphalia” first represented/created – will show that there
is no basis for what the myth of Westphalia stands for, namely, that 1648 closed
the final chapter of the multilayered system of authority in Europe. Rather,
it will be seen that this episode is but one instance where distinct separate

(Oxford & New York: Oxford University Press, 1999), at 5. [emphasis added] For
a succinct account of the main legal events on the international plane from 1648
to the beginning of the 20th century, see A.S. Hershey, “History of International
Law Since the Peace of Westphalia” (1912), 6 American J. Int’l L. 30.
276. G. Poggi, The Development of the Modern State – A Sociological Introduction (London:
Hutchinson, 1978), at 89.
277. H.J. Morgenthau, “The Problem of Sovereignty Reconsidered” (1948), 58 Colum-
bia L. Rev. 341, at 341. [emphasis added]
278. See, among numerous contemporaries, K.J. Holsti, “Dealing with Dictators:
Westphalian and American Strategies” (2001), 1 Int’l Rel. Asia-Pacific 51; D. Fagelson,
“Two Concepts of Sovereignty: From Westphalia to the Law of Peoples?” (2001),
38 Int’l Politics 499; D. Philpott, Revolutions in Sovereignty – How Ideas Shaped
Modern International Relations (Princeton & Oxford: Princeton University Press,
2001); K. Burch, “Changing the Rules: Reconceiving Change in the Westphalian
System” (2000), 2 Int’l Studies Rev. 181; R. Jackson, “Sovereignty in World
Politics: A Glance at the Conceptual and Historical Landscape” (1999), 47
Political St. 431; and, J. Rosenberg, The Empire of Civil Society – A Critique of the
Realist Theory of International Relations (London & New York: Verso, 1994).
Contra, see S.D. Krasner, “Westphalia and All That,” in J. Goldstein & R.O. Keohane
(eds.), Ideas and Foreign Policy – Beliefs, Institutions, and Political Change (Ithaca,
U.S. & London: Cornell University Press, 1993), 235; and, recently, A. Osiander,
“Sovereignty, International Relations, and the Westphalian Myth” (2001), 55 Int’l
Organization 251.
 CHAPTER 5 71

polities strived for more power through enhanced independence, the status
of which was achieved long after the Peace. Of course, this argument vio-
lently challenges the generally accepted view that, by allegedly recognising as
sovereign the constituting parts of the Holy Roman Empire, Westphalia con-
secrated the principle of state sovereignty and, as a result, marked the begin-
ning of the modern era of international relations.279
The discussion that follows will support this hypothesis in a four-part analy-
sis. First, the social organisation and the transcendental political entities in
the Middle Ages will be considered. Second, the inquiry will move to the
dynamics at work in Europe and the events that led to the Thirty Years’ War.
Third, the actual agreements reached in Westphalia will be scrutinised to ascer-
tain their main objects and material provisions, which have nothing to do with
the creation of a state system. Finally, the post-1648 period will be examined
to assess whether or not, as an aftermath of the Peace, the universal institu-
tions disappeared in favour of distinct separate polities.
The metalogical inquiry into the myth of Westphalia will be undertaken
pursuant to the proposed “inward-outward” approach to language. Indeed, an
important part of the proposed analysis will look at “Westphalia” inwardly,
focussing on the discourse in which the linguistic sign originally existed,
namely, the actual text of the treaties concluded in 1648. The Peace of
Westphalia will also be examined outwardly, by placing the historical
accounts in an enlarged context, including the relevant social, political, reli-
gious and intellectual environment. This approach should allow an analysis
of the myth of Westphalia on its own terms, but also within the totality of
the relevant historical shared consciousness.

5.1. HETERONOMOUS ORGANISATION AND TRANSCENDENTAL INSTITUTIONS

After the collapse of the Western Roman Empire in 476,280 most territories in
Europe were in a chaotic political status because of the so-called barbarian
invasions.281 The separate communities constituted segmented societies282

279. See, for instance, J.L. Brierly, supra, note 265, at 5: “The Peace of Westphalia, which
brought to an end in 1648 the great Thirty Years War of religion, marked the
acceptance of the new political order in Europe;” [emphasis added] and, H. Schilling,
“War and Peace at the Emergence of Modernity: Europe Between State Bellige-
rence, Religious Wars, and the Desire for Peace,” in K. Bussmann & H. Schilling
(eds.), 1648 – War and Peace in Europe, vol. 1, Politics, Religion, Law and Society
(Münster: Westfälisches Landesmuseum, 1998), 13, at 20, who opined that, “we
can speak of 1648 as a turning-point of universal historical significance.”
280. See, on the end of the Roman Empire, C.G. Starr, A History of the Ancient World,
4th ed. (New York & Oxford: Oxford University Press, 1991), 694 ff.
281. See, generally, F.L. Ganshof, L’histoire des relations internationales, vol. 1, Le moyen
âge (Paris: Hachette, 1953), at 5-9.
282. Segmentation was at various stage in European communities, with pre-conquest
72 CHAPTER 5

characterised by a heteronomous form of social organisation.283 At the time,

individuals had different rights and obligations, which could overlap and
conflict since the decentralised feudal structure was not based on a strictly
linear hierarchy.284 As Daniel Philpott put it: “Feudal lines of obligation resem-
bled a system of arteries in a body, not a pyramid with an apex.”285
Furthermore, the vassalage system,286 which provided land in exchange
for services, meant that subordinates could acquire considerable resources
and corresponding power.287 The medieval ruling structure “was an inextri-
cably superimposed and tangled one, in which different juridical instances
were geographically interwoven and stratified, and plural allegiances, asym-
metrical suzerainties and anomalous enclaves abounded.”288 It is not until
the second half of the Middle Ages, starting in the 11th century, that some
monarchs began to develop a more organised form of government.289

England’s decentralised governance, the Anglo-Norman Kingdom relatively inte-

grated, the German area and its fundamental duchy divisions, and the French
kingdom’s theoretical centralisation; see F.H. Hinsley, Sovereignty, 2nd ed. (Cambridge:
Cambridge University Press, 1986), at 61-62.
283. On heteronomous systems, see J.G. Ruggie, “Continuity and Transformation in
the World Polity: Toward a Neorealist Synthesis,” in R.O. Keohane (ed.), Neorealism
and its Critics (New York: Columbia University Press, 1986), 131, at 141-143.
Essentially, heteronomy bases the authority of polities on the functions fulfilled,
not on the territory where the authority is exercised.
284. See M. Fischer, “Feudal Europe, 800-1300: Communal Discourse and Conflictual
Practice” (1992), 46 Int’l Org. 427, at 449, who wrote: “[T]he legal institutions of
vassalage, dependency, servitude, and fief organized feudal society into a highly
heteronomous network of mutual obligations and shared rights.” See also B. de
Jouvenel, supra, note 77, at 206-206; and, J.A. Camilleri, “Rethinking Sovereignty
in a Shrinking, Fragmented World,” in R.B.J. Walker & S.H. Mendlovitz (eds.),
Contending Sovereignties – Redefining Political Community (Boulder, U.S. & London:
Lynne Rienner, 1990), 13, at 13.
285. D. Philpott, supra, note 278, at 79.
286. On the legal institution of vassalage, see F.L. Ganshof, Feudalism (London: Longmans,
1952), at 63-95; M. Bloch, Feudal Society, vol. 1, The Growth of Ties of Depend-
ence (London & Henley: Routledge & Kegan Paul, 1965), at 218-230; and, J.S.
Critchley, Feudalism (London: Allen & Unwin, 1978), at 30-55.
287. On the power dimension of the vassalage system, see F. de Coulanges, Histoire des
institutions politiques de l’ancienne France, vol. 6, Les transformations de la royauté
pendant l’époque carolingienne (Paris: Hachette, 1892), at 703 ff.
288. P. Anderson, Lineages of the Absolute State (London: NLB, 1974), at 37-38.
289. See, generally, G. Clark, Early Modern Europe from about 1450 to about 1720 (London:
Oxford University Press, 1957), at 28; M. Wilks, The Problem of Sovereignty in the
Later Middle Ages – The Papal Monarchy with Augustinus Triumphus and the Publicists
(Cambridge: Cambridge University Press, 1963), at 233 ff.; J.R. Strayer, On the
Medieval Origins of the Modern State (Princeton, U.S.: Princeton University Press,
1970), at 26-36; and, J. Anderson & S. Hall, “Absolutism and Other Ancestors,”
in J. Anderson (ed.), The Rise of the Modern State (Brighton, U.K.: Harvester
Press, 1986), 21, at 25-28.
 CHAPTER 5 73

This period also saw most of these polities getting together in a common
Christian community, known as the Christendom.290 This spiritual union encour-
aged and facilitated contacts and, with the martial energy of the Crusades,
was the catalyst to a profound social transformation of almost all Western
Europe.291 It also brought two new powerful actors to the forefront of Euro-
pean politics292 – the Pope and the Emperor. Both aspired to the throne of
the civitas Christiana,293 which entailed an authority superior to all other
rulers.294 This was said to constitute the “greatest attempt of all time at supra-
national organisation in Europe.”295 The co-existence of these two transcen-
dental political entities, however, was never entirely peaceful and amicable.
When the Roman Empire in the West resumed in 800,296 Charlemagne
(also known as Karl the Great) seemed to acknowledge the Papacy’s author-
ity.297 After the Treaty of Verdun in 843,298 however, the new Holy Roman

290. See D. Philpott, supra, note 278, at 78: “The Respublica Christiana comprised all
Christians, whether they lived in Europe or abroad in the Holy Land.”
291. See T.A. Walker, A History of the Law of Nations, vol. 1, From the Earliest Times to
the Peace of Westphalia, 1648 (Cambridge: Cambridge University Press, 1899), at
87, who wrote: “The Crusades brought a social revolution.” He identified six areas
where the Christendom’s fight over the Holy Land influenced the development of
the European fabric. They include: (i) the shifting of baronial war effort from private
combats to foreign conflicts; (ii) the creation of great centres of political power, such
as the cities of Northern Italy; (iii) the increase of the authority of the Papacy,
which was militant abroad but peacemaker at home; (iv) the lessons in Saracenic
civilisation that the Crusaders brought back with them to the West; (v) the con-
solidation of the idea of Christendom unity; and (vi) the sentiment of identity
that foreign involvement sparked with the people at home – see id., at 86-89.
292. See, generally, G. Schwarzenberger, A Manuel of International Law, 4th ed., vol. 1
(London: Stevens & Sons, 1960), at 4-5.
293. That is, Christian body politic.
294. See J.N. Figgis, Churches in the Modern State, 2nd ed. (London: Longmans, Green,
1914), at 175 ff. See also M. Zimmermann, “La crise de l’organisation internationale
à la fin du Moyen Âge” (1933), 44 R.C.A.D.I. 315, at 320; and, K. Pennington,
“Law, Legislative Authority, and Theories of Government, 1150-1300,” in J.H. Burns
(ed.), The Cambridge History of Medieval Political Thought – c. 350-c. 1450 (Cambridge:
Cambridge University Press, 1988), 424, at 430-436.
295. E.N. van Kleffens, “Sovereignty in International Law” (1953), 82 R.C.A.D.I. 1,
at 21.
296. On how the Christian Empire was considered to be the natural and rightful con-
tinuation of the Roman Empire, see J. van Kan, “Règles générales du droit de la
paix – L’idée de l’organisation internationale dans ses grandes phases” (1938), 66
R.C.A.D.I. 295, at 446 ff.; and, W. Ullmann, “Reflections on the Medieval
Empire” (1964), 14 Transactions Royal Hist. Soc. (5th) 89, at 95-103.
297. In fact, the Pope, who crowned Charlemagne, traded his support for the re-
establishment of the Roman Empire in exchange for the recognition of the
Church’s authority.
298. Charlemagne’s only successor, Louis the Pious, died in 840 and with him the
Carolingian Empire. After some years of unrest, the Treaty of Verdun divided the
74 CHAPTER 5

Emperor began to challenge the universal authority of the Pope.299 The lat-
ter defended himself with the two swords doctrine,300 according to which God
delegated Its power over both spiritual and temporal301 spheres directly to
the Papacy.302 The Emperor replied with formulas supporting his supreme
secular authority over the communitas communitatum.303 He could not deny
the divine origin of authority, but rather argued that God had equally dis-
tributed spiritual and temporal powers and that the Emperor directly re-
ceived the secular sword.304
In short, as Philip Allott Cartesianly explained, the medieval “European
society [was] the scene of a structure-system struggle in two dimensions –
horizontal, between Papacy and German Empire; vertical between Papacy/
German Empire, on the one hand, and the countless subordinate civil
societies of Europe, on the other hand.”305 From the point of view of the
monarchs, therefore, the struggle for power was on two fronts: (i) within,

Empire into three parts but, given that there was only one imperium, the crown
was shifted around for the first few decades. Germanic pre-eminence was finally
asserted in 881.
299. On the struggles between the Pope and the Emperor, see J. Bryce, The Holy
Roman Empire, 4th ed. (London: Macmillan, 1873), at 153-166.
300. This contention was first forcefully propounded in the 11th century by Pope Gregory
VII against Emperor Henry IV, who was even excommunicated. On Gregory VII’s
ambitions of supremacy over both spiritual and temporal spheres, see C.H. McIlwain,
The Growth of Political Thought in the West – From the Greeks to the End of the Middle
Ages (New York: Macmillan, 1932), at 217-221.
301. The Pope’s claim of supremacy over secular matters was founded on various texts
of the Holy Bible, New Testament, most notably in the Book of Matthew, 16:19,
which quotes Jesus Christ saying: “I will give you the keys to the kingdom of heaven;
whatever you bind on earth will be bound in heaven, and whatever you loose on
earth will be loosed in heaven.” This statement is repeated at Matthew, 18:18. See
also, generally, W. Ullmann, Principles of Government and Politics in the Middle
Ages, 2nd ed. (London: Methuen, 1966), at 32 ff.; and, M. Wilks, supra, note 289,
at 171-174.
302. The Papal authority was legally based on the so-called dictatus papae. Theoretically,
he enjoyed full universal legislative and judicial power, including to adjudicate dis-
putes between rulers, to repudiate royal statutes or customs contrary to divine law,
and even to depose monarchs guilty of mortal sins. See W. Ullmann, id., at 87 ff.
303. That is, community of communities.
304. For instance, the following “Declaration of Imperial Independence” was made by
Emperor Ludwig IV in 1338: “Therefore, [. . .] with the counsel and assent of the
Electors and other princes of the Empire, We declare that the imperial dignity and
power are derived immediately from God alone; and that, by the law and ancient
approved custom of the Empire, when anyone is elected Emperor or king by the
imperial electors, unanimously or by majority, at once by the mere fact of election
he is to be considered and entitled very King and Emperor of the Romans; [. . .]
nor does he need the approbation, confirmation, authority or consent of the Pope
or the Apostolic See or of any other person;” see R.G.D. Laffan (ed.), Select Documents
of European History, vol. 1, 800-1492 (London: Methuen, 1930), at 149.
305. P. Allott, supra, note 118, at 184-185.
 CHAPTER 5 75

vis-à-vis the vassals and the people; and, (ii) without, vis-à-vis the Pope and
the Emperor.306
The next section will further analyse Westphalia outwardly by examining
the rapports between the many layers of authority in Europe and the explo-
sive situation that led to the Thirty Years’ War.

5.2. DYNAMICS AND WAR OF RELIGION AND POLITICS

The interaction of the different polities in both religious and political fields,
as well as certain developments in organisation and governance, allowed monar-
chies to eventually gain a leading position on the European political chess-
board. As it will be demonstrated, however, this slow process began several
centuries before, and cumulated a century-and-a-half after, the Peace of Westphalia
in 1648.
Despite continuous efforts until the 13th century to expand its authority,
the Papacy was never fully recognised by some powerful monarchies in Europe.
For instance, France and Spain never accepted feudal vassalage vis-à-vis the
Pope; England repudiated Papal overlordship in 1366.307 Further, the Great
Schism in the Christian Church (1378-1417) considerably weakened the
authority of the Pope.308 Then, in 1517, Martin Luther nailed his 95 theses
to the door of the Schlosskirche in Wittenberg, setting in motion the forces

306. See R. Aron, Peace and War – A Theory of International Relations (London: Weidenfeld
& Nicolson, 1966), at 738, who wrote: “Absolute sovereignty corresponded to
the ambition of kings eager to free themselves from the restriction Church and
Empire imposed upon them, medieval residues. At the same time, it permitted
condemning the privileges of intermediate bodies: feudal lords, regions, cities
guilds – privileges which no longer had any basis if the sovereign’s will was the
unique source of rights and duties.”
See also G. Andrassy, “La souveraineté et la Société des nations” (1937), 61
R.C.A.D.I. 637, at 646-647; and, A. Truyol Serra, “Souveraineté” (1990), 35 Archives
Philo. D. 313, at 316-317, who noted: “On sais que l’idée moderne de l’État s’est
imposée par une guerre sur deux fronts, à savoir, celui de l’opposition aux préten-
tions universalistes de la Papauté et de l’Empire, et celui de la réduction de
l’enchevêtrement des pouvoirs du système féodal.”
307. See H. Steinberger, “Sovereignty,” in R. Bernhardt (ed.), Encyclopedia of Public
International Law, vol. 10, States – Responsibility of States – International Law
and Municipal Law (Amsterdam: North-Holland, 1987), 397, at 398.
308. Before the Council of Constance, which ended the Great Schism in 1417, several
popes claimed to be the legitimate representant of the Papacy. Shortly after, the
Council of Basle in 1449 abandoned the efforts to regain the unity of the
Christian Church through conciliar means. See K.C. Cole, “The Theory of the State
as a Sovereign Juristic Person,” in W.J. Stankiewicz (ed.), In Defense of Sovereignty
(New York: Oxford University Press, 1969), 86, at 88, who wrote: “When, finally,
the schism within the religious community occurred, it became evident that the
old order was doomed.” See also J. Canning, A History of Medieval Political
Thought – 300-1450 (London & New York: Routledge, 1996), at 176-184; and,
76 CHAPTER 5

of the Reformation.309 His ideas, and those of John Calvin, spread rapidly
throughout the numerous German principalities, as well as to Sweden, the
Netherlands, France, England.310 The Protestant political tenets, which favoured
secular governance,311 constituted the coup de grâce for the Pope’s plenitudo
potestatis.312
With respect to the Holy Roman Empire, no overall authority was ever
fully secured in Europe. In fact, even before the Great Interregnum (1254-
1273), the character and the scope of Imperial power began to be chal-
lenged. By the 14th century, authority over secular matters had ceased to be
considered the exclusive privilege of the Emperor.313 His de jure overlordship

M. Wight, Systems of States (Leicester, U.K.: Leicester University Press, 1977), at

131-133.
309. See, generally, M. Boegner, “L’influence de la Réforme sur le développement du
droit international” (1925), 6 R.C.A.D.I. 241; and, R.A. Brand, “External Sovereignty
and International Law” (1994-95), 18 Fordham Int’l L.J. 1685, at 1688. See also
J.B. Elshtain, Women and War (Brighton, U.K.: Harvester Press, 1987), at 136,
who wrote: “Luther prepares the way for the political theology that underlies the
emergence of the nation-state.”
310. Certainly the most notorious case of monarchial Protestant disengagement from
the authority of the Papacy was that of King Henry VIII of England who used
the Pope’s refusal to grant an annulment for his marriage to Catherine of Aragon
as a political justification to elevate himself to Supreme Head of the Church of
England, thus acquiring spiritual authority in addition to political power – legally
accomplished through the Act of Supremacy, 1534. See J. Goldsworthy, The Sovereignty
of Parliament – History and Philosophy (Oxford: Clarendon Press, 1999), at 48 ff.;
N. Davies, Europe – A History (London & New York: Oxford University Press,
1996), at 490 ff.; and, G.R. Elton, Reform and Reformation – England 1509-1558
(London: Edward Arnold, 1977), at 199-200.
311. At that time, Francisco de Vitoria notoriously argued against the Pope’s claim of
temporal jurisdiction above all princes in the first two lectures of his collection of
thirteen Relectiones, first published in 1557 – see F. de Vitoria, Relectiones Theologicae
Tredecim Partibus (Lugduni: Petri Landry, 1587), at 1 ff. & 60 ff. Likewise, in the
fifth essay, dealing with the Spanish authority over the Indians in the new world,
the great professor of Salamanca University expressed his unequivocal view that
the Pope was not the temporal master of the world – see id, at 164 ff.; and the
French translation by M. Barbie, F. de Vitoria, Leçons sur les Indiens et sur le droit
de la guerre (Geneva: Librairie Droz, 1966), at 46 ff. See also, generally, A. Nussbaum,
A Concise History of the Law of Nations (New York: Macmillan, 1950), at 80 ff.
312. That is, fullness of power. On this idea, see A.P. d’Entrèves, The Notion of the
State – An Introduction to Political Theory (Oxford: Clarendon Press, 1967), at 97.
313. See K. Pennington, supra, note 294, at 432-433; and, T.A. Walker, supra, note
291, at 90, who wrote: “The Empire and the Pontiff had alike failed to fulfil their
mission. The Emperor at no time fully responded to his call. Endowed with an
unique style, held the natural protector and leader of Christendom, Divine Viceregent
in things temporal, the rightful source of the royal title, the convoker, at least con-
currently with the Pope, of oecumenical councils, he failed to constitute himself
international arbiter and pacificator mundi.” [footnotes omitted]
 CHAPTER 5 77

remained – even invigorated under Charles V – but legists like Bartolus314

admitted that principes superiores non recognoscentes;315 Baldus formulated this
plurality in terms of rex in regno suo est imperator regni sui.316 The imperium’s
dismissal was more categorical in certain countries – Spain never formally
recognised Imperial power; France severed its feudal ties with the Emperor
after 973; and, England’s vassalage vis-à-vis the Empire was terminated in
the 13th century.317
However, it seems to be the consolidation of power under autonomous rulers
in England and France, as well as the emergence of free cities in Northern
Italy,318 that effectively replaced the ideal of a universal Christendom with the
idea of distinct separate polities enjoying full autonomy over their territories.319
Chronologically, the Northern cities of the Italian peninsula – Genoa,
Florence, Pisa, Venice – were the pioneers in reaching a certain system of
organisation during the 11th century and 12th century, which fell within
the general enthusiasm of the Renaissance.320 The querelles between the Pope
and the Emperor considerably helped the establishment and survival of these
relatively self-sufficient polities.321 At the beginning of the 14th century, it

314. On the work of these legists and their influence on medieval thoughts, see J.N.
Figgis, The Divine Right of Kings, 2nd ed. (Cambridge: Cambridge University
Press, 1922), 55-56. See also, generally, P. Guggenheim, “La souveraineté dans
l’histoire du droit des gens – Les conceptions des glossateurs et des commenta-
teurs,” in Mélanges offerts à Henri Rolin (Paris: Éditions Pedone, 1964), 134.
315. That is, princes do not acknowledge any superior.
316. That is, a king in his own kingdom is emperor of his realm. On this doctrine in
general, see W. Ullman, “The Development of the Medieval Idea of Sovereignty”
(1949), 64 English Hist. Rev. 1, at 5-7.
317. See H. Steinberger, supra, note 307, at 398. Also worth noting is that Francisco de
Vitoria’s lecture on the Spanish authority over the Indians in the new world de-
monstrated that, no more than the Pope, the Emperor was not the master of the whole
world according to neither natural, divine nor human law – see F. de Vitoria, supra,
note 311, at 164 ff.; and the translation, F. de Vitoria, supra, note 311, at 36 ff.
318. On the authority enjoyed by the rulers of France, England and the Italian free
cities, see E.N. van Kleffens, supra, note 295, at 22-25. See also D. Philpott, supra,
note 278, at 80, who concluded: “By the eve of the Reformation in 1517, mon-
archs in Britain, France, and Sweden had established supremacy over the Church
and other territorial rivals, while in Italy, a small system of sovereign states, sealed
from Europe by alpine partitions, had survived for a century.”
319. See H.J. Laski, supra, note 1, at 12-13; G. Gidel, “Droits et devoirs des Nations –
La théorie classique des droits fondamentaux des États” (1925), 10 R.C.A.D.I.
537, at 546-547; and, generally, H. Spruyt, The Sovereign State and Its Competitors
(Princeton: Princeton University Press, 1994).
320. See, generally, P.M. Hohenberg & L.H. Lees, The Making of Urban Europe, 1000-
1950 (Cambridge, U.S.: Harvard University Press, 1985), at 59-73; G. Mattingly,
Renaissance Diplomacy (London: Johathan Cope, 1955), at 55-63; and, J. Burckhardt,
The Civilization of the Renaissance in Italy – An Essay, 2nd ed. (London: Phaidon
Press, 1945), at 39 ff.
321. See A.P. Sereni, The Italian Conception of International Law (New York: Columbia
University Press, 1943), at 7-9.
78 CHAPTER 5

was recognised that the Northern Italian cities could not be conquered. By
the 16th century, however, their strength comparatively decreased because
of their opponents’ enhanced military capacity and the change in trade routes.322
England was the first large geographic area to reach a centralised form of
governance. Following the Great Conquest in 1066, the English segmented
societies embarked upon the process towards unity.323 With the help of the
King’s courts based on the common law324 and of representative assemblies
that led to Parliament,325 the loyalty of the people moved from the local author-
ities to the monarchy.326 The aristocracy-initiated movement of protest that
brought the Magna Carta in 1215 did not challenge the centralised institu-
tions per se;327 rather, it sought some basic guarantees of protection from the
King, especially with regard to property rights.328 Although the unity of the
English royal power was later shaken by the War of the Roses, it remained
largely independent from any higher authority.329
The French communities proceeded more slowly towards the organisa-
tion of central ruling under the authority of a monarch.330 Centralisation
was accomplished only gradually by the appointment of the King’s represen-
tatives in the provinces, instead of being imposed from above by the royal

322. See T.A. Walker, supra, note 291, at 139; and, C. Tilly, Coercion, Capital, and
European States, A.D. 990-1990 (Oxford: Basil Blackwell, 1990), at 64-66.
323. See J.R. Strayer, supra, note 289, at 36-48; and, R. Lansing, Notes on Sovereignty –
From the Standpoint of the State and of the World (Washington: Carnegie Endow-
ment for International Peace, 1921), at 16-18.
324. See, generally, K. Zweigert & H. Kötz, An Introduction to Comparative Law, 3rd
ed. (Oxford: Clarendon Press, 1998), at 182-187.
325. See A.F. Pollard, The Evolution of Parliament (London: Longmans, Green, 1920),
who opined that the development of the parliamentary system in England con-
tributed immensely to the idea of sovereignty. The author wrote: “The crown had
never been sovereign by itself, for before the days of parliament that was no real
sovereignty at all: sovereignty was only achieved by the energy of the crown in par-
liament, and the fruits of conquest were enjoyed in common;” id., at 230.
326. See S.D. Krasner, supra, note 278, at 254.
327. See P. Allott, “The Courts and Parliament: Who Whom?” (1979), 38 Cambridge
L.J. 79, at 89, who wrote: “In the turbulent political history of medieval England,
such events as the baronial resistance to John in the years up to 1215 and the
coups of 1399 and 1485 were not structural discontinuities in the manner of
modern revolutions.”
328. Indeed, several provisions of the Magna Carta (for instance, articles 9, 27, and 52)
had nothing to do with fundamental rights or civil liberties, but related directly or
indirectly to property rights that the barons wanted to shield from the monarch’s
arbitrary power. See the English translation of the text in Appendix 6 of J.C. Holt,
Magna Carta (Cambridge: Cambridge University Press, 1992), 449.
329. See, generally, K.H.F. Dyson, The State Tradition in Western Europe – A Study of
an Idea and Institution (Oxford: Martin Robertson, 1980), at 36-44.
330. See G. Zeller, L’histoire des relations internationales, vol. 2, Les temps modernes –
De Christophe Colomb à Cromwell (Paris: Hachette, 1953), at 18-19.
 CHAPTER 5 79

administration, as in England.331 France’s judiciary did not even apply uni-

form laws332 – the South constituted the pays de droit écrit 333 and the North
was considered the pays de droit coutumier.334 The Hundred Years’ War increased
the King’s power as people sought protection and guidance from the monarch.335
The war effort also accredited “a permanent tax, which made possible a
standing army and the development of an executive to carry out the royal
will.”336
Even in German areas, in spite of the actual overlordship enjoyed by the
Emperor, the seed of monarchical organisation was planted much before the
Peace of Westphalia.337 With respect to secular matters, increasingly substan-
tial political concessions were gradually granted in favour of the principali-
ties.338 As regards religious matters, several powerful German Princes took
the Protestant side in the emerging conflicts and soon revolted against the
Catholic Empire.339 These turmoils were settled with the Peace of Augsburg in
1555,340 between the Emperor and the Protestant Princes, which consecrated
the rule of cuius regio eius religio.341 Augsburg largely contributed to direct the
focus towards the separate polities within the Empire.342

331. See J.R. Strayer, supra, note 289, at 48-56.

332. See, generally, K. Zweigert & H. Kötz, supra, note 324, at 75-80.
333. That is, country of written law.
334. That is, country of customary law.
335. See P. Daillier & A. Pellet, supra, note 265, at 48-49.
336. B. de Jouvenel, supra, note 77, at 213.
337. See, generally, F. Hertz, The Development of the German Public Mind – A Social
History of German Political Sentiments Aspirations and Ideas, 2 vols. (London: Allen
& Unwin, 1957 & 1962).
338. See infra, at footnotes 426-432 and accompanying text.
339. See T.A. Walker, supra, note 291, at 143: “The German princely supporters of the
Reformed doctrines united in the League of Schmalkalden (1531), but hesitated and
wavered, and at length the Imperial victory of Mühlberg (1547) seemed to ring
the death-knell of their hopes. Then, however, Maurice of Saxony, cool-headed
and scheming, threw of the mask, and the flight of the Emperor through the Innsbruck
pass with the subsequent Treaty of Passau (1552) proclaimed the forceful revival of
the Lutheran cause.”
340. The Peace of Augsburg recognised and legitimised the Protestant religions (Luth-
eran and Calvinist) and gave to the ruler the right to determine the religion of
its subjects. See J.G. Gagliardo, Germany under the Old Regime, 1600-1790 (London:
Longman, 1991), at 16 ff.; and, R. Jackson, supra, note 278, at 440.
341. That is, whose the region, his the religion.
342. See A.B. Murphy, “The Sovereign State System as Political-Territorial Ideal – Historical
and Contemporary Considerations,” in T.J. Biersteker & C. Weber (eds.), State
Sovereignty as Social Construct (Cambridge: Cambridge University Press, 1996), 81,
at 86; and, R. Redslob, supra, note 269, at 216. See also C.V. Wedgwood, The Thirty
Years’ War (London: Cape, 1944), at 42, who wrote: “This extraordinary compro-
mise [Augsburg] saved the theory of religious unity for each state while destroying
it for the Empire.”
80 CHAPTER 5

This temporary truce in the European religious chaos and the peaceful
coexistence it brought deteriorated over the next fifty years.343 Especially dur-
ing the reign of Emperor Rudolf II (1576-1612), worship restrictions were
progressively reimposed.344 In fact, after the troubles in Donauwörth,345 the
Treaty of Augsburg was invoked as the basis for the resurgence of Catho-
licism. By the beginning of the 17th century, both camps had their coali-
tions of armed force346 – the Evangelical Union (est. 1608), a Protestant
defensive alliance;347 and, the Catholic League (est. 1609), a similar organi-
sation for Catholics.348 Although the majority of Princes were not in favour
of war, some were willing to take advantage of any opportunity to increase
their land base and political power.
The rivalries of the time, however, did not stop at the German borders.349
England and the United Provinces of the Netherlands allied with the Evangelical
Union and were ready to support its cause; in the North, both Denmark
and Sweden had ambitions to control the strategic Baltic region; Catholic
Spain was preparing to reconquer the Protestant Netherlands; and, France
was opposed to the hegemonic aspirations of the Emperor-Spanish King
coalition.350 This large number of increasingly powerful actors in Europe, in
addition to the multilayered system of political authorities, as well as the

343. See D. Philpott, supra, note 278, at 81, who stated: “But Augsburg did not last.
The settlement was packed with endless clauses and legal arcana, eliciting so much
mutual dissatisfaction that Catholic and Protestant princes continually took up arms
to dispute the succession of a neighboring prince of the rival religion. Over the
following generations, religious war raged between a continually speading Protes-
tantism and the Counter Reformation, a revival of Catholicism across Europe whose
most fervid participants fought for the eradication of the Protestant heresy and a
restored Christendom.” [footnotes omitted] See also, generally, D. Maland, Europe
at War – 1600-1650 (London: Macmillan, 1980), at 12-18; and, J. Elliott, “War
and Peace in Europe, 1618-1648,” in K. Bussmann & H. Schilling (eds.),
1648 – War and Peace in Europe, vol. 1, Politics, Religion, Law and Society (Münster:
Westfälisches Landesmuseum, 1998), 23, at 23-24.
344. See J.G. Gagliardo, supra, note 340, at 21-23.
345. Pursuant to the Peace of Augsburg, Donauwörth was designated a “parity” city, but
later became overwhelmingly Protestant. Feuds between Lutheran burghers and
Catholic monks in 1606-1607 degenerated into street brawls which prompted
Emperor Rudolf II to put the city under an Imperial ban in order to defend the
religious rights of the Catholic minority.
346. See G.J. Gagliardo, supra, note 340, at 23-24.
347. It included at first Palatinate, Württemberg, Neuburg, Baden, Ansbach, Anhalt
and some Imperial Cities; it was later expended to include Brandenburg, Hesse-
Kassel and other Cities.
348. It included Bavaria, various bishoprics of Bavaria, Swabia and Franconia, as well as
some ecclesiastical polities.
349. See E.A. Beller, “The Thirty Years War,” in J.P. Cooper (ed.), The New Cambridge
Modern History, vol. 4, The Decline of Spain and the Thirty Years War, 1609-
48/59 (Cambridge: Cambridge University Press, 1970), 306, at 306 ff.
350. Id., at 306.
 CHAPTER 5 81

religious dimension of the different polities, made the violent solution of the
situation virtually inevitable.
The spark that ignited the fire came from Bohemia in 1618 following the
so-called Defenestration of Prague,351 which prompted a revolt against the
Emperor and the Catholic domination. The series of wars that followed are
known as the Thirty Years’ War,352 which is said to have been the most destruc-
tive armed conflict in Europe until the 20th century.353 Originally, the War
was primary based on profound religious antagonism, but these motives only
lasted for the first decade of the conflicts.354 The power politics of the belli-
gerents, which was never absent, came to finally predominate the main battles,355
which were fought on German soil between France and Sweden, on the one
side, and the Habsburgs and their allies, on the other.356 The negotiations to

351. On 23 May 1618, a group of Protestants in Prague invaded the Imperial palace
and threw two Catholic members of the Bohemian Council out a window, some
70 feet above the ground. The rarely told aspect of the story, however, is that the
officials fell into a pile of manure and suffered only minor injuries!
352. See, generally, H. Sacchi, La Guerre de trente ans, 3 vols. (Paris: Harmattan, 1991);
G. Parker, The Thirty Years’ War (London: Routledge & Kegan Paul, 1984); J.V.
PoliÏsensk,y, The Thirty Years’ War (London: Batsford, 1971); T.K. Rabb (ed.), The
Thirty Years’ War – Problems of Motive, Extent and Effect (Boston: Heath, 1964);
and, G. Pagès, La guerre de trente ans – 1618-1648 (Paris: Payot, 1949).
353. According to J. Perré, La guerre et ses mutations – Des origines à 1792 (Paris: Payot,
1961), at 409, the German population declined from 21 to 13 million because of
the Thirty Years’ War. See also G. Franz, Der Dreissigjährige Krieg und das deutsche
Volk, 3rd ed. (Stuttgart: Fischer, 1961), at 47, who estimated that 40% of the
rural and 33% of the urban population of Germany perished as a result of the
War and its aftermath, such as the plague and other epidemics.
354. On the motives behind the conflicts that shifted from religion to politics, see
T.A. Walker, supra, note 291, at 157, who noted: “Christendom mobilised under
opposing flags, and the barriers between people and people and the ties of
national allegiance were in the first instance forgotten in the fervour of religious
opinion. When, however, the course of the struggle made it evident that the two
great hostile armies must be finally content to partition the field of battle, and a
clear rule of distribution was looked for, Nationality stepped from behind Religion
and asserted effectual the claims.”
355. See J. Burkhardt, “The Summitless Pyramid: War Aims and Peace Compromise
Among Europe’s Universalistic Powers,” in K. Bussmann & H. Schilling (eds.),
1648 – War and Peace in Europe, vol. 1, Politics, Religion, Law and Society (Münster:
Westfälisches Landesmuseum, 1998), 51; and, P. Sonnino, “From D’Avaux to Dévot:
Politics and Religion in the Thirty Years’ War (2002), 87 History 192.
356. The Thirty Years’ War conflicts are usually divided by historians into four phases,
customarily styled and dated as follows: the Palatine-Bohemian period (1618-1623),
ended by the Battle of White Mountain with a Catholic victory; the Danish pe-
riod (1624-1629), another Catholic triumph consecrated by the Treaty of Lübeck;
the Swedish period (1630-1635), which saw the Treaty of Prague officialise an
indecisive Catholic victory; and, finally, the French period (1635-1648), which
lead to the Peace of Westphalia. See, generally, E.A. Beller, supra, note 349, at 307 ff.
82 CHAPTER 5

end the bloody conflicts took place from 1644 to 1648357 and culminated in
the Peace of Westphalia,358 without any decisive victory by anyone.359
At this stage, the most important point to acknowledge about this out-
ward view of Westphalia is that, by the 17th century, Europe was no longer
dominated by the Holy Roman Empire or the Papacy.360 The supreme author-
ity in spiritual and temporal spheres was not exclusively held anymore – assum-
ing it once was – by transcendental institutions. Instead, distinct separate poli-
ties both within and without the Empire had started to establish a solid
foundation based on the idea of political autonomy.361 This already suggests
that, contrary to the general opinion, what is considered a nouveau régime
after 1648 did not come into existence by enchantment through the stroke
of a pen at the bottom of some peace agreements.362

357. On the negotiations that led to the settlement of the Thirty Years’ War, from orig-
inal sources, see G.-H. Bougeant, Histoire du Traité de Westphalie, ou des Negociations
qui se firent à Munfter & à Ofnabrug, 6 vols. (Paris: n.b., 1751); and, J. Le Clerc,
Negociations Secretes touchant la Paix de Munfter et d’Osnabrug, 4 vols. (The
Hague: Neaulme, 1725 & 1726). See also K. Repgen, “Negotiating the Peace of
Westphalia: A Survey with an Examination of the Major Problems,” in K. Buss-
mann & H. Schilling (eds.), 1648 – War and Peace in Europe, vol. 1, Politics, Religion,
Law and Society (Münster: Westfälisches Landesmuseum, 1998), 355.
358. It is noteworthy, however, that 1648 did not completely end all armed conflicts
in Europe. The war between France and Spain continued until the Peace of the
Pyrenees in 1659. As well, the war between Sweden and Poland, and that between
Sweden and Denmark, only ended in 1660 with the Peace of Olivia and the Peace
of Copenhagen. See J. Droz, Histoire diplomatique de 1648 à 1919 (Paris: Dalloz,
1952), at 7 ff.; H. Wheaton, supra, note 265, at 71; and, K.J. Holsti, supra, note
266, at 41.
359. See id., at 29, who wrote: “The war came to an end not because of any great com-
mitment to peace in the abstract or because of decisive military victories and defeats.
Rather, the parties exhausted themselves.”
360. See G.R.R. Treasure, The Making of Modern Europe, 1648-1780 (London & New
York: Methuen, 1985), at 374; J. Bryce, Studies in History and Jurisprudence, vol.
2 (Oxford: Clarendon Press, 1901), at 82 ff.; E.N. van Kleffens, supra, note 295,
at 38-39; and, J.A. Camilleri, supra, note 284, at 14.
361. See T.A. Walker, supra, note 291, at 84, who wrote: “The new Order arose by the
positive and negative establishment of the authority of Feudal Monarchy; by the
victory of that Monarchy in the struggle with baronial disorder, and by the defeat
alike of Papacy and of Holy Roman Empire in the attempt to establish an effec-
tive World Sovereignty.” See also J. Bryce, supra, note 299, at 340, who noted that
Westphalia “did no more than legalize a condition of things already in existence.”
362. See G. Sørensen, “Sovereignty: Change and Continuity in a Fundamental Institution”
(1999), 46 Political St. 590, at 591, who expressed the following view concerning
the Peace of Westphalia: “The world did not change overnight at a specific point in
time; elements of the old system remained in place for a long period. There was
no momentous change from one day to the next in 1648.” [emphasis added] See
also A.B. Murphy, supra, note 342, at 109, who made the following apposite remarks:
“If the history of state-territorial ideas and practices tells us anything, it is that
 CHAPTER 5 83

The section that follows will proceed to examine inwardly the so-called
constitutio Westphalica363 by focussing on the actual treaty documents, with a
view to prove that the orthodoxy according to which 1648 can be credited
for the birth of the modern state system is unsupported by historical facts,
and is hence a myth.

5.3. THE PEACE TREATIES

The Peace of Westphalia, formalised on 24 October 1648, was in fact com-

posed of two separate agreements.364 The Treaty of Osnabrück was concluded
between two groups of political entities – on the one hand, the Protestant
Queen of Sweden and her allies and, on the other, the Holy Roman Habs-
burg Emperor and the German Princes. The Treaty of Münster, for its part,
was also concluded between two groups – one the one hand, the Catholic
King of France and his allies and, on the other, the Emperor and the Princes.365
Thus these agreements were bilateral in nature, which reflects the practice of
the time that had not yet evolved to the making of multilateral treaties.366
Although the Treaties paid homage to the unity of Christendom,367 it is
significant that they involved numerous polities.368 Sweden and France insisted

changes in arrangements and understandings occur, but that no one era represents a
radical break with the preceding era.” [emphasis added]
363. That is, the Westphalian constitution. See also P. Daillier & A. Pellet, supra, note
265, at 50, who spoke of the “Charte constitutionnelle de l’Europe.”
364. However, it was imperative for the participants to achieve a “unitary peace;” see
H. Steiger, supra, note 271, at 444.
365. For the full text of the Osnabrück and Münster Treaties, in both their Latin and
English versions, see C. Parry (ed.), Consolidated Treaty Series, vol. 1 (Dobbs Ferry,
U.S.: Oceana Publications, 1969), at 119 & 270. [hereinafter Treaty Series] It is
the English translation that will be used here, which Parry said is taken from the
General Collection of Treatys; the old English spelling used will be modernised.
366. See T. Meron, “The Authority to Make Treaties in the Late Middle Ages” (1995),
89 American J. Int’l L. 1, at 6-7. See also, generally, C.W. Jenks, “Les instruments
internationaux à caractère collectif ” (1930), 69 R.C.A.D.I. 448; and, A.D.
McNair, Law of Treaties – British Practice and Opinions (Oxford: Clarendon Press,
1938), at 4-6.
367. Towards the end of the Osnabrück Treaty’s preamble, it stated that the parties “agreed
among themselves, to the Glory of God, and Safety of the Christian World;” sim-
ilarly, in the Münster Treaty, one can read that the agreement was reached “to the
Glory of God, and the Benefit of the Christian World;” [spelling modernised] see
Treaty Series, at 199-200 & 321. See also A. Osiander, The States System of Europe,
1640-1990 – Peacemaking and the Conditions of International Stability (Oxford:
Clarendon Press, 1994), at 27-30, who noted that the rulers’ representatives at
the peace conferences viewed themselves as part of a community based on the
Christian religion.
368. The preamble of the Osnabrück Treaty, in fine, stated: “[T]he Electors, Princes and
States of the Sacred Roman Empire being present, approving and consenting;”
84 CHAPTER 5

on having the German Princes as parties to the Peace, a strategy obviously

meant to weaken the position of the Emperor vis-à-vis the Princes. In fact,
the Treaties were instruments not only to bringing peace between the former
belligerents, but also to dealing with constitutional matters within the Empire.369
Indeed, article 70 of the Münster Treaty declared:
For the greater Firmness of all and every one of these Articles, this present Transaction
shall serve for a perpetual Law and established Sanction of the Empire, to be inserted like
other fundamental Laws and Constitutions of the Empire in the Acts of the next Diet
of the Empire, and the Imperial Capitulation; binding no less the absent than the
present, the Ecclesiastics than Seculars, whether they be the States of the Empire or
not: insomuch as that it shall be a prescribed Rule, perpetually to be followed, as
well by the Imperial Counsellors and Officers, as those of other Lords, and all Judges
and Officers of Courts of Justice.370
This large number of actors from both within and without the Empire371 seem,
a priori, to bear witness to the termination of the Imperial transcendental dom-
ination in Europe.372 However, a proper “inward” analysis of Westphalia that
concentrates on the relevant discourse will go beyond this facade and will show
that the Peace did not signal the death toll of the Empire in favour of the
German distinct separate polities.

likewise, the Münster Treaty’s preamble ended: “[I]n the presence and with the
consent of the Electors of the Sacred Roman Empire, the other Princes and States;”
Treaty Series, at 200 & 321. [emphasis in original] [spelling modernised] As well,
there are mentions of the different polities making up the Empire – some 332 of
them – throughout the two Treaties of Westphalia; see A.D. McNair, supra, note
366, at 70. See also R. Redslob, supra, note 269, at 215-216.
369. See R. Lesaffer, “The Westphalia Peace Treaties and the Development of the Tradition
of Great European Peace Settlements Prior to 1648” (1997), 18 Grotiana 71, at 71
& 77; and, C. Bilfinger, “Les bases fondamentales de la communauté des États”
(1938), 63 R.C.A.D.I. 129, at 156, who wrote: “Le Traité de Westphalie, générale-
ment regardé comme la base juridique et positive de la première période du droit
des gens moderne, était, en même temps qu’un traité de droit des gens, une loi
fondamentale constitutionnelle de l’ancien Empire allemand.”
370. Treaty Series, at 353. [emphasis added] [spelling modernised]
371. See K.J. Holsti, supra, note 266, at 25, who wrote: “The congresses [of West-
phalia] brought together the main heterogeneous political units of Europe at that
time. There were 145 delegates representing 55 jurisdictions, including the Holy
Roman Empire and all the major kingdoms except Great Britain [and Russia], as
well as significant duchies, margraves, landgraves, bishoprics, free cities, and impe-
rial cities.” [citation omitted] See also V. Gerhardt, “On the Historical Significance
of the Peace of Westphalia: Twelve Theses,” in K. Bussmann & H. Schilling (eds.),
1648 – War and Peace in Europe, vol. 1, Politics, Religion, Law and Society (Münster:
Westfälisches Landesmuseum, 1998), 485.
372. See H. Steiger, supra, note 271, at 422.
 CHAPTER 5 85

5.3.1. Religious issues

First and foremost, building on the acquis from the Peace of Augsburg in 1555,373
the main object of the Peace of Westphalia was to establish a regime on reli-
gious practice and denominational matters.374 Although the Treaties did not
explicitly abandon the principle that the monarch could determine the reli-
gion of the land, they nevertheless provided for some constitutional safe-
guards.375 Indeed, several provisions were inserted to circumscribe and curtail
the Princes’ formerly absolute authority over the religious sphere.376 The
most material one, at Article 5, paragraph 11, of the Osnabrück Treaty, estab-
lished that a ruler who chose to change his or her religion could not compel
his or her subjects to do the same.377
Also, the Westphalia Treaties formally recognised freedom of conscience
for Catholics living in Protestant areas and vice versa, which included pro-
tection for worship practices and religious education. Article 5, paragraph
28, of the Osnabrück Treaty thus read:
It has moreover been found good, that those of the Confession of Augsburg [i.e.
Protestants], who are Subjects of the Catholics, and the Catholic Subjects of the
States of the Confession of Augsburg, who had not the public or private Exercise of
their Religion in any time of the year 1624, and who after the Publication of the
Peace shall profess and embrace a Religion different from that of the Lord of the
Territory, shall in consequence of the said Peace be patiently suffered and tolerated,
without any Hindrance or Impediment to attend their Devotions in their Houses
and in Private, with all Liberty of Conscience, and without any Inquisition or
Trouble, and even to assist in their Neighbourhood, as often as they have a mind, at
the public Exercise of their Religion, or send their children to foreign Schools of
their Religion, or have them instructed in their Families by private Masters; provided
the said Vassals and Subjects do their Duty in all other things, and hold themselves
in due Obedience and Subjection, without giving occasion to any Disturbance or
Commotion.378

373. See supra, at footnotes 340-342 and accompanying text.

374. See G. Pagès, supra, note 352, at 247-249. See also, on the religious practices
before and after 1648, S.D. Krasner, “Sovereignty and Intervention,” in G.M. Lyons
& M. Mastanduno (eds.), Beyond Westphalia? – State Sovereignty and International
Intervention (Baltimore, U.S. & London: Johns Hopkins University Press, 1995),
228, at 234-236.
375. See A. Hobza, “Questions de droit international concernant les religions” (1924),
5 R.C.A.D.I. 371, at 377-378.
376. See A.W. Ward, “The Peace of Westphalia,” in A.W. Ward, G.W. Prothero & S.
Leathes (eds.), The Cambridge Modern History, vol. 4, The Thirty Years’ War
(Cambridge: Cambridge University Press, 1934), 395, at 416.
377. Treaty Series, at 218-219.
378. See Treaty Series, at 228-229. [emphasis in original] [spelling modernised]
86 CHAPTER 5

As well, such dissenters were not to be “excluded from the Community of

Merchants, Artisans or Companies, nor deprived of Successions, Legacies,
Hospitals, Lazar-Houses, or Alms-Houses, and other Privileges or Rights.”379
People living in denominationally mixed cities – Augsburg, Dunckelfpiel,
Biberach, Ravensburg, Kauffbeur – were free to practice their religion with-
out any “molest or trouble.”380
Furthermore, Osnabrück promoted equality between Catholics and Protestants
in the assemblies of the Diet and in other decision-making bodies of the
Empire.381 For example, article 5, paragraph 42, stated: “In the ordinary
Assemblies of the Deputies of the Empire, the Number of the Chiefs of the
one and the other Religion shall be equal.”382 Likewise, in judicial proce-
dures at the Imperial Courts, a party could demand the religious parity of
judges.383 These rights afforded to the Lutheran Protestants (“Confession of
Augsburg”) were also extended to Calvinist Protestants (the “Reformed”).384

5.3.2. Territorial settlement

The second object of the Peace of Westphalia concerned territorial settlement,
which turned mainly on the satisfaction of Sweden and France. Sweden’s tra-
ditional claims with respect to the south shore of the Baltic region were
given effect in the Treaty of Osnabrück. Accordingly, Western Pomerania,
the islands of Rügen, Usedom and Wollin, the bishoprics of Bremen and
Verdun, and the port of Wismar passed under the Swedish Crown.385 It
must be emphasised, however, that the conveyances were not total – Sweden
was to hold these territories as Imperial fiefs.386 Indeed, article 10 of the
Osnabrück Treaty repetitively stated that all transfers were “in perpetual and
immediate Fief of the Empire.”387 The Swedish ruler was also to occupy seats
in the Diet to represent these regions within the Empire.
Pursuant to the Treaty of Münster, France was granted territories “with all
manner of Jurisdiction and Sovereignty, without any contradiction from
the Emperor, the Empire, House of Austria, or any other.”388 Unlike Sweden,

379. Article 5, paragraph 28, of the Osnabrück Treaty, id., at 229. [spelling modernised]
380. Article 5, paragraph 24, of the Osnabrück Treaty, id., at 225-227. [spelling mod-
ernised]
381. See A.W. Ward, supra, note 376, at 414.
382. Treaty Series, at 234-235. [spelling modernised]
383. Article 5, paragraph 45, of the Osnabrück Treaty, id., at 237-238.
384. See article 7 of the Osnabrück Treaty, id., at 239-240. [emphasis in original] [spelling
modernised]
385. See article 10 of the Osnabrück Treaty, id., at 244 -249.
386. See A.W. Ward, supra, note 376, at 403-404.
387. Treaty Series, at 244-247.
388. Article 76, id., at 341. [emphasis in original] [spelling modernised]
 CHAPTER 5 87

therefore, the French Crown received full title in, and authority over, most
transferred territories,389 which included the bisoprics of Metz, Toul and
Verdun,390 as well as the area known as Pinerolo.391 The House of Austria’s
rights in the region of Alsace were also conveyed to France,392 but not
without a substantial qualification. Indeed, article 92 of the Münster Treaty
provided:
That the most Christian King shall be bound to leave not only the Bishops of Strasbourg
and Bafle, with the City of Strasbourg, but also the other States or Orders, Abbots of
Murbach and Luederen, who are in the one and the other Alsatia, immediately
depending upon the Roman Empire; the abbess of Andlavien, the Monastery of St.
Bennet in the Valley of St. George, the Palatines of Luzelftain, and all the nobility of
Lower Alsatia; Item, the said ten Imperial Cities, which depend on the Mayory of
Haganoc, in the Liberty and Possession they have enjoyed hitherto, to arise as imme-
diately dependent upon the Roman Empire; so that he cannot pretend any Royal
Superiority over them, but shall rest contended with the Rights which appertained to
the House of Austria, and which by this present Treaty of Pacification, are yielded to
the Crown of France. In such a manner, nevertheless, that by the present Decla-
ration, nothing is intended that shall derogate from the Sovereign Dominion already
hereabove agreed to.393
As a consequence, although they officially passed under the French Crown,
these parts of the Alsatian territory maintained a sui generis autonomist sta-
tus based on some Imperial privileges.394
The treaty provisions relating to religious practice and denominational
matters, as well as those pertaining to the territorial satisfaction of Sweden
and France, undoubtedly represent the two principal objects of the Peace
of Westphalia.395 The parties also formally recognised the United Provinces
of the Netherlands396 and explicitly provided for the independence of the

389. See A.W. Ward, supra, note 376, at 404-405.

390. See article 71 of the Münster Treaty, Treaty Series, at 340.
391. See article 73 of the Münster Treaty, ibid.
392. See article 74 of the Münster Treaty, id., at 340-341.
393. Id., at 345. [emphasis in original] [spelling modernised]
394. See G. Pagès, supra, note 352, at 258-259. See also R. Redslob, supra, note 269,
at 214, note 3.
395. See K.J. Holsti, supra, note 266, at 34.
396. At the conclusion of the conflict between the United Provinces and Spain, the lat-
ter recognised the territorial boundaries of the Netherlands in a peace treaty signed
on 30 January 1648, also at Münster. As a consequence, these territories were excluded
from the Burgundian Imperial Circle during the negotiations at Westphalia which,
implicitly, legally ratified the Dutch independence from the Holy Roman Empire.
See J.V. PoliÏsensk,y, supra, note 352, at 236-237; and, G. Pagès, supra, note 352,
at 254.
88 CHAPTER 5

Swiss Confederation, 397 which however were already at this point faits
accomplis.398

5.3.3. Treaty-making power

According to the general view that considers 1648 as a break from the
ancien régime, there is another highly material provision in the agreements
which would epitomise statehood, namely, that dealing with the delegation
of power to conclude treaties.399 At article 65, the Treaty of Münster read:
They [the German polities] shall enjoy without contradiction, the Right of Suffrage
in all Deliberations touching the Affairs of the Empire; but above all, when the Business
in hand shall be the making or interpreting of Laws, the declaring of Wars, impos-
ing of Taxes, levying or quartering of Soldiers, erecting new Fortifications in the
Territories of the States, or reinforcing the old Garisons; as also when a Peace or alliance
is to be concluded, and treated about, or the like, none of these, or the like things
shall be acted for the future, without the Suffrage and Consent of the Free Assembly
of all the States of the Empire: Above all, it shall be free perpetually to each of the States
of the Empire, to make Alliances with Strangers for their Preservation and Safety; pro-
vided, nevertheless, such Alliances be not against the Emperor, and the Empire, nor
against the Public Peace, and this Treaty, and without prejudice to the Oath by which every
one is bound to the Emperor and the Empire.400

397. Switzerland’s independence was legally consecrated in article 63 of the Treaty of

Münster, which stated: “And as His Imperial Majesty, upon Complaints made in
the name of the City of Bafle, and of all Switzerland, in the presence of their
Plenipotentiaries deputed to the present Assembly, touching some Procedures and
Executions proceeding from the Imperial Chamber against the said City, and the
other united Cantons of the Swiss country, and their Citizens and Subjects having
demanded the Advice of the States of the Empire and their Council; these have,
by a Decree of the 14th of May of the last Year, declared the said City of Bafle,
and the other Swiss-Cantons, to be as it were in possession of their full Liberty and
Exemption of the Empire; so that they are no ways subject to the Judicatures, or
judgments of the Empire, and it was thought convenient to insert the same in this
Treaty of Peace, and Confirm it, and thereby to make void and annul all such
Procedures and Arrests given on this Account in what form soever;” see Treaty
Series, at 337. [emphasis in original] [spelling modernised]
398. See G. Pagès, supra, note 352, at 254, who wrote as regards the Netherlands and
Switzerland: “Enfin divers articles légalisent un état de fait déjà ancien, mais qui
n’avait pas encore la garantie d’un instrument diplomatique.” [emphasis added]
See also E.A. Beller, supra, note 349, at 358; R. Redslob, supra, note 269, at 214-
215; and, T.A. Walker, supra, note 291, at 148.
399. See, for instance, F. von Martens, Traité de droit international, vol. 1 (Paris: Chevalier-
Marescq, 1883), at 116; G. Gidel, supra, note 319, at 549; R. Redslob, id., at
215; K.J. Holsti, supra, note 266, at 35-36; A. Osiander, supra, note 367, at 46-
47; and, D. Philpott, supra, note 278, at 85.
400. Treaty Series, at 337-338. [emphasis added] [spelling modernised]
 CHAPTER 5 89

Article 8, paragraph 1, of the Osnabrück Treaty was to the same effect.401 The
political entities making up the Empire were thus given the power to inde-
pendently make agreements between themselves and with foreign countries.
This competence, however, was explicitly limited by the caveat according to
which no such alliance could be directed against the imperium or be in
breach of the Peace of Westphalia itself. Also significant is that, beside treaty-
making, these provisions confirmed to the Imperial Diet all other powers
usually linked with the exercise of supreme authority over a territory – for
example, legislation, warfare, taxation.402
Moreover, it appears that these treaty articles merely recognised a practice
which had already been in existence for almost half a century. Indeed, the
powerful German Princes were conducting their own foreign policy long before
Westphalia. Palatinate and Brandenburg, for instance, struck alliances with
the United Provinces of the Netherlands in 1604 and 1605 respectively.403
Further, most rulers within the Empire formed part of the armed force coali-
tions – the Evangelical Union and the Catholic League – that existed at the
outbreak of the Thirty Years’ War in 1618.404 In light of this, the articles
concerning the treaty-making power can hardly be viewed as groundbreaking
or as compelling evidence of a new independent status for the German dis-
tinct separate polities.

5.3.4. Recapitulation
The rest of the provisions in the two documents finalised in 1648 related to
rather secondary issues.405 They included matters such as a general amnesty

401. Id., at 241. See also R. Lesaffer, supra, note 369, at 71.
402. The legislative history of these provisions shows that the parties originally meant
to go much farther in favour of the Princes than what was provided for in the
final version of the Münster Treaty. The proposition suggested by the French dele-
gation on 11 June 1645 was unqualified and even referred to the idea of sover-
eignty. Indeed, article 8 of the said proposition, which was ultimately rejected,
read: “Que tous lesdits Princes & Etats en général & en particulier seront main-
tenus dans tous les autres droits de Souveraineté qui leur appartiennent, & spé-
cialement dans celui de faire des confédérations tant entre eux qu’avec les Princes
voisins, pour leur conservation & sureté;” [emphasis added] [spelling modernised]
see G.-H. Bougeant, Histoire du Traité de Westphalie, ou des Negociations qui se
firent à Munfter & à Ofnabrug, vol. 3 (Paris: n.b., 1751), at 428-429. Therefore,
it appears that the compromised article 65, Treaty of Münster, was a victory on the
part of the Holy Roman Empire because the language used stopped short of
recognising any sovereign rights to the German Princes.
403. See G. Parker, supra, note 352, at 2, who noted that, along with England and France,
Palatinate and Brandenburg struck treaties of friendship with the Netherlands, which
helped the latter’s effort against Spain.
404. See supra, at footnotes 347-348 and accompanying text.
405. For more detail on these secondary matters, see H. Sacchi, La Guerre de trente ans,
vol. 3, La Guerre des cardinaux (Paris: Harmattan, 1991), at 477-484; and, K.J.
Holsti, supra, note 266, at 36.
90 CHAPTER 5

going back to the Bohemian troubles, the neutralisation of certain territories,

the restitution of property and the renouncement of debts, the re-establish-
ment of commerce and trade, the hereditary succession in some German monar-
chies, as well as the general representation in Imperial institutions and the
election of the Emperor.
To summarise, the principal objects and material provisions of the Osnabrück
and Münster Treaties do not at all support the traditional position that the
Peace of Westphalia constitutes a paradigm shift whereby the political entities
involved gained exclusive power over their territories. The two main pur-
poses of the agreements related to the practice of religion and the settlement
of territories, not to the creation of distinct separate polities independent
from any higher authority. As regards religious matters, the German Princes
did not even retain their existing power; au contraire, the rule of cuius regio
eius religio was restrained by denominational protections for minorities and
equality guarantees were provided for Catholics and Protestants.
Furthermore, the Empire remained a key actor according to Westphalia.
Indeed, it is through Imperial bodies – such as the Diet and the Courts –
that religious safeguards were imposed in decision-making process. With respect
to territorial settlements, the satisfaction of Sweden was given in terms of
fiefdoms within the Empire, thus acknowledging an enduring overlordship
for the Emperor. Vis-à-vis France, although no Imperial feudal link re-
mained after most land transfers, some parts of Alsace maintained their auton-
omist status granted by the House of Austria. Finally, it was just seen that
the power to conclude alliances formally recognised to the German Princes
was not unqualified and that, in fact, they had conducted such foreign
affairs long before then.
This “inward” perspective on Westphalia focussing on the relevant docu-
ments clearly shows, therefore, that 1648 cannot legitimately be deemed a
turning point in the development of the present state system. Rather, the
outcome of the congress constituted nothing more than a step further –
even, arguably, a relatively modest one – in the gradual shift from the ideal
of a universal overlordship to the idea of distinct separate political entities
enjoying full autonomy over their territories.406 Put another way, the con-
finement of the transcendental institutions in Europe and the erosion of
their authority over both spiritual and temporal spheres in favour of their
constituting parts did not start, and certainly did not culminate either, with
the Peace.

406. See T.A. Walker, supra, note 291, at 148, who, speaking of the hybrid political sta-
tus of the Empire and its constituting parts in 1648, noted: “The territorial state
had long existed in point of fact, but, whilst each royal, ducal, or republican ruler
of provinces had failed to recognise in his frontiers the precise limits of his juris-
diction, the sense of national independence had been held down in pupilage [sic]
by the awe-inspiring shadow of a majestic common superior.” See also, to the
same effect, M. Wight, supra, note 308, at 152: “At Westphalia the states-system
does not come into existence: it comes of age;” and, J. Westlake, supra, note 265,
 CHAPTER 5 91

In the last section, the post-1648 period in Germany must be considered

in order to assess the situation of the Holy Roman Empire and the status of
the Princes following the congress, and thus complete a comprehensive “inward-
outward” examination of Westphalia.

5.4. WESTPHALIA’S AFTERMATH

Even if the Treaties of Osnabrück and Münster did not establish, de jure, a
system of independent states, perhaps they nevertheless constitute a plaque
tournante because, de facto, the imperium substantially atrophied as a result
of Westphalia, which meant that the distinct separate polities effectively exer-
cised exclusive control and power over their territories. This final section of
the chapter will refute this postulate and will show that, in fact, Europe’s
secular transcendental institution did not disappear in favour of its consti-
tuting parts as an aftermath of the Peace.407
In the 17th century and 18th century, the principal German political
entities within the Empire could be gathered in the following categories:
first, Ecclesiastical Principalities (dominated by Catholic Princes); second,
Secular Principalities (dominated by Protestant Princes); third, Imperial Cities;
and, finally, families of Imperial Counts and Knights.408 Some of the Secular
Principalities – Brandenburg-Prussia, Electoral Saxony, Bavaria, the Palati-
nate, Hesse, Trier, and Württemberg – were antagonistic to the Imperial

at 55: “When the plenipotentiaries at Munster and Osnabruck signed the Peace of
Westphalia in 1648 the ground had been well prepared for an international soci-
ety, such a society had indeed been gradually emerging.”
407. One may recall that Voltaire notoriously quipped that the German Empire was
“neither Holy, nor Roman, nor an Empire;” see L.C. Buchheit, Secession – The
Legitimacy of Self-Determination (New Haven & London: Yale University Press,
1978), at 8. Pufendorf ’s view on the Empire was that of “an irregular state-body,
much like a monster;” see J.G. Gagliardo, Reich and Nation – The Holy Roman
Empire as Idea and Reality, 1763-1806 (Bloomington, U.S.: University of Indiana
Press, 1980), at 41; it must be stressed, however, that the terms “monstrosity” (in
Latin monstrum) and “irregularity” were almost synonyms in the writings of the 17th
century and 18th century – see infra, footnote 442.
These quotes bear witness to how important, yet immensely difficult, it has
been to describe and ascertain the nature of the Holy Roman Empire of the German
Nation. The objective of this brief review of the Imperial institutions is much
more modest – to show that the Empire, whatever it was, did not end following
Westphalia.
408. See J.G. Gagliardo, id., at 3-15. The Imperial Constitution consisted in the fol-
lowing series of legal texts adopted throughout the existence of the Empire: (i) the
Golden Bull in 1356; (ii) the Eternal Peace in 1495; (iii) the Treaty of Passau in
1552; (iv) the Peace of Augsburg in 1555; (v) the Peace of Westphalia in 1648; (vi)
the Electoral Capitulations in 1519; (vii) the Peace of Teschen in 1779; and (viii) the
Final Recess of the Imperial Deputation in 1803.
92 CHAPTER 5

authority and challenged the Emperor’s prerogatives. The other Secular Prin-
cipalities, as well as Ecclesiastical Principalities, Imperial Cities, Counts and
Knights, supported the Empire and were in favour of keeping its institutions
alive and strong.409
These institutions included the Diet and the Emperor himself, as well as
the Imperial Courts, the Imperial Circles and the Imperial Army.410 The
principal functions of the Diet were advisory and legislative; it also consti-
tuted the adjudicator of final appeal.411 Laws duly enacted by the Diet and
sanctioned by the Emperor bound the Empire in its entirety,412 hence the adage
Reichsrecht bricht Landerecht.413 Accordingly, there is little doubt that, origi-
nally, the Diet was intended to be the most important Imperial body after
the Emperor.
It was seen that the Treaty of Osnabrück modified the composition of the
Diet by establishing guarantees for denominational equality.414 Article 5,
paragraph 43, of this Treaty further provided:
In matters of Religion, and in all other Affairs, wherein the States cannot be consid-
ered as one Body, and when the Catholic States and those of the Confession of Augsburg
are divided into two Parties; the Difference shall be decided in an amicable way only,
without any side’s being tied down by a Plurality of Voices. However, as to what con-
cerns the Plurality of Voices in the matter of Impositions, that Affair not being capa-
ble of being decided in the present Assembly, it shall be remitted to the next Diet.415
It followed that any measure pertaining to religion, even remotely, had to be
approved by both the corpus Evangelicorum416 and the corpus Catholicorum.417
This consensus requirement418 meant that, after 1648, the Diet could hardly
fulfil its legislative functions.419

409. See S.D. Krasner, supra, note 278, at 247-248.

410. See J.G. Gagliardo, supra, note 407, at 16-46, who underscored that these institu-
tions “functioned essentially unchanged for a century and a half following the
Peace of Westphalia;” see, id., at 16.
411. The Treaty of Osnabrück, at article 8, assigned to the Diet an almost indefinite
programme of work; see Treaty Series, at 241-243. See also G. Pagès, supra, note
352, at 246.
412. The Diet was formed of three councils – the Council of Electors, the Council of
Princes, and the Council of Cities. A majority vote in two of the three bodies was
needed to submit a proposal to the Emperor, on which he had the final say.
413. That is, Imperial law breaks territorial law.
414. See supra, at footnotes 381-384 and accompanying text.
415. Treaty Series, at 235. [emphasis in original [spelling modernised]
416. That is, body of Protestants.
417. That is, body of Catholics.
418. This distinction based on denomination existed in addition to the division of the
Diet into three councils. It meant that the voting on religious matters was done in
a plenary assembly of all representatives, who sided in their respective Catholic
and Protestant groups. See J.G. Gagliardo, supra, note 407, at 24.
419. See P. Schröder, “The Constitution of the Holy Roman Empire after 1648:
 CHAPTER 5 93

Indeed, although it remained in permanent session starting in 1663,420 very

little at all was accomplished by the Diet, mainly because of deadlocks
caused by denominational equality or by lack of unanimity. The consequen-
tial impeded leadership and direction given to the Empire as a whole was
fertile ground for the subordinate German polities to claim and, indeed,
exercise power over their territories.421 But in spite of this, the Diet contin-
ued to be a forum within the Imperial system where issues of national con-
cerns could at least be voiced and debated.422 One must also realise that it is
only in the middle of the 18th century – that is, one-hundred years after the
Peace of Westphalia – that the Diet thus became dysfunctional.
Similarly, although the Osnabrück and Münster Treaties affected the other
Imperial institutions, they continued to play their unremitting roles within
the increasingly decentralised Empire for years after the Peace.423 “Imperial
institutions were not totally defunct, for they encouraged peace, solidarity, and
military cooperation among the many German states.”424 Indeed, the politi-
cal activities of the Imperial Circles remained instrumental in most German
areas, the jurisdiction of the Imperial Courts steadily shrunk but staid strong

Samuel Pufendorf ’s Assessment in his Monzambano” (1999), 42 Historical J. 961,

at 979-980, who wrote: “The Protestants realized immediately that they could exploit
the right of separating into two different religious congregations for their own
ends. By claiming that most of the disputed matters were matters of religious con-
troversy, and thus enforcing the itio in partes, they were able to assert that the
decision reached in the particular Protestant corpus was the only binding agree-
ment for them, and that the Catholics had no right to intervene or challenge these
discussions. This tactical manoeuvring impeded the Diet seriously, while the Emperor
attempted to stress the unity of the Empire.”
420. Since the Diet was convoked by the Emperor and fearing that the latter could dis-
regard its constitutional role by not calling sessions, the representatives refused to
disband the Diet after 1663. Therefore, it remained in permanent session until the
end of the Empire in 1806, hence the nickname “Eternal Diet” of Regensburg.
See J.G. Gagliardo, supra, note 407, at 21.
421. See H. Sacchi, supra, note 405, at 482, who wrote: “L’unanimité sur les problèmes
constitutionnels ou religieux importants étant en réalité impossible à atteindre,
cette institution, qui siégea jusqu’au milieu du XIXème siècle, devint le point où
s’accumulèrent tous les dossiers essentiels de l’empire, et paralysa en fait toute réforme.”
422. It is through the Diet that the notorious mystical formula Kaiser und Reich
emerged to signify both the unity and the division within the Holy Roman
Empire. According to J.G. Gagliardo, supra, note 407, at 21, this expression was
“intended to convey the sense of a kind of coequal responsibility of head and
members for the preservation of harmony of a single body, a higher unity within
diversity.” The English language cannot properly convey the precise adjectival dis-
tinction between Kaiser and Reich, which would be translated at best as “Emperor”
and “Empire.”
423. For a detailed analysis of the Imperial Circles, the Imperial Courts and the Im-
perial Army, see J.G. Gagliardo, id., at 26-39.
424. D. Philpott, supra, note 278, at 87.
94 CHAPTER 5

until the 18th century, and the command of the Imperial Army abided with
the Emperor and his Reichs-Generalfeldmarschälle to the end.425
The last, but certainly not least, of the Imperial institutions was the Emperor
himself, whose gradual decline in power owed nothing substantial to Westphalia.
It is rather the expansion of the so-called Landeshoheit 426 principle – imposed
on Emperor Charles V in 1519 and enacted into Imperial law in 1711 – which
allowed the German distinct separate political entities to gain ever-expanding
control and authority over their territories at the expense of the imperium.
Significantly, here, this progressive erosion of the transcendental Imperial power
began several centuries before 1648.427 According to the historian John Gagliardo,
it can actually be traced back to the Golden Bull in 1356, which first pre-
scribed legal modalities for the election of the Emperor.428
Since this revolutionary landmark in the constitutional annals of the Empire,
and up to the Reichsdeputationshauptschluss429 in 1803, just before the de-
mise, the Emperor and the other Imperial institutions underwent piecemeal
and virtually uninterrupted reductions in their functions and powers. How-
ever, one must emphasise that it was as a result of Napoleon’s conquest of
Germany in 1806430 that the Holy Roman Empire ceased to exist.431 Put
another way, the imperium did not disappear by atrophy victim of the German
Princes; rather, it ended because of an external force unrelated to internal polit-
ical struggles – Napoleonic France, the hegemonic power in Europe then.432

425. That is, Imperial General-Field Marshals, who acted as the supreme military rep-
resentatives of the Emperor.
426. That is, territorial lordship.
427. Further, it was shown in a previous part of the chapter that the Emperor’s author-
ity vis-à-vis other European territories such as Spain, England and France disap-
peared centuries before. See supra, at footnotes 313-317 and accompanying text.
428. See J.G. Gagliardo, supra, note 407, at 18-19. See also, generally, H. Gross, “The
Holy Roman Empire in Modern Times: Constitutional Reality and Legal Theory,”
in J.A. Vann & S.W. Rowan (eds.), The Old Reich: Essays on German Political
Institutions, 1495-1806 (Brussels: Librairie Encyclopédique, 1974), 1.
429. That is, the Final Recess of the Imperial Deputation.
430. A study of the Empire’s last period of existence is obviously beyond the present
study. For more detail, see J.G. Gagliardo, supra, note 407, at 187 ff.; and,
J. Bryce, supra, note 299, at 359 ff.
431. It is important to point out that the Empire was not abolished by Napoleon but,
rather, that its dissolution was the result of Emperor Francis II’s renouncement to
the Roman-German crown on 6 August 1806, following a note announcing that
France no longer recognised the imperium which, in fact, amounted to an ultima-
tum for abdication; from then on, the authority of the Habsburg Emperor was
limited to the Austrian borders – see J.G. Gagliardo, id., at 279-281; and J. Bryce,
id., at 365-366. Therefore, it appears to be erroneous to refer to the Napoleonic
abolition of the Holy Roman Empire, as some commentators have – see, for exam-
ple, S.D. Krasner, supra, note 278, at 251, who wrote: “Napoleon abolished the
empire completely in 1806.”
432. See P. Guggenheim, “La souveraineté dans l’histoire du droit des gens – De Vitoria
 CHAPTER 5 95

Finally, an account of the theoretical assessment of the Imperial political

organisation given by some of the leading intellectuals both before and
after 1648 will close this outward look at Westphalia. Unsurprisingly, the
European academics of the time could not agree on who enjoyed ultimate
power over German territories.433 In Les six Livres de la Republique,434 first pub-
lished in 1576, the Frenchman Jean Bodin (whom the next chapter exam-
ines in details) followed the Aristotelian categories of polities – monarchy,
aristocracy, democracy435 – and held that the Empire was an aristocracy, not
a monarchy, because:
[T]he seven princes Electors, having by little and little withdrawn the sovereignty,
have left nothing unto the emperor, but the bare marks thereof in show; the sover-
eignty it self in effect remaining unto the state of the seven electors, of three hun-
dred German princes or thereabouts, and the ambassadors deputed for the imperial
cities.436
With the one exception of Henning Arnisaeus, this conclusion was opposed
by German publicists – including Johannes Althusius, Bartholomaeus Kecker-
mann, Hermann Kirchner, Daniel Otto, and Tobias Paurmeister – who in-
sisted that the Emperor was a true monarch.437
Other 17th century authors avoided a strict classification of ruling orders,
which could not possibly reflect the multifarious German political reality.
Among them, Veit Ludwig von Seckendorf and Johannes Limnaeus who,

à Vattel,” in Mélanges offerts à Juraj Andrassy (The Hague: Nijhorff, 1968), 111, at
114, who wrote: “Mais il fallut quand même attendre jusqu’à la dissolution de
l’Empire, en 1806, pour qu’une modification fondamentale se produise dans la sit-
uation juridique; les territoires dont les princes avaient réussi à s’assurer la puis-
sance publique devinrent des États souverains, englobant les seigneuries dont les
titulaires n’avaient pas accédé à la même position.”
433. See, generally, D. Wyduckel, “The Imperial Constitution and the Imperial Doc-
trine of Public Law: Facing the Institutional Challenge of the Peace of West-
phalia,” in K. Bussmann & H. Schilling (eds.), 1648 – War and Peace in Europe,
vol. 1, Politics, Religion, Law and Society (Münster: Westfälisches Landesmuseum,
1998), 77.
434. J. Bodin, Les six Livres de la Republique, infra, note 465. See also the translation
by R. Knolles, J. Bodin, The Six Bookes of a Commonweale, infra, note 465.
435. See J. Bodin, id., at 252; see also R. Knolles (tr.), id., at 184. For more detail on
Aristotle’s forms of government, see A.P. d’Entrèves, supra, note 312, at 73.
436. R. Knolles (tr.), id., at 236. [spelling modernised] See also the original J. Bodin,
id., at 321: “[L]es sept Electeurs ont peu à peu retranché la souveraineté, ne lais-
sant rien à l’Empereur que les marques en apparence, demeurant en effect la sou-
veraineté aux états des sept Electeurs, de trois cents Princes ou environ, & des
Ambassadeurs députés des villes Impériales.” [spelling modernised]
Also note that Bodin summarily rebuked the pretensions of Imperial and/or
Papal world overlordship later in his work – see J. Bodin, id., at 199 & 201; and,
R. Knolles (tr.), id., at 135 & 137.
437. See J.H. Franklin, “Sovereignty and the Mixed Constitution: Bodin and His Critics,”
96 CHAPTER 5

building on the idea of compound polyarchy first formulated by Christoph

Besold,438 suggested that the Emperor and the Princes simply shared the supreme
authority within the Empire.439 Samuel von Pufendorf also wrote on the
issue shortly after Westphalia in his 1667 essay De statu Imperii Germanici,
published under the pseudonym Severini de Monzambano.440 Influenced by
Thomas Hobbes’ Leviathan,441 the German theorist used the categories of
regular and irregular forms of polity – instead of Aristotle’s tripartite group-
ing – and held that the German political structure was monstrous, that is, of
a hybrid nature between monarchical and aristocratic.442
Now, for the present purposes, the most meaningful facet of the post-
1648 period of German political history is that the Holy Roman Empire did
not dissipate in favour of its constituting parts, neither in law nor in fact, as
a result of the Peace of Westphalia. As one historian appositely wrote: “The
peace [in 1648] was not the tombstone of the empire but a charter which
gave it another century-and-a-half of life.”443 Therefore, not only did Osnabrück
and Münster blatantly failed to establish a legal system of independent states
but, de facto, the German distinct separate polities did not gain full control
and authority over their territories before the imperium vanished following
Napoleon’s conquest of the region in the 19th century.444

in J.H. Burns (ed.), The Cambridge History of Political Thought – 1450-1700

(Cambridge: Cambridge University Press, 1991), 298, at 309 ff.
438. See id., at 323 ff.
439. See P. Schröder, supra, note 419, at 963.
440. S. de Monzambano (i.e. S. von Pufendorf ), De statu Imperii Germanici (Utopiae:
Vdonem Neminem, 1668). See the translation by E. Bohun, S. von Pufendorf,
The Present State of Germany Written in Latin by the Learned Samuel Pufendorf
under the Name of Severinus de Monzambano Veronesis (London: n.b., 1696).
441. See T. Hobbes of Malmesbury, Leviathan, or The Matter, Forme, & Power of a
Common-Wealth Ecclesiasticall and Civill, infra, note 661, at 115. Von Pufendorf
later elaborated on the question of the forms of political system in S. von
Pufendorf, De iure naturae et gentium libri octo, infra, note 668.
442. It is important to note that, in 17th century and 18th century writings, the term
“monstrosity” – from monstrum in Latin – was used not as an insult to the Empire
but, rather, to mean a striking and unusual irregularity in a political body. See
P. Schröder, supra, note 419, at 966-967.
443. R. Wines, “The Imperial Circles, Princely Diplomacy and Imperial Reform 1681-
1714” (1967), 39 J. Modern Hist. 1, at 2.
444. See F.H. Hinsley, Power and the Pursuit of Peace – Theory and Practice in the
History of Relations between States (Cambridge: Cambridge University Press, 1963),
at 153, who appositely wrote the following concerning the eagerness to ante-date
the beginning of pivotal phenomena such as the modern state system: “Historians
are liable to ante-date the completion of massive developments because of their
preoccupation with origins. They are given to ante-dating the beginnings of massive
developments for the same reasons and also because such developments are rarely finally
completed: when the end of one phase is usually but the preliminary to the onset
of the next it is easy to mistake the onset of another phase for the beginning of an
 CHAPTER 5 97

5.5. SUMMARY

To recapitulate, the hypothesis at the heart of this chapter was that the
orthodoxy according to which the Peace of Westphalia recognised and applied
for the first time the idea of sovereignty and hence constitutes a paradigm shift
in the development of the present state system is historically unfounded and,
in effect, is a myth. It was argued that 1648 constitutes no more than one
instance where distinct separate polities pursued their continuing quest for
more authority over their territory through greater autonomy.
The discussion attempted to substantiate this argument following an “inward-
outward” approach to language and was divided into four parts. First were
examined the segmented and heteronomously organised medieval societies
based on decentralised feudal structures, which later unified through the
Christendom under two transcendental political entities – the Pope and the
Emperor. Second, it was seen that the dynamics at work in Europe’s religious
and political spheres meant that, at the break of the Thirty Years’ War, the
respective universal authorities of the Pope and the Emperor had already
been severely depleted by the joint actions of the Reformation and the cen-
tralisation of government both within and without the Holy Roman Empire.
Third, the principal objects and material provisions of the Osnabrück and
Münster Treaties were shown to deal with religious matters, territorial settle-
ments and the transfer of treaty-making power. The purpose of Westphalia,
in fact, was not at all about the creation of independent polities, let alone
independent states. On the contrary, it kept the imperium very much alive,
be it in the Empire’s institutions, through feudal territorial links, or by restrict-
ing the Princes’ alliance privileges. Finally, it was seen that the Empire did
not disappear in favour of the German polities as an aftermath of the Peace.
Indeed, despite reductions in the scope of their functions and powers, the
Imperial institutions remained active until they disappeared.
From the metalogical inquiry into the myth of Westphalia, the study will
now move to the semiology of the word sovereignty, the history of which will
be the subject of the next two chapters.

entirely new departure. These opposite hazards have affected our assessments of
the origin and evolution of the modern states’ system. Only when due allowance is
made for the first can it be seen that a new European states’ system emerged in the
eighteenth century, and not at an earlier date. Only when careful regard is paid to
the second can it be seen that, for all the twists and phases it has recently under-
gone, the system which then emerged or finally matured in Europe is the system
which still holds the world in its framework.” [emphasis added]
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PART FOUR

THE SOCIAL POWER OF THE WORD SOVEREIGNTY

Through the cognitive process of the human mind, powerful words like
“sovereignty” not only represent and describe reality, but they can also play
a leading part in the creation and the transformation of reality. Indeed, they
are activities in themselves; they are dynamic mental-social phenomena; they
actually exist and act within human consciousness. As such, words and ex-
pressions constitute organic instruments, part of a linguistic sign-system, which
can demonstrate, and may actually be strategically utilised to carry, tremend-
ous power within the shared consciousness of society.
The principal objective of the next two chapters is to examine pivotal
episodes in the history of the word sovereignty, which must be distinguished
from the history of the concept of sovereignty. As Philip Allott explained:
As persons and as societies, we are what we were able to be, and we will be what we
are now able to be. So it is with the history of words. We are what we have said; we
will be what we are now able to say. Words contain social history, distilled and crystal-
lized and embodied and preserved, but available also as a social force, a cause of new
social effects.445
Therefore, the word “sovereignty” has its own history, a history going be-
yond the history of its changing meaning.446 That is, it contains a history of
the social effects of its changing meaning. The intended study will thus attempt

445. Eunomia, at 9. [emphasis added]

446. Until recently, the strict etymology of the word “sovereignty” had been controversial:
see A.P. d’Entrèves, supra, note 312, at 102. Bertrand de Jouvenel, supra, note 77,
at 203, however, expressed the view that the etymological origin of the word sim-
ply concerns the idea of superiority. It has now been demonstrated that “sover-
eignty” (“souveraineté ” in French) appeared in the late 13th century; the oldest
reference to the word “sovereignty” in The Oxford Dictionary goes back to the
1290s – see J.A. Simpson & E.S.C. Weiner (eds.), The Oxford English Dictionary,
2nd ed., vol. 16 (Oxford: Clarendon Press, 1989), at 77-79. The noun was a
derivative of the mid-12th century word “sovereign” (“souverain” in French),
which in turn corresponded to the medieval Latin “superanus” and, earlier, to the
classic Latin “superus,” that is, “superior:” see A. Truyol Serra, supra, note 306, at
314-315; and, T.F. Hoad (ed.), supra, note 123, at 451. See also H. Shinoda, Re-
examining Sovereignty – From Classical Theory to the Global Age (New York: St.
Martin’s Press, 2000), at 9.
Interestingly, the German language has no equivalent to the linguistic sign “sov-
ereignty” in English, “souveraineté ” in French, or “ëÛ‚ÂÌËÚÂÚ” in Russian. The
word “Obergewalt” relates to the authority within a polity; “Statshoheit” pertains to
state dignity (or “majesta” in Latin), as opposed to state power; and, “Statsgewalt”
refers to the power rather than the dignity of a polity. Therefore, in order to
to bring out the function that “sovereignty,” the word, has played in model-
ling socially constructed reality and the role it is still playing in the contin-
uous and continuing process of reality-creation, that is, in understanding the
world as it is at present and as it might be in the near future.
The next two chapters are interested in what constitutes two paradigms
in the development of the word “sovereignty” in legal and political literature
since it was explicitly introduced and elaborated upon in the 16th century,
that is, the internal paradigm on the “highest unified power” within, and the
external paradigm on the “incorporated independent authority” without.
Accordingly, the material will be divided into two sections, dealing with the
two most influential writers on the internal and external ramifications of the
linguistic sign at hand, namely, Jean Bodin who focussed on the internal impli-
cations of “sovereignty,” and Emer de Vattel, who of course highlighted the
external ones. This metalogical inquiry into the word “sovereignty” will thus
be thematic and will follow what was referred to as the “inward-outward”
approach to language.
The theorists examined are, more or less, empirical case studies about the
use of the word “sovereignty” and the social power it has carried in human-
ity. These two particular authors on sovereignty were chosen because they are
archetypes, that is, perfect examples of a thing because they have all its most
important attributes. They would be called “central cases” in a psychological
study.447 Put another way, their works constitute compelling examples where
sovereignty has begun to exist as an organic instrument and has since never
stoped acting as a social force within the shared consciousness of humanity.
Although many other people have contributed to the debate on sovereignty
during the relevant periods, they will be treated in the present study either
as representing the différance in the “inward” perspective or as part of the
enlarged historical (i.e. intellectual) context in the “outward” analysis.

convey the same thing as “sovereignty,” the expression “Statshoheit und Statsgewalt”
must be used in German. See J.K. Bluntschli, The Theory of the State, 2nd ed.
(Oxford: Clarendon Press, 1892), at 494 ff.
447. See, for instance, P. Gay, Freud – A Life for Our Time, (New York & London: Norton,
1988), at 267 ff., where the author refers to this type of cases in the psychological
work of Sigmund Freud.
CHAPTER SIX

BODIN’S SOVEREIGNTY: POWER-CENTRALISER

Although he did not invent it per se,448 many consider Jean Bodin the “father”449
of “sovereignty” as he provided “the first systematic discussion of the nature”450
of this extraordinary powerful word. He has been referred to as the man
who is “often quoted, but rarely read,”451 which is perhaps excusable given
that his writing is highly “unorganized and ill-arranged, repetitious and dis-
connected.”452

448. Authors generally agree that the idea of sovereignty, if not the word “sovereignty,”
existed in Europe much before the 16th century: see G. Mairet, “Bodin Jean,
1530-1596 – Les Six Livres de la République, 1576,” in F. Chatelet, O. Duhamel
& E. Pisier (eds.), Dictionnaire des Oeuvres Politiques (Paris: Presses universitaires
de France, 1986), 99, at 99. See also R. Bonner, “Lawyers and Litigants in
Ancient Athens,” in J.C. Smith & D.N. Weisstub (eds.), The Western Idea of Law
(London: Butter-worths, 1983), 303, at 303, who wrote: “Nowhere has popular sov-
ereignty been so completely realized in practice as in ancient Athens. The sover-
eign people exercised their power not merely at intervals; they actually wielded it
at all times. The national assembly, composed of all citizens, debated and decided
all questions of public policy. The legislative, executive, and judicial functions of
government were exercised by commissions drawn from the citizen body by lot.
Thus the people actually administered justice, interpreting and applying the law in
each case as they saw fit. No trained jurist on the bench balked the popular will
by citing inconvenient precedents. In theory, a judicial decision rendered today could
be reversed in a similar case tomorrow.”
449. J. Maritain, “The Concept of Sovereignty,” in W.J. Stankiewicz (ed.), In Defense of
Sovereignty (New York & London: Oxford University Press, 1969), 41, at 43.
450. C.E. Merriam, History of the Theory of Sovereignty since Rousseau (New York: Columbia
University Press, 1900), at 13. See also D. Pharand, supra, note 274, at 19; J.D.
van der Vyver, “Sovereignty and Human Rights in Constitutional and Interna-
tional Law” (1991), 5 Emery Int’l L. Rev. 321, at 324; and, J. Bryce, supra, note
360, at 84.
451. E.N. van Kleffens, supra, note 295, at 52. See also K.D. McRae, “Introduction,”
in K.D. McRae (ed.), Jean Bodin – The Six Bookes of a Commonweale (Cambridge,
U.S.: Harvard University Press, 1962), A3, at A25, who wrote: “In the twentieth
century, references to Bodin’s ideas remain surprisingly numerous in several differ-
ent academic fields, but the scholar who has actually read the République is rare
indeed. This failure to read the original text explains why there have grown up
around the work certain stock criticisms, which portray it as a vast and formless
chaos of undigested material, as a display of erudition and pedantry that all but
submerges its positive contributions, as a dull and ponderous volume unrelieved
by any ornaments of style or sprightliness. Admittedly the République is by no means
light reading, but much of this criticism is simply ill-informed, in that it ignores
completely the canons of style and organization that Bodin sought to follow.”
452. G.H. Sabine, A History of Political Theory, 3rd ed. (London: Harrap, 1951),
102 CHAPTER 6

6.1. IMMEDIATE PERSONAL CONTEXT

Born in 1530, a significant year for humanism with the foundation of the
Collège de France,453 Bodin was the youngest of seven children in a family
belonging to the municipal bourgeoisie in Angers. His early education was
both theological and humanist – he trained for the priesthood with the Carme-
lites and later went to study languages (Greek and Hebrew) in Paris, where
he also expended his already considerable knowledge of classical authors, includ-
ing the leading humanist scholars. There are speculations on possible charges
of heresy and on time spent in the Calvinist stronghold of Geneva in late
1540s, early 1550s; what is known with more certainty, however, is that Bodin
returned to Angers in 1548-1549 and was released from his vows shortly
after on the plea that they were professed at too early an age.454
In the 1550s, Bodin was reading civil law at the University of Toulouse,
the centre of legal studies in France,455 where he also taught and apparently
attempted, unsuccessfully, to gain a permanent post.456 In 1561-1562, he
returned to Paris and became an avocat at the Parliament of Paris457 which,
however, proved not his milieu as he preferred the private contemplations in

at 342. However, see C.J. Friedrich, The Philosophy of Law in Historical Perspective
(Chicago & London: University of Chicago Press, 1963), at 57: “In spite of all
contradictions and the extraordinary confusion of his work – Bodin is one of the
most unclear writers in the history of the philosophy of law – Bodin always main-
tains his central position clearly.” [emphasis added]
453. See A. Gardot, “Jean Bodin – Sa place parmi les fondateurs du droit international”
(1934), 50 R.C.A.D.I. 544, at 559.
454. For recent biographies of Jean Bodin, see J. Saillot, “Jean Bodin, sa famille, ses
origines,” in Jean Bodin – Actes du colloque interdisciplinaire d’Angers, vol. 1
(Angers, France: Presses de l’Université d’Angers, 1985), 111; J.H. Franklin,
“Introduction,” in J.H. Franklin (ed.), Jean Bodin – On Sovereignty: Four Chapters
from The Six Books of the Commonwealth (Cambridge: Cambridge University Press,
1992), ix; and, M.-D. Couzinet, “Note biographique sur Jean Bodin,” in Y.C. Zarka
(ed.), Jean Bodin – Nature, histoire, droit et politique (Paris: Presses universitaires de
France, 1996), 233.
455. See H. Gilles, “La Faculté de Droit de Toulouse au temps de Jean Bodin,” in Jean
Bodin – Actes du colloque interdisciplinaire d’Angers, vol. 1 (Angers, France: Presses
de l’Université d’Angers, 1985), 313.
456. Given his academic background, therefore, it is certainly right to say that Bodin
was a theologist, a humanist, and a jurist: see A. Gardot, supra, note 453, at 578,
who put it as follows: “Par sa formation livresque, Bodin est essentiellement un
théologien. Il est un humaniste. Il est un juriste. Dieu, l’humanité et la loi: telles
sont les trois sources auxquelles sa science d’écolier, de professeur et de savant a
puisé.”
457. See R. Delachenal, Histoire des avocats au Parliament de Paris – 1300-1600 (Paris:
Plon, 1885), at 399-406, which shows that on 10 June 1562, two barristers
named Jean Bodin – one of whom is no doubt the one from Anger – took oath
as a member of the Parliament of Paris; see specifically, id., at 405 & 406. See also
id., at 30, where the author explicitly referred to Jean Bodin.
 CHAPTER 6 103

his office to the theatrical performances at the barreau.458 This is evidenced

by his prolific writing in the 1560s, including three pieces on completely
different subjects459 – Methodus ad facilem historiarum cognitionem,460 published
in 1566, on a method of study for universal history; Juris universi distribu-
tio,461 drafted in the mid-1560s but only published in 1578, on a system of
universal law; and, La response à M. de Malestroit,462 published in 1568, on
the economics of inflation.463
Having come to the attention of the royal court, Bodin was given a series
of public charges, including a commission for the reformation of forest tenures
in Normandy and a delegation to welcome the ambassadors of the new monarch
of Poland, Henri, Duke of Anjou, King Charles IX’s brother. In 1571, he
entered the household of the King’s youngest brother, François, Duke of
Alençon, as counsellor and master of requests. These appointments gave
Bodin a public status and a direct access to the inner circles’ intrigues and
diplomacy, which brought him in a dangerous situation when, following
the death of Charles in 1574, Protestant-supported François attempted to

458. See H. Baudrillart, Jean Bodin et son temps – Tableau des théories politiques et des
idées économiques au seizième sciècle (Paris: Librairie de Guillaumin, 1853), at 115,
who wrote: “Plus fait pour les méditations du cabinet que pour les improvisations
du barreau, il se livra presque tout entier à l’étude approfondie et philosophique
de l’histoire et du droit, amassant dès-lors les immenses matériaux qui devaient lui
servir à édifier son principal monument. C’est ainsi qu’il devint un grand publi-
ciste, faute peut-être d’avoir été un bon avocat.”
459. Appositely, A. Gardot, supra, note 453, at 552, pointed out that Bodin “a tout
abordé, ou presque tout, des sciences de son temps: théologie, philosophie,
philologie, histoire, sciences naturelles, sociologie, et jusqu’à l’occultisme.”
460. J. Bodin, Methodus, ad facilem historiarum cognitionem (Paris: Iuuenem, 1566). See
also the translation by B. Reynolds, J. Bodin, Method for the Easy Comprehension
of History (New York: Columbia University Press, 1945). See also M.-D. Couzinet,
“La Methodus ad facilem historiarum cognitionem: histoire cosmographique et
méthode,” in Y.C. Zarka (ed.), Jean Bodin – Nature, histoire, droit et politique
(Paris: Presses universitaires de France, 1996), 23; P. Desan, “Jean Bodin et l’idée
de méthode au XVIe siècle,” in Jean Bodin – Actes du colloque interdisciplinaire
d’Angers, vol. 1 (Angers, France: Presses de l’Université d’Angers, 1985), 119; and,
J.H. Franklin, Jean Bodin and the Sixteenth-Century Revolution in the Methodology
of Law and History (Westport, U.S.: Greenwood Press, 1977).
461. J. Bodin, Juris universi distributio, reproduced in P. Mesnard (ed.), Œuvres Philosophiques
de Jean Bodin (Paris: Presses universitaires de France, 1951), 71.
462. J. Bodin, La vie chère au XVI e siècle. La response de Jean Bodin à M. de Malestroit,
new ed. (Paris: Colin, 1932). See also the translation by G.A. Moore, J. Bodin,
The Response of Jean Bodin to the Paradoxes of Malestroit (Chevy Chase, U.S.:
Dollar Press, 1946).
463. Some have suggested that Bodin was incarcerated for heresy between 1568 and 1570:
see J. Boucher, “L’incarcération de Jean Bodin pendant la troisième guerre de reli-
gion” (1983), 1 Nouvelle Rev. XVI e siècle 33. See also K.D. McRae, supra, note
451, at A7; and, M.-D. Couzinet, supra, note 454, at 239.
104 CHAPTER 6

supplant the lawful heir to the throne, Henri. The conspiracy failed and it
forced Bodin to disappear from public life for the following two years.464
It is thus in seclusion, in Laon, that Bodin wrote his masterpiece, Les six
Livres de la Republique,465 published in 1576. This book was certainly an oppor-
tunity to show his loyalty to the new King, Henri III, and to try to win his
favour. It was also undoubtedly influenced by his personal experience with
the St. Bartholomew’s Day Massacre in 1572, the threat of anarchy it repre-
sented not only did he witness but also, we are told, in which he narrowly
escaped with his life.466 Running somewhat contrary to his courting strategy,
Bodin attended the Estates-General of Blois in 1576 and proved a stub-
born, if successful, advocate in a confrontation with Henri III’s officials over
new taxation which, as he wrote in Six Livres,467 must be consented to.468
Unsurprisingly, this exasperated the King and destroyed Bodin’s chances of
an appointment at the court. He returned to Laon to write again, among other
things,469 a surprisingly influential book on witchcraft and demonology, La
démonomanie des sorciers.470

464. See, generally, M.-D. Couzinet, id., at 240; K.D. McRae, id., at A8; H. Baud-
rillart, supra, note 458, at 116-117; and, A. Gardot, supra, note 453, at 572-573.
465. The original French edition was first published by Iacques du Puys (also spelt Jacques
du Puis); the date of the privilege was 12 August 1576. Only 19 copies of that
version are recorded. Several other editions were published in 1577, 1578, 1579 and
1580. Bodin’s Latin edition under the title De Republica libri sex was first pub-
lished in 1586. On the publishing history of Six Livres, see K.D. McRae, id., at
A79-A80.
The version used here is that published in 1583 – J. Bodin, Les six Livres de la
Republique (Paris: Iacques du Puys, 1583). [hereinafter Six Livres] The English version
utilised is the first translation of the book by R. Knolles, J. Bodin, The Six Bookes
of a Commonweale (London: Impensis G. Bishop, 1606). [hereinafter Six Books]
466. See H. Baudrillart, supra, note 458, at 117, who related this episode thus: “Le
conseiller du duc d’Alençon, le partisan connu de la tolérance, le magistrat déjà sour-
dement accusé de calvinisme, devait être désigné aux poignards des fanatiques pen-
dant la nuit de la Saint-Barthélemy. Bodin faillit y être tué. Soit qu’il ait dû son
salut à l’asile du président de Thou, soit que, suivant une autre version, il n’ait pu
se soustraire aux meurtriers qui avaient pénétré dans sa chambre qu’en s’échappant
par la fenêtre, il vécut quelque temps loin de Paris, où il reparut, la tempête
passée.”
467. See infra, at footnote 511, and accompanying text.
468. For more on the participation of Bodin at the Estates-General of Blois, see O. Ulph,
“Jean Bodin and the Estates-General of 1576” (1947), 19 J. Modern History 289.
469. It is then that Juris universi distributio, supra, note 461, was published, as noted
above. Bodin also wrote at that time an account of the Estates of Blois and, under
a pseudonym, replied to early critics of Six Livres in a piece entitled Apologie de
René Herpin pour la République de J. Bodin, published in 1581 and included as an
appendix in the 1583 edition of Six Livres.
470. J. Bodin, La démonomanie des sorciers (Paris: Prevosteau, 1593), first published in
1580. This book “described at great length the passion of witches for evil forces
and the way by which they should be detected and punished;” see J.H. Franklin,
 CHAPTER 6 105

Bodin’s last involvement in national politics was with the Duke of Alençon,
whom he accompanied to England in 1581 for his matrimonial suit with
Queen Elizabeth.471 This allowed the French jurist to gather first-hand infor-
mation about English affairs and thus test, change, supplement his views on
the nature and structure of government. Unsuccessful like all the others, the
Duke left England for Flanders, Bodin with him, where the former again
failed in his project to get a crown, with the thwarted plan to rid the Low
Countries of Spain. With the death of the Duke in 1584, Bodin retired, per-
manently this time, from the public stage and settled down for good with
his family in Laon, where he later took over his brother-in-law’s office of
procureur du roi after his death in 1587.472
This was no peaceful time, however, with the new phase of religious wars
that broke out following the assassination of Henri III in 1589. The then
Protestant Henri of Navarre (King Henri IV) was opposed by Cardinal Charles
of Bourbon and the Catholic League, which controlled parts of France, includ-
ing Laon. Although they ran contrary to his core principles (legitimacy, non-
resistance, toleration), Bodin was forced to collaborate with the Leaguers,
not to endanger his family and loose his office, his property, and even his
life since he was accused of heresy.473 When the tide turned in 1594, he

supra, note 454, at xi. See also N. Jacques-Chaquin, “La Démonomanie des Sorciers:
une lecture philosophique et politique de la sorcellerie,” in Y.C. Zarka (ed.), Jean
Bodin – Nature, histoire, droit et politique (Paris: Presses universitaires de France,
1996), 43; and, M.-T. Isaac, “‘La Démonomanie des sorciers’ – Histoire d’un livre
à travers ses éditions,” in Jean Bodin – Actes du colloque interdisciplinaire d’Angers,
vol. 2 (Angers, France: Presses de l’Université d’Angers, 1985), 377.
471. We are told that Elizabeth was not at all a fan of Bodin, a mutual feeling which
influenced how the French theorist referred to the English monarch in the later pub-
lished Latin edition of Six Livres. See H. Baudrillart, supra, note 458, at 129, who
told the following anecdote: “Admis à la cour, Bodin y était nommé par Élisabeth
du sobriquet de Babin, parce qu’elle trouvait, dit Nicéron, qu’il s’était exprimé sur
les femmes, dans plusieurs passages, en des termes railleurs et peu séants.” [empha-
sis in original]
472. See, generally, M.-D. Couzinet, supra, note 454, at 242-243; J.H. Franklin, supra,
note 454, at xi, K.D. McRae, supra, note 451, at A10-A11; and, A. Gardot, supra,
note 453, at 576.
473. Jean Bodin’s actual religion has been the subject of great controversies, with peo-
ple saying that he was Catholic, Protestant, or even Jewish; see, for instance, M.C.
Horowitz, “La religion de Jean Bodin reconsidérée: Le Marrane comme modèle de
la tolérance,” in Jean Bodin – Actes du colloque interdisciplinaire d’Angers, vol. 1
(Angers, France: Presses de l’Université d’Angers, 1985), 201; P.L. Rose, Jean
Bodin and the Great God of Nature – The Moral and Religious Universe of a Judaiser
(Geneva: Droz, 1980), at 1 ff.; and, H. Baudrillart, supra, note 458, at 135-142.
But see J.H. Franklin, supra, note 454, at xii, who wrote: “Outwardly, however, he
remained a Catholic, and on his death, in accordance with his will, he was buried
as a Catholic.” On the other hand, as K.D. McRae, supra, note 451, at A13, pointed
out: “His personal religious convictions are quite another matter, and these he
106 CHAPTER 6

came forward for the recently converted Henri IV.474 In the years that fol-
lowed, and until he died of the plague in 1596, Bodin wrote Universae nat-
urae theatrum, 475 on the principles of natural science, and Colloquium
heptaplomeres,476 a controversial piece on the nature of religion unpublished
until 1857.

6.2. THE DISCOURSE IN LES SIX LIVRES DE LA REPUBLIQUE

Moving on to examine inwardly how Bodin used the word “sovereignty” in

his Six Livres, one first must point out that he thought it necessary, at the
outset of the chapter “Of Sovereignty,”477 to define it:478 “For so here it behaved
first to define what majesty or Sovereignty is, which neither lawyer nor
political philosopher had yet defined.” 479 In fact, he liked to define
concepts, which he did also for “République”480 (or “Commonwealth”)481 and
“citoyen”482 (or “citizen”)483 for instance, a tendency showing that his analysis

states clearly enough in his writings. True religions, he proclaims several times, is
strictly as personal affair, the turning of an individual mind towards God. [. . .]
This continuing belief in the primacy of a personal religion divorced from any church
must be considered as the fundamental tenet of Bodin’s religious thought.”
474. On this period, see P.L. Rose, “The Politique and the Prophet: Bodin and the Catholic
League – 1589-1594” (1978), 21 Historical J. 783; and, P.L. Rose, “Bodin and the
Bourbon Succession to the French Throne, 1583-1594” (1978), 9 Sixteenth
Century J. 75. See also M.-D. Couzinet, supra, note 454, at 243-244.
475. J. Bodin, Universae naturae theatrum (Lugduni: Roussin, 1596), published posthu-
mously in 1596. See also F. Berriot, “Le Théâtre de la nature universelle ou le
tableau du monde,” in Y.C. Zarka (ed.), Jean Bodin – Nature, histoire, droit et poli-
tique (Paris: Presses universitaires de France, 1996), 3.
476. J. Bodin, Colloquium heptaplomeres de rerum sublimium arcanis abditis (Schwerin:
Baerensprung, 1857). See also P. Magnard, “Le Colloquium heptaplomeres et la reli-
gion de la raison,” in Y.C. Zarka (ed.), Jean Bodin – Nature, histoire, droit et poli-
tique (Paris: Presses universitaires de France, 1996), 71.
477. Six Books, at 84. [spelling modernised] See also Six Livres, at 122: “De la souveraineté”
[spelling modernised]
478. See T. Ruyssen, supra, note 265, at 392, who wrote: “L’exemple le plus frappant,
à cet égard, est celui de la souveraineté dont Bodin se vante, un peu abusivement, de
présenter le premier une théorie satisfaisante.” [emphasis added] [footnotes omitted]
479. Six Books, at 84 [spelling modernised] See also Six Livres, at 122.: “Il est ici besoin
de former la définition de souveraineté, parce qu’il n’y a ni jurisconsulte, ni philosophe
politique, qui l’ait définie.” [spelling modernised]
480. Six Livres, at 1. [spelling modernised]
481. Six Books, at 1 [emphasis added].
482. Six Livres, at 68.
483. Six Books, at 47. [spelling modernised]
 CHAPTER 6 107

was heavily deductive484 and not only inductive, that is, based on empirical
data found in history.485
Accordingly, for Bodin: “Majesty or Sovereignty is the most high,
absolute, and perpetual power over the citizens and subjects in a Common-
wealth.”486 The French text is clearer as it identifies the two characteristics of
sovereignty as “absolute” and “perpetual:” “La SOUVERAINETÉ est la puis-
sance absolue & perpétuelle d’une République.”487 Again, on the next page,
he reiterated more forcefully: “Sovereignty is not limited either in power, charge,
or time certain.”488 Be it called “perpetual,” “absolute,” “unlimited,” “great-
est,” “total”, et cetera,489 a deconstruction-informed analysis of the word
“sovereignty” found in Bodin’s discourse most appropriately opposes the real-
ity of the “highest unified power” to that of the “subordinate decentralised
power.” It is thus a question of pyramid of authority within.

6.2.1. Perpetual and absolute power

Concentrating on the actual text of Six Livres, the discussion is essentially
based on a distinction between who is the ruler and who are the subjects:
“For the one was the prince, the other the subject; the one the lord, the
other the servant; the one the proprietary and seised of the Sovereignty, the
other neither proprietary nor possessed thereof, neither holding anything
thereof, but as a feoffer or keeper in trust.”490 According to Bodin, therefore,

484. See R. Chauviré, Jean Bodin – Auteur de la «République» (Paris: Librairie ancienne
Honoré Champion, 1914), at 104: “De l’école aussi vient la prédilection évidente
de Bodin pour le raisonnement déductif, dérivé du syllogisme scolastique. Il aime
à définir, et, d’après des définitions successives, à conclure.”
485. See Q. Skinner, The Foundations of Modern Political Thought, vol. 2, The Age of
Reformation (Cambridge: Cambridge University Press, 1978), at 290-292. It is
said that Bodin considered history as “raw data,” as opposed to a discipline in
itself, and that he used universal history to remedy the deficiencies of Roman law
materials (mainly Justinian’s Corpus Juris) on the nature and structure of political
power. See also W. Wolodkiewicz, “Bodin et le droit privé romain,” in Jean Bodin
– Actes du colloque interdisciplinaire d’Angers, vol. 1 (Angers, France: Presses de
l’Université d’Angers, 1985), 303.
486. Six Books, at 84. [spelling modernised]
487. Six Livres, at 122. [emphasis in original] [spelling modernised]
488. Six Books, at 85. [spelling modernised] See also Six Livres, at 124: “la souveraineté n’est
limitée, ni en puissance, ni en charge, ni à certain temps.” [spelling modernised]
489. For the different ideas that the terms “absolute sovereignty” can embrace, see
P. King, The Ideology of Order – A Comparative Analysis of Jean Bodin and Thomas
Hobbes (London: George Allen & Unwin, 1974), at 140-153. See also K.D.
McRae, supra, note 451, at A15.
490. Six Books, at 86. [spelling modernised] See also Six Livres, at 127: “car l’un est Prince,
l’autre est sujet: l’un est seigneur, l’autre est serviteur: l’un est propriétaire, & saisi
de la souveraineté, l’autre n’est ni propriétaire, ni possesseur d’icelle, & ne tient
108 CHAPTER 6

the sovereign prince cannot share his power with a subject without losing his
status of sovereign:
It is also by the common opinion of the lawyers manifest, that those royal rights can-
not be the sovereign be yielded up, distracted, or any otherwise alienated; or by any
tract of time be prescribed against: [. . .] And if it chance a sovereign prince to com-
municate them with his subject, he shall make him of his servant, his companion in
the empire: in which doing he shall loose his sovereignty, and be no more a sover-
eign: for that he only is a sovereign, which had none his superior or companion with
himself in the same kingdom.491
As regards the first element of sovereignty, “power ought to be perpetual,”492
that is, “for the term of the life of him that had the power.”493 This contrasts
with those who, “seeing that they are but men put in trust, and keepers of
this sovereign power, until it shall please the people or the prince that gave
it them to recall it.”494 Later he wrote:
If such absolute power be given him purely and simply without the name of a mag-
istrate, governor, or lieutenant, or other form of deputation; it is certain that such a
one is, and may call himself a Sovereign Monarch: for so the people had voluntarily
disseised and dispoiled itself of the sovereign power, to sease and invest another
therein having on him, and upon him transferred all the power, authority, preroga-
tives, and sovereignties thereof.495

rien qu’en dépôt.” [spelling modernised] See also G. Mairet, supra, note 448, at 100,
who wrote: “Cette doctrine affirmée de la séparation des deux parties (gouvernante
et gouvernée) est capitale: elle exprime la structure fondamentale de l’Etat, sa
forme théorique. L’Etat, c’est-à-dire la forme souveraineté, est le système politique
de l’ordination de la multitude à l’unité d’un principe: le prince (monarque) en
personne. La multitude gouvernée est ramenée à l’Un comme à son principe.”
[emphasis in original]
491. Six Books, at 155. [spelling modernised] See also Six Livres, at 215: “tous sont
d’accord que les droits Royaux sont incessibles, inaliénables, & qui ne peuvent par
aucun trait de temps être prescrit: & s’il advient au Prince souverain de les com-
muniquer au sujet, il fera de son serviteur son compagnon: en quoi faisant il ne
sera plus souverain: car souverain (c’est-à-dire, celui qui est par dessus tous les sujets)
ne pourra convenir à celui qui a fait de son sujet son compagnon.” [spelling
modernised]
492. Six Books, at 84. [emphasis added] [spelling modernised] See also Six Livres, at
122: “puissance est perpétuelle.” [emphasis added] [spelling modernised]
493. Six Books, at 87. [spelling modernised] See also Six Livres, at 126: “pour la vie de
celui qui a la puissance.” [spelling modernised]
494. Six Books, at 84. [spelling modernised] See also Six Livres, at 122: “ne sont que
dépositaires, & gardes de cette puissance, jusqu’à ce qu’il plaise au peuple ou au
Prince de la révoquer.” [spelling modernised]
495. Six Books, at 88. [spelling modernised] See also Six Livres, at 127: “si la puissance
absolue lui est donnée purement & simplement, sans qualité de magistrat, ni de
commissaire, ni forme de précaire, il est bien certain que celui-là est, & se peut
 CHAPTER 6 109

He also added:
But if the people shall give all their power unto anyone so long as he lived, by the
name of a magistrat, lieutenant, or governor, or only to discharge themselves of the
exercise of their power: in this case he is not to be accounted any sovereign, but a
plain officer, or lieutenant, regent, governor, or guardian and deeper of another man’s
power.496
The oppositional hierarchy involving the “highest authority” versus the “sub-
ordinates” can also be identified in the parts of Six Livres dealing with the
other feature of sovereignty, namely absolute power,497 which Bodin also
defined.498 He wrote that sovereign princes “are to give account unto none,
but to the immortal God alone,”499 and that a “sovereign prince next under
God, is not by oath bound unto any.”500 Then, showing that Bodin was
“exaggerating”501 when he spoke of “absolute” or “unlimited” sovereignty, the
following caveat was put:

dire monarque souverain: car le peuple s’est désaisi & dépouillé de sa puissance
souveraine, pour l’ensaisiner & investir: & à lui, & en lui transporté tout son pou-
voir, autorité, prérogatives, & souverainetés.” [spelling modernised]
496. Six Books, at 88. [spelling modernised] See also Six Livres, at 127: “Mais si le peu-
ple octroie sa puissance à quelqu’un tant qu’il vivra, en qualité d’officier, ou lieu-
tenant, ou bien pour se décharger seulement de l’exercice de sa puissance: en ce
cas il n’est point souverain, mais simple officier, ou lieutenant, ou régent, ou gou-
verneur, ou gardien, & bail de la puissance d’autrui.” [spelling modernised]
497. As Q. Skinner, supra, note 485, at 285-287, pointed out, what Bodin had in mind
in characterising the sovereign as “absolute,” is to deny any right of legitimate
resistance against a tyrannical ruler. J.H. Franklin, Jean Bodin and the Rise of Absolutist
Theory (Cambridge: Cambridge University Press, 1973), at 50-52 & 93 ff., argued
that, in fact, the principle of non-resistance was the starting point of Six Livres.
See also, generally, R. Chauviré, supra, note 484, at 398-403.
498. See Six Livres, at 128; and also Six Books, at 88.
499. Six Books, at 86. [spelling modernised] See also Six Livres, at 125: “n’est tenu à
rendre compte qu’à Dieu.” [spelling modernised]
500. Six Books, at 99. [spelling modernised] See also Six Livres, at 143: “le Prince sou-
verain ne doit serment qu’à Dieu.” [spelling modernised]
501. P. King, supra, note 489, at 79, where the author expressed the following opinion:
“But Bodin also spoke in terms of sovereignty being absolute, perpetual (la puis-
sance absolue & perpétuelle), total (toute puissance), and unlimited (la souveraineté
n’est limitée, etc.). Statements such as these, to put it mildly, may be accounted as
exaggerations.” [emphasis in original] Indeed, in spite of the opinion of some revi-
sionists – among them, notably, Q. Skinner, supra, note 485, at 284 ff. – it
appears that Bodin cannot be deemed in favour of unlimited, despotic-like, abso-
lutism: see A. Gardot, supra, note 453, at 625, who made this point forcefully:
“Croire que, sous prétexte qu’il a justifié la théorie de la monarchie nationale,
Bodin ait pu penser un seul instant que le souverain pouvait tout faire, et, soit
à ses sujets, soit aux autres souverains, imposer n’importe quelle fantaisie injuste,
est une opinion tellement erronée qu’il n’est pas besoin de s’y arrêter;” see also,
H. Baudrillart, supra, note 458, at 273.
110 CHAPTER 6
For if we shall say, that he only had absolute power, which is subject unto no law;
there should then be no sovereign prince in the world, seeing that all princes of the
earth are subject unto the laws of God, of nature, and of nations.502
Again, here, the original text is less ambiguous:
[C]ar si nous disons que celui a puissance absolue, qui n’est point sujet aux lois, il ne
se trouvera Prince au monde souverain: vu que tous les Princes de la terre sont sujets
aux lois de Dieu, & de nature, & à plusieurs lois humaines communes à tous
peuples.503
Later, he further stated:
But as for the laws of God and nature, all princes and people of the world are unto
them subject: neither is it in their power to impugn them, if will not be guilty of
high treason to the divine majesty, making war against God; under the greatness of
whom all monarchs of the world ought to bear the yoke, and to bow their heads in
all fear and reverence. Wherefore in that we said the sovereign power in a Commonwealth
to be free from all laws, concerned nothing the laws of God and nature.504
The laws of God and of nature, as well as the human laws common to all
peoples, are really one and the same,505 referring to principles of reason and
justice, to a superior moral (and non-temporal) order, not strictly enforceable.506

502. Six Books, at 90. [spelling modernised] This excerpt has created some confusion
because of Knolles” inaccurate translation, which seems to suggest that Bodin intended
to submit the absolute power of the sovereign prince to the “law of nations,”
which was taken to refer to the modern idea of “international law.” A much more
faithful translation was given by M.J. Tooley, J. Bodin, Six Books of the Commonwealth
(Oxford: Basil Blackwell, 1955), at 28, which reads: “If we insist however that
absolute power means exemption from all law whatsoever, there is no prince in the
world who can be regarded as sovereign, since all the princes of the earth are sub-
ject to the laws of God and of nature, and even to certain human laws common to
all nations.” [emphasis added]
503. Six Livres, at 131. [spelling modernised]
504. Six Books, at 92. [spelling modernised] See also Six Livres, at 133: “Mais quant aux
lois divines & naturelles, tous les Princes de la terre y sont sujets, & n’est pas en
leur puissance d’y contrevenir, s’ils ne veulent être coupables de lèse majesté
divine, faisant guerre à Dieu, sous la grandeur duquel tous les Monarques du
monde doivent faire joug, & baisser la tête en toute crainte & révérence. Et par
ainsi la puissance absolue des Princes & seigneuries souveraines, ne s’étend aucune-
ment aux lois de Dieu & de nature.” [spelling modernised]
505. In fact, they would constitute what is referred to in French as “droit” (in Latin,
“ius”), as opposed to positive law which is called “loi” in French (“lex” in Latin).
See A. Gardot, supra, note 453, at 593 & 624; C.J. Friedrich, supra, note 452, at
61 ff.; and, L. Ingber, “Jean Bodin et le droit naturel,” in Jean Bodin – Actes du
colloque interdisciplinaire d’Angers, vol. 1 (Angers, France: Presses de l’Université
d’Angers, 1985), 279, at 292 ff.
506. See R. Chauviré, supra, note 484, at 469-470: “Mais, dira-t-on, ces principes n’au-
ront de valeur pratique que si le monarque absolu veut bien les reconnaître; nul
 CHAPTER 6 111

This is Bodin the humanist speaking here.507 Specifically, this higher law is
the basis for two limits, and another incidental one, upon supreme power,508
namely, (i) to honour contracts,509 (ii) to respect private property,510 which
entails, (iii) consent to taxation.511 There exist also fundamental laws512 con-
cerning “the state of the realm, and the establishing thereof,”513 from which

ne l’y peut contraindre, et tout dépend de sa bonne volonté, qui demeure incer-
taine;” see also F.H. Franklin, supra, note 454, at xxiv. However, K.D. McRae, supra,
note 451, at A15, added: “Writing in the sixteenth century, Bodin could not treat
the laws of God and nature as merely moral obligations, as might the jurist of
today. Like most of his contemporaries, he firmly believed that the sovereign is
directly responsible to God, and he had an unquestioning faith in divine retribu-
tion for actions which contravened the higher law. Political sovereignty operated within
the wider framework of an ordered universe governed by God.” [emphasis added]
507. Humanist scholars, such as Alciati, Zasius and Cajucius, premised their approaches
on the firm conviction that there was one universal legal order, which was the
basic source of all human laws. See C.J. Friedrich, supra, note 452, at 53-55. This,
in turn, can be linked to Cicero’s writings in Ancient Rome, with his famous,
“True law is right reason in agreement with nature;” see C.W. Keyes (ed.), Cicero
in Twenty-Eight Volumes, vol. 16, De Re Publica De Legibus (London: William
Heinemann, 1988), at 211; see also A.P. d’Entrèves, supra, note 312, at 20 ff.
And, even earlier, to Stoicism in Ancient Greece, with its motto one god, one state,
one law; see, generally, G. Watson, “The Natural Law of Stoicism,” in A.A. Long
(ed.), Problems of Stoicism (London: Athlone Press, 1971), 216; and, G.H. Sabine,
supra, note 452, at 132 ff.
508. According to J.H. Franklin, supra, note 497, at 70 ff., except for taxation, there is
nothing inconsistent with the limits Bodin imposes on supreme authority and
absolutism. On these prescriptions, generally, see Y.C. Zarka, “État et gouverne-
ment chez Bodin et les théoriciens de la raison d’État,” in Y.C. Zarka (ed.), Jean
Bodin – Nature, histoire, droit et politique (Paris: Presses universitaires de France,
1996), 149, at 152-153; and, H. Baudrillart, supra, note 458, at 271-273.
509. See Six Livres, at 152-154; see also Six Books, at 106-107.
510. See Six Livres, at 156-157; see also Six Books, at 109-110.
511. See Six Livres, Livre VI, Chapitre II, “Des Finances,” at 855-913. See also Six
Books, Book VI, Chapter II, “Of Treasure,” at 649-686. [spelling modernised] This
particular limit on the power of the sovereign has been said to constitute a con-
tradiction in Bodin’s theory of sovereignty: see H. Baudrillart, supra, note 458, at
275, who wrote about consent to taxation: “Quelle réserve ou plutôt quelle con-
tradiction!” See also, generally, M. Wolfe, “Jean Bodin on Taxes: The Sovereignty-
Taxes Paradox” (1968), 83 Political Sc. Q. 268; and, A. Marongiu, “Bodin et le
consentement à l’impôt,” in Jean Bodin – Actes du colloque interdisciplinaire
d’Angers, vol. 1 (Angers, France: Presses de l’Université d’Angers, 1985), 365.
512. On this type of laws, see P. King, supra, note 489, at 133-134, who wrote: “Bodin
made a distinction between basic and non-basic law; between law that was and
was not essential to the continuation of a political order; between law that was
and was not fundamental; between law that was and was not constitutional.” See
also K.D. McRae, supra, note 451, at A17, who explained that they are founded
in “the constitutional history of France.”
513. Six Books, at 95. [spelling modernised] See also Six Livres, at 137: “l’état du Royaume
& de l’établissement d’icelui.” [spelling modernised]
112 CHAPTER 6

“the prince cannot derogate.”514 They pertain, essentially, to (i) the rules of
succession to the throne,515 based on Salic law,516 and (ii) the inalienability of
the public domain.517

6.2.2. The power to make law

With respect to ordinary positive laws,518 Bodin wrote: “So we see the prin-
cipal point of sovereign majesty, and absolute power, to consist principally
in giving laws unto the subjects in general, without their consent.” 519
Further, the ruler would be legibus solutus520 – “a king or sovereign prince
cannot be subject to his own laws.”521 This aspect of the word “sovereignty”
is elaborated in the chapter “Of the true marks of Sovereignty,”522 where
“law” is defined as, “the command of a Sovereign concerning all his subjects in
general: or else concerning general things.”523 To make law is thus the key mark

514. Six Books, ibid. [spelling modernised] See also Six Livres, ibid.: “le Prince n’y peut
déroger.” [spelling modernised]
515. See Six Livres, at 973-1013; see also Six Books, at 721-754.
516. Salic law guaranteed a male succession to the French throne: see Six Livres, at
1011-1013; see also Six Books, at 753-754. See also A. Néry, “Jean Bodin et la théorie
statutaire de la couronne,” in Jean Bodin – Actes du colloque interdisciplinaire d’Angers,
vol. 1 (Angers, France: Presses de l’Université d’Angers, 1985), 337.
517. See Six Livres, at 857-863; see also Six Books, at 651-654.
518. See Six Livres, at 129: “Cette puissance est absolue, & souveraine: car elle n’a autre
condition que la loi de Dieu & de nature ne commande.” [spelling modernised]
See also Six Books, at 89: “This so great a power given by the people unto the
king, may well be called absolute and sovereign, for that it had no condition annexed
thereunto, other than is by the law of God and nature commanded.” [spelling
modernised] See also Q. Skinner, supra, note 485, at 294, who wrote that, “although
the form of the positive laws may be nothing more than the declared will of the
sovereign, their contents must remain at all times in line with the dictates of nat-
ural justice;” [emphasis in original] and, P. King, supra, note 489, at 135 & 136,
who explained that, “the prince was both above and below the law,” and that “accord-
ing to Bodin the sovereign was absolute, but only within a given sphere; in respect
of laws that were divine and natural he was himself subject.” [emphasis added]
519. Six Books, at 98. [spelling modernised] See also Six Livres, at 142: “Par ainsi on
voit que le point principal de la majesté souveraine, & puissance absolue, gît prin-
cipalement à donner loi aux sujets en général sans leur consentement.” [spelling
modernised]
520. That is, released from the law, not bound by the law. See Q. Skinner, supra, note
485, at 289; and, R. Chauviré, supra, note 484, at 314: “Que le prince ne soit pas
soumis à la loi, rien n’est plus évident, puisqu’il la crée, et la modifie donc, et s’en
exempte à son gré.” [footnotes omitted]
521. Six Books, at 92. [spelling modernised] See also Six Livres, at 132: “le Roi ne peut
être sujet à ses lois.” [spelling modernised]
522. Six Books, at 153. [spelling modernised] See also Six Livres, at 211: “Des vraies
marques de la souveraineté.” [spelling modernised]
523. Six Books, at 156. [emphasis in original] [spelling modernised] See also Six Livres,
 CHAPTER 6 113

of sovereignty,524 something that even those who “have written best [about
the state] have not sufficiently and as it ought, manifested.”525 Bodin instructed
further:
Wherefore let this be the first and chief mark of a sovereign prince, to be of power
to give laws to all his subjects in general, and to every one of them in particular, (yet
is not that enough, but that we must join thereunto) without consent of any other
greater, equal, or lesser than himself. For if a prince be bound not to make any law
without consent of a greater than himself, he is then a very subject: if not without his
equal, he then had a companion: if not without the consent of his inferior, whether it be
of his subjects, of the Senate, or of the people, he is then no sovereign. And as for the
names of Lords and Senators, which we often times see joined unto laws, they are
not thereunto set as of necessity to give thereunto force or strength, but to give unto

at 216: “est le commandement du souverain touchant tous les sujets en général,

ou de choses générales.” [spelling modernised] However, see M.A. Shepard, “Sovereignty
at the Crossroads: A Study of Bodin” (1930), 45 Political Sc. Q. 580, at 597, who
expressed the following opinion: “But Bodin never meant that law is merely and
always the command of the sovereign; civil law, or legislative law, is only that, to
be sure, but not fundamental or constitutional law.” The author also argued that
the right of passive resistance, enunciated by Bodin, can prove an effective check
on the supreme authority of the sovereign, even if it is not an institutional means;
see id., at 599-600.
524. According to Bodin, there would be nine marks of sovereignty – (i) the power to
legislate, (ii) to make war and peace, (iii) to appoint higher magistrates, (iv) to
hear final appeals, (v) to grant pardons, (vi) to receive homage, (vii) to coin
money, (viii) to regulate weights and measures, and (ix) to impose taxes. See H.
Baudrillart, supra, note 458, at 277-280.
525. Six Books, at 153. [spelling modernised] See also Six Livres, at 211: “ceux qui en
ont mieux écrit n’ont pas éclairci ce point comme il méritait.” [spelling mod-
ernised] The legislative ramifications of sovereignty are said to be the “greatest
innovation” in Bodin’s theory because, in medieval time, the ruler’s functions were
merely judicial and administrative; they now included not only the interpretation
and application of rules, but also the making of law: see K.D. McRae, supra, note
451, at A14. This new discretion recognised to the sovereign was required by post-
medieval Europe where societies were increasingly subject to expansion and
change, which called for a more flexible legal system that could accommodate new
circumstances and needs: see W.F. Church, Constitutional Thought in Sixteenth-
Century France – A Study in the Evolution of Ideas (Cambridge, U.S.: Harvard
University Press, 1941), at 230-231: “One very important reason for Bodin’s will-
ingness to attribute greater authority to the prince was his fear that the more lim-
ited rights held by earlier rulers allowed insufficient freedom of action in dealing
with entirely new problems. His consciousness of change and sense of historical
relativity exercised definite influence upon his theory of sovereignty. It was in
order to enable his ideal ruler to cope with the innumerable difficulties arising
from rapidly changing circumstances that Bodin would attribute to him authority
to make laws selon l’exigence des cas, des temps, et des personnes;” [footnotes omitted]
[emphasis in original] see also P. King, supra, note 489, at 130-131.
114 CHAPTER 6
them testimony and weight, as made by the wisdom and discretion of the chief men,
so to give them the better grace, and to make them to be the better received; and not
for any necessity at all.526
On the related issue of customs, Bodin acknowledged that some say that
“customs have almost the force of laws,”527 even though they “depend not of
the judgement or power of the sovereign prince, who as he is master of the
law, so are particular men masters of the customs.”528 This contention is dis-
missed, for “custom had no force but by sufferance, and so long as it pleased
the sovereign prince, who may make thereof a law, by putting thereunto his
own confirmation.”529 Similarly, a monarch is not bound by his coronation
oaths,530 which he can “frustrate and disannul”531 whenever ceased “the rea-
son and equity of them.”532 In fact, being “bound by oaths to keep the laws
& customs of the country,”533 Bodin wrote, would amount to “overthrow all
the rights of sovereign majesty.”534

526. Six Books, at 159-160. [emphasis added] [spelling modernised] See also Six Livres,
at 221: “Et par ainsi nous conclurons que la première marque du Prince souverain,
c’est la puissance de donner loi à tous en général, & à chacun en particulier: mais
ce n’est pas assez, car il faut ajouter, sans le consentement de plus grand, ni de
pareil, ni de moindre que soi: car si le Prince est obligé de ne faire loi sans le con-
sentement d’un plus grand que soi, il est vrai sujet: si d’un pareil, il aura compagnon:
si des sujets, soit du Sénat, ou du peuple, il n’est pas souverain. Et les noms des seigneurs
qu’on voit apposés aux édits, n’y sont pas mis pour donner force à la loi mais
témoignage, & quelque poids pour la rendre plus recevable.” [emphasis added]
[spelling modernised]
527. Six Books, at 160. [spelling modernised] See also Six Livres, at 222: “la coutume
n’a pas moins puissance que la loi.” [spelling modernised]
528. Six Books, ibid. [spelling modernised] See also Six Livres, ibid.: “si le Prince sou-
verain est maître de la loi, les particuliers sont maîtres des coutumes.” [spelling mod-
ernised]
529. Six Books, at 161. [spelling modernised] See also Six Livres, ibid.: “la coutume n’a
force que par la souffrance, & tant qu’il plaît au Prince souverain, qui peut faire
une loi, y ajoutant son homologation.” [spelling modernised]
530. See, however, the opinion of M.A. Shepard, supra, note 523, at 594-595: “My
own impression is that Bodin regarded the coronation oath as of transcendental
importance. He merely objected to the injection into that oath of promises calcu-
lated to make a hollow mockery of sovereignty and to nullify the rights of the sov-
ereign to enact formal legislation.”
531. Six Books, at 94. [spelling modernised] See also Six Livres, at 135: “casser & annuler.”
[spelling modernised]
532. Six Books, ibid. [spelling modernised] See also Six Livres, ibid.: “la justice d’icelles.”
[spelling modernised]
533. Six Books, at 101. [spelling modernised] See also Six Livres, at 145: “obligés de
faire serment de garder les lois et coutumes du pays.” [spelling modernised]
534. Six Books, ibid. [spelling modernised] See also Six Livres, ibid.: “dégradent la
majesté souveraine.” [spelling modernised]
 CHAPTER 6 115

This sense of unified legal authority as the ultimate mark of sovereignty

was applied to forms of government, which Bodin classified based on the
locus of power.535 He opined that “there are but three estates or sorts of
Commonwealth; namely a Monarchy, an Aristocracy, and a Democracy,”536
depending on whether sovereignty resides in one, a few or all the citizens. It
follows that what some authors have referred to as a “mixed state” is impos-
sible,537 for “if sovereignty be itself a thing indivisible, (as we have before
showed) how can it then at one and the same time be divided between one
prince, the nobility, and the people in common? The first mark of sover-
eignty is, to be of power to give laws, and to command over them unto the
subjects.”538 As far as his country was concerned, he added:
And this opinion of the mixed state had so possessed the mind of men, that many
have both thought and written this monarchy of France (than which none can be
imagined more royal) to be mixte and composed of the three kinds of Commonwealths,
and that the parliament of Paris had the form of an Aristocracy, the three estates of
a Democratie, and the king to represent the state of a monarchy: which is an opin-
ion not only absurd, but also capital. For it is high treason to make the subject equal
to the king in authority and power, or to join them as companions in the sovereignty
with him.539

6.2.3. General assemblies and magistrates

Moreover, given that supreme power is held at the top of a pyramid of
authority – most appropriately by a king540 – the consent of subordinate
bodies is never required and their recommendations have no binding effect.
Indeed, Bodin maintained that, although laws are generally changed “after

535. See G.H. Sabine, supra, note 452, at 346.

536. Six Books, at 184. [spelling modernised] See also Six Livres, at 252: “il n’y a que
trois états, ou trois sortes de Républiques, à savoir la Monarchie, l’Aristocratie, &
la Démocratie.” [spelling modernised]
537. See J.H. Franklin, supra, note 437, at 302-305.
538. Six Books, at 185. [spelling modernised] See also Six Livres, at 254-255: “Car si la
souveraineté est chose indivisible, comme nous avons montré, comment pourrait-
elle se départir à un Prince, & aux seigneurs, & au peuple en un même temps? La
première marque de souveraineté, est de donner la loi aux sujets: & qui seront les
sujets qui obéiront.” [spelling modernised]
539. Six Books, at 191. [spelling modernised] See also Six Livres, at 262-263: “On a
voulu dire & publier par écrit que l’état de France était aussi composé des trois
Républiques, & que le Parlement de Paris tenait une forme d’Aristocratie, les trois
états tenaient la Démocratie, & le Roi représentait l’état Royal: qui est une opin-
ion non seulement absurde, ainsi aussi capitale. Car c’est crime de lèse majesté de
faire les sujets compagnons du Prince souverain.” [spelling modernised]
540. In the last chapter of Six Livres, at 937 ff., Bodin compared the three forms of gov-
ernment and took the view that the monarchy was superior; see also Six Books, at
700 ff. However, he did not advocate it for all societies indiscriminately because,
based on extrinsic elements in nature like the climatic zone in which they live,
116 CHAPTER 6

general assembly of the three estates of France,”541 it is never “necessary for

the king to rest on their advice,”542 and it is alway possible to “do the con-
trary to that they demand, if natural reason and justice so require.”543 Except
with regard to taxation, Estates do not have “any power in any thing to
command or determine, or to give voice, but that that [sic] which it pleases
the king to like or dislike of, to command or forbid.”544 The same was said
about the Parlement of Paris, which cannot “call in question the laws or decrees
proceeding from the king concerning matters of state.”545
The sovereignty ramifications about the independence546 and power of mag-
istrates are also significant for the deconstruction-like opposition between
“unity” and “decentralisation” of authority.547 Bodin wrote that, although a
sovereign may choose to delegate his power,548 “he may take unto himself
the examination and deciding of such things as he had committed unto his
magistrates or officers.”549 At any time, “he may also take the power given
them by virtue of their commission or institution, or suffer them to hold it

some peoples needed a different form of government. This is known as Bodin’s

theory of climate: see Six Livres, at 663 ff.; see also Six Books, at 545 ff.
541. Six Books, at 95. [spelling modernised] See also Six Livres, at 137: “après avoir bien
& duement assemblé les trois états de France en général.” [spelling modernised]
542. Six Books, ibid. [spelling modernised] See also Six Livres, ibid.: “nécessaire de s’ar-
rêter à leur avis.” [spelling modernised]
543. Six Books, ibid. [spelling modernised] See also Six Livres, ibid.: “le Roi ne puisse
faire le contraire de ce qu’on demandera, si la raison naturelle, & la justice de son
vouloir lui assiste.” [spelling modernised]
544. Six Books, ibid. [spelling modernised] See also Six Livres, ibid.: “aucune puissance
de rien commander, ni discerner, ni voix délibérative: ainsi ce qu’il plaît au Roi
consentir, ou dissentir, commander, ou défendre.” [spelling modernised]
545. Six Books, at 267. [spelling modernised] See also Six Livres, at 358: “de mettre en
délibération les ordonnances émanées du Roi concernant les affaires d’état.” [spelling
modernised]
546. According to Bodin, judges were virtually irremovable except for cause: see Six Livres,
at 429 ff.; see also Six Books, at 325 ff.
547. See, generally, S. Goyard-Fabre, “Le magistrat de la république,” in Y.C. Zarka
(ed.), Jean Bodin – Nature, histoire, droit et politique (Paris: Presses universitaires de
France, 1996), 115; and B. Barret-Kriegel, “Jean Bodin: de l’empire à la souveraineté;
de l’état de justice à l’état administratif,” in Jean Bodin – Actes du colloque inter-
disciplinaire d’Angers, vol. 1 (Angers, France: Presses de l’Université d’Angers,
1985), 345, at 353-354.
548. Bodin provided a non-exhaustive list of those areas which the sovereign may share
his power – (i) the administration of justice, (ii) the appointment and dismissal of
officials, (iii) the dispense of rewards and punishment, (iv) the debate of state affairs.
This is what G.H. Sabine, supra, note 452, at 346, referred to as, “practical decen-
tralization.”
549. Six Books, at 85. [spelling modernised] See also Six Livres, at 123: “de connaître
par prévention, ou concurrence, ou évocation, ou ainsi qu’il lui plaira des causes
dont il a chargé son sujet, soit commissaire, ou officier.” [spelling modernised]
 CHAPTER 6 117

so long as shall please him.”550 Later, in a chapter entitled “The power and
authority of a Magistrate over particular and private men, and of his office
and duty,”551 it is clearly explained that magistrates and commissioners are
“mere executors and ministers of the laws and of the princes, from whom
they have their authority;”552 they do not hold “any power in this point or
respect in themselves.”553

6.2.4. Recapitulation
The system of political power and authority put forward in Six Livres
through the use of the word “sovereignty” is therefore essentially interested
in the hierarchical structure of governance in society.554 Bodin used this lin-
guistic sign to place the holder of supreme power at the apex of the pyramid
of authority. Although never expressed in the clearest of terms, this idea was
nonetheless conveyed, primitively, at the end of the manuscript through a
somewhat simplistic diagram:555

550. Six Books, ibid. [spelling modernised] See also Six Livres, ibid.: “auxquels il peut
ôter la puissance qui leur est attribuée, en vertu de leur commission, ou institu-
tion: ou la tenir en souffrance tant & si longuement qu’il lui plaira.” [spelling
modernised]
551. Six Books, at 325. [spelling modernised] See also Six Livres, at 429: “De la puis-
sance des Magistrats sur les particuliers.” [spelling modernised]
552. Six Books, at 333. [spelling modernised] See also Six Livres, at 439: “simples exécuteurs
& ministres des lois & des Princes.” [spelling modernised]
553. Six Books, ibid. [spelling modernised] See also Six Livres, ibid.: “aucun pouvoir
pour ce regard.” [spelling modernised]
554. As a result, it is fair to say that Bodin should be associated with this idea of “pyra-
mid of authority” rather than with unlimited, despotic-like, absolutism. As P. King,
supra, note 489, at 79, put it: “Thus, given that Bodin denies that there should be
any form of organised resistance to the sovereign, and given, too, that he charac-
terises the latter as absolute, it becomes clear that there is no great difficulty in
describing Bodin as an absolutist. It is indeed because of Bodin’s fundamental incon-
sistency that some commentators will argue that he essentially promotes some species
of limited power and others that he essentially promotes the reverse. Both ele-
ments, indeed, are present.” [emphasis in original] Later, however, the author explained,
id., at 129-130: “Sovereignty, for Bodin, merely consisted in the highest and most
general, the ultimate and final power of command. Bodin continually stressed the idea
of absolutism conceived as hierarchical superiority, as distinct from absolutism con-
ceived as the simple exercise of arbitrary control. The power of a sovereign, in order
to be such, must entail an authority to command which was unlimited by any
other agent greater, less or equal to himself.” [emphasis added]
555. See Six Livres, at 1056; see also Six Books, at 790. This diagram is almost always
overlooked by the commentators who analyse Bodin’s theory of sovereignty.
118 CHAPTER 6

2 3 4

Although not quite a pyramid, this figure is intended to illustrate the hier-
archy of authority in society. It shows the legal superiority of the sovereign
(represented as “1”) over what is referred to as the three estates, namely, the
ecclesiastical order (represented as “2”), the military (represented as “3”), and
the common people (represented as “4”).556
Thus at the identification stage of the proposed inward approach to
understanding the word “sovereignty” in Bodin’s Six Livres, the most suitable
oppositional hierarchy involves the reality of the “highest unified power” and
that of the “subordinate decentralised power.” When examining first and
foremost the discourse in which this linguistic sign was used, the very defi-
nition of “sovereignty,” the “perpetual” and “absolute” elements insisting on
highest temporal authority, the power to make law as the principal mark of
sovereignty, the mere consultative role of the General-Estates and the Parlement
of Paris in the legislative process, and the ultimate obligation for the magis-
trates to apply sovereign orders, all of these features bring into play the dichotomy
of “unity” versus “decentralisation” of power.
In overturning these elements of the hierarchy at the negation stage, it
appears that they share the same characteristic, namely a concern with the
“pyramiding of authority” in society. And at the last stage of the deconstruction-
oriented project, one must acknowledge that they are also mutually self-
constituting, as they draw their identity from each other. To put it in semiotic
terms, the reality that “highest unified power” represents is based on the
negation of the reality represented by “subordinate decentralised power.” As
a result, in examining inwardly how Bodin used the word “sovereignty” in
Six Livres, the process of différance shows a predominant intention to place
the holder of supreme power at the apex of the pyramid of authority in a
society. This conclusion will be confirmed in the last outward section of the
foregoing metalogical inquiry of Bodin’s work.

6.3. EXTENDED HISTORICAL CONTEXT

The social and political situation in the second half of 16th century France
was marked by recurrent civil/religious wars, from Henri II’s persecution

556. See Six Livres, at 1056-1057; see also Six Books, at 790-791.
 CHAPTER 6 119

policy (based on the motto “un roi, une loi, une foi”),557 to the St. Bartholomew’s
Day Massacre (where between 10,000 and 20,000 people perished) and the
revival of the Catholic League as the driving force of the Counter-Reformation.558
Conditions went from bad to worse as years passed and conflicts became
endemic;559 the following account of the 1590 Paris siège by the Huguenots
graphically illustrates the ordeal:
Paris endured a famine to which that of 1870 was child’s play. For some time rations
of bread, with a piece of cat or dog, were served to the poor; but cats, dogs, rats, and
mice rapidly disappeared. The hide of every beast in Paris was devoured. Candle
grease became a luxury. The Duchess of Montpensier advised the people to dig up
bones from the cemeteries and grind them into flour, but death was found to result
from the Duchess of Montpensier’s bread. Mme de Montpensier was asked for her
pet dog to feed the poor. She replied that she was keeping it for her last meal. Noble
ladies declared that they would eat their children rather than admit the heretics, and
the more suffering classes took them at their words. The German mercenaries chased
the children down the streets, as the children had chased the dogs. Everything, sar-
castically wrote L’Estoile, was ruinous except sermons, of which the starving people
could have their bellyful.560
In fact, the progressive collapse of royal authority and the gradual disinte-
gration of civil order came to affect the very social fabric and morality in
France.561
From a place that had generally been blessed with a stable legal and polit-
ical structure, Bodin’s country was now in crisis. The supreme authority of
the ruler was challenged from all directions – contests for throne succession
which affected the stability of the monarchy; rivalries between the different
houses and families for spheres of influence; feudal resistance on competence

557. That is, “one king, one law, one faith.”

558. See, generally, J.W. Thompson, The Wars of Religion in France – 1559-1576 (Chicago:
University of Chicago Press, 1909); J.B. Romier, Les origines politiques des guerres
de religion, 2 vols. (Paris: Perrin, 1913 & 1914); and, J. Viénot, Histoire de la Réforme
française, 2 vols. (Paris: Fischbacher, 1926 & 1934).
559. The different conflicts may be grouped in the following chronology: 1562-63; 1567-
68; 1568-70; 1572-73; 1574-76; 1577; 1579-80; and 1585-98.
560. E. Armstrong, The French Wars of Religion, 2nd ed. (Oxford & London: Blackwell,
1904), at 73-74.
561. See R. Chauviré, supra, note 484, at 267: “La dissolution progressive de l’autorité
royale avait eu des conséquences profondes sur la société et les moeurs. La lecture
des mémoires, si pittoresques et attachants d’ailleurs, qui peignent les quarante
ans de guerres civiles, de 1560 à Henri IV, ont fait illusion; on s’est habitué à voir
dans le seizième siècle tout entier une époque brillante et féconde certes, mais
anarchique, immorale, féroce et grossière. En vérité, la période de François Ier et
surtout de Henri II était déjà arrivée à une unité, à une politesse relative dans les
moeurs et les propos, à une décence, à un goût de la noblesse et de la mesure, que
nos Princes et nos Précieux mettront cinquante ans à ramener en France.”
120 CHAPTER 6

transfers to Paris; efforts of the Reformation to change both the religious

and political tenets in France; and, outside pressure from the Holy Roman
Empire, the Papacy and antagonistic countries like England.562 Hence the
references in the preface of Six Livres563 to preserve “this royal form of gov-
ernment from destruction,”564 and to “warn those who have survived the ear-
lier disasters,”565 from the risks of “unforeseen destruction of the state.”566
As regards the intellectual environment of the time, Bodin may be asso-
ciated with the political philosophy of the “Politiques,” the moderate party
which advocated peace, tolerance and national unity.567 More importantly,
however, Six Books represented a break in what would be referred to as
“constitutionalism” in modern terms, which had been developing in France
during the 16th century, with theorists like Barthélemy de Chasseneuz,568
Claude de Seyssel,569 and Seigneur du Haillan (i.e. Bernard de Girard),570 all
of whom generally held that, although having supreme power, the ruler was
expected to govern according to the law and was not to change it without
consulting the General-Estates or the Parlement of Paris.571

562. See A. Gardot, supra, note 453, at 620-621, who wrote: “Comme on comprend
que, l’ayant vécue, Bodin ait de cette période d’agitations, où tant de fois la couronne
a été en péril, tiré le sentiment pathétique et la conviction, plus profonde que les
systèmes, que toute la structure sociale et politique était en jeu, que la catastrophe
de l’écroulement du trône était possible et proche.”
563. Bodin wrote several prefatory texts to his Six Livres: (i) an introduction that appeared
in all French editions, (ii) a Latin letter added to the revised French edition from
1578 onwards, and (iii) another different introduction to the Latin editions. The
translation by Knolles, Six Books, contains a preface of his own composing, although
based on several ideas used by Bodin in his introductions. See “Appendix A – Bodin’s
Prefaces,” in K.D. McRae (ed.), Jean Bodin – The Six Bookes of a Commonweale
(Cambridge, U.S.: Harvard University Press, 1962), A69-A73.
564. Taken from McRae’s translation of the preface to the Latin version of Six Livres:
see id., at A72.
565. Ibid.
566. Ibid.
567. See G.H. Sabine, supra, note 452, at 341; and, L. Couzinet, “Le Prince” de Machiavel
et la théorie de l’absolutisme (Paris: Rousseau, 1910), at 85, note 1.
568. B. de Chasseneuz, Consuetudines Ducatus Burgundiae (n.b.: Crispini, 1616), first
published in 1517; and, B. de Chasseneuz, Catalogus gloria mundi (Lugduni: n.b.,
1529), first published in 1529.
569. C. de Seyssel, La monarchie de France, rev. ed. (Paris: Librairie d’Argences, 1961),
first published in 1519. On the close link between Seyssel and Bodin, see Y.C. Zarka,
Philosophie et politique à l’âge classique (Paris: Presses universitaire de France,
1998), at 116 ff.
570. Seigneur du Haillan (i.e. B. de Girard), De l’estat et succez des affaires de France (Paris:
Le Mur, 1609), first published in 1571; and, Seigneur du Haillan (i.e. B. de Girard),
Histoire générale des Roys de France, 2 vols. (Paris: Sonnius, 1627), first published
in 1576.
571. See, generally, J.H. Franklin, supra, note 497, at 1-22.
 CHAPTER 6 121

On the other hand, Catherine de Medici’s chancellor, Michel de l’Hospital,572

and later other humanists like Charondas et Le Roy,573 not only promoted
the extension of royal powers to the making of laws, but also contested
the “right to remonstrate” exercised by the Parlement of Paris and denied
General-Estates any role other than advisory in the legislative process.574 It
appears, therefore, that the use of the word “sovereignty” in Six Livres fell
squarely within this school of thought (although only ten years before, in
Methodus,575 Bodin himself had adopted a much more constitutionalist line
of reasoning).576 Thus Bodin borrowed ideas, but he also innovated with his
sovereignty – “His new conception of kingship may have been founded upon
widely accepted political doctrines, but he defined it in such fashion that it
was better able to meet the necessities of the moment than that of any ear-
lier writer.”577
In the 16th century, therefore, France was a relatively well organised
country, but which social fabric and political stability were in a state of
agony, and where the constitutional argument was popular in academic cir-
cles and, of course, used liberally by governments and officials. “If Bodin
published Six Livres, it was to save the monarchy,”578 wrote Chauviré. The
end he sought was the establishment of a coherent system of political organ-
isation; the means he promoted to reach this objective was the concentration
of supreme power in as few hands as possible.579 “Public authority,” Bodin thought,
“was situated entirely in the king. There could be no division of it between

572. M. de l’Hospital, “Harangue au Parlement de Paris,” in P.J.S. Duféy (ed.), Œuvres

complètes de Michel de l’Hospital, Chancelier de France, vol. 2 (Paris: Boulland, 1824),
119.
573. For more detail on these authors, see W.F. Church, supra, note 525, at 205-212.
574. See, generally, A. Lemaire, Les lois fondamentales de la monarchie française, d’après
les théoriciens de l’ancien régime (Paris: Thorin, 1907), at 78-81.
575. J. Bodin, Methodus ad facilem historiarum cognitionem, supra, note 460.
576. See J.H. Franklin, supra, note 497, at 23 ff.
577. W.F. Church, supra, note 525, at 213.
578. R. Chauviré, supra, note 484, at 402; author’s translation of: “S’il a publié la
République, c’est pour sauver la royauté.” Later, Chauviré further wrote: “Or
depuis quarante ans ces éléments de force ont subi une constante décroissance.
Dépeuplement par la guerre et par la famine, diminution énorme de la richesse
publique, désaffection des citoyens entre eux, culte pour la royauté amoindri, tous
les désastres ont ensemble fondu sur le pays. Il faut trouver, appliquer le remède,
et promptement. [. . .] En somme, il faut revenir à un état de choses tel que nul ne
soit, en dernier ressort, capable de faire échec au pouvoir royal;” id., at 468-469.
579. See P. King, supra, note 489, at 156, who concluded: “The ideology of order, as
in Bodin, might simply be equated with the notion of concentrating as much
power in as few hands as possible.” See also J.A. Camilleri, supra, note 284, at 16:
“His [Bodin’s] thesis that a central authority should wield unlimited power was in
part an attempt to restore order and security to the deeply divided political soci-
ety in France during that period.”
122 CHAPTER 6

the ruler and any other individual in the state, no matter how high that per-
son might stand in office or dignity.”580

6.4. SUMMARY

Approaching the matter outwardly, therefore, the hermeneutic context of Six

Livres undoubtedly confirms that the word “sovereignty” was used by Bodin
for a particular purpose, namely, to place the ruler at the apex of a pyramid of
authority. Accordingly, the sovereign prince enjoyed the most supreme power
in the hierarchical organisational structure of society, that is, the highest uni-
fied power – as opposed to subordinate decentralised one – free from any tem-
poral authority.581 Thus Parlement, Estates, officials, magistrates, commissioners,
all was to fall under the overarching authority of the monarch.582 Some even
opined that Bodin had in mind the Holy Roman Empire and the Papacy when
he wrote about the supreme power of the French King.583
Six Livres had an immediate impact on the shared consciousness of European
societies in general, and that of France in particular584 – “Contemporaries
recognized the value of the book at once, and henceforth Bodin was cited as
a foremost authority.”585 We are told that Six Livres “was used very shortly

580. W.F. Church, supra, note 525, at 237. See also P. King, supra, note 489, at 128:
“Sovereignty, being the highest power in the state, consisted in the ultimate and
most general power of command over all subordinate branches of government, how-
ever, conceived, and without exception.” [emphasis in original]
581. See D. Carreau, Droit international, 7th ed. (Paris: Pedone, 2001), at 15, who wrote:
“La France était à l’époque profondément affaiblie par des guerres civiles et religieuses.
Bodin estimait que le remède fondamental contre cette situation de chaos résidait
dans le renforcement de la monarchie française contre toutes les féodalités et con-
tre le pouvoir ecclésiastique.”
582. See R. Chauviré, supra, note 484, at 390: “A l’intérieur, il faut bien qu’elle soit
absolue, puisque, nous le savons, si la souveraineté ne restait pas totale aux mains
du monarque, la monarchie même disparaîtrait. Mais elle est absolue. Le prince peut
avoir un ou plusieurs sénats, grand conseil, conseil privé, conseil étroit, parlement,
états généraux, il leur est supérieur à tous, et tous doivent en dernière analyse s’incliner
devant sa volonté.” [emphasis added]
583. See A. Gardot, supra, note 453, at 623: “La souveraineté est, pour Bodin, absolue
en ce sens qu’il n’admet pour le souverain, français notamment, aucune subordi-
nation de son pouvoir à celui d’un autre, soit à l’Empereur, soit au Pape. Le roi ne
tient rien que de Dieu et de l’épée. Aucun pouvoir politique externe ne saurait
s’imposer à lui, aucun pouvoir spirituel non plus.” See also H. Legohérel, “Jean
Bodin et l’Europe de son temps” (1999), 1 J. History Int’l L. 38.
584. See H. Baudrillart, supra, note 458, at 142: “Ses livres [Bodin’s] obtinrent un immense
succès. Sa République [fut] traduite dans presque toutes les langues de l’Europe,
ainsi qu’il le dit dans son Apologie de René Herpin.” See also R. Chauviré, supra,
note 484, at 503.
585. F.W. Church, supra, note 525, at 212. See also J.W. Allen, A History of Political
Thought in the Sixteenth Century (London: Methuen, 1961), at 441 ff.
 CHAPTER 6 123

after [1576] for lectures in Cambridge”586 and that, by 1580, it was already
well used in English political circles.587 It also had a considerable influence
on German theorists who, writing during the 17th century, were trying to ex-
plain the multifarious political reality of the Holy Roman Empire.588 “What
is most remarkable, [however,] is the diversity with which foreigners inter-
preted Bodin after his death.”589
Even in France, the decades following the publication of Six Livres saw
legists like Pierre Grégoire,590 François Grimaudet,591 and Adam Blackwood,592

586. See J.N. Figgis, Studies of Political Thought from Gerson to Grotius – 1414-1625
(Cambridge: Cambridge University Press, 1907), at 126. See also B. d’Orgeval, “‘De
la République’ et de son actualité,” in Jean Bodin – Actes du colloque interdisciplinaire
d’Angers, vol. 1 (Angers, France: Presses de l’Université d’Angers, 1985), 85, at 85:
“Durant ce voyage en Angleterre, Bodin devait découvrir, sans doute avec une cer-
taine satisfaction que son oeuvre, dont l’influence en France était restée limitée, se
trouvait à Cambridge étudiée, expliquée et commentée comme un classique de la
Science politique.” [emphasis added]
587. See H. Baudrillart, supra, note 458, at 128-129. See also J.H.M. Salmon, “L’héritage
de Bodin: la réception de ses idées politiques en Angleterre et en Allemagne au XVIIe
siècle,” in Y.C. Zarka (ed.), Jean Bodin – Nature, histoire, droit et politique (Paris:
Presses universitaires de France, 1996), 175, at 190 ff.; R.W.K. Hinton, “Les ‘Six
livres’ vus d’outre-Manche,” in Jean Bodin – Actes du colloque interdisciplinaire d’Angers,
vol. 2 (Angers, France: Presses de l’Université d’Angers, 1985), 469; and, G.L. Mosse,
“The Influence of Jean Bodin’s Republique on English Political Thought” (1948),
5 Medievalia et Humanistica 73, at 82, who wrote: “There can be little doubt,
then, that between 1581 and 1606, when Knolles translated the Republic, Bodin’s
definition of sovereignty had become almost a part of English Political thought.”
But Bodin was also highly criticised by English authors – see C.H. McIlwain,
supra, note 300, at 364: “Probably nothing in Jean Bodin’s great treatise on poli-
tics has been more severely handled by modern English writers than his statement
that the English monarchy of the late sixteenth century is an absolute monarchy
differing in no essential way from than of France at the same period.” [footnotes
omitted]
588. See M. Senellart, “‘Juris peritus, id est politicus’? Bodin et les théoriciens allemands
de la prudence civile au XVIIe siècle,” in Y.C. Zarka (ed.), Jean Bodin – Nature,
histoire, droit et politique (Paris: Presses universitaires de France, 1996), 2001; J.H.M.
Salmon, id., at 181 ff.; and, J.H. Franklin, supra, note 437, at 310 ff.
589. J.H.M. Salmon, id., at 176; author’s translation of: “Ce qui est vraiment remar-
quable, c’est la diversité avec laquelle les étrangers ont interprété Bodin après sa
mort.” Salmon further wrote: “Au XVIIe siècle, on a situé Bodin dans trois partis:
celui des défenseurs de l’absolutisme monarchique, qui estimaient que la souveraineté
royale était presque sans bornes; celui des théoriciens de la souveraineté commu-
nale, qui proposaient le droit inaliénable d’une communauté entière à constituer son
gouvernement; et celui des constitutionnalistes, qui cherchaient la restriction du
pouvoir par la loi ou par quelque système équilibré;” ibid.
590. P. Grégoire, De republica libri sex et viginti, 2 vols. (Pontimussani: Claudet, 1596),
first published in 1578.
591. F. Grimaudet, Opuscules politiques (Paris: Buon, 1580), first published in 1580.
592. A. Blackwood, Adversus Georgii Buchanani diologum, de iure regni apud Scotos, proregi-
bus apologia (Paris: Sittart, 1588), first published in 1581.
124 CHAPTER 6

distorting Bodin’s use of the word sovereignty by joining “legislative sovereignty”

(which Bodin submitted to natural and divine law) with the idea of the “divine
right” of kings unlimited by any principle of a higher legal order.593 This
combination was, to a large extent, responsible for the period of extreme,
despotic-like, absolutism in the 17th century,594 epitomised with Richelieu’s
“raison d’État”595 and Louis XIV’s “l’État, c’est moi.”596 This is a forceful illus-

593. See W.F. Church, supra, note 525, at 251, who wrote: “Bodin’s conception of sov-
ereignty had attributed to the ruler the combined authorities to make new law and
to enforce its execution. And when royal authority of that type was given a basis
in divine authorization, the resulting idealization of the monarch’s rule cause thinkers
increasingly to regard the law made by the king as the earthly manifestation of God’s
will or at least to believe that it was inspired by agents beyond the capacity of
ordinary mortals. Thus the king was a living law in the most complete sense. Likewise,
he could do no wrong, for he himself might establish the standard according to
which his acts were evaluated.” [footnotes omitted]
594. See J. Brown Scott, Law, the State, and the International Community (New York:
Columbia University Press, 1939), at 325, who wrote that “the outstanding con-
tribution of Bodin was a political theory whose avowed purpose was the welding
of communities more or less independent under the domination of a single sover-
eign monarch whose word was to be law, which theory, when pushed to its ultimate
conclusion – as it unfortunately was – was to be succinctly expressed in French in a
few short words: “L’état! C’est moi.” [emphasis added] See also H. Sée, Les idées poli-
tiques en France au XVIIe siècle (Geneva: Slatkine Reprints, 1978), at 45-61 &
125-144.
595. That is, “reason of state,” or essentially the “interest of the state.” This concept,
generally attributed to Francesco Guicciardini (1483-1540), is to the effect that
the well-being of a polity justifies more or less any means to promote it internally
and externally; it contrasts with stoicism, universal morality, and natural law. It
has a direct lineage with earlier Machiavelism and subsequent Realpolitik. See
E. Thuau, Raison d’Etat et pensée politique à l’époque de Richelieu (Paris: Colin-Presses
universitaires françaises d’Athènes, 1966); W.F. Church, Richelieu and Reason of State
(Princeton: Princeton University Press, 1972); G. Post, “Ratio publicae utilitatis, ratio
status et ‘raison d’Etat,’” in C. Lazzeri & D. Reynié (eds.), Le pouvoir de la raison
d’Etat (Paris: Presses universitaires de France, 1994), 13; Y.C. Zarka (ed.), Raison
et déraison d’Etat – Théoriciens et théories de la raison d’Etat aux XVI e et XVII e siècles
(Paris: Presses universitaires de France, 1994); and, A.P. d’Entrèves, supra, note
312, at 44-49. See also, in relation to Bodin’s work, F. Meinecke, L’idée de la rai-
son d’Etat dans l’histoire des temps modernes (Geneva: Librairie Droz, 1973), at 59-
64; H. Weber, “Bodin et Machiavel,” in Jean Bodin – Actes du colloque interdisciplinaire
d’Angers, vol. 1 (Angers, France: Presses de l’Université d’Angers, 1985), 231;
D. Quaglioni, “‘Imperandi ratio’: l’édition latine de la République (1586) et la rai-
son d’État,” in Y.C. Zarka (ed.), Jean Bodin – Nature, histoire, droit et politique (Paris:
Presses universitaires de France, 1996), 161; and, Y.C. Zarka, supra, note 508. For
an example of raison d’État writing in the 17th century, see G. Naudé, Considerations
Politiques sur les Coups d’Estat (Paris: n.b., 1679), at 176 ff., first published in
1639.
596. See J.-L. Thireau, Les idées politiques de Louis XIV (Paris: Presses universitaires de
France, 1973), at 9, who wrote: “Ils [historians] ont systématiquement opposé la
 CHAPTER 6 125

tration that a mere word like “sovereignty” can be strategically used, and
abused,597 to carry fabulous power in humanity and have a tremendous effect
on the shared consciousness of society.598

monarchie tempérée par les coutumes et les forces issues de la féodalité, et la

monarchie absolue, régime révolutionnaire caractérisé par l’omnipotence de droit
et de fait du monarque. Certes, les avis diffèrent beaucoup lorsqu’il s’agit de dater
avec précision cette ‘révolution’; pourtant la plupart des auteurs la situent sous le
règne de Louis XIV: ce dernier aurait délibérément rompu avec la tradition monar-
chique française, et établi un régime quasiment despotique.” [emphasis added] [foot-
notes omitted] See also R. Hatton (ed.), Louis XIV and Absolutism (London: Macmillan,
1976).
597. For illustrations of such uses and abuses, see G.C. Lewis, Remarks on the Use and
Abuse of Some Political Terms (London: Fellowes, 1832), and in particular on the
term “sovereignty,” id., at 33 ff.
598. See, generally, R. Mousnier, “The Exponents and Critics of Absolutism,” in J.P.
Cooper (ed.), The New Cambridge Modern History, vol. 4, The Decline of Spain
and the Thirty Years War, 1609-48/59 (Cambridge: Cambridge University Press,
1970), 104.
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CHAPTER SEVEN

VATTEL’S SOVEREIGNTY: AUTHORITY-EXTERNALISER

There is a continuing debate among international commentators as to the doc-

trinal “paternity”599 of international law (which must be distinguished from
its etymological origin, credited of course to the British author Jeremy Ben-
tham, who introduced the expression in his influential book An Introduction
to the Principles of Morals and Legislation,600 published in 1789). In any
event, nobody – not even his harshest critics601 – denies that the contribu-
tion Emer de Vattel made to the discipline was seminal.602 With regard to
the word “sovereignty,” it will be shown that he carried out the externalisa-
tion of the “highest unified power” with his work on the law of nations.

599. See, among many authors on this controversial issue, F. von Martens, supra, note
399, at 202 & 212; J. Basdevant, “Hugo Grotius,” in A. Pillet, (ed.) Les fondateurs
du droit international (Paris: Giard & Brière, 1904), 125, at 267; L.F.L. Oppenheim,
supra, note 4, at 58; G. Gidel, supra, note 319, at 562; W. Van der Vlugt,
“L’Œuvre de Grotius et son influence sur le développement du droit international”
(1925), 7 R.C.A.D.I. 395, at 444-445; J.B. Scott, The Spanish Origin of International
Law – Francisco de Vitoria and his Law of Nations (Oxford: Clarendon Press,
1934), at 281 ff.; M. Bourquin, “Grotius est-il le père du droit des gens?,” in Grandes
figures et grandes œvres juridiques (Geneva: Librairie de L’Université, 1948), 77; J.L.
Brierly, supra, note 265, at 28; P. Haggenmacher, Grotius et la doctrine de la guerre
juste (Paris: Presses universitaires de France, 1983), at 613 ff.; D. Kennedy, supra,
note 265; P. Haggenmacher, “La place de Francisco de Vitoria parmi les fonda-
teurs du droit international,” in A. Truylol Serra et al. (eds.), Actualité de la pensée
juridique de Francisco de Vitoria (Brussels: Bryulant, 1988), 27; M. Koskenniemi,
supra, note 169, at 73 ff.; M.S. Janis, supra, note 267, at 395; and, Y. Onuma,
“When was the Law of International Society Born? – An Inquiry of the History
of International Law from an Intercivilizational Perspective” (2000), 2 J. History
Int’l L. 1, at 5.
600. J. Bentham, An Introduction to the Principles of Morals and Legislation (London:
Pickering, 1823). See also M.S. Janis, “Jeremy Bentham and the Fashioning of
‘International Law’” (1984), 78 American J. Int’l L. 405; and, M.S. Janis, supra,
note 267, at 395, note 9, who wrote that Bentham invented the expression inter-
national law “in a fit of new legal definitions.”
601. See, for instance, C. van Vollenhoven, The Three Stages in the Evolution of the Law
of Nations (The Hague: Martinus Nijhoff, 1919), at 32, who was forced to make
the following admission: “But the most disheartening fact of all is that Vattel was
enormously successful. The man who, as a thinker and a worker, could not hold a
candle to Grotius, was so favoured by fortune that the Second Stage of the Law of
Nations (from 1770-1914, speaking roughly again) may be safely called after him.”
602. See P. Guggenheim, Emer de Vattel et l’étude des relations internationales en Suisse
(Geneva: Librairie de l’Université, 1956), at 23, who noted the following about
Vattel: “Pourtant, sa contribution au développement du droit international ne saurait
être sous-estimée.” See also E. Jouannet, Emer de Vattel et l’émergence doctrinale du
128 CHAPTER 7

But first, an outward look at Vattel is appropriate because, as Mallarmé

appositely wrote, “the general elements of his biography allow us to explain
some of his ideas and the way he presented them to the public.”603

7.1. IMMEDIATE PERSONAL CONTEXT

The town of Couvet, in the principality of Neuchâtel, is where Emer de Vattel604

was born in 1714 and about which he wrote: “I was born in a country of
which liberty is the soul, the treasure, and the fundamental law.”605 The aris-
tocratic background of his family came from both his father, who was a
ennobled Protestant minister of the church, and his mother, who was the
daughter of the principality’s counsel at the Prussian Court. From his tender
years, Vattel showed rare talents for the study of sciences and politics; he
intended to follow the same vocation as his father. His two older brothers
made careers in the army. His father passed away in 1730, when Vattel was
at the University of Bâle, where he completed a degree in humanities and
philosophy with the highest distinction.606
In 1733, Vattel left for Geneva to pursue theological and metaphysical
studies. As a teacher, he had Jean-Jacques Burlamaqui, who then held the
chair of civil law and natural law.607 Hence, “it is very likely that Burlamaqui’s
lectures allowed him to discover, over philosophy, the doctrines of natural

droit international classique (Paris: Pedone, 1998), at 421: “Aussi bien, ceux que
l’on a longtemps considéré comme les pères du droit international, que ce soient
Grotius ou Pufendorf, Barbeyrac ou Burlamaqui, Rachel ou Textor, ne le sont que
de manière indirecte et secondaire alors même que cette paternité longtemps contro-
versée revient sans hésitation, selon nous, à Wolff puis Vattel.” [emphasis added]
603. A. Mallarmé, “Emer de Vattel,” in A. Pillet, (ed.) Les fondateurs du droit interna-
tional (Paris: Giard & Brière, 1904), 481, at 483; author’s translation of: “les traits
généraux de sa biographie permettent d’expliquer certaines de ses idées et la forme
sous laquelle il les a présentées au public.” [footnotes omitted]
604. Also spelt “Vatel,” or even “Wattel.”
605. E. de Vattel, Law of Nations, infra, note 613, at xvii. See also Droit des Gens, vol.
1, infra, note 613, at xxvi: “Je suis né dans un pays, dont la Liberté est l’âme, le
trésor & la Loi fondamentale” [spelling modernised]
606. See E. Béguelin, “En souvenir de Vattel,” in Recueil de travaux (Neuchâtel, Switzerland:
Attinger, 1929), 1, 33; A. de Lapradelle, “Emer de Vattel,” in J.B. Scott (ed.), The
Classics of International Law – Vattel, vol. 1 (Washington: Carnegie Institution of
Washington, 1916), i, at iii ff.; and, M. de Hoffmanns, “Notice sur la vie d’Emer
de Vattel,” in E. de Vattel, Le droit des gens ou Principes de la loi naturelle appliqués
à la conduite et aux affaires des Nations et des Souverains, new ed. (Paris: Aillaud,
1835), 65, at 65.
607. See B. Gagnebin, Burlamaqui et le droit naturel (Geneva: Editions de la Frégate,
1944), at 245, who wrote: “Bien qu’il [Vattel] se fût destiné à la théologie, il est
extrêmement probable sinon certain qu’il suivit les cours de droit naturel que don-
nait Burlamaqui.”
 CHAPTER 7 129

law, political law and the law of nations.”608 Soon, Vattel’s interests shifted
from theology to philosophy and literature, due to the influence of Gottfried
Wilhelm Leibnitz’s writings and that of Christian Wolff. At the time, every
piece by Leibnitz was the subject of learned debates, to which Vattel partic-
ipated in 1741 with the publication of Défense du système leibnitzien contre
les objections et les imputations de Mr de Crousaz,609 which he dedicated to the
king of Prussia, Frederick the Great.
His limited means forced Vattel to offer his services for remuneration, which
brought him to Berlin in 1742 where, under the invitation of the French
ambassador to Prussia, he sought an appointment to a diplomatic post from
Frederick the Great, whose subject he was by birth. None was available at
that time and, in pressing need of patronage, he went to Dresden in 1743,
where he gained the trust of the Count of Brühl, First Minister of Saxony,
who helped him secure employment in the embassy. Given that his func-
tions were somewhat undetermined, Vattel spent the bulk of his time at
Neuchâtel.610 This is where he wrote a piece on morals and philosophy, Le
loisir philosophique; ou Pièces diverses de philosophie, de morale et d’amusement,611
published in 1747.
In 1749, Vattel was assigned to Bern as the Minister Plenipotentiary for
Saxony, a modest position with its share of frustrations that he occupied
until 1758.612 It is during these ten years that he wrote his masterpiece, Le

608. E. Béguelin, supra, note 606, at 40; author’s translation of: “il est assez vraisem-
blable que les leçons de Burlamaqui lui découvrirent, par-delà la philosophie, les
principes du droit de nature, du droit politique et du droit des gens.” [footnotes
omitted]
609. E. de Vattel, Défense du système leibnitzien contre les objections et les imputations de
Mr de Crousaz, contenues dans l’Examen de l’Essai sur l’homme de Mr Pope; où l’on
a joint la Réponse aux objections de Mr Roques, contenues dans le Journal Helvétique
(Leyden: Luzac, 1741). According to A. Mallarmé, supra, note 603, at 486, it is
said to have attracted at once the attention of intellectual circles in Europe because
of its rigorous discussion of the voluntary liberty of man.
610. See E. Béguelin, supra, note 606, at 45, who wrote that “ce ne sont pas exclusive-
ment des affaires particulières comme le dit Ostervald, qui ramenèrent ainsi Vattel
à Neuchâtel. Dans une autre lettre, ce dernier explique qu’il y est revenu, en atten-
dant que le ministre prît à Dresde les arrangements convenables pour le pourvoir
quelque part d’un emploi de conseiller d’ambassade. Cette attente dura trois ans.”
[footnotes omitted]
611. E. de Vattel, Le loisir philosophique; ou Pièces diverses de philosophie, de morale et
d’amusement (Geneva: Walther, 1747). This book was really the publication, with
some additions, of an earlier paper entitled Pièces diverses, avec quelques lettres de
morale et d’amusement (Paris: Briasson, 1746).
612. See E. Béguelin, supra, note 606, at 50-52; C. Phillipson, “Emerich de Vattel,”
in J. Macdonell & E. Manson (eds.), Great Jurists of the World, vol. 2 (Boston:
Little, Brown, 1914), 477, at 478-479; J. Westlake, supra, note 265, at 76; and,
M. Avenal, “Vattel,” in Nouvelle biographie générale, depuis les temps les plus reculés
jusqu’à nos jours, vol. 45 (Paris: Fermin-Didot, 1860), 997.
130 CHAPTER 7

Droit des Gens; ou Principes de la loi naturelle appliqués à la conduite & aux
affaires des Nations & des Souverains.613 At the time of its published, in 1758,
the Seven Years’ War was raging in Europe, which started two years before
when Frederick the Great invaded Augustus III’s Saxony after the latter formed
an alliance with Maria Theresa of Austria against Prussia over the control of
the Province of Silesia.614 Evidently impressed by Droit des Gens and requir-
ing competent diplomatic advisors, Augustus III recalled Vattel to Dresden
in 1759, appointed him at the Privy Council, and made him chief adviser of
the Government of Saxony on foreign affairs.615
Contemporaneous to the publication of Droit des Gens, there are several
other books, consisting of compilations of political essays many times aug-
mented and reprinted, which can now be attributed to Vattel almost beyond
doubt. The original first manuscript is entitled Mémoires pour servir à l’Histoire
de notre tems;616 the second one is called Mémoires pour servir à l’Histoire de
notre tems, par rapport à la Guerre anglo-gallicane;617 the third one, Mémoires
pour servir à l’Histoire de notre tems, où l’on déduit historiquement le droit et
le fait de la guerre sanglante qui trouble actuellement toute l’Europe;618 and the

613. The original work was first published in two volumes, in 1758, with part of the
edition bearing London as the place of publication, while another part bore
Leyden. A second edition was published in Neuchâtel in 1773, also in two vol-
umes, which contains several hand-written annotations by Vattel. The third edi-
tion, published in Amsterdam in 1775, as well as the ones which followed, put
these glosses by the author in notes. On the publishing history of Droit des Gens,
see A. de Lapradelle, supra, note 606, at lvi-lix; and, A. Mallarmé, supra, note 603,
at 488-490.
The version used here is the original London one – E. de Vattel, Le Droit des Gens;
ou Principes de la loi naturelle appliqués à la conduite & aux affaires des Nations &
des Souverains, 2 vols. (London: n.b., 1758). [hereinafter Droit des Gens] The English
translation utilised is that by J. Chitty, E. de Vattel, The Law of Nations; or, Principles
of the Law of Nature, applied to the Conduct and Affairs of Nations and Sovereigns
(Philadelphia: Johnson Law Booksellers, 1863). [hereinafter Law of Nations]
614. See, generally, R. Waddington, La guerre de sept ans – Histoire diplomatique et mil-
itaire, 5 vols. (Paris: Firmin-Didot, 1899-1914); and, R.A. Hall, Frederick the
Great and his Seven Years War (London: Allen & Unwin, 1915).
615. See E. Béguelin, supra, note 606, at 57-58. See also A. Mallarmé, supra, note 603,
at 485, who wrote the following about Vattel’s appointment to the Cabinet of
Augustus III: “Parvenu enfin au but qu’il avait poursuivi, et mis dans la possibil-
ité de manifester son aptitude au maniement des affaires politiques, Vattel se livra
tout entier à ses hautes fonctions. En 1733 il écrivait avec bonheur à sa famille:
‘J’ai la satisfaction de voir que toute la cour, le public et les cours étrangères applaud-
issent à la confiance que nos souverains me témoignent.’”
616. E. de Vattel, Mémoires pour servir à l’Histoire de notre tems, par l’Observateur hol-
landois, rédigez et augmentez par M.D.V. (Frankfort & Leipzig: Aux Dépens de la
Compagnie, 1757).
617. E. de Vattel, Mémoires pour servir à l’Histoire de notre tems, par rapport à la guerre
anglo-gallicane, par l’Observateur hollandois, rédigez et augmentez par M.D.V., 2
vols. (Frankfort & Leipzig: Aux dépens de la Compagnie, 1757-1758).
618. E. de Vattel, Mémoires pour servir à l’Histoire de notre tems, où l’on déduit historiquement
 CHAPTER 7 131

fourth volume, Mémoires pour servir à l’Histoire de notre tems, contenants des
réflections politiques sur la guerre présente.619
All of these books indicate that they were “par l’Observateur hollandois,
rédigez et augmentez par M.D.V.”620 which would be a pseudonym and an
abbreviation. Indeed, most biographists agree that the “Observateur hollandois”
is Jean-Nicholas Moreau (a French avocat, counsellor at the Provence Court),
and “M.D.V.” is for Mister de Vattel (Monsieur de Vattel in French, which
abbreviation is “M.” de Vattel).621 Another volume only indicates that it was
“recueillis du hollandais”622 but is credited to Vattel and Moreau623 – Mé-
moires pour servir à l’histoire de notre tems, par rapport à la République des
Provinces-Unies.624 There are several other of these Mémoires pour servir à
l’histoire de notre tems which are attributed to Vattel,625 most of them bearing
the abbreviation “Mr.D.V.”626
Also during these years, Vattel would have released two other pieces –
Poliergie, ou Mélanges de littérature et de poësie,627 published in 1757, and Mélanges

le droit et le fait de la guerre sanglante qui trouble actuellement toute l’Europe, par
l’Observateur hollandois, rédigez et augmentez par M.D.V. (Frankfort & Leipzig:
Aux Dépens de la Compagnie, 1758).
619. E. de Vattel, Mémoires pour servir à l’Histoire de notre tems, contenant des réflections
politiques sur la guerre présente, par l’Observateur hollandois, rédigez et augmentez
par M.D.V., 3 vols. (Frankfort & Leipzig: Aux Dépens de la Compagnie, 1758-
1759).
620. That is, by the “Holland Observer, drafted and augmented by M.D.V.”
621. See, under these titles, the electronic union catalogue COPAC, for Britain and Ire-
land, at http://www.copac.ac.uk/copac; and the French CCFR, at http://www.ccfr.bnf.fr/
accdis/accdis.htm. See also C. Phillipson, supra, note 612, at 479, who indicated:
“The Lord Acton Library Catalogue suggests that M.D.V. is ‘Monsieur de Vattel,’
and a careful consideration of the Preface and the Notes makes this certain.”
622. That is, “gathered by the Hollander.”
623. See, under this title, the catalogue CCFR, at http://www.ccfr.bnf.fr/accdis/accdis.htm.
624. E. de Vattel & Jacob-Nicolas Moreau, Mémoires pour servir à l’Histoire de notre
tems, par rapport à la République des Provinces-Unies, recueillis du hollandois (Frankfort
& Leipzig: Aux Dépens de la Compagnie, 1759).
625. See the catalogue CCFR, at http://www.ccfr.bnf.fr/accdis/accdis.htm.
626. They include E. de Vattel, Mémoires pour servir à l’Histoire de notre tems, par rap-
port aux dissentions présentes entre la Grande-Bretagne et la République des Provinces-
Unies au sujet des déprédations angloises sur mer, 3 vols. (Frankfort & Leipzig: Aux
Dépens de la Compagnie, 1759-1760); E. de Vattel, Mémoires politiques et militaires
pour servir à l’histoire de notre tems, Opérations des armées françoises en Allemagne en
1759, recueillis et publiés par Mr.D.V. (Frankfort & Leipzig: Aux Dépens de la
Compagnie, 1760); E. de Vattel, Mémoires politiques et militaires pour servir à l’his-
toire de notre tems, Opérations des armées impériales et de leurs hauts alliés en 1759,
recueillis et publiés par Mr.D.V., 3 vols. (Frankfort & Leipzig: Aux Dépens de la
Compagnie, 1760); and, E. de Vattel, Mémoires pour servir à l’Histoire de notre tems,
Campagnes du Maréchal duc de Broglie, commandant en chef des armées françoises en
Allemagne, 1759-1761 (Frankfort & Leipzig: Aux Dépens de la Compagnie, 1761).
627. E. de Vattel, Poliergie, ou mélanges de littérature et de poësie (Amsterdam: Arkstée &
Merkus, 1757).
132 CHAPTER 7

de littérature, de morale et de politique, published in 1760.628 The last of his

writing appeared in 1762 and is entitled Questions de Droit Naturel, et Observations
sur le Traité du Droit de la Nature de M. le Baron de Wolf.629 Originally not
intended for the public, it was gathered some years before and consists, for
the large part, of materials collected by Vattel during the drafting of Droit
des Gens.630 It also includes propositions put forward to rectify errors he
identified in the reasoning of Christian Wolff in his Ius gentium methodo,631
which he discussed therein at some length.632
The strain of his official functions, made all the more exhausting towards
the end of the Seven Years’ War with the Peace of Hubertsburg in 1763, proved
to be too much for Vattel and, suffering from extreme fatigue, he was forced
to retire to his native Neuchâtel in 1766. After some rest and medicine, he
precipitated his return to Dresden to resume his duties in the autumn of the
same year. But it was too early in his convalescence and the following year
saw him have a violent relapse and make the trip again to his home district
to seek relief. In spite of all the possible medical care and family attention he
received, Vattel died in 1767, prematurely at the age of 53, of the complica-
tions of a dropsy of the chest. He left his wife that he married at Dresden in
1764 and a son born in 1765.633

628. E. de Vattel, Mélanges de littérature, de morale et de politique (Neuchâtel: Éditeurs

du Journal helvétique, 1760). In 1765, the same work was published again under
the following title: E. de Vattel, Amusemens de littérature, de morale et de politique
(The Hague: Gosse & Pinet, 1765).
629. E. de Vattel, Questions de Droit Naturel, et Observations sur le Traité du Droit de la
Nature de M. le Baron de Wolf (Bern: Société Typographique, 1762).
630. See C. Phillipson, supra, note 612, at 479 & 480.
631. C. Wolff, Ius gentium methodo scientifica pertractatum. In quo ius gentium naturale
ab eo, quod voluntarii pactitii, et consuetudinarii est, accurate distincguitur (Frank-
furt & Leipzig: n.b., 1764). [hereinafter Ius gentium] See also the French transla-
tion from the notes of E. Luzac, C. Wolff, Institutions du Droit de la Nature et des
Gens, dans lesquelles, par une chaîne continue, on déduit de la nature même de
l’homme toutes ses obligations et tous ses droits (Leiden: Luzac, 1772); and, the
English translation by J.H. Drake, C. Wolff, The Law of Nations Treated According
to a Scientific Method – In which Natural Law of Nations is carefully distinguished
from that which is voluntary, stipulative and customary (Oxford: Clarendon Press,
1934). [hereinafter Wolff ’s Law of Nations]
632. See M. de Hoffmanns, supra, note 606, at 67: “Ces observations n’avaient d’abord
pas été destinées au public: l’auteur, en lisant attentivement le grand ouvrage de
Wolff, s’était aperçu de quelques écarts dans la méthode, et même de quelques
inexactitudes dans les démonstrations, défauts inévitables dans un travail très long
et très détaillé. Il crut que le respect même dont il était pénétré pour ce grand
philosophe lui imposait le devoir de faire disparaître ces taches légères. Dans cette
vue, Emer de Vattel réunit un certain nombre des propositions qui ne doivent pas
être admises sans précaution; il les discute en peu de mots et les démontre par les
vrais principes de la science. Ce petit ouvrage doit être considéré comme un com-
mentaire indispensable pour quiconque veut lire avec fruit l’ouvrage de Wolff,
quoiqu’il ne soit pas écrit dans la même langue.”
633. See, generally, P. Guggenheim, supra, note 602, at 11; E. Béguelin, supra, note
 CHAPTER 7 133

7.2. THE DISCOURSE IN LE DROIT DES GENS

This biographical note completed,634 the metalogical inquiry shall continue

inwardly by focussing on Vattel’s discourse and his use of the word “sover-
eignty” in Droit des Gens. In its original format, this two-volume work includes
(i) a preface, in which the author explains why he wrote the book and what
are the guiding principles he intended to follow, (ii) preliminaries, which brush
a general picture of the main ideas of the law of nations, and (iii) four books,
which constitute the body of the manuscript – the first book on the nation
in itself, the second one on the nation and its relations with others, the third
one on war, and the last book on peace and embassies.635
To a large extent, Vattel came up with his theory of government and his
system of international law by transforming the reality that “sovereignty,”
the word, represents through the cognitive process of the mind within the
shared consciousness of humanity. Indeed, with this linguistic sign, Droit des
Gens attempted the externalisation of power, which was transposed from the
internal plane to the international plane. Accordingly, his utilisation of sov-
ereignty creates a new reality, that of the “incorporated independent power”
which, within the deconstruction-informed analysis of the word in the dis-
course under examination, is most appropriately opposed to the “personal
interconnected power.” It would thus be a question of exclusivity of author-
ity without.
The first manifestation of an intention to externalise the internal govern-
ing authority appears in book one of Droit des Gens, entitled “Of Nations
Considered in Themselves.”636 In spite of the numerous claims that public

606, at 61-65 & 138-140, notes 185 & 186; C. Phillipson, supra, note 612, at
480; and, A. Mallarmé, supra, note 603, at 485-486. See also A. de Lapradelle, supra,
note 606, at vi: “La disparition de cet utile diplomate, de ce bon écrivain fut plus
profondément ressentie dans le cercle intime de ses amis que dans celui, plus étendu,
mais, pour lui, trop large, de la politique ou des lettres, car on l’aimait ‘pour la
candeur de son âme et la tendresse de son esprit,’ suivant la jolie formule par
laquelle un de ses amis, Hennin, dix-huit mois avant sa mort, le présentait à Voltaire.”
[footnotes omitted]
634. It is noteworthy that A. Mallarmé, supra, note 603, at 486, opined that three impor-
tant elements come out of Vattel’s background: “Trois traits saillants se détachent
de cette biographie: Vattel a le goût de la philosophie et a étudié à fond, dès sa
jeunesse, le système de Leibnitz; Vattel est diplomate et connaît les goûts du pub-
lic instruit des cours européennes; Vattel est resté citoyen suisse et a conservé son
indépendance. Ces différentes particularités nous permettront d’expliquer plusieurs
caractères de son oeuvre: philosophe, Vattel la bâtira sur les bases du système qu’il
a préconisé; diplomate, il saura l’écrire en un style élégant et dans la forme qui devait
plaire aux personnes auxquelles il s’adressait; citoyen suisse, il conservera, malgré
ses fonctions, l’amour profond de l’indépendance et de la liberté dont jouissait sa
patrie.”
635. See A. Mallarmé, id., at 591.
636. See Law of Nations, at 1. See also Droit des Gens, vol. 1, at 17: “De la Nation con-
sidérée en elle-même.” [spelling modernised]
134 CHAPTER 7

law was not the focus of the manuscript,637 this book deals extensively with
“topics belonging not to international law, but to the distinct science of
political or constitutional law concerning the internal government of partic-
ular states.”638 In fact, Vattel looked at three questions, namely, (i) the
notion and organisation of the sovereign state, (ii) the role of government in
the management of state interest, and (iii) the determination of national
territory.639
The definition of “state” in the first book640 is taken verbatim from the
preliminaries, where Vattel proposed the following:
NATIONS or states are bodies politic, societies of men united together for the pur-
pose of promoting their mutual safety and advantage by the joint efforts of their
combined strength.
Such a society has her affairs and her interests; she deliberates and takes resolu-
tions in common; thus becoming a moral person, who possesses an understanding
and a will peculiar to herself, and is susceptible of obligations and rights.641

637. See, for instance, Droit des Gens, vol. 1, at 18: “Nous n’entrons point ici dans
le détail; c’est l’objet du Droit Public Universel. Il suffit au but de cet Ouvrage, d’éta-
blir les Principes généraux, nécessaires pour la décision des Questions, qui peuvent
s’élever entre les Nations.” [emphasis in original] [spelling modernised] To the same
effect, Vattel writes in a later chapter of the same book: “On ne s’attend point,
sans doute, à trouver ici une longue déduction des Droits des Souveraineté
& des fonctions du Prince. C’est dans les Traités du Droit public qu’il faut les
chercher. Nous nous proposons seulement dans ce Chapitre de faire voir, en con-
séquence des grands Principes du Droit des Gens, ce que c’est que le Souverain, &
de donner une idée générale de ses obligations & de ses Droits;” Droit des Gens,
vol. 1, at 39. [emphasis added] [spelling modernised] See also Law of Nations, at
1-2: “We shall not here enter into the particulars; this subject belonging to the
public universal law: for the object of the present work, it is sufficient to establish
the general principles necessary for the decision of those disputes that may arise
between nations;” [emphasis in original] and, at 12: “The Reader cannot expect to
find here a long deduction of the rights of sovereignty, and the functions of a
prince. These are to be found in treatises on the public law. In this chapter we
only propose to show, in consequence of the grand principles of the law of
nations, what a sovereign is, and to give a general idea of his obligations and his
rights.” [emphasis added] See also A. Malarmé, supra, note 603, at 586-587.
638. H. Wheaton, supra, note 265, at 185.
639. See A. Mallarmé, supra, note 603, at 509.
640. See Droit des Gens, vol. 1, at 17; see also Law of Nations, at 1.
641. Law of Nations, at lv. [emphasis in original] See also Droit des Gens, vol. 1, at 1:
“LES NATIONS, ou Etats sont des Corps Politiques, des Sociétés d’hommes unis
ensemble pour procurer leur salut & leur avantage, à forces réunies. Une pareille
société a ses affaires & ses intérêts, elle délibère & prend des résolutions en com-
mun, & par là elle devient une Personne morale, qui a son Entendement & sa
Volonté propre, & qui est capable d’Obligations & de Droits.” [emphasis in orig-
inal] [spelling modernised]
 CHAPTER 7 135

Such a definition of “state” or “nation” – terms that Vattel used interchangeably

and viewed as synonymous642 – is based on the ideas of “social contract”643
and “moral person.”644 And, most importantly, it would require the recogni-
tion of some kind of competence to govern.645

642. However, see P.P. Remec, The Position of the Individual in International Law According
to Grotius and Vattel (The Hague: Martinus Nijhoff, 1960), at 172, who pointed
out that the terms “state” and “nation” are not always used in Droit des Gens to
convey the same idea: “Yet it appears from other places that he [Vattel] under-
stands under the term ‘Nation’ the body of the people united through the civil
compact, while ‘State’ would refer more to the political organization of that body
as the system in which the Nation chose to function in order to achieve its end.”
[footnotes omitted]
643. Also referred to as “social compact.” See Droit des Gens, vol. 1, at 2: “Les Nations
étant composées d’hommes naturellement libres & indépendants, & qui avant l’étab-
lissement des Sociétés Civiles, vivaient ensemble dans l’état de nature; les Nations,
ou les Etats Souverains, doivent être considérés comme autant de personnes libres,
qui vivent entre elles dans l’état de nature. On prouve en Droit Naturel, que tous
les hommes tiennent de la Nature une Liberté & une indépendance, qu’ils ne peu-
vent perdre que par leur consentement. Les Citoyens n’en jouissent pas pleinement
& absolument dans l’Etat, parce qu’ils l’ont soumise en partie au Souverain. Mais
le Corps de la Nation, l’Etat, demeure absolument libre & indépendant, à l’égard
de tous les autres hommes, des Nations étrangères, tant qu’il ne se soumet pas volon-
tairement à elles.” [emphasis in original] [spelling modernised] See also Law of
Nations, at lv-lvi: “Nations being composed of men naturally free and indepen-
dent, and who, before the establishment of civil societies, lived together in the
state of nature, – Nations, or sovereign states, are to be considered as so many free
persons living together in the state of nature. It is a settled point with writers on
the natural law, that all men inherit from nature a perfect liberty and independence,
of which they cannot be deprived without their own consent. In a State, the indi-
vidual citizens do not enjoy them fully and absolutely, because they have made a
partial surrender of them to the sovereign. But the body of the nation, the State,
remains absolutely free and independent with respect to all other men, and all
other Nations, as long as it has not voluntarily submitted to them.” [emphasis in
original]
644. On this, Vattel further wrote: “Cette Société, considérée comme une personne morale,
puisqu’elle a un entendement, une volonté & une force qui lui sont propres, est
donc obligée de vivre avec les autres Sociétés, ou Etats, comme un homme était
obligé avant ces Etablissements, de vivre avec les autres hommes, c’est-à-dire suiv-
ant les Lois de la Société naturelle établie dans le Genre-humain; en observant les
exceptions qui peuvent naître de la différence des sujets;” [spelling modernised] Droit
des Gens, vol. 1, at 7-8. See also Law of Nations, at lx: “That society, considered as
a moral person, since possessed of an understanding, volition, and strength pecu-
liar to itself, is therefore obliged to live on the same terms with other societies or states,
as individual man was obliged, before those establishments, to live with other men,
that is to say, according to the laws of the natural society established among the
human race, with the difference only of such exceptions as may arise from the dif-
ferent nature of the subjects.” [emphasis in original]
645. See, generally, O. Beaud, supra, note 42, at 125 ff.
136 CHAPTER 7

Indeed, the public body at the head of such a society of persons coming
together to protect shared interests and pursue common goals must have the
power to provide order and to rule.646 “This political authority is the Sovereignty,”
wrote Vattel, “and he or they who are invested with it are the Sovereign.”647
He further explained thus:
It is evident, that, by the very act of the civil or political association, each citizen
subjects himself to the authority of the entire body, in every thing that relates to the
common welfare. The authority of all over each member, therefore, essentially belongs to
the body politic, or state; but the exercise of that authority may be placed in different
hands, according as the society may have ordained.648
Depending on the locus of power, the moral person in whose hands the author-
ity is placed constitutes a democracy, an aristocracy or a monarchy;649 but
unlike Bodin,650 Vattel opined that these “three kinds of government may be
variously combined and modified.”651

646. See A. Mallarmé, supra, note 603, at 509; and, C. Phillipson, supra, note 612, at
496.
647. Law of Nations, at 1. [emphasis in original] See also Droit des Gens, vol. 1, at 17:
“Cette Autorité Politique est la Souveraineté, & celui, ou ceux qui la possèdent
sont le Souverain. [emphasis in original] [spelling modernised]
648. Law of Nations, at 1. [emphasis added] See also Droit des Gens, vol. 1, at 17-18:
“On conçoit que par l’acte d’association Civile, ou Politique, chaque Citoyen se
soumet à l’Autorité du Corps entier, dans tout ce qui peut intéresser le bien com-
mun. Le Droit de tous sur chaque membre appartient donc essentiellement au Corps
Politique, à l’Etat; mais l’exercice de ce Droit peut être remis en diverses mains,
suivant que la Société en aura ordonné.” [emphasis added] [spelling modernised]
649. See Droit des Gens, vol. 1, at 18; and at 110: “Cette personne morale réside dans
ceux qui sont revêtus de l’Autorité publique & qui représentent la Nation entière.
Que ce soit le commun Conseil de la Nation, ou un Corps Aristocratique, ou un
Monarque; ce Conducteur & Représentant de la Nation; ce Souverain, quel qu’il
puisse être, est donc indispensablement obligé de se procurer toutes les lumières,
toutes les connaissances nécessaires pour bien gouverner, & de se former à la pra-
tique de toutes les vertus convenables à un Souverain.” [spelling modernised] See
also Law of Nations, at 1; and at 52: “That moral person resides in those who are
invested with the public authority, and represent the entire nation. Whether this
be the common council of the nations, an aristocratic body, or a monarch, this
conductor and representative of the nation, this sovereign, of whatever kind, is there-
fore indispensably obliged to procure all the knowledge and information necessary
to govern well, and to acquire the practice and habit of all the virtues suitable to
a sovereign.”
650. See supra, at footnotes 535-538 and accompanying text. So Vattel followed the
same classification of forms of government used by Bodin, which Wolff had also
done in his Ius gentium; he did not refer to Montesquieu’s new classification of
governments as republics, monarchies, and despotisms, introduced in C.-L. de
S. Montesquieu, De l’esprit des loix (London: n.b., 1757), first published in 1748.
651. Law of Nations, at 1. See also Droit des Gens, vol. 1, at 18: “trois espèces de Gou-
vernement peuvent être diversement combinées & modifiées.” [spelling modernised]
 CHAPTER 7 137

Then, the association suggested by Bodin between the word sovereignty

and the reality of “highest unified power” within a territory, which Vattel
picked up, was transposed onto the international plane.652 This externalisa-
tion of the competence to govern was first carried out by establishing what
constitutes “sovereignty,” this time viewed from without:
Every nation that governs itself, under what form soever, without dependence on any
foreign power, is a Sovereign State. Its rights are naturally the same as those of any other
state. Such are the moral persons who live together in a natural society, subject to the
law of nations. To give a nation a right to make an immediate figure in this grand
society, it is sufficient that it be really sovereign and independent, that is, that it gov-
ern itself by its own authority and laws.653
It is already clear that Vattel has here changed the reality represented by
“sovereignty” – the word now pertains to the exclusivity of power without. Put
another way, authority is vested into a political body which is the sole rep-
resentative of the people externally and which is not submitted to any for-
eign state or to any higher law externally. Therefore, Vattel’s “sovereignty”
relates to a power which is incorporated and independent, as opposed to a power
which is personal and interconnected.

652. See E. Jouannet, supra, note 602, at 404, who wrote: “Que Vattel, ensuite, ait
ainsi théorisé la notion de souveraineté externe n’empêche pas qu’il ait perçu tout
aussi nettement la notion de souveraineté interne, il commence d’ailleurs son
grand ouvrage, au livre I, par une théorisation très poussée à l’égard de la souveraineté
interne avant de l’envisager, aux livres suivants, comme pilier de sa construction
internationale. On ne veut pas dire non plus que l’on a affaire à deux notions
réellement différentes puisqu’il ne s’agit en définitive que des deux faces opposées
d’un même concept.” [emphasis added]
653. Law of Nations, at 2. [emphasis in original] See also Droit des Gens, vol. 1, at 18:
“Toute Nation qui se gouverne elle-même, sous quelque forme que ce soit, sans
dépendance d’aucun étranger, est un Etat souverain. Ses Droits sont naturellement
les mêmes que ceux de tout autre Etat. Telles sont les personnes morales, qui
vivent ensemble dans une société naturelle, soumise aux Lois du Droit des Gens.
Pour qu’une Nation ait droit de figurer immédiatement dans cette grande Société,
il suffit qu’elle soit véritablement souveraine & indépendante, c’est-à-dire qu’elle se
gouverne elle-même, par sa propre autorité & par ses Lois.” [emphasis in original]
[spelling modernised]
The first part of this definition is very similar to that given by Judge Anzilotti,
writing a separate opinion in the case of the Austro-German Customs Union
(1931), P.C.I.J., series A/B, no. 41, at 57, who held that sovereignty “meant that
the State has over it no other authority than that of international law.” In that
case, the Permanent Court of International Justice had to interpret the protection
of Austria’s independence under article 88 of the 1919 Treaty of Saint-Germain.
138 CHAPTER 7

7.2.1. Incorporation of power

The proposition that a society is not merely the sum of persons forming
it, but ought to be viewed in terms of an aggregate of individuals, that is,
of a corporate body having its own will and its own finality, considerably
predates Vattel.654 According to Roscoe Pound, the personification of the
state can be traced back to Ancient Greece and would be as old as Plato’s
Republic:
To Plato the city-state was an individual and the characteristics of the individual human
soul projected themselves enlarged in the physiognomy of the state. He was not
thinking of a moral order among states but of a moral order within the city-state.
But the transition in thought was easy and led to ready acceptance of the juristic
dogmatic fiction that treated the mass of a population collectively as the equivalent
in moral responsibility of an individual man.655
Although picked up by the Roman private civil law, it was only in the Mid-
dle Ages that the concept of fictitious juridical person resurfaced, initially in
domestic public law and then in international law.656

7.2.1.1. Vattel’s predecessors on moral personality of state

The first reappearance of the doctrine was with the work of Johannes Althusius,
who published Politica657 in 1603. But it is Thomas Hobbes658 who is cred-
ited with the medieval rebirth of the theory of moral personality,659 hinted at

654. See P.P. Remec, supra, note 642, at 166.

655. R. Pound, “Philosophical Theory and International Law” (1923), 1 Bibliotheca
Visseriana 71, at 79. See also A.P. d’Entrèves, Natural Law – An Introduction to Legal
Philosophy (London: Hutchinson, 1951), at 10.
656. On the influence of Roman law on the development of international law concepts,
see H. Lauterpacht, Private Law Sources and Analogies of International Law (With
Special Reference to International Arbitration) (London: Longmans, Green, 1927),
in particular at 23-25.
657. J. Althusius, Politica methodice digesta et exemplis sacris et profanis illustrata (Her-
born Nassau: Corvin, 1603). The importance of Althusius theory was brought up
by O. von Gierke, Johannes Althusius und die Entwicklung der naturrechtlichen
Staatstheorien (Breslau: Koebner, 1880). See also H.E.S. Woldring, “The Constitutional
State in the Political Philosophy of Johannes Althusius” (1998), European J.L. &
Eco. 123; and, E. Jouannet, supra, note 602, at 265.
658. Hobbes’s Leviathan is said to be “the greatest, perhaps the sole, master-piece of polit-
ical philosophy written in the English language.”; see M. Oakeshott, “Introduction,”
in T. Hobbes, Leviathan (Oxford: Basil Blackwell, 1946), i, at viii. See also F.H.
Hinsley, supra, note 282, at 141.
659. See, among many authors on this aspect of Hobbes’s work, C.B. Macpherson,
The Political Theory of Possessive Individualism – Hobbes to Locke (Oxford: Claren-
don Press, 1964), at 17-29; A. Clair, “Aliénation de droits et institution de l’Etat
selon Hobbes” (1980), 25 Archives Phil. D. 305; D. Copp, “Hobbes on Artificial
Persons and Collective Actions” (1980), 89 Philosophical Rev. 579; S. Goyard-
 CHAPTER 7 139

in De Cive,660 and firmly established in Leviathan661 with the notion of “arti-

ficial person.”662 This political body, in which is vested the authority to gov-
ern, is at the heart of Hobbes’s thesis:
And in him [the artificial person] consisted the Essence of the Commonwealth;
which (to define it), is One Person, of whose Acts a great Multitude, by mutual
Covenants one with another, have made themselves every one the Author, to the end he
may use the strength and means of them all, as he shall think expedient, for their Peace
and Common Defence.663
On the attributes of this artificial person, he wrote: “And he that carried this
Person, is called SOVEREIGN, and said to have Sovereign Power; and every
one besides, his SUBJECT.”664 With this combination of “sovereignty” and
“social contract,” Hobbes attempted to theoretically solve the most pressing
political problem of 17th century England,665 namely, to justify the perma-
nent submission of individuals to the established order.666

Fabre, “Le concept de ‘persona civilis’ dans la philosophie politique de Hobbes” (1983),
3 Cahiers Phil. pol. & jur. 51; L. Jaume, “La théorie de la ‘personne fictive’ dans le Lévia-
than de Hobbes” (1983), 33 Rev. française sc. pol. 1009; D. Gauthier, “Hobbes’s Social
Contrat” (1988), 22 Noûs 71; F. Tinland, Droit naturel, loi civile et souveraineté à l’époque
classique (Paris: Presse universitaires de France, 1988), at 123-157; S. Goyard-
Fabre, “Loi civile et obéissance dans l’Etat-Léviathan,” in Y.C. Zarka & J. Bernhardt
(eds.), Thomas Hobbes – Philosophie première, théorie de la sicence et politique (Paris:
Presses universitaires de France, 1990), 289; L. Stephen, Hobbes (Bristol, U.K.:
Thoemmes Antiquarian, 1991), at 182-195; A. Ryan, “Hobbes’s Political Philosophy,”
in T. Sorell (ed.), The Cambridge Companion to Hobbes (Cambridge: Cambridge
University Press, 1996), 208; and, E. Jouannet, supra, note 602, at 265 ff.
660. T. Hobbes of Malmesbury, Supralementa philosophica de cive (Amsterdam: n.b., 1647),
first published in 1642.
661. T. Hobbes of Malmesbury, Leviathan, or The Matter, Forme, & Power of a
Common-Wealth – Ecclesiasticall and Civill (London: Green Dragon, 1651). [here-
inafter Leviathan]
The word “Leviathan” is a metaphor for the absolute power of Hobbes’s state,
which is borrowed from a biblical figure personifying an invulnerable sea monster
with terrifying power: see the Holy Bible, Old Testament, Book of Job, 41:24-25.
662. Leviathan, at 80-83. [spelling modernised]
663. Leviathan, at 88. [emphasis in original] [spelling modernised]
664. Leviathan, at 88. [emphasis in original] [spelling modernised]
665. The world in which Hobbes lived was one of civil war and public unrest, to which
his work wanted to remedy. In fact, several references to civil wars as the main evil
to counter may be found in his book, like in the introduction, where he compared
sedition to a sickness and civil war to death; see Leviathan, at 1. Similarly, in chap-
ter 13, he wrote: “Howsoever, it may be perceived what manner of life there would
be, where there were no common power to fear; by the manner of life, which men
that have formerly lived under a peaceful government, use to degenerate into, in a
civil War;” Leviathan, at 63. Hobbes believed that states, like human beings, are in
a perpetual condition of war – even if they do not actually fight, they constantly
constitute a mutual destroying menace. States keep “their weapons pointing, and
their eyes fixed on one another,” he wrote, “in the state and posture of Gladiators;”
140 CHAPTER 7

Samuel von Pufendorf 667 further developed the theory of juristic person –
what he called persona moralis composita – in his De iure naturae et gen-
tium,668 first published in 1672; the novelty being the dissociation of the moral
person of the state from the physical person of the ruler.669 In fact, he suggested
a doctrine of double contracts: (i) one among the individuals of the society,
and (ii) one between this social body and the political body, which is the

Leviathan, at 63. [spelling modernised] See also A.A. Rogow, Thomas Hobbes –
Radical in the Service of Reaction (New York & London: Norton, 1986), at 151 ff.;
N. Bobbio, Thomas Hobbes and the Natural Law Tradition (Chicago & London:
University of Chicago Press, 1993), at 29-30; and, A.P. Martinich, Thomas Hobbes
(London: Macmillan, 1997), at 111 ff.
Furthermore, the world in which Hobbes wrote was also one of deep political
soul searching and profound intellectual chaos. Indeed, given the events surround-
ing the overthrow of the monarchy in 1646 and the installation of Oliver
Cromwell as Lord Protector of England in 1653, people became fundamentally
ambivalent and unsure about the theory of organised society. See, generally, D.L.
Smith, “The Struggle for New Constitutional and Institutional Forms,” in J. Morrill
(ed.), Revolution and Restoration – England in the 1650s (London: Collins &
Brown, 1992), 15; J.P. Sommerville, “Oliver Cromwell and English Political Thought,”
in J. Morrill (ed.), Oliver Cromwell and the English Revolution (London & New York:
Longman, 1990), 234; J.P. Kenyon (ed.), The Stuart Constitution 1603-1688 –
Documents and Commentary, 2nd ed. (Cambridge: Cambridge University Press,
1986), at 175 ff.; and, A. Woolrych, Commonwealth to Protectorate (Oxford: Clarendon
Press, 1982), at 274 ff. On the intellectual context in which Hobbes developed his
theory and the effect that it had on political thought, see the trilogy of articles by
Quentin Skinner: Q. Skinner, “History and Ideology in the English Revolution”
(1965), 8 Historical J. 152; Q. Skinner, “The Ideological Context of Hobbes’s Political
Tought” (1966), 9 Historical J. 286; and, Q. Skinner, “Thomas Hobbes and His
Disciples in France and England” (1965-66), 8 Comp. St. Society & History 153.
666. See P. Allott, supra, note 327, at 106: “What he [Hobbes] did was to fuse together
sovereignty theory and social contract theory (which also had an ancient and respectable
background) to justify submission to established authority.”
667. See, generally, M. Villey, “Les fondateurs de l’école du droit naturel moderne au
XVIIe siècle” (1961), 6 Archives Phil. D. 72, at 84-90; and, A. Renaut, “Pufendorf
Samuel, 1632-1693 – Le Droit de la nature et des gens, 1672,” in F. Chatelet, O.
Duhamel & E. Pisier, Dictionnaire des Oeuvres Politiques (Paris: Presses universi-
taires de France, 1986), 659.
668. S. von Pufendorf, De iure naturae et gentium libri octo (Amsterdam: Hoogen-
huysen, 1688). [hereinafter De iure naturae] See also the French translation from
the notes of J. Barbeyrac, S. von Pufendorf, Le Droit de la Nature et des Gens, ou
Système Général des Principes les plus importants de la Morale, de la Jurisprudence et
de la Politique, 2 vols. (Amsterdam: Kuyper, 1706); and, the English translation by
C.H. Oldfather & W.A. Oldfather, S. von Pufendorf, On the Law of Nature and
Nations, 2nd ed. (Oxford: Clarendon Press, 1934). [hereinafter Law of Nature]
669. See O. von Gierke, The Development of Political Theory (New York: Fertig, 1966),
at 175 ff.; P. Guggenheim, supra, note 432, at 119; and, P.P. Remec, supra, note
642, at 163 & 170.
 CHAPTER 7 141

corporate body of the nation.670 His definition of the state as a moral per-
son,671 however, remains highly reminiscent of Hobbes’s:672
And so the most convenient definition of a state appears to be this: “A state is a
compound moral person, whose will, intertwined and united by the pacts of a num-
ber 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.”673
Pufendorf also followed the path of the Leviathan in holding that sover-
eignty “is found in every state, and [is the thing] by which, as by the soul,
it lives and is animated.”674

7.2.1.2. Vattel on moral personality of state

Now, although it had already resurfaced in the 18th century, it is accurate to
say that, “[a]t the time of Vattel no clearcut theory of moral personality was

670. See A. Dufour, “Tradition et modernité de la conception pufendorfienne de l’État”

(1976), 21 Archives Philo. D. 55, at 66-67; and, E. Jouannet, supra, note 602, at
286-295.
671. According to Pufendorf, moral persons are either “simple” or “composite,” the lat-
ter being formed, like a state, “when several individual men so unite that whatever,
by reason of that union, they want or do, is considered as one will, one act, and
no more. This takes place when several individuals so subordinate their will to the
will of one person, or of a council, that they themselves are willing to recognize,
and wish others to regard, whatever that one person has decreed or done, concerning
matters pertaining to the nature of that body and agreeable to its end, and the will
and action of all;” Law of Nature, at 12. See also De iure naturae, at 8: “quando
plura individua humana ita inter se uniuntur, ut que vi istius unionis volunt aut
agunt, pro una voluntate, unamque actione, non pro pluribus censeantur. Idque
tunc sieri intelligitur, quando singuli voluntatem suam voluntati unius hominis
aut concilii ita subjiciunt, ut pro omnium voluntate & actione velint agnoscere, &
ab aliis haberi, quicquid iste decreverit aut gesserit circa illa, quae ad unionis ejus
naturam ut talem spectant, & fini ejusdem congruunt.” [spelling modernised]
672. On the influence of Hobbes upon Pufendorf ’s theory, especially with respect to state
personality and sovereignty, see P. Avril, “Pufendorf,” in A. Pillet (ed.), Les fonda-
teurs du droit international (Paris: Giard & Brière, 1904), 331, at 378; S. Goyard-
Fabre, Le droit et la loi dans la philosophie de Thomas Hobbes (Paris: Klincksieck,
1975), at 15, note 8; P. Haggenmacher, “L’État souverain comme sujet de droit
international, de Vitoria à Vattel” (1992), 16 Droits 11, at 18-19; and, E. Jouan-
net, supra, note 602, at 284-286.
673. Law of Nature, at 984. See also De iure naturae, at 672: “Unde civitatis haec com-
modissima videtur definitio, quod sit persona moralis composita, cujus voluntas,
ex plurium pactis implicita & unita, pro voluntate omnium habetur, ut singulo-
rum viribus & facultatibus ad pacem & securitatem communem uti possit.” [spell-
ing modernised]
674. Law of Nature, at 1000. See also De iure naturae, at 683: “unde summum impe-
rium, quod in omni civitate existit, & quo velut anima illa vivit ac libratur.” [spell-
ing modernised]
142 CHAPTER 7

widely accepted.”675 In fact, Albert de Lapradelle argued that it is really only

with Vattel – some say676 along with Christian Wolff 677 – that the personal-
ity and authority of the ruler become the personality and authoirity of the
state, as a corporate body representing the citizens.678 Here is what Vattel wrote
on the juridical person of the state:
A political society is a moral person (Prelim. § 2) inasmuch as it has an understand-
ing 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 under-standing 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.679

675. P.P. Remec, supra, note 642, at 169. See also E. Jouannet, supra, note 602, at
299 ff.
676. See, among others, P. Guggenheim, supra, note 432, at 120-121; and, E. Jouannet,
id., at 255 & 311-316. See also P. Haggenmacher, supra, note 672, at 20: “Mais
c’est seulement au siècle suivant [18th century] que la qualité de sujet du droit inter-
national finit par être théorisée à l’aide de la personne étatique souveraine, entraînant
un effacement relatif du problème de la compétence de guerre et du belligérant
souverain. Les artisans de cette reformulation sont Wolff et Vattel qui, tout en ren-
dant hommage au prince souverain devenu entre-temps despote éclairé, font de l’Etat
souverain le principe structurel décisif de leurs traités sur le droit des gens.”
677. Wolff simply assimilated states to individuals, without explaining the juristic
personality of the former in Ius gentium, at 1: “Sunt enim multitudo hominum in
civitatem consociatorum (§. 5. Part. 8. Jur. Nat.). Quamobrem cum civitates spec-
tandae sint tanquam personae singulares liberae in statu naturali viventes (§. 54.
Part. 8. Jur. Nat.). Gentes quoque inter se spectandae sunt tanquam personae
singulares liberae in statu naturali viventes.” [spelling modernised] See also Wolff ’s
Law of Nations, at 9: “Nations are regarded as individual free persons living
in a state of nature. For they consist of a multitude of men united into a state.
Therefore since states are regarded as individual free persons living in a state of
nature, nations also must be regarded in relation to each other as individual free
persons living in a state of nature.” Wolff first made reference to the state as a
“person” in C. Wolff, Institutiones iuris naturae et gentium, in quibus ex ipsa
hominis natura continuo nexu omnes obligationes et iura omnia deducuntur (Halle,
Germany: Officina Rengeriana, 1754), at 533.
678. See A. de Lapradelle, supra, note 606, at x.: “Pour la première fois, la personalité
et la souveraineté de l’Etat (§§ 3-4) se substituent à la personalité et à la souverai-
neté du prince.” See also P. Guggenheim, supra, note 432, at 119-121; and,
E. Jouannet, supra, note 602, at 404.
679. Law of Nations, at 13. See also Droit des Gens, vol. 1, at 42: “La Société Politique
est une Personne morale (Prélim. § 1). Entant qu’elle a un entendement & une
volonté, dont elle fait usage pour la conduite de ses affaires, & qu’elle est capable
d’obligations & de Droits. Lors donc qu’elle confère la Souveraineté à quelqu’un,
elle met en lui son entendement & sa volonté, elle lui transporte ses obligations &
ses droits, autant qu’ils se rapportent à l’Administration de l’Etat, à l’exercice de
l’Autorité publique. [spelling modernised]
 CHAPTER 7 143

The same idea of artificial moral person, separate from the person of the
ruler, whose authority to govern was given by the aggregate of individuals it
represents,680 is found in chapter four, book one, “Of the Sovereign, His
Obligations, and His Rights,”681 where Vattel further dwelled upon the new
reality he wanted the word “sovereignty” to represent:
We have said, that the sovereignty is that public authority which commands in civil
society, and orders and directs what each citizen is to perform, to obtain the end of
its institution. This authority originally and essentially belonged to the body of the
society, to which each member submitted, and ceded his natural right of conducting
himself in every thing as he pleased, according to the dictates of his own understanding,
and of doing himself justice. But the body of the society does not always retain in its
own hands this sovereign authority: it frequently intrusts it to a senate, or to a sin-
gle person. That senate, or that person, is then the sovereign.682
This public authority transferred from the people to the nation683 must be
exercised according to the “Constitution,”684 which prescribes the “fundamental

680. See C. Phillipson, supra, note 612, at 497.

681. Law of Nations, at 12. See also Droit des Gens, vol. 1, at 39: “Du Souverain, de ses
Obligations & de ses Droits.” [spelling modernised]
682. Law of Nations, at 12. [emphasis in original] See also Droit des Gens, vol. 1, at 39:
“Nous avons dit que la Souveraineté est cette Autorité Publique, qui commande
dans la Société Civile, qui ordonne & dirige ce que chacun y doit faire pour en
atteindre le but. Cette autorité appartient originairement & essentiellement au Corps
même de la Société, auquel chaque membre s’est soumis & a cédé les droits, qui
tenait de la Nature, de se conduire en toutes choses suivant ses lumières, par sa
propre volonté, & de se faire justice lui-même. Mais le Corps de la Société ne retient
pas toujours à soi cette Autorité souveraine: Souvent il prend le parti de la confier
à un Sénat, ou à une seule personne. Ce Sénat, ou cette personne est alors le
Souverain.” [emphasis in original] [spelling modernised]
683. Indeed, Vattel argued that the people transferred the competence to govern in fa-
vour of the juridical person of the state. This is different than Rousseau’s theory,
to the effect that the people continually hold this power, crystallised in a “volonté
générale,” which must be followed by the ruler, who is merely an agent of the peo-
ple. See J.-J. Rousseau, Du Contrat Social; ou Principes du Droit Politique (Amsterdam:
Marc Michel Rey, 1762), at 20-22; and, also, the translation, J.-J. Rousseau, A
Treatise on the Social Compact; or the Principles of Political Law (London: n.b., 1764),
at 20-22. See also P. Guggenheim, supra, note 602, at 22.
684. See Droit des Gens, vol. 1, at 31: “Le règlement fondamental qui détermine la manière
dont l’Autorité Publique doit être exercée est ce qui forme la Constitution de l’Etat.
En elle se voit la forme sous laquelle la Nation agit en qualité de Corps Politique;
comment & par qui le Peuple doit être gouverné, quels sont les droits & les
devoirs de ceux qui gouvernent.” [emphasis in original] [spelling modernised] See
also Law of Nations, at 8: “The fundamental regulation that determines the man-
ner in which the public authority is to be executed, is what forms the constitution
of the state. In this is seen the form in which the nation acts in quality of a body
144 CHAPTER 7

laws”685 that may limit the power to govern;686 of course, those laws cannot
be changed by the ruler.687 Further, because the authority to govern is rooted
in the aggregate of individuals, the people can both reform the government
and change the constitution;688 it may also rid itself of a tyrannical ruler.689
It follows from the incorporation of citizens into this moral person that
the primary, in fact the only, agent for securing individual interests is the state,
which thus owes its principal duty to itself, that is, to its people.690 Accordingly,

politic, – how and by whom the people are to be governed, – and what are the
rights and duties of the governors.” [emphasis in original]
685. See Droit des Gens, vol. 1, at 32: “Les Lois sont des règles établies par l’Autorité
Publique pour être observées dans la Société. Toutes doivent se rapporter au bien
de l’Etat & des Citoyens. Les Lois qui sont faites directement en vue du bien pub-
lic sont des Lois Politiques; & dans cette classe, celles qui concernent le Corps
même & l’Essence de la Société, la forme du Gouvernement, la manière dont
l’Autorité Publique doit être exercée; celles en un mot, dont le concours forme
la Constitution de l’Etat, sont les Lois Fondamentales.” [emphasis in original]
[spelling modernised] See also Law of Nations, at 8: “The Laws are regulations estab-
lished by public authority, to be observed in society. All these ought to relate to
the welfare of the state and of the citizens. The laws made directly with a view to
the public welfare are political laws; and in this class, those that concern the body
itself and the being of the society, the form of government, the manner in which
the public authority is to be exerted, – those, in a word, which together form the
constitution of the state, are the fundamental laws.” [emphasis in original]
686. See Droit des Gens, vol. 1, at 44; see also Law of Nations, at 14-15.
687. See Droit des Gens, vol. 1, at 44-45; see also Law of Nations, at 15.
688. See Droit des Gens, vol. 1, at 35-36; see also Law of Nations, at 10-11.
689. See Droit des Gens, vol. 1, at 48: “Dès qu’il [the ruler] attaque la Constitution de
l’Etat, le Prince romp le Contract qui liait le peuple à lui; le peuple devient libre
par le fait du Souverain, & ne voit plus en lui qu’un Usurpateur, qui voudrait
l’opprimer.” [spelling modernised] See also Law of Nations, at 17: “As soon as a
prince attacks the constitution of the state, he breaks the contract which bound
the people to him; the people become free by the act of the sovereign, and can no
longer view him but as a usurper who would load them with oppression.”
This line of thought put forward by Vattel, who earlier spoke of the govern-
ing authority as the “dépositaire de l’Empire” (see Droit des Gens, vol. 1, at 43;
[spelling modernised] see also Law of Nations, at 14: “depositary of the empire”) is
analogous to Locke’s theory of government, according to which the supreme gov-
ernmental authority (i.e. the legislative power) is held in trust by those who rule
and returns to the people if the trust is broken. See J. Locke, Two Treatises of
Government (London: Amen-Corner, 1690), at 369-370: “Though in a constituted
commonwealth, standing upon its own Basis, and acting according to its own nature,
that is, acting for the preservation of the Community, there can be but one
Supreme Power, which is the Legislative, to which all the rest are and must be sub-
ordinate, yet the Legislative power being only a Fiduciary Power to act for certain
ends, there remains still in the People a Supreme Power to remove or alter the Legislative,
when they find the Legislative act contrary to the trust reposed in them.” [empha-
sis added] [spelling modernised]
690. See D.G. Lang, Foreign Policy in the Early Republic – The Law of Nations and the
 CHAPTER 7 145

Vattel explained that “a moral being is charged with obligations to him-

self,”691 and these are essentially “to preserve and to perfect his own nature.”692
The “preservation” of a nation is its survival and that of its members; the
“perfection” of a nation is the happiness of its people. “The end or object of
civil society is to procure for the citizens whatever they stand in need of for
the necessities, the conveniences, the accommodation of life, and, in general,
whatever constitutes happiness, – with the peaceful possession of property, a
method of obtaining justice with security, and, finally, a mutual defence against
all external violence.”693
The personification of the state as the representative of individuals is also
the basis on which Vattel justified the rejection, already alluded to in the
preface,694 of patrimonial kingdoms, that is, of kingdoms based on the idea

Balance of Power (Baton Rouge & London: Louisiana State University Press,
1985), at 17; and, A. Mallarmé, supra, note 603, at 513: “Mais ce souverain n’est
établi que pour le bien commun de tous les citoyens. Il représente la Nation en ce
qu’il devient le sujet où résident les obligations et les droits relatifs à la personne
morale de la société politique; par suite, ses devoirs et ses droits sont ceux même
de cette nation concernant sa conservation et sa perfection.”
691. Law of Nations, at 4. See also Droit des Gens, vol. 1, at 23: “être moral n’est chargé
d’obligations envers lui-même.” [spelling modernised]
692. Law of Nations, at 4. [emphasis in original] See also Droit des Gens, vol. 1, at 23:
“Se conserver & se perfectionner.” [emphasis in original] [spelling modernised]
693. Law of Nations, at 4. [emphasis in original] See also Droit des Gens, vol. 1, at 23-
24: “Le But, ou la Fin de la Société Civile est de procurer aux Citoyens toutes les
choses dont ils ont besoin pour les nécessités, la commodité & les agréments de la
vie, & en général pour leur bonheur; de faire en sorte que chacun puisse jouis
tranquillement du sien & obtenir justice avec sûreté; enfin de se défendre ensem-
ble contre toute violence du dehors.” [emphasis in original] [spelling modernised]
In most of the remaining of the first book of Droit des Gens, Vattel regrouped
under three headings the functions of government flowing from these two obliga-
tions. First, to provide for the necessities of the nation (chapter six), which
includes also the cultivation of the soil (chapter seven), commerce (chapter eight),
the care of the public ways and of tools (chapter nive), as well as money and exchange
(chapter ten). The second duty of the state is to procure the true happiness of a
nation (chapter eleven), which includes also piety and religion (chapter twelve), as
well as justice and polity (chapter thirteen). Finally, the last function of govern-
ment is to fortify itself against external attacks (chapter fourteen), which includes
also the question of the glory of a nation (chapter fifteen), the protection sought
by a nation, and her voluntary submission to a foreign power (chapter sixteen),
how a nation may separate herself from the state of which she is a member, and
renounce her allegiance to her sovereign when she is not protected (chapter seven-
teen), and the establishment of a nation in a country (chapter eighteen). See also
F.S. Ruddy, International Law in the Enlightenment – The Background of Emerich
de Vattel’s Le Droit des Gens (Dobbs Ferry, U.S.: Oceana Publications, 1975), at
146-165; A. Mallarmé, supra, note 603, at 516-533; and C. Phillipson, supra, note
612, at 498-502.
694. See Droit des Gens, vol. 1, at xvi; see also Law of Nations, at xiii.
146 CHAPTER 7

of monarchical ownership695 – “the end of patrimony is the advantage of the

possessor, whereas the prince is established only for the advantage of the
state.”696 Further, given that “the care of their own safety, the right to govern
themselves, still essentially belong to the society,”697 it follows that “true sov-
ereignty is, in its own nature, unalienable.”698 Put another way, the authority
to govern being but a transfer from the individuals in society to the moral
person of the state, the latter cannot dispose of the territory on which the
people live without its consent.699 Another consequence is that, if a ruler has
the right to choose his or her successor, it must be “by virtue of the power
with which he is, either expressly or by tacit consent, intrusted.”700

695. See A. Nussbaum, supra, note 311, at 157. Earlier, the author wrote that, id., at 128:
“Treaties of the medieval type, by which a prince, in one way or another, might
dispose of his territory, are still found in this period,” that is, during the 18th cen-
tury. See also, generally, C. Lavialle, “De la fonction du territoire et de la domanialité
dans la genèse de l’État en France sous l’ancien régime” (1992), 15 Droit 19.
The principle of patrimonial kingdoms, based on a proprietary right of the
ruler over the territory he or she controls, was defended by several authors, includ-
ing Christian Wolff (referred to in the preface, see Droit des Gens, vol. 1, at xvi,
and also Law of Nations, at xiii) and Hugo Grotius – see Droit des Gens, vol. 1, at
70-71: “Je sais que plusieurs auteurs, Grotius entre autres, nous donnent de
longues énumérations d’aliénations de Souverainetés. Mais les exemples ne prou-
vent souvent que l’abus du pouvoir, & non pas le droit. Et puis, les peuples ont
consenti à l’aliénation, de gré ou de force;” [footnotes omitted] [spelling modernised]
see also Law of Nations, at 30: “I know that many authors, and particularly
Grotius, give long enumerations of the alienations of sovereignties. But the exam-
ples often prove only the abuse of power, not the right. And besides, the people
consented to the alienation, either willingly or by force.” [footnotes omitted] See
also J.L. Brierly, supra, note 265, at 39; and, E. Jouannet, supra, note 602, at 316-
318.
696. Law of Nations, at 25. [emphasis added] See also Droit des Gens, vol. 1, at 59: “le
patrimoine est fait pour le bien du maître, au lieu que le Prince n’est établi que
pour le bien de l’Etat.” [emphasis added] [spelling modernised] See also E. Jouan-
net, id., at 319 ff.
697. Law of Nations, at 25. See also Droit des Gens, vol. 1, at 59: “le soin de son propre
salut, le droit de se gouverner, appartient toujours essentiellement à la Société.”
[spelling modernised]
698. Law of Nations, at 30. See also Droit des Gens, vol. 1, at 70: “[t]oute vraie Souveraineté
est inaliénable de sa nature.” [spelling modernised]
699. Chapter twenty-one of book one deals with the question of the alienation of a
part of the state. Vattel opined that only in extreme cases of necessity, should such
a dismemberment of territory be done (including alienations made by a treaty of
peace; see Droit des Gens, vol. 2, at 432-434; and also Law of Nations, at 257-
259). Although valid between the states involved, the provinces or cities thus
abandoned are not obliged to accept their new master; see Droit des Gens, vol. 1,
at 229-231; see also Law of Nations, at 118-119.
700. Law of Nations, at 30. See also Droit des Gens, vol. 1, at 69: “en vertu du pouvoir
qui lui est confié, soit expressément, soit par un consentement tacite.” [spelling
modernised]
 CHAPTER 7 147

The idea of moral person representing the people is also found in book
three of Droit des Gens dealing with war, which Vattel defined as “that state
in which we prosecute our right by force.”701 As one author pointed out, it is
in the context of war that, indeed, the juridical person first found applica-
tions to international relations during the Middle Ages.702 For his part, Vattel
started by drawing a distinction between,703 (i) public war, “that which takes
place between nations or sovereigns, and which is carried on in the name of
the public power, and by its order”704 and, (ii) private war, between private
individuals,705 the right of which is deemed extinguished by the social con-
tract through which the individuals transferred authority to provide order
and rule to the moral person of the state.706
Further, the natural rights of individuals to use force for their personal
preservation are deemed to pass to the state, not only to administer justice
and peace between citizens within,707 but also to defend the nation against

701. Law of Nations, at 291. [emphasis in original] See also Droit des Gens, vol. 2, at 1:
“est cet état, dans lequel on poursuit son droit par la force.” [emphasis in original]
[spelling modernised]
702. See P. Haggenmacher, supra, note 672, at 13.
703. It is worth mentioning that Vattel briefly addressed another type of war, namely,
civil war, in chapter eighteen of book three; see Droit des Gens, vol. 2, at 238-248;
and also Law of Nations, at 421-427.
704. Law of Nations, at 291. See also Droit des Gens, vol. 2, at 1: “celle qui a lieu entre
les Nations ou les Souverains, qui se fait au nom de la Puissance publique, & par
son ordre.” [spelling modernised]
705. On the notion of private war developed by medieval authors, see P. Haggen-
macher, supra, note 672, at 13-14.
706. See supra, at footnote 643 and accompanying text. See also on this point C. Phillipson,
supra, note 612, at 503.
707. See Droit des Gens, vol. 2, at 2; and also Law of Nations, at 292. On the adminis-
tration of justice internally, see also chapter thirteen, book one – Droit des Gens,
vol. 1, at 153 ff.; and also Law of Nations, at 77 ff.
Similarly, as regards disputes between an individual and a foreigner, the states
must represent and protect the interests of their citizens. See Droit des Gens, vol. 2,
at 2-3: “Que si un particulier veut poursuivre son droit contre le sujet d’une Puissance
étrangère, il peut s’adresser au Souverain de son adversaire, aux Magistrats qui
exercent l’autorité publique: Et s’il n’en obtient pas justice, il doit recourir à son
propre Souverain, obligé de le protéger. Il serait trop dangereux d’abandonner à
chaque Citoyen la liberté de se faire lui-même justice contre les Etrangers; une Nation
n’aurait pas un de ses membres qui ne pût lui attirer la Guerre.” [spelling mod-
ernised] See also Law of Nations, at 292: “If a private person intends to prosecute
his right against the subject of a foreign power, he may apply to the sovereign of
his adversary, or to the magistrates invested with the public authority: and if he is
denied justice by them, he must have recourse to his own sovereign, who is
obliged to protect him. It would be too dangerous to allow every citizen the lib-
erty of doing himself justice against foreigners; as, in that case, there would not be
a single member of the state who might not involve it in war.”
148 CHAPTER 7

outside threats.708 Such a transfer of power to declare and make war appears
clearly from this passage:
Thus the sovereign power alone is possessed of authority to make war. But, as the differ-
ent rights which constitute this power, originally resident in the body of the nation,
may be separated or limited according to the will of the nation (Book I. § 31 and
45), it is from the particular constitution of each state, that we are to learn where the
power resides, that is authorized to make war in the name of the society at large.709
Also, given that a state represents its people, a declaration of war means that,
not only the nations, but “all the subjects of the one are enemies to all the
subjects of the other.”710
Now, for the present discussion, the most important feature in Vattel the-
ory is that the power to govern for the benefit of the people – power
referred to by using the word sovereignty – is solely in the hands of this
“moral person,” who will exercise it both within and without, that is, both
internally on the state territory and externally on the international plane.
This is how he explained the exclusive authority of the state government to
represent and act on behalf of the people:
The sovereign, or conductor of the state, thus becoming the depositary of the oblig-
ations and rights relative to government, in him is found the moral person, who,
without absolutely ceasing to exist in the nation, acts thenceforwards only in him and
by him. Such is the origin of the representative character attributed to the sovereign.
He represents the nation in all the affairs in which he may happen to be engaged as a
sovereign.711

708. See F.S. Ruddy, supra, note 693, at 217, who wrote: “With the formation of soci-
ety these rights passed from the individual to society, and in society, the right to
make war was in the sovereign.” See also D.G. Lang, supra, note 690, at 18.
709. Law of Nations, at 292. [emphasis added] See also Droit des Gens, vol. 2, at 3: “La
Puissance souveraine est donc seule en pouvoir de faire la Guerre. Mais comme les divers
Droits qui forment cette Puissance, résidente originairement dans le Corps de la Nations,
peuvent être séparés, ou limités, suivant la volonté de la Nation (L. I. §§. 31. &
45.); c’est dans la Constitution particulière de chaque Etat, qu’il faut chercher
quelle est la Puissance autorisée à faire la Guerre au nom de la Société.” [emphasis
added] [spelling modernised]
710. Law of Nations, at 322. See also Droit des Gens, vol. 2, at 59: “tous les sujets de
l’une sont ennemis de tous les sujets de l’autre.” [spelling modernised] Later
Vattel wrote: “Les Ennemis demeurent tels, en quelque lieu qu’ils se trouvent. Le
lieu du séjour ne fait rien ici; les liens Politiques établissent la qualité. Tant qu’un
homme demeure Citoyen de son pays, il est ennemi de ceux avec qui sa Nation
est en guerre;” see Droit des Gens, vol. 2, at 59. [spelling modernised] See also
Law of Nations, at 321: “Enemies continue such wherever they happen to be. The
place of abode is of no consequence here. It is the political ties which determine
the character. Whilst a man continues a citizen of his own country, he is the
enemy of all those with whom his nation is at war.”
711. Law of Nations, at 13. [emphasis added] See also Droit des Gens, vol. 1, at 42: “le
Conducteur de l’Etat, le Souverain, devenant ainsi le sujet où résident les obliga-
 CHAPTER 7 149

The state is thus the incorporated body that absorbs the individuals that form
the society and represents them not only for domestic matters, but also for
matters involving foreign persons or foreign nations.712 As far as interna-
tional affairs are concerned, one author wrote, “[t]he sovereign state and not
the individual man are henceforth [since Vattel] the criterion by which all rela-
tions in the international sphere are judged.”713

7.2.2. Independence of power

Moreover, in order to assure that the incorporated body of the nation will be
the only representative of the people, both within and without, de Vattel put
forward the idea of state independence, which had already been introduced in
the preface, where he wrote that “[e]ach sovereign state claims, and actually
possesses an absolute independence on all the others.”714 In the preliminar-
ies, an analogy about independence was made between the situations of men
in society and of nations in the society of nations:

tions & les droits relatifs au Gouvernement, c’est en lui que se trouve la personne
morale, qui, sans cesser absolument d’exister dans la Nation, n’agit désormais qu’en
lui & par lui. Elle est l’origine du Caractère représentatif que l’on attribue au
Souverain. Il représente sa Nation dans toutes les affaires qu’il peut avoir comme
Souverain.” [emphasis added] [spelling modernised]
712. On this point, it is interesting to bring up the analogy suggested by Thomas
Franck between the former legal status of women and individuals in their respec-
tive legal orders. He wrote: “Just as in domestic law a woman had been, until the
19th century, a ‘femme couverte,’ incapable of acquiring rights in her own name,
so all persons in international law remained, until the twentieth century, essen-
tially, ‘persons couverts’ under the Vattelian system that recognized the rights only
of sovereign States;” see T.M. Franck, “Individuals, Groups and States as Rights
Holders in International Law,” in Canadian Council on International Law, The
Impact of International Law on the Practice of Law in Canada – Proceedings of the
27th Annual Conference of the Canadian Council on International Law, Ottawa,
October 15-17, 1998 (The Hague: Kluwer Law International, 1999), 62, at 64.
See also K. Knop, “Feminist Re/Statements: Feminism and State Sovereignty in
International Law” (1993), 3 Transna’l L. & Cont’y Probl. 293, at 323-328.
713. P.P. Remec, supra, note 642, at 180. See also P. Haggenmacher, supra, note 672,
at 11-12: “Or, durant la période en question, l’Etat souverain est, d’une part,
pleinement constitué et, d’autre part, le principal, sinon l’unique sujet du droit
international.”
For contemporary arguments challenging this international orthodoxy, see
M. Noortmann, “Globalisation, Global Governance and Non-State Actors: Research-
ing Beyond the State” (2002), 4 Int’l L. Forum 36; and also, L.Y. Fortier, “The
Emerging Importance of Non-State Actors in International Law,” communication
given at the Third Annual International Law Conference of the Canadian Bar
Association, Ottawa, Canada, 30 & 31 May 2002.
714. Law of Nations, at xiii. See also Droit des Gens, vol. 1, at xvii: “[c]haque Etat Souverain
se prétend, & est effectivement, indépendant de tous les autres.” [spelling mod-
ernised]
150 CHAPTER 7
Nations being free and independent of each other, in the same manner as men are
naturally free and independent, the second general law of their society is, that each
nation should be left in the peaceable enjoyment of that liberty which she inherits from
nature. The natural society of nations cannot subsist, unless the natural rights of each
be duly respected.715
When concluding chapter three of book one, dealing with the constitution
of a nation, Vattel also made it clear that “no foreign power has a right to
interfere”716 in matters of national concern.

7.2.2.1. Non-intervention
It is in the second book of Droit des Gens, entitled “Of a Nation Considered
in Its Relation to Others,”717 that this principle of “state independence” was
developed.718 On the international plane, it would mean that the moral
person entrusted by the people ought to be able to govern without the inter-
ference of foreign public authorities or individuals. From this idea of state inde-
pendence, Vattel laid down the general rule prohibiting interference in the
internal affairs of a nation:
It is an evident consequence of the liberty and independence of nations, that all have
a right to be governed as they think proper, and that no state has the smallest right
to interfere in the government of another. Of all the rights that can belong to a
nation, sovereignty is, doubtless, the most precious, and that which other nations
ought the most scrupulously to respect, if they would not do her as injury.719
It comes out clearly from this passage that Vattel has now transformed
the reality that the word “sovereignty” represents by associating it with this

715. Law of Nations, at lxi. [emphasis in original] See also Droit des Gens, vol. 1 at 9:
“Les Nations étant libres & indépendantes les unes des autres, puisque les hommes
sont naturellement libres & indépendants; la seconde Loi générale de leur Société
est, que chaque Nation doit être laissée dans la paisible jouissance de cette Liberté,
qu’elle tient de la Nature. La Société naturelle des Nations ne peut subsister, si les
Droits que chacune a reçus de la Nature n’y sont pas respectés.” [spelling mod-
ernised]
716. Law of Nations, at 12. See also Droit des Gens, vol. 1 at 38: “aucune Puissance
Etrangère n’est en droit de s’en mêler.” [spelling modernised]
717. Law of Nations, at 133. See also Droit des Gens, vol. 1 at 255: “De la Nation con-
sidérée dans ses relations avec les autres.” [spelling modernised]
718. See J.L. Brierly, supra, note 265, at 38, who opined that the system proposed by
Vattel put an “exaggerated emphasis on the independence of states.”
719. Law of Nations, at 154. [emphasis added] See also Droit des Gens, vol. 1 at 297:
“C’est une conséquence manifeste de la Liberté & de l’indépendance des Nations,
que toutes sont en droit de se gouverner comme elles le jugent à propos, & qu’au-
cune n’a le moindre droit de se mêler du Gouvernement d’une autre. De tous les
Droits qui peuvent appartenir à une Nation, la Souveraineté est sans-doute le plus
précieux, & celui que les autres doivent respecter le plus scrupuleusement, si elles
ne veulent pas lui faire injure.” [emphasis added] [spelling modernised]
 CHAPTER 7 151

other linguistic sign, “independence,” which would refer to a normative pre-

scription according to which, on the international plane, one state ought not
to interfere in the domestic government of another.
This forcefully illustrates how Droit des Gens carried out the externalisa-
tion of the highest unified power by providing that the state is the sole
holder of authority without as well as within. Indeed, Vattel’s juridical per-
son does not only have the exclusive power among other internal authorities
to represent and rule its people within the territory, but it also has the exclu-
sive power among other public authorities outside (that is, other states) to rep-
resent and rule its people within the said territory. This is, of course, in addition
to the exclusive power to represent and rule its people in their relations with
foreign states and individuals just discussed. Such a use of the word “sover-
eignty” is thus really a question exclusivity of authority.
Given that foreign nations cannot interfere in the internal government of
another nation by virtue of the principle of state independence, “it is not
difficult to prove that the latter has a right to oppose such interference.”720
Indeed, “a sovereign has a right to treat those as enemies who attempt to inter-
fere in his domestic affairs otherwise than by their good offices.”721 However,
this broad rule of non-intervention does not apply in the case of a domestic
struggle amounting to a full scale civil war – “every foreign power has a right
to succour an oppressed people who implore their assistance.”722 Although this
exception appears in blatant contradiction of the theory of independence,723
it is founded on the state practice of the time;724 Vattel was “simply stating,
nay, strictly limiting, the international usage of the eighteenth century, when
[he] conferred upon a nation the right to aid a rebel or his government, – a
right as real then as that of ambassadorial inviolability is now.”725

720. Law of Nations, at 156. See also Droit des Gens, vol. 1 at 300: “il n’est pas difficile
de prouver, que celui-ci est fondé à ne le point souffrir.” [spelling modernised]
721. Law of Nations, at 156. See also Droit des Gens, vol. 1 at 300: “un Souverain est
en droit de traiter en ennemis ceux qui entreprennent de se mêler autrement que
par leurs bons offices, de ses affaires domestiques.” [spelling modernised]
722. Law of Nations, at 155. See also Droit des Gens, vol. 1 at 298: “toute Puissance
étrangère est en droit de secourir un peuple opprimé, qui lui demande son assis-
tance.” [spelling modernised]
723. See F.S. Ruddy, supra, note 693, at 182-184. See also A. Mallarmé, supra, note
603, at 545: “Mais, après avoir posé le principe de non-intervention et après en
avoir indiqué les principales applications, il y apporte de telles restrictions que le
principe s’en trouve entièrement ébranlé.”
724. See G. Butler & S. Maccoby, The Development of International Law (London:
Longmans, Green, 1928), at 71-72; and, D.G. Lang, supra, note 690, at 32:
“Such demands for intervention on the grounds of aiding the just cause in a
civil war were not unique to Americans, in the [late eighteenth century and] nine-
teenth century the French revolutionaries, Napoleon, and Metternich made simi-
lar arguments.”
725. P.H. Winfield, “The History of Intervention in International Law” (1922-23), 3
British Y.B. Int’l L. 130, at 137.
152 CHAPTER 7

Likewise, the independence that enjoys this moral person representing

the people also entails that with respect to religious matters, the state is not
submitted to any authority within or without.726 Domestically, it was estab-
lished in chapter twelve of book one, entitled “Of Piety and Religion,”727
that when religion is “publicly established, it is an affair of state”728 and that
the “establishment of religion by law, and its public exercise, are matters of
state, and are necessarily under the jurisdiction of the political authority.”729
But externally too, the state has exclusive authority over religious matters,
free from the interference of the Pope or the Emperor730 – “It is, then, cer-
tain that we cannot, in opposition to the will of a nation, interfere in her
religious concerns, without violating her rights, and doing her an injury.”731
Also linked to the principle of state independence and how Vattel used
the word “sovereignty” to represent the reality of this artificial person’s exclu-
sive authority to govern and represent the aggregate of individuals in society
is the so-called “offices of humanities between nations.”732 These altruistic
obligations were alluded to in the preliminaries,733 and are the object of the
first chapter of the second book of Droit des Gens.734 Extrapolating on the

726. On this issue of the authority of the state over religious matters, see A. Mallarmé,
supra, note 603, at 522-526; and, C.G. Fenwick, “The Authority of Vattel,” Part
I (1913), 7 American Pol. Sc. Rev. 395, at 399: “This call for abject submission on
the part of the clergy is followed by a vigorous denunciation of the papacy as an
institution claiming to be independent of state control.”
727. Law of Nations, at 55; see also Droit des Gens, vol. 1, at 116: “De la Piété & de la
Religion.”
728. Law of Nations, at 56. [emphasis in original] See also Droit des Gens, vol. 1, at
117: “publiquement établie, c’est une affaire d’Etat.” [spelling modernised]
729. Law of Nations, at 56-57. See also Droit des Gens, vol. 1, at 118: “établissement de
la Religion par les Lois, & son exercice public, sont matières d’Etat, & ressortis-
sent nécessairement à l’Autorité Politique.” [spelling modernised]
730. See Droit des Gens, vol. 1, at 301: “L’autorité générale & absolue du Pape & du
Concile est absurde dans tout autre système que celui de ces Papes, qui voulaient
faire de toute la Chrétienté un seul Corps, dont ils se disaient les Monarques
suprêmes.” [footnotes omitted] [spelling modernised] See also Law of Nations, at
157: “The general and absolute authority of the pope and council is absurd in
every other system than that of those popes who strove to unite all Christendom
in a single body, of which they pretended to be the supreme monarchs.” [foot-
notes omitted]
731. Law of Nations, at 157. See also Droit des Gens, vol. 1, at 302: “Il est donc certain
que l’on ne peut se mêler malgré une Nation, de ses affaires de Religion, sans
blesser ses droits & lui faire injure.” [spelling modernised]
732. Law of Nations, at 133. See also Droits des Gens, vol. 1, at 255: “Offices de l’hu-
manité entre les Nations.” See also E. Jouannet, supra, note 602, at 146-151.
733. See Droit des Gens, vol. 1, at 8: “chaque Nation doit contribuer au bonheur & à
la perfection des autres tout ce qui est en son pouvoir.” [spelling modernised] See
also Law of Nations, at lxi: “each individual nation is bound to contribute every
thing in her power to the happiness and perfection of all the others.” [emphasis in
original] [footnotes omitted]
 CHAPTER 7 153

state’s duties of “self-preservation” and “self-perfection,”735 these offices of

humanities between nations “consist, generally, in doing every thing in our
power for the preservation and happiness of others, as far as such conduct is
reconcilable with our duties towards ourselves.”736
Accordingly, state should, inter alia, help others in case of famine,737
favour external trade,738 avoid monopolising commerce,739 assist in opposing
a powerful enemy, 740 cooperate for the administration of justice, 741 et
cetera.742 However, these obligations to assist others in their preservation and
perfection are only secondary because the duties that a nation owes to itself
must be fulfilled first.743 In that regard, and intertwined with the idea of
independence, Vattel had made the following remark in the preliminaries:
As a consequence of that liberty and independence, it exclusively belongs to each nation
to form her own judgment of what her conscience prescribes 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 herself. In all cases, there-
fore, in which a nation has the right of judging what her duty requires, no other
nation can compel her to act in such or such particular manner: for any attempt at
such compulsion would be an infringement on the liberty of nations.744

734. Droit des Gens, vol. 1, at 255 ff.; and also Law of Nations, at 133 ff.
735. See supra, at footnotes 692-693 and accompanying text.
736. Law of Nations, at 134. See also Droit des Gens, vol. 1, at 258: “consistent en
général à faire pour la conservation & le bonheur des autres, tout ce qui est en
notre pouvoir, autant que cela peut se concilier avec nos devoirs envers nous-même.”
[spelling modernised]
737. Droit des Gens, vol. 1, at 260-261; and also Law of Nations, at 136.
738. Droit des Gens, vol. 1, at 274-275; and also Law of Nations, at 143.
739. Droit des Gens, vol. 1, at 276-277; and also Law of Nations, at 144.
740. Droit des Gens, vol. 1, at 296-297; and also Law of Nations, at 154.
741. Droit des Gens, vol. 1, at 311-312; and also Law of Nations, at 162.
742. See, generally, A. de Lapradelle, supra, note 606, at xii-xiii; C. Phillipson, supra, note
612, at 502-503; and, P.F. Butler, “Legitimacy in a States-System: Vattel’s Law of
Nations,” in M. Donelan (ed.), The Reason of States – A Study in International Political
Theory (London: Allen & Unwin, 1978), 45, at 51.
743. See the preliminaries in Droit des Gens, vol. 1, at 8: “Mais les devoirs envers soi-
même l’emportant incontestablement sur les devoirs envers autrui, une Nation se
doit premièrement & préférablement à elle-même tout ce qu’elle peut faire pour
son bonheur & pour sa perfection.” [spelling modernised] See also Law of Nations,
at lxi: “But the duties that we owe to ourselves being unquestionably paramount
to those we owe to others, – a nation owes herself in the first instance, and in
preference to all other nations, to do every thing she can to promote her own hap-
piness and perfection.” On this issue, see the author G. Gidel, supra, note 319, at
582; P.P. Remec, supra, note 642, at 141-142; and, P.F. Butler, id., at 53.
744. Law of Nations, at lxi-lxii. [emphasis in original] See also Droit des Gens, vol. 1, at
9: “De cette Liberté & indépendance, il suit que c’est à chaque Nation de juger de
ce que sa Conscience exige d’elle, de ce qu’elle peut ou ne peut pas, de ce qu’il lui
154 CHAPTER 7

Also linked to the idea of independence is that a nation cannot force its
offices of humanities upon another.745 In fact, “every nation being free, inde-
pendent, and sole arbitress [sic] of her own actions, it belongs to each to con-
sider whether her situation warrants her in asking or granting any thing on
this head.”746
The principle of equality of states proposed by Vattel747 – in the prelimi-
naries748 and in chapter three of book two749 – is founded as well on state inde-
pendence, that is, the attribute of the moral person, representative of the people,
to decide for itself how to best govern the nation. From the inability of any
state to interfere in the internal government of any other state follows a
sense of equality among the members of the society of nations.750 As Vattel
wrote, “whatever privileges any one of them derives from freedom and sov-
ereignty, [the main being independence] the others equally derive the same
from the same source.”751 This is essentially a negative form of state equality,
revolving around “non-interference.”752
From this viewpoint, Vattel moved to a more positive perspective, pertaining
to the legal equality of states, irrespective of the actual power or might of a
nation.753 Building upon what he wrote earlier about the society of individ-
uals living in nature,754 he explained the proposition as follows:
Since men are naturally equal, and a perfect equality prevails in their rights and
obligations, as equally proceeding from nature – Nations composed of men, and con-

convient ou ne lui convient pas de faire; & par conséquent d’examiner & de
décider si elle peut rendre quelque office à une autre, sans manquer à ce qu’elle se
doit à soi même. Dans tous les cas donc où il appartient à une Nation de juger de
ce que son devoir exige d’elle, une autre ne peut la contraindre à agir de telle ou
de telle manière. Car si elle l’entreprenait, elle donnerait atteinte à la Liberté des
Nations.” [spelling modernised]
745. See Droit des Gens, vol. 1, at 262-263; see also Law of Nations, at 136-137.
746. Law of Nations, at 137. [emphasis added] See also Droit des Gens, vol. 1, at 263-
264: “toute Nation étant libre, indépendante & modératrice de ses actions, c’est à
chacune de voir si elle est dans le cas de demander, ou d’accorder quelque chose à
cet égard.” [spelling modernised]
747. Interestingly, J.L. Brierly, supra, note 265, at 37, once wrote about Vattel’s
doctrine of state equality that it was “a misleading deduction from unsound pre-
misses.”
748. See Droit des Gens, vol. 1, at 11-12; and also Law of Nations, at lxii-lxiii.
749. See Droit des Gens, vol. 1, at 285 ff.; and also Law of Nations, at 148 ff.
750. See A. Mallarmé, supra, note 603, at 507; and, P.P. Remec, supra, note 642, at
145-146.
751. Law of Nations, at 149. See also Droit des Gens, vol. 1, at 285: “Tout ce que la
qualité de Nation libre & souveraine donne à l’une, elle le donne aussi à l’autre.”
[spelling modernised]
752. See D.G. Lang, supra, note 690, at 19.
753. See C.G. Fenwick, “The Authority of Vattel,” Part II (1914), 8 American Pol. Sc.
Rev. 375, at 378.
 CHAPTER 7 155
sidered as so many free persons living together in a state of nature, are naturally equal,
and inherit from nature the same obligations and rights. Power or weakness does not in
this respect produce any difference. A dwarf is as much a man as a giant; a small repub-
lic is no less a sovereign state than the most powerful kingdom.755
Equality of states thus entails that “whatever is lawful for one nation is
equally lawful for any other; and whatever is unjustifiable in the one is
equally so in the other.”756 In large part from state independence,757 there-
fore, “the effect of the whole is, to produce, at least externally and in the
eyes of mankind, a perfect equality of rights between nations, in the adminis-
tration of their affairs and the pursuit of their pretensions, without regard to
the intrinsic justice of their conduct.”758 This principle, wrote Vattel, is not

754. See Droit des Gens, vol. 1, at 5-7; and also Law of Nations, at lviii-lx.
755. Law of Nations, at lxii. [emphasis added] See also Droit des Gens, vol. 1, at 11:
“Puisque les hommes sont naturellement égaux, & que leurs droits & leurs oblig-
ations sont les mêmes, comme venant également de la Nature, les Nations com-
posées d’hommes, & considérées comme autant de personnes libres qui vivent ensemble
dans l’état de Nature, sont naturellement égales, & tiennent de la Nature les mêmes
obligations & les mêmes droits. La puissance ou la faiblesse ne produisent, à cet
égard, aucune différence. Un Nain est aussi bien un homme, qu’un Géant: Une
petite République n’est pas moins un Etat souverain que le plus puissant
Royaume.” [emphasis added] [spelling modernised]
756. Law of Nations, at lxii. See also Droit des Gens, vol. 1, at 11: “ce qui est permis à
une Nation, l’est aussi à toute autre, & ce qui n’est pas permis à l’une, ne l’est pas
non plus à l’autre.” [spelling modernised]
757. See R.W. Tucker, The Inequality of Nations (New York: Basic Books, 1977), at 13,
who wrote the following about the traditional system of state equality, such as at
the time of Vattel: “The equality of states thus consisted primarily of the recogni-
tion by others of an equal claim to the right of self-help and, above all, the right
to wage war. And since this right has always been the hallmark of a state’s inde-
pendence, it has never been easy to distinguish between the equality and the inde-
pendence of states.” [emphasis added] As well, see generally P.H. Kooijmans, The
Doctrine of the Legal Equality of States: An Inquiry into the Foundations of International
Law (Leyden: Sythoff, 1964).
Interestingly, see also B. Kingsbury, “Sovereignty and Inequality” (1998), 9 European
J. Int’l L. 599, at 599, who wrote: “Inequality is one of the major subjects of mod-
ern social and political inquiry, but it has received minimal consideration as a the-
oretical topic in the recent literature of international law. While the reluctance
formally to confront inequality has many causes, it has been made possible – and
encouraged – by the centrality of sovereignty as a normative foundation of inter-
national law.” [footnotes omitted]
758. Law of Nations, at lxiii. [emphasis added] See also Droit des Gens, vol. 1, at 11:
“l’effet de tout cela est d’opérer, au moins extérieurement & parmi les hommes,
une parfaite égalité de droits entre les Nations, dans l’administration de leurs affaires
& dans la poursuite de leurs prétentions, sans égard à la justice intrinsèque de leur
Conduite, dont il n’appartient pas aux autres de juger définitivement.” [emphasis added]
[spelling modernised]
156 CHAPTER 7

affected by rank and precedence – quite important then759 – which are mere
political issues irrelevant to the legal equality of states.760

7.2.2.2. Vattel’s law of nations

It is with his law of nations that Vattel completed the externalisation of the
“highest unified power” through the word sovereignty in Droit des Gens. This
relates to the stated object of the treatise, which is to lay down the princi-
ples of the law of nations “[t]o establish on a solid foundation the obligations
and rights of nations.”761 In the preface, Vattel had acknowledged Hobbes as
the first, to his knowledge, “who gave a distinct, though imperfect idea, of
the law of nations.”762 For his part, Vattel wrote the following about it: “The
Law of Nations is the science which teaches the rights subsisting between nations
or states, and the obligations correspondent to those rights.”763
The first thing to point out is that, because the fictitious moral person of
the state has absorbed the individuals of society and represents them on the
international plane, the legal normative scheme governing the relations involv-
ing such foreign elements is only concerned with the members of the soci-
ety of nations, namely, the nations (or states).764 Here is how it would work:
“The law of nations is the law of sovereigns; free and independent states are
moral persons, whose rights and obligations we are to establish in this trea-

759. See G. Butler & S. Maccoby, supra, note 724, at 88 ff.; and, F.S. Ruddy, supra,
note 693, at 181, who wrote: “Vattel’s attention to points of diplomatic prece-
dence may seem a bit incongruous today, but it was de rigueur in the diplomacy
of the eighteenth century.” [emphasis in original]
760. See Droit des Gens, vol. 1, at 286: “Cependant, comme un Etat puissant & vaste
est beaucoup plus considérable dans la Société universelle, qu’un petit Etat, il est
raisonnable que celui-ci lui cède, dans les occasions où il faut que l’un cède à
l’autre, comme dans une Assemblée, & lui témoigne ces déférences de pur Cérémonial,
qui n’ôtent point au fonds l’égalité, & ne marquent qu’une priorité d’ordre, une
première place entre égaux.” [spelling modernised] See also Law of Nations, 149:
“However, as a powerful and extensive state is much more considerable in uni-
versal society than a small state, it is reasonable that the latter should yield to
the former on occasions where one must necessarily yield to the other, as, in an
assembly, – and should pay it those mere ceremonial deferences [sic] which do
not, in fact, destroy their equality, and only show a superiority of order, a first
place among equals.”
761. Law of Nations, at lv. [emphasis in original] See also Droit des Gens, vol. 1, at 1: “établir
solidement les Obligations & les Droits des Nations.” [spelling modernised]
762. Law of Nations, at ix. See also Droit des Gens, vol. 1, at x: “qui ait donné une idée
distincte, mais encore imparfaite du Droit des Gens.” [spelling modernised]
763. Law of Nations, at lv. [emphasis in original] See also Droit des Gens, vol. 1, at 1:
“Le Droit des Gens est la science du Droit qui a lieu entre les Nations, ou Etats, &
des Obligations qui répondent à ce Droit.” [emphasis in original] [spelling modernised]
764. See P.P. Remec, supra, note 642, at 181, who wrote: “In its external relations, by
the same reason, the state absorbs the individual men comprising it.”
 CHAPTER 7 157

tise.”765 Thus the law of nations is a law which applies to nations, to their
mutual external relations, and to them only.766 This is something that was
already coming out clearly from the full title of Vattel’s work – The Law of
Nations; or, Principles of the Law of Nature, applied to the Conduct and Affairs
of Nations and Sovereigns.767 In fact, as one author put it, “Vattel’s main achieve-
ment was in outlining the sovereign state as the subject of the law of nations,”768
indeed, “the sole subjects of the law of nations.”769
For the present purposes, however, there is a more important achieve-
ment from the way Vattel used the word “sovereignty” that must be high-
lighted, namely, to set out a law of nations which would not submit them to
any higher legal regime.770 This falls within the new reality, represented by
the linguistic sign “sovereignty,” pertaining to the exclusivity of power with-
out, and works along with the other elements already identified – (i) the moral
person of the state as sole representative of the people externally, and (ii) the
independence of states which entails that no nation can interfere with the
internal government of another. In effect, the premise of Vattel’s law of nations
is “sovereignty” as “independence,” meaning not only that states are not sub-
mitted to any external authority, but also that states are not submitted to
any higher law externally.
It is with respect to his system of international law that Vattel borrowed
most from Christian Wolff,771 something he himself humbly admitted in the
preface772 – “Those who have read Monsieur Wolf ’s treatises on the law

765. Law of Nations, at 3. See also Droit des Gens, vol. 1, at 21: “Le Droit des Gens est
la Loi des Souverains: Les Etats libres & indépendants sont les Personnes morales,
dont nous devons établir les Droits & les Obligations dans ce Traité.” [spelling mod-
ernised]
766. See P.P. Remec, supra, note 642, at 128: “Vattel’s aim was to establish a definite
body of laws which regulate the relations among states, laws which would sub-
sume these relations in their entirety and yet exclude analogous relations among
subjects other than states. For this purpose he constructed a very elaborate system
of several kinds of the law of nations.” [footnotes omitted]
767. This is Joseph Chitty’s translation. The original title, in French, reads thus: Le
Droit des Gens; ou Principes de la loi naturelle appliqués à la conduite & aux affaires
des Nations & des Souverains.
768. P.P. Remec, supra, note 642, at 180. [emphasis in original]
769. Id., at 190.
770. See M. Koskenniemi, supra, note 169, at 94, who expressed the following opinion:
“Vattel distinguishes himself from early lawyers precisely by denying the enforce-
ability of theories of justice.”
771. See, generally, L. Olive, “Wolff,” in A. Pillet (ed.), Les fondateurs du droit interna-
tional (Paris: Giard & Brière, 1904), 447; and, A. Renaut, “Wolff Christian, 1679-
1754 – Principes du droit de la nature et des gens, 1758,” in F. Chatelet, O. Duhamel
& E. Pisier (eds.), Dictionnaire des Oeuvres Politiques (Paris: Presses universitaires
de France, 1986), 879.
772. It is commonly know that Vattel considerably borrowed from Wolff ideas and
materials, but also the order and arrangement of his work; see E. Jouannet, supra,
158 CHAPTER 7

of nature and the law of nations, will see what advantage I have made of
them.”773 Thus following Wolff, Vattel articulated the law of nations as both
natural law and positive law.774 As regards the law of nature, it is applicable
to nations just like it is applicable to human beings;775 this is because, like
them, “[n]ations, or sovereign states, are to be considered as so many free
persons living together in the state of nature.”776 Accordingly, the natural law
of nation is the just and reasonable application of the law of nature to
the juristic person of the state; Vattel also called it the “necessary law of nation” –
“Necessary because nations are absolutely bound to observe it.”777
This necessary law of nation is opposed to the “positive law of nation,”
comprising the voluntary, the conventional and the customary law of nations,778
which “all proceed from the will of Nations; the Voluntary from their presumed
consent, the Conventional from an express consent, and the Customary from
tacit consent.”779 Although Vattel put all three in the same category, the

note 602, at 28. H. Wheaton, supra, note 265, at 185, provided a table compar-
ing Droit des Gens and Wolff ’s Law of Nations, chapter by chapter.
773. Law of Nations, at xii. See also Droit des Gens, vol. 1, at xvi: “Ceux qui auront lu
les Traités du Droit Naturel & du Droit des Gens de M. Wolf, verront combien
j’en ai profité.” [spelling modernised]
774. See E.D. Dickinson, “Changing Concepts and the Doctrine of Incorporation” (1932),
26 American J. Int’l L. 239, at 249. See also P. Guggenheim, supra, note 602, at
6-7.
775. See Droit des Gens, vol. 1, at 2-3: “Les hommes étant soumis aux Lois de la
Nature, & leur union en Société Civile n’ayant pu les soustraire à l’obligation
d’observer ces Lois, puisque dans cette union ils ne cessent pas d’être hommes; la
Nation entière, dont la Volonté commune n’est que le résultat des volontés réunies
des Citoyens, demeure soumise aux Lois de la Nature, obligée à les respecter dans
toutes ses démarches.” [spelling modernised] See also Law of Nations, at lvi: “As men
are subject to the laws of nature, – and as their union in civil society cannot have
exempted them from the obligation to observe those laws, since by that union
they do not cease to be men, – the entire nation, whose common will is but the
result of the united wills of the citizens, remains subject to the laws of nature, and
is bound to respect them in all her proceedings.” [emphasis in original]
For a critical appraisal of this individual-state analogy in Vattel’s international
law theory, see P.P. Remec, supra, note 642, at 128-129 & 183 ff.
776. Law of Nations, at lv. [emphasis in original] See also Droit des Gens, vol. 1, at 2:
“Les Nations étant composées d’hommes naturellement libres & indépendants, &
qui avant l’établissement des Sociétés Civiles, vivaient ensemble dans l’état de nature;
les Nations, ou les Etats Souverains, doivent être considérés comme autant de per-
sonnes libres, qui vivent entre elles dans l’état de nature.” [spelling modernised]
777. Law of Nations, at lviii. [emphasis in original] See also Droit des Gens, vol. 1, at 4:
“Il est nécessaire, parce que les Nations sont absolument obligées à l’observer.” [empha-
sis in original] [spelling modernised]
778. See H. Wheaton, supra, note 265, at 188-189; and, A. de Lapradelle, supra, note
606, at xix.
779. Law of Nations, at lxvi. [emphasis in original] See also Droit des Gens, vol. 1, at 15:
 CHAPTER 7 159

voluntary law of nation is different than the other two (treaties and cus-
toms), which are truly will-based law of nations (what he referred to as
“arbitrary”).780 In fact, Droit des Gens deals very little with conventional and
customary law of nations, and concentrates almost exclusively on necessary
and voluntary law of nations.781
The voluntary law of nations, for its part, is essentially based on natural
law, like the necessary law of nations – “The necessary and the voluntary
laws of nations are therefore both established by nature, but each in a dif-
ferent manner: the former, as a sacred law which nations and sovereigns are
bound to respect and follow in all their actions; the latter, as a rule which
the general welfare and safety oblige them to admit in their transactions with
each other.”782 However, this type of natural law (i.e. voluntary law) would
be different because of the subjects it regulates.783 Thus Vattel “draw a dis-
tinction between the strict application of the natural law and modifications
and exceptions to it when applied to nations.”784 Put another way, the vol-
untary law of nations would adjust natural law (i.e. the necessary law of nations)
in order to correspond to the particular needs of regulating relations between
states.785

“procèdent tous de la Volonté des Nations; le Droit Volontaire, de leur consente-

ment présumé; le Droit Conventionnel, d’un consentement expres; & le Droit Cou-
tumier, d’un consentement tacite.” [emphasis in original] [spelling modernised]
780. See Droit des Gens, vol. 1, at 15: “Ils [treaties and customs] forment cette espèce
de Droit des Gens, que les auteurs nomment Arbitraire.” [emphasis in original]
[spelling modernised] See also Law of Nations, at lxvi: “They [treaties and cus-
toms] form that species of law of nations which authors have distinguished by the
name of Arbitrary.” [emphasis in original] See also, to the same effect, Droit des
Gens, vol. 1, at xxi-xxii; and also Law of Nations, at xv.
781. See F.S. Ruddy, supra, note 693, at 76.
782. Law of Nations, at xv. See also Droit des Gens, vol. 1, at xxi: “Le Droit des Gens
Nécessaire & le Droit des Gens Volontaire sont donc établis l’un & l’autre par la
Nature; mais chacun à sa manière: le premier, comme une Loi sacrée, que les Nations
& les Souverains doivent respecter & suivre dans toutes leurs actions; le second,
comme une règle, que le bien & le salut commun les obligent d’admettre, dans les
affaires qu’ils ont ensemble. Le Droit Nécessaire procède immédiatement de la Nature;
cette Mère commune des hommes recommande l’observation du Droit des Gens
Volontaire, en considération de l’état où les Nations se trouvent les unes avec les
autres, & pour le bien de leurs affaires.” [emphasis in original] [spelling modernised]
783. See Droit des Gens, vol. 1, at vi: “L’application d’une règle à des sujets divers, ne
peut se faire que d’une manière convenable à la nature de chaque sujet.” [spelling
modernised] See also Law of Nation, at vii: “The application of a rule to various
subjects, can no otherwise be made than in a manner agreeable to the nature of
each subject.” As well, to the same effect, see Droit des Gens, vol. 1, at 7-8; and
Law of Nations, at lx.
784. F.S. Ruddy, supra, note 693, at 75.
785. See M. Koskenniemi, supra, note 169, at 90. See also C.G. Fenwick, supra, note
726, at 401; P.P. Remec, supra, note 642, at 140-141; and, C. Phillipson, supra, note
160 CHAPTER 7

So far, Vattel had followed Wolff with respect to the categorisation of the
different type of laws of nations;786 but he then distanced himself from his
master when he repudiated the latter’s derivation of the voluntary law of
nation.787 Indeed, Wolff had put forward the idea of a civitas maxima, that
is, an overarching authority instituted by nature itself of which all nations of
the world would be members;788 it is that universal civil society which is deemed
to have accepted the voluntary law of nations and would thus legitimise it.789
Vattel rejected it in the clearest terms790 – “This idea does not satisfy me;
nor do I think the fiction of such a republic either admissible in itself, or capa-
ble of affording sufficiently solid grounds on which to build the rules of the
universal law of nations, which shall necessarily claim the obedient acquies-
cence of sovereign states.”791
In view of his theory of the independence of states, which is represented
in the word “sovereignty” used in Droit des Gens, Vattel could not accept
the contention that there was an authority above the nation.792 Indeed, not
only is there no need for a great commonwealth to provide order among
states – unlike private individuals, who need a public authority to rule

612, at 492: “The laws that apply to nations differ from those that apply to men,
since a nation is a different type of moral being from a man.”
786. For a comparison of Wolff ’s scheme of law of nations with Vattel’s, see F.S. Ruddy,
supra, note 693, at 100-110.
787. See O. Nippold, “Introduction,” in J.B. Scott (ed.), The Classics of International
Law – Wolff, vol. 2 (Oxford: Clarendon Press, 1934), xi, at xlvi. See also J. Westlake,
supra, note 265, at 72; C. Phillipson, supra, note 612, at 493-494; and, F.S.
Ruddy, supra, note 693, at 98-100.
788. See Ius gentium, at 7; and also Wolff ’s Law of Nations, at 16-17.
789. See Ius gentium, at 8; and also Wolff ’s Law of Nations, at 17-18.
790. See H. Wheaton, supra, note 265, at 186; A. Mallarmé, supra, note 603, at 503-
504; A. de Lapradelle, supra, note 606, at xxv; G. Gidel, supra, note 319, at 581;
E.D. Dickinson, supra, note 774, at 249; and, D.G. Lang, supra, note 690, at 17.
791. Law of Nations, at xiii. See also Droit des Gens, vol. 1, at xvii: “Cette idée ne me
satisfait point, & je ne trouve la fiction d’une pareille République ni bien juste, ni
assez solide pour en déduire les règles d’un Droit des Gens universel & nécessaire-
ment admis entre les Etats souverains.” [spelling modernised]
792. See P.P. Remec, supra, note 642, at 190; and, F.S. Ruddy, supra, note 693, at 71:
“Instead of a civitas maxima Vattel acknowledged that each state was independent
of every other state, to be regarded as a free individual living in a state of nature,
and recognizing no laws other than nature’s and God’s.” See also E. Jouannet,
supra, note 602, at 156: “L’identification par Vattel du droit des gens positif au
seul droit externe et coercible s’imposant aux Etats ne peut dès lors s’expliquer par
le fondement volontariste des droits et obligations qu’il comporte puisque ce
fondement est en réalité hétérogène, à la fois volontaire et naturel. Elle résulte de
la consistance et la finalité des obligations, c’est-à-dire du fait que ces obligations
soient instituées dans le respect maximum de la liberté et l’indépendance des
Etats.”
 CHAPTER 7 161

them793 – but more importantly, “that independence is even necessary to

each state, in order to enable her properly to discharge the duties she owes
to herself and to her citizens, and to govern herself in the manner best suite
to her circumstances.”794 The exclusivity of power held by this moral person
representing the individuals in society is thus fundamentally not conciliable
with the notion of civitas maxima.795
Instead of this supra-civil society,796 therefore, Vattel suggested that there
existed a society of nations, similar to the society of human beings in the
state of nature, among which there is an agreement to accept the voluntary
law of nations as a rule of law to regulate their relations.797 It is sufficient, he
wrote, “that nations should conform to what is required of them by the nat-
ural and general society established between all mankind.”798 Furthermore,

793. Indeed, Vattel wrote: “Les Etats se conduisent autrement que les particuliers. Ce
n’est point d’ordinaire le caprice ou l’aveugle impétuosité d’un seul, qui en forme
les résolutions, qui détermine les démarches publiques: On y apporte plus de con-
seil, plus de lenteur & de circonspection: Et dans les occasions épineuses, ou
importantes, on s’arrange, on se met en règle par le moyen des Traités;” Droit des
Gens, vol. 1, at xix. [spelling modernised] See also Law of Nations, at xiv: “States
conduct themselves in a different manner from individuals. It is not usually the
caprice or blind impetuosity of a single person that forms the resolutions and
determines the measures of the public: they are carried on with more deliberation
and circumspection: and, on difficult or important occasions, arrangements are made
and regulations established by means of treaties.”
794. Law of Nations, at xiv. See also Droit des Gens, vol. 1, at xix: “que l’indépendance
est même nécessaire à chaque Etat, pour s’acquitter exactement de ce qu’il se doit
à soi-même & de ce qu’il doit aux Citoyens, & pour se gouverner de la manière
qui lui est la plus convenable.” [spelling modernised]
795. See H. Muir Watt, “Droit naturel et souveraineté de l’Etat dans la doctrine de Vattel”
(1987), 32 Archives Philo. D. 71, at 77, who wrote: “En somme, pour Vattel, si
l’Etat se trouve, comme l’homme à l’origine, dans l’état de nature, la souveraineté
de l’Etat s’oppose toutefois à toute aliénation de sa liberté, et empêche donc d’instituer
une société civile semblable à celle qui existe entre les hommes.” [emphasis added]
796. See the following critique by A. Mallarmé, supra, note 603, at 591: “On doit donc
le louer d’avoir repoussé l’idée d’une Civitas maxima. Mais sa doctrine ne fournit
malheureusement rien de plus satisfaisant à la place.” See also C. Phillipson, supra,
note 612, at 494.
797. See F.S. Ruddy, supra, note 693, at 93. However, see the following remarks by P.P.
Remec, supra, note 642, at 146: “Vattel was of course aware that there is no actual
proof for such an agreement among nations. But since the very existence of the
society of mankind postulates such an agreement, Vattel maintains that this consent
must be presumed as given voluntarily. The law created through such presumed con-
sent he names the ‘Voluntary Law of Nation,’ thus adopting the terminology of
his teacher Wolff.” [footnotes omitted]
798. Law of Nations, at xiv. See also Droit des Gens, vol. 1, at xix: “que les Nations se
conforment à ce qu’exige d’elles la Société naturelle & générale, établie entre tous
les hommes.”
162 CHAPTER 7

instead of deducing the legitimacy of these rules from the fiction of a great
commonwealth above states, 799 he suggested that the voluntary law of
nations is “deducible from the natural liberty of nations, from the attention
due to their common safety, from the nature of their mutual correspon-
dence, their reciprocal duties, and the distinctions of their various rights, inter-
nal and external, perfect and imperfect.”800
Therefore, in attempting to explain the basis of the voluntary law of nations,
Vattel replaced a fiction by another, that is, he relied on the fiction of a pre-
sumed consent among the members of the society of nations instead of relying
upon the fiction of the civitas maxima.801 It also appears that, to further sup-
port his reasoning, Vattel reverted back to following Wolff 802 – in fact, took
over the distinctions introduced by their common mentor, Leibnitz803 – and
referred to rights and obligations of states as being “internal and external,
perfect and imperfect.”804 Here is how Vattel elaborates his system:
In order perfectly to understand this, it is necessary to observe, that the obligation,
and the right which corresponds to or is derived from it, are distinguished into exter-
nal and internal. The obligation is internal, as it binds the conscience, and is deduced
from the rules of our duty: it is external, as it is considered relatively to other men,
and produces some right between them. The internal obligation is always the same
in its nature, though it varies in degree; but the external obligation is divided into
perfect and imperfect; and the right that results from it is also perfect or imperfect. The
perfect right is that which is accompanied by the right of compelling those who refuse
to fulfil the correspondent obligation; the imperfect right is unaccompanied by that

799. Interestingly, see P. Guggenheim, supra, note 602, at 8-9, who downplayed the
importance of Vattel’s different source of the voluntary law of nations: “Pourtant,
la civitas maxima de Wolff, tout comme la société des nations de Vattel, a seule-
ment le sens d’une norme fondamentale formelle, d’une règle de création de droit,
d’une base de validité de l’ordre juridique, au même titre que la norme fonda-
mentale hypothétique de Kelsen.” [footnotes omitted] Similarly, see P.P. Remec,
supra, note 642, at 196: “This second type of the society of nations, which even
has a special ‘nature,’ is really nothing else but a watered-down version of Wolff ’s
‘civitas maxima.’” [emphasis added]
800. Law of Nations, at xiv. See also Droit des Gens, vol. 1, at xx: “se déduisent de la
Liberté naturelle des Nations, des intérêts de leur salut commun, de la nature de
leur corresondance mutuelle, de leur Devoirs réciproques, & des distinctions de
Droit Interne & externe, parfait & imparfait.” [emphasis in original] [spelling
modernised]
801. See P.P. Remec, supra, note 642, at 135-136; and, E. Jouannet, supra, note 602, at
100-103.
802. See Droit des Gens, vol. 1, at xx; and also Law of Nations, at xiv. For a comparison
of the two on this issue, see F.S. Ruddy, supra, note 693, at 102-103. See also
E. Jouannet, supra, note 602, at 211-216.
803. See A. de Lapradelle, supra, note 606, at xvi.
804. Law of Nations, at xiv. See also Droit des Gens, vol. 1, at xx: “interne & externe,
parfait & imparfait.” [emphasis in original]
 CHAPTER 7 163
right of compulsion. The perfect obligation is that which gives to the opposite party
the right of compulsion; the imperfect gives him only a right to ask.805
In this scheme, each state obligation implies a corresponding state right, which
are either “internal,” when located in the same person, or “external,” when
located in different persons.806 Although both are real, there is no right to force
an internal obligation, which is only imposed “on the conscience of each.”807 And,
this “line of distinction between the internal and external right,” according
to Vattel, amounts to that “between the necessary and the voluntary law of
nations.”808 Further, only part of this voluntary law is enforceable because such
external rights are either “perfect” or “imperfect,”809 corresponding to a right
to compel or a right to request, respectively.810 It is through a contract (that
is, a treaty), that an imperfect right can be made perfect.811 With a treaty,
Vattel wrote, “we acquire a perfect right to things to which we before had
only an imperfect right, so that we may thenceforward demand as our due
what before we could only request as an office of humanity.”812

805. Law of Nations, at lxii. [emphasis in original] See also Droit des Gens, vol. 1, at 10:
“Pour bien entendre ceci, il est nécessaire d’observer, que l’on distingue l’Obligation,
& le Droit qui y répond, on qu’elle produit, en interne & externe. L’Obligation est
interne entant qu’elle lie la Conscience, qu’elle est prise des règles de notre devoir;
elle est externe entant qu’on la considère relativement aux autres hommes, &
qu’elle produit quelque droit entre eux. L’obligation interne est toujours la même
en nature, quoi qu’elle varie en degrés: Mais l’obligation externe se devise en par-
faite & imparfaite, & le droit qu’elle produit est de même parfait, ou imparfait. Le
droit parfait est celui auquel se trouve joint le droit de contraindre ceux qui ne
veulent pas satisfaire à l’obligation qui y répond; & le droit imparfait est celui qui
n’est pas accompagné de ce droit de contrainte. L’obligation parfaite est celle qui
produit le droit de contrainte, l’imparfaite ne donne à autrui que le droit de
demander.” [emphasis in original] [spelling modernised]
806. See L. Ehrlich, “The Development of International Law as a Science” (1962), 105
R.C.A.D.I. 173, at 236. See also P.P. Remec, supra, note 642, at 136-137; and,
M. Koskenniemi, supra, note 169, at 92.
807. Law of Nations, at xiv. See also Droit des Gens, vol. 1, at xx: “à un à chacun dans
sa conscience.” [spelling modernised]
808. Law of Nations, at xv. See also Droit des Gens, vol. 1, at xx: “en distinguant soigneuse-
ment le Droit interne du Droit externe c’est-à-dire le Droit des Gens Nécessaire du
Droit des Gens Volontaire.” [emphasis in original] [spelling modernised]
809. Examples of matters where state rights are a priori imperfect include (i) commerce,
(ii) safe passage, (iii) acquisition of territory, (iv) dispute settlement, (v) embassy.
For more on these illustrations, see F.S. Ruddy, supra, note 693, at 111 ff.
810. See A. Mallarmé, supra, note 603, at 540; C.G. Fenwick, supra, note 726, at 402-
403; E.D. Dickinson, supra, note 774, at 249; F.S. Ruddy, supra, note 693, at 88;
D.G. Lang, supra, note 690, at 26; and, E. Jouannet, supra, note 602, at 151-153.
811. See A. de Lapradelle, supra, note 606, at xviii, who wrote: “Où le droit est parfait,
les traités sont inutiles. [. . .] Où le droit est imparfait, au contraire, les traités lui
donnent la perfection, qui lui manque.” See also P.P. Remec, supra, note 642, at 197.
812. Law of Nations, at 197. See also Droit des Gens, vol. 1, at 377: “servent à se
164 CHAPTER 7

In the absence of such perfected right, the principle of state independence

requires that no nation can enforce on the international plane rules based on
the voluntary law of nations.813 Vattel explicated thus:
It is now easy to conceive why the right is always imperfect, when the correspondent
obligation depends on the judgment of the party in whose breast it exists; for if, in
such a case, we had a right to compel him, he would no longer enjoy the freedom to
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.814
Accordingly, the breach of a rule of voluntary law of nations, which is thus
external and not perfected by treaty, will go unsanctioned at the interna-
tional level.815 Vattel even wrote that “nations should suffer certain things to
be done, though in their own nature unjust and condemnable, because they
cannot oppose them by open force, without violating the liberty of some

procurer un droit parfait à des choses, auxquelles on n’avait qu’un droit imparfait,
en sorte qu’on peut exiger désormais ce qu’auparavant on était seulement fondé à
demander comme un office d’humanité.” [spelling modernised]
813. See Droit des Gens, at vol. 1, at 5: “Les Nations étant libres & indépendantes; quoique
les actions de l’une soient illégitimes & condamnables suivant les Lois de la Conscience,
les autres sont obligées de les souffrir, quand ces actions ne blessent pas leurs droits
parfaits. La liberté de cette Nation ne demeurerait pas entière, si les autres s’arro-
geaient une inspection & des droits sur sa conduite: Ce qui serait contre la Loi
Naturelle, qui déclare toute Nation libre & indépendante des autres.” [spelling mod-
ernised] See also Law of Nations, at xviii: “Nations being free and independent,
though the conduct of one of them be illegal and condemnable by the laws of
conscience, the others are bound to acquiesce in it, when it does not infringe
upon their perfect rights. The liberty of that nation would not remain entire, if
the others were to arrogate to themselves the right of inspecting and regulating her
actions; an assumption on their part, that would be contrary to the law of nature,
which declares every nation free and independent of all the others.” [emphasis in
original]
814. Law of Nations, at lxii. [emphasis added] See also Droit des Gens, vol. 1, at 10:
“On comprendra maintenant sans difficulté, pourquoi le droit est toujours impar-
fait quand l’obligation qui y répond dépend du jugement de celui en qui elle se
trouve. Car si dans ce cas-là, on avait droit de le contraindre, il ne dépendrait plus de
lui de résoudre ce qu’il a à faire pour obéir aux Lois de sa Conscience. Notre obliga-
tion est toujours imparfaite par rapport à autrui, quand le jugement de ce que
nous avons à faire nous est réservé; & ce jugement nous est réservé dans toutes les
occasions où nous devons être libres.” [emphasis added] [spelling modernised]
815. See P. Guggenheim, supra, note 602, at 18: “Bien que les nations ne puissent rien
y changer et que les coutumes et traités qui sont contraires au droit des gens
interne, soient ‘illégitime,’ ils seront valables dans le cadre du droit externe. C’est
particulièrement le cas si ce dernier est ‘parfait,’ c’est-à-dire s’il produit le droit de
contraite.” [footnotes omitted]
 CHAPTER 7 165

particular state, and destroying the foundations of their natural society.”816

And all of this is essentially linked to the exclusivity of power without and to
state independence.817

7.2.3. Recapitulation
Fundamentally, therefore, the legal system put forward by Vattel to regulate
the relations between independent states constitutes the last element in order
to accomplish the externalisation of authority through the use of the word
“sovereignty” in Droit des Gens. Indeed, this linguistic sign now pertains to
the “exclusivity of power” without. That is to say, it represents the reality of
the authority to govern vested in a political body which is the sole represen-
tative of individuals in society, not only for domestic affairs, but also for
matters involving foreign nations. Moreover, with the association of “sover-
eignty” and “independence,” Vattel further changed the reality in two ways:
(i) by having nations enjoy exclusive power to rule, not only among other
internal authorities within, but among other public authorities without,
based on the principle of non-intervention; and (ii) by having a legal scheme
which regulates the relations of these moral persons that does not submit them
to any higher political or legal authority, based on the so-called voluntary
law of nations.
Thus Vattel’s utilisation of the word “sovereignty” essentially concerns the
question of exclusivity of authority without. Pursuant to the suggested “inward”
analysis of this linguistic sign, which borrows from the deconstructionist
project, it appears that the most suitable oppositional hierarchy at the iden-
tification stage involves the sense of “incorporated independent power” and
that of the “personal interconnected power.”
Indeed, when one focusses on the discourse of Droit des Gens, in which
“sovereignty” is used, one realises that all the significant elements in Vattel’s
theory of government and system of international law centred on these
ideas of incorporation and independence. The definitions of nation and sover-
eignty, the moral personality representative of the people, the duties of self-
preservation and self-perfection, the rejection of patriarchal kingdoms, the

816. Law of Nations, at lxiii. See also Droit des Gens, vol. 1, at 12: “les Nations souf-
frent certaines choses, bien qu’injustes & condamnables en elles-mêmes, parce qu’elle
ne pourraient s’y opposer par la force, sans violer la liberté de quelqu’une & sans
détruire les fondements de leur Société naturelle.” [spelling modernised]
817. See F.S. Ruddy, supra, note 693, at 81: “The implications from the freedom and
independence of states were for Vattel, the basis of this Voluntary Law of Nations.
There was between nations an ethical and legal relationship, and ideally both
should correspond. Where they did not correspond, the spirit of the law (the Necessary
Law of Nations) had to yield to the letter of the law as it were, the implications
from the freedom and independence of states, the Voluntary Law of Nations. Perfect
rights were the dividing line between the two.”
166 CHAPTER 7

making and conduct of wars, the states as exclusive subjects of the law of
nations, all these features call for a moral person holding exclusive authority,
as opposed to having power in the hands of personal individuals. Further, non-
intervention in internal affairs, nations not submitted to outside political or
religious authorities, the offices of humanities as secondary duties, the prin-
ciple of equality of states, as well as the different laws of nations, the rejec-
tion of civitas maxima, the presumed consent of nations as basis of legal scheme,
the external imperfect voluntary law of nations, all these elements relate to
the independence of nations, as opposed to the interconnection of the mem-
bers of the society of nations.
Now, when the proposed hierarchy is overturned at the negation stage, it
is clear that these elements have a core common feature, namely, the issue of
the exclusivity of power to govern a society. Finally, in the last stage of the
deconstruction-informed analysis of the word “sovereignty” in Droit des
Gens, the unescapable conclusion is that the two elements of the opposi-
tional hierarchy indeed create each other’s identity and, accordingly, are
mutually self-constituting. To move the argument on a semiotic turf, it would
entail that the reality that “incorporated independent authority” is deemed
to represent is essentially founded on the negation of the reality represented
by “personal interconnected authority.”
This “inward” examination of the way Vattel used and transformed “sov-
ereignty,” based on the process of différance, makes a compelling demonstra-
tion that he intended to accomplish the externalisation of power, which was
transposed from the internal plane to the international plane, by placing the
authority to govern within and without exclusively in the hands of the rul-
ing political entity. This will be confirmed in the last section of the meta-
logical inquiry of Vattel’s work, which will further look at his sovereignty
outwardly.

7.3. EXTENDED HISTORICAL CONTEXT

The hermeneutic orientation of the approach adopted for the foregoing

analysis of the word “sovereignty” in Droit des Gens will now bring into play
more historical context (outre Vattel’s background) including the social and
political situations of the 18th century, the intellectual milieu in which he
wrote, and the audience targeted by his work.
“In the eighteenth century,” wrote Nussbaum, “the countries of Western
civilization presented, in comparison with conditions of the sixteenth and
seventeenth centuries, a picture of relative stability.”818 There were still numer-

818. A. Nussbaum, supra, note 311, at 126. See also A. Watson, The Evolution of
International Society – A Comparative Historical Analysis (London & New York:
Routledge, 1992), at 212, who wrote: “The eighteenth century European grande
 CHAPTER 7 167

ous armed conflicts in Europe,819 but fanatic religious wars gave way to more
orderly wars of limited means and objectives between rulers, which were fought
by their military forces.820 As Robson explained:
They were a natural revulsion from the horrors of the Thirty Years War, where
fanaticism and moral indignation had multiplied the number of atrocities. Though
there were great wars, devastation and unnecessary bloodshed were kept in check by
strict adherence to the rules, customs, and laws, of war, the accepted code of the
eighteenth-century war-game.821
Socially, therefore, this new genre of armed conflicts meant that there was
less devastation and misery for the population of the affected territories,822 a
situation that was going to last until the French Revolution and the nation-
alist wars that ensued.823

république stands out amongst states systems and phases of systems as exception-
ally successful. It was well managed by the conscious co-operation, or at least restraint,
of its member sovereigns, who valued their independence within a non-hegemonial
framework of balanced order.”
819. See Q. Wright, A Study of War (Chicago: University of Chicago Press, 1964), at
644, where in table 35, he listed 18 active armed conflicts in Europe between
1700 and 1750 – France was involved in four of them, Great Britain in eight, the
Netherlands in five, Spain in seven, Austria in seven, Prussia in four, Savoy (Sardinia)
in five, Poland in three, Russia in seven, and Sweden in five. See also F. of Ala-
mein, A History of Warfare (London: Collins, 1968), at 315 ff.
820. See F.S. Ruddy, supra, note 693, at 254-255, who wrote: “War had ceased to be
an instrument for enforcing morality as it was seen by Grotius, but rather it had
become an accepted tool of state practice in eighteenth century Europe, for which
the state’s interests rather than objective notions of right and wrong were the criterion.”
[emphasis added]
821. E. Robson, “The Armed Forces and the Art of War,” in J.O. Lindsay (ed.), The
New Cambridge Modern History, vol. 7, The Old Regime, 1713-63 (Cambridge:
Cambridge University Press, 1957), 163, at 165.
822. See A. Nussbaum, supra, note 311, at 126; G. Butler & S. Maccoby, supra, note
724, at 137; and, W. Dorn, “European Militarism,” in G.B. Turner (ed.), A His-
tory of Military Affairs since the Eighteenth Century (New York: Harcourt, Brace,
1956), 2, at 3: “Never, before or since, save perhaps in Renaissance Italy, was the
civilian population more secure against wanton devastation, atrocities and the sys-
tematic plunder of requisition warfare.” See contra, A. Sorel, Europe Under the Old
Regime (New York: Harper & Row, 1947), at 69-75.
823. See E. Robson, supra, note 821, at 174: “To sum up: in the eighteenth century,
wars were conducted with moderation. With the casting out of religious fanati-
cism, the evil of war was reduced to a minimum never approached before or since.
This period of relatively civilised warfare was ended by the treatment meted out to
the Loyalists by the victorious colonists at the conclusion of the War of American
Independence, and then by the French Revolution wars. War, which had ceased in
the seventeenth century to be a weapon of religious fanaticism, became an instrument
of nationalist fanaticism.” [emphasis added]
168 CHAPTER 7

This greater restrain and “humanity” in wars,824 having a direct beneficial

effect on civilians, was also the result of a change of approach to warfare, which
aimed at making it more honourable and contained.825 However, this was
not true of every type of battles – on the sea, it was generally possible to
control naval warfare; but on the ground, it was in reality impossible to
maintain discipline on all troop activities.826 As Vollenhoven described:
Let us remember in what period [ Vattel] wrote; from 1740 till 1748 the war of the
Austrian Succession raged; from 1756 till 1763 the Seven Years’ War. After the peace
of Aix-la-Chapelle thirty thousand soldiers were shot or sent to the galleys, because
of licentious misconduct and insubordination during the fight, due among other causes
to their pitiable treatment.827
Although more civilised, the wars associated with the numerous conflicts
over territory and power during the 18th century continued to cause much
social concerns, property destruction and human casualties.828 Thus the issue
of how to regulate the European chessboard through diplomatic and legal
means was still very much the question par excellence.

824. Vattel himself wrote the following in Droit des Gens, vol. 2, at 107: “On ne peut
trop louer l’humanité avec laquelle la plupart des Nations de l’Europe font la
guerre aujourd’hui.” [spelling modernised] See also Law of Nations, at 348: “The
humanity with which most nations in Europe carry on their wars at present can-
not be too much commended.”
825. See F.S. Ruddy, supra, note 693, at 249. See also A. Vagts, A History of Mili-
tarism – Civilian and Military (New York: Meridian Books, 1959), at 41 ff.
826. See M.S. Anderson, War and Society in Europe of the Old Regime, 1618-1789 (New
York: St. Martin’s Press, 1988), at 99-100: “These decades [1660-1740] saw a con-
tinuation of the process of extending more effective and detailed state control over
armed forces which had been visibly in the first half of the seventeenth century.
Slowly, and with very varying effect, central governments increased their atten-
tion to the day-to-day running of their armies and navies, struggling to increase
their effectiveness, to reduce inefficiency and waste and to enforce greater unifor-
mity in organization, tactics and armament.” See also E. Robson, supra, note 821,
at 163-165.
827. C. van Vollenhoven, supra, note 601, at 34.
828. See A. Nussbaum, supra, note 311, at 127, who succinctly explained that “the
eighteenth century witnessed considerable shifts in the territory and might of the
various European States. By the Peace of Nystadt (1721), Russia became a leading
European power under Peter the Great. At the same time Sweden was shorn of her
dominant position in the north of Europe. The loss of the Protestant side, how-
ever, was more than offset by the rise of Prussia under Frederick the Great and by
England’s tremendous colonial and commercial expansion. Through Russia’s
ascent, the relative share of the Catholic states in the total of political power was
further diminished, though France still preserved her pre-eminence, now perhaps
more on the basis of her culture than on the basis of her military position.”
 CHAPTER 7 169

It is generally acknowledged that raison d’état 829 politics reached its

apogee during this period830 – “Never before had the reason of state been
opposed more impudently to the most elementary laws of honor and
justice.”831 The 18th century author Baron von Bielfeld was of the view
that this principle, whether or not explicitly, had been adopted by all rulers,
whose decisions were based on his or her own interests (and now, accord-
ing to the new trend, were based on the interests of the state or national
interests):832
Each society, each state, can and even must use all legitimate means that seem necessary
either for its preservation or for the increase of its real or relative might. This rule, dic-
tated by the law of nature as well as by politics, acts as the foundation of all opera-
tions of the different cabinets of Europe, of the system that each favours, of the measures
that it takes, of the alliances that it strikes, of the wars that it declares, or the peace
that it concludes.833
“The reason of state being the rule,” Sorel further wrote, “aggrandizement
became the object of statecraft.”834 Catherine the Great, who followed Peter
the Great in Russia’s external policies of expansion, is deemed to have once
said that “He who gains nothing, loses.”835

829. See supra, at footnote 595 and accompanying text.

830. See R.S. Ruddy, supra, note 693, at 73.
831. A. Sorel, supra, note 822, at 17.
832. See, generally, J. Ferrari, Histoire de la raison d’État (Paris: Kimé, 1992).
833. J.F. Bielfeld, Institutions politiques, vol. 2 (Leiden: Bassompierre, 1768), at 138-
139; [emphasis added] author’s translation of: “Chaque Société, chaque Etat, peut et
doit même se servir de tous les moyens légitimes qui lui paroissent nécessaires, soit à sa
conservation, soit à l’augmentation de sa puissance réelle et relative. Cette règle dictée
par la Loi naturelle aussi bien que par la Politique, sert de fondement de toutes les
opérations des différents Cabinets de l’Europe, au système chacun d’eux embrasse,
aux mesures qu’il prend, aux alliances qu’il contracte, à la guerre qu’il déclare, ou
la paix qu’il conclut.” [emphasis added] [spelling modernised]
834. A. Sorel, supra, note 822, at 11. [emphasis added] On the principle of aggrandise-
ment in the 18th century, see M.S. Anderson, Europe in the Eighteenth Century,
1713-1783, 2nd ed. (New York: Longman, 1976), at 216 ff.; and, generally, G. Sfez,
Les doctrines de la raison d’État (Paris: Colin, 2000).
835. See A. Sorel, ibid. See also M.S. Anderson, Britain’s Discovery of Russia, 1553-1815
(London: Macmillan, 1958), at 215 ff.; G.S. Thomson, Catherine the Great and
the Expansion of Russia (Westport, U.S.: Greenwood, 1985), at 109 ff.; J.T. Alexander,
Catherine the Great – Life and Legend (New York & Oxford: Oxford University Press,
1989), at 121 ff.; and, American Memory, “Imperial Expansion and Maturation:
Catherine II” (1996), http://lcweb2.loc.gov/cgi-bin/query/r?frd/cstdy:@field(DOCID+
ru0021).
170 CHAPTER 7

Along with raison d’état and agrandissement, the third core political prin-
ciple of 18th century Europe was that of the “balance of power,” or “equi-
librium of power.”836 This is what Vattel had to say about it:837
The continual attention of sovereigns to every occurrence, the constant residence of
ministers, and the perpetual negotiations, make of modern Europe a kind of repub-
lic, of which the members – each independent, but all linked together by the ties of
common interest – unite for the maintenance of order and liberty. Hence arose that
famous scheme of the political balance, or the equilibrium of power; by which is
understood such a disposition of things, as that no one potentate be able absolutely
to predominate, and prescribe laws to the others.838
Already at the beginning of the century,839 the principle of the balance of
power was officially enshrined in the documents of the Peace of Utrecht in

836. For a history of the principle, see C. Dupuis, Le principe d’équilibre et le concert
européen – De la paix de Westphalie à l’acte d’Algésiras (Paris: Perrin, 1909). See
also, generally, E. Nys, “La théorie de l’équilibre européen” (1983), 25 Rev. D.
Int’l & Légis’n Comp. 34; A. Vagts, “The Balance of Power: Growth of an Idea”
(1948), 1 World Politics 82; H. Butterfield, “The Balance of Power,” in H. Butter-
field & M. Wight (eds.), Diplomatic Investigations – Essays in the Theory of Interna-
tional Politics (London: Allen & Unwin, 1966), 132; M. Wight, “The Balance
of Power,” in H. Butterfield & M. Wight (eds.), Diplomatic Investigations – Essays
in the Theory of International Politics (London: Allen & Unwin, 1966), 149;
M. Beloff, The Balance of Power (Montreal: McGill University Press, 1967);
M. Wight (ed.), Theory and Practice of the Balance of Power, 1486-1914 (London:
Dent, 1975); and, M. Sheehan, Balance of Power – History and Theory (London &
New York: Routledge, 1996).
It is in the middle of the 18th century that David Hume dwelled upon the idea
of balance of power in political theory; see D. Hume, “Of the Balance of Power,”
in K. Haakonssen (ed.) David Hume – Political Essays (Cambridge: Cambridge
University Press, 1994), 154, first published in 1752.
837. On Vattel and the principle of balance of power, see E.V. Gulick, Europe’s Classical
Balance of Power – A Case History of the Theory and Practice of One of the Great
Concepts of European Statecraft (Ithaca, U.S.: Cornell University Press, 1955), at
59-62.
838. Law of Nations, at 311. [emphasis added] See also Droit des Gens, vol. 2, at 39-40:
“L’attention continuelle des Souverains à tout ce qui se passe, les Ministres tou-
jours résidents, les Négociations perpétuelles font de l’Europe moderne une espèce
de République, dont les Membres indépendants, mais liés par l’intérêt commun, se
réunissent pour y maintenir l’ordre & la Liberté. C’est ce qui a donné naissance à
cette fameuse idée de la Balance Politique, ou de l’Equilibre du Pouvoir. On
entend par là, une disposition des choses, au moyen de laquelle aucune Puissance
ne se trouve en État de prédominer absolument, & de faire la loi aux autres.” [empha-
sis added] [spelling modernised]
839. See G. Zeller, “Le principe d’équilibre dans la politique international avant 1789”
(1956), 215 Rev. Historique 25, at 34; and, M.S. Anderson, “Eighteenth-Century
Theories of the Balance of Power,” in R. Hatton & M.S. Anderson (eds.), Studies
in Diplomatic History – Essays in memory of David Bayne Horn (Hamden: Archon
 CHAPTER 7 171

1713, which ended the War of the Spanish Succession.840 Indeed, the Anglo-
Spanish Treaty,841 at article II, stated that one of its objective was “to settle
and establish the peace and tranquillity of Christendom, by an equal balance
of power (which is the best and most solid foundation of mutual friendship
and of a concord which will be lasting on all sides).”842
These three principles (raison d’état, aggrandisement, and balance of power)
helped to maintain and nurture, during that period, a system of politically
independent, yet culturally related, societies in Europe.843 On this dichotomy
“autonomy” versus “interconnection,” Pieter Geyl wrote: “Each might feel
warmly for his own country and at moments of international tension side with
it unhesitatingly, yet each knew that Europe constituted a cultural unity.”844
Along with this growing commonality of culture, there was also an increasing
homogeneity of thoughts among the intellectuals of the 18th century. Norman
Hampson appositely observed:

Books, 1970), 183, at 184. See also A. Nussbaum, supra, note 311, at 127, who
wrote: “Its [the balance of power principle] incorporation in the Peace of Utrecht
simply amounts to a commendatory official comment and, perhaps, to an inter-
pretative rule applicable to this particular treaty.”
It is worth pointing out also that the principle of the balance of power has had
a continuing relevance in 20th century international law. Indeed, as L.F.L. Oppenheim,
supra, note 4, at 73, wrote: “The first and principal moral is that a Law of Nations
can exist only if there be an equilibrium, a balance of power, between the mem-
bers of the Family of Nations;” see also, in the context of the League of Nations,
the same opinion, L.F.L. Oppenheim, The League of Nations and Its Problems – Three
Lectures (London: Longmans, Green, 1919), at 21. As well, see the contemporary
account given by B. Kingsbury, “Legal Positivism as Normative Politics: International
Society, Balance of Power and Lassa Oppenheim’s Positive International Law” (2002),
13 European J. Int’l L. 401.
840. See T. Twiss, supra, note 265, at 152-155; and, R. Redslob, supra, note 269, at
252-253.
841. For the full text of the Anglo-Spanish Treaty, signed at Utrecht on July 1713, in
both their Latin and English versions, see C. Parry (ed.) Consolidated Treaty Series,
vol. 28 (Dobbs Ferry, U.S.: Oceana Publications, 1969), at 295. It is the English
translation that will be used here, which Parry said is taken from Jenkinson,
Treaties.
842. Id., at 325-326. [emphasis added]
843. See F.H. Hinsley, supra, note 444, at 163, who wrote: “Despite the references to
the fact that they were culturally one and politically interrelated, the main empha-
sis now, in contrast to earlier thinking, is that, though culturally and politically
interrelated, the European states were also politically several. And this was the con-
ception of Europe that prevailed after the middle of the eighteenth century,
among those who criticised the international system no less than among those
who accepted it.” [emphasis added]
844. P. Geyl, Encounters in History (Clevaland, U.S. & New York: World Publishing,
1961), at 301. See also G. Barraclough, History in a Changing World (Oxford:
Blackwell, 1955), at 169, who spoke of the Europe of the middle of the 18th cen-
tury as a “unity in plurality” and a “unity in diversity.”
172 CHAPTER 7
Some of the most eminent writers of the age, Montesquieu, Voltaire, Hume and,
later in the century, Gibbon, set themselves to produce history of a new kind, which
would illustrate, in terms of human society, the kind of complex interdependence
that biologists were discovering in the animal world. Montesquieu’s tout est extrême-
ment lié summarized the attitude of an age.845
It is indeed during this period that many began to theoretically view Europe
globally, that is, in terms of all the peoples and all the countries, instead of
on the basis of separate single nations.846
At the turn of the 18th century,847 some intellectuals even put forward
the idea of a “world federation,” that is, of a “European federation”848 – William
Penn, Essay towards the Present and Future Peace of Europe by the Establish-
ment of an European Dyet, Parliament or Estates,849 published in 1693; John
Bellers, Some Reasons for an European State, 850 published in 1710; and
Charles Irénée Castel Abbé de Saint-Pierre, Mémoires pour rendre la Paix per-
pétuelle en Europe, published in 1712.851 However, although the lumières agreed

845. N. Hampson, The Enlightenment (Harmondsworth, U.K.: Penguin Books, 1968),

at 108-109.
846. P. Hazard, European Thought in the Eighteenth Century (London: Hollis & Carter,
1954), at 437-438.
847. It is interesting to note that at the turn of the next century, this idea was still very
much alive with the work of Immanuel Kant, Zum ewigen Frieden (Leipzig: Schubert,
1838), first published in 1795; see the English translation, I. Kant, Perpetual Peace
(New York: Columbia University Press, 1939). See also T. Ruyssen, Les sources doc-
trinales de l’internationalisme, vol. 3, De la Révolution française au milieu du XIXe
siècle (Paris: Presses universitaires de France, 1961), at 148 ff.
848. See C.L. Lange, “Histoire de la doctrine pacifique et de son influence sur le développe-
ment du droit international” (1926), 13 R.C.A.D.I. 171, at 302-315; A. Nuss-
baum, supra, note 311, at 140-142; T. Ruyssen, supra, note 270, at 570 ff.; and,
F.H. Hinsley, supra, note 444, at 33-45.
849. W. Penn, Essay Towards the Prefent and Future Peace of Europe by the Eftablifhment
of an European Dyet, Parliament or Eftates (London: n.b., 1693).
850. J. Bellers, Some Reasons for an European State: Proposed to the Powers of Europe, by
an Universal Guarantee and an Annual Congress, Senate, Dyet, or Parliament to set-
tle any disputes about the bounds and rights of Princes and States hereafter: With an
abstract of a Scheme form’d by King Henry the Fourth of France upon the same sub-
ject. And also a proposal for a General Council or Convocation of all the different reli-
gious persuasions in Christendom (not to dispute what they differ about, but) to settle
the General Principles they agree in, by which it will appear that they may be good
subjects and neighbours, though of different apprehensions of the way to Heaven: In order
to prevent broils and wars at home, when foreign wars are ended (London: n.b.,
1710).
851. C.I.C. de Saint-Pierre, Mémoires pour rendre la paix perpétuelle en Europe (Cologne:
Jacques le Pacifique, 1712). This work was later reprinted in two volumes under
the name of Projet pour rendre la Paix perpétuelle en Europe (Utrecht: Antoine Schouten,
1713).
 CHAPTER 7 173

that Europe was “a kind of great republic,”852 many of them (including Voltaire,
Rousseau, and Montesquieu) opined that an actual federation was a utopian
aspiration853 – “But the almost universal reaction of the eighteenth century
was the criticism that [Abbé de Saint-Pierre and others] had neglected the real-
ities of the modern states’ system.”854
Furthermore, while the reality of the “highest unified power” exercised
internally by a ruler was still being assimilated by the consciousness of European
societies,855 this period also saw the beginning of the systematisation of the
law of nations856 (deemed a “Protestant science” because of its leading advo-
cates.)857 As Dionisio Anzilotti explained, the 18th century “marks the pas-
sage of the fragmentary treatment of our science to its systematic treatment.”858

852. See P. Hazard, supra, note 846, at 437, who referred to Voltaire as saying that Europe
was “a kind of great republic, embracing several States, some monarchical, some
not, the former aristocratic, the others democratic, but all in relationship one with
another, all having one and the same religious basis, the same principles public
law, the same political ideas, all of them unknown in the other parts of the
world.” [emphasis added]
853. See J. Hodé, L’idée de fédération internationale dans l’histoire – Les précurseurs de la
Société des Nations (Paris: Éditions de la vie universitaire, 1921), at 136-137. See
also Voltaire, “Au Roi de Prusse [Paris, 15 May 1742],” in T. Besterman (ed.), Vol-
taire – Correspondance, vol. 2, 1739-1748 (Paris: Gallimard, 1965), 561; J.-J. Rousseau,
“Jugement sur la paix perpétuelle,” in C.E. Vaughan (ed.), The Political Writings
of Jean Jacques Rousseau – Edited from the Original Manuscripts and Authentic Editions,
vol. 1 (New York: Franklin, 1971), 388, written in 1756 and first published in 1782;
and, H. Sée, supra, 594, at 297-298.
854. F.H. Hinsley, supra, note 444, at 45. [emphasis added]
855. See P. Guggenheim, supra, note 602, at 21, who pointed out: “Cela s’explique
facilement du fait que le XVIIIe siècle n’avait pas encore fait sienne la conception
de l’Etat souverain, centre de tous les pouvoirs, seul détenteur de la souveraineté à
l’intérieur de ses frontières et limité à l’extérieur par les seules règles du droit inter-
national.”
856. See A. Hurrell, “Vattel: Pluralism and Its Limits,” in I. Clark & I.B. Neumann
(eds.), Classical Theories of International Relations (London: Macmillan, 1996),
233, at 249, who wrote that Vattel “was writing at the time when international
law was becoming increasingly formalised and collected together (for example the
Abbé de Malbly’s [sic] Droit Publique (sic) de l’Europe fondé sur les Traités pub-
lished in 1747) and when there was a notable expansion in the laws of war (agree-
ments on prisoners, on military hospitals, etc.).”
857. See A. Nussbaum, supra, note 311, at 140: “In retrospect it appears that all the
leading authors of the seventeenth and eighteenth centuries on international law
were Protestants, a condition persisting during the first decades of the nineteenth
century and causing in 1847 the first historiographer of international law, Kaltenborn,
to declare international law ‘a Protestant science.’”
858. D. Anzilotti, supra, note 269, at 5; [emphasis in original] author’s translation of:
“marque le passage du traitement fragmentaire de notre sicence à son traitement sys-
tématique.” [emphasis in original] See also, generally, L. Oppenheim, “The Science
of International Law: Its Task and Method” (1908) 2 American J. Int’l L. 313.
174 CHAPTER 7

One of the catalysts of this was the gathering of international agreements

in collections, sparked by the expansion and intensification of treaties in Eu-
rope859 – in 1700, Jacques Bernard edited a Recueil des traitez de paix,860 in
four volumes; in 1726-1731, Jean Dumont published a Corps universel diplo-
matique du droit des gens,861 in eight volumes and later supplemented; and,
in 1791, Georg Friedrich von Martens started the publication of his Recueil
des principaux traités,862 originally in seven volumes and later supplemented.
In terms of scholarly works of international law, the end of the 17th cen-
tury and the 18th century witnessed the first systemic treatises in the disci-
pline863 – Johann Wolfgang Textor, Synopsis iuris gentium,864 published in 1680;
Cornelius van Bynkershoek, De dominio maris dissertatio,865 published in 1702,
and De foro legatorum liber singularis,866 published in 1721; Gabriel Bonnot
Abbé de Mably, Droit public de l’Europe,867 published in 1748; Johann Jakob

859. A. Nussbaum, supra, note 311, at 139. See also C. Kaltenborn von Stachau, Kritik
des Völkerrechts nach dem jetzigen Standpunkte der Wissenschaft (Leipzig: Mayer, 1847),
at 62.
860. J. Bernard, Recueil des traitez de paix, de trêve, de neutralité, de suspension d’armes,
de confédération, d’alliance, de commerce, de garantie, et d’autres actes publics: comme
contracts de mariage, testaments, manifestes, declarations de guerre, &c. faits entre les
empereurs, rois, républiques, princes, & autres puissances de l’Europe, & des autres
parties du monde, depuis la naissance de Jesus-Christ jusqu’à présent; servant à établir
les droits des princes, et de fondement a l’histoire, 4 vols. (Amsterdam: Henry & Boom;
The Hague: Moetjens & Bulderen, 1700).
861. J. Dumont, Corps universel diplomatique du droit des gens: contenant un recueil des
traitez d’alliance, de paix, de treve, de neutralité, de commerce, d’échange de neutra-
lité, de commerce, d’échange de protection & de Guarantie, de toutes les conventions,
transactions, pactes, concordats, & autres contrats, qui ont été faits en Europe, depuis
le regne de l’empereur Charlemagne jusques à présent;[et cetera], 8 vols. (Amster-
dam: Brunel, Wetsteins, Janssons Waesberge, L’Honoré & Chatelain; The Hague:
Husson & Levier, 1726-1731).
862. G.F. von Martens, Recueil des principaux traités d’alliance, de paix, de trêve, de neu-
tralité, de commerce, de limites, d’échange &c., conclus par les puissances de l’Europe:
tant entre elles qu’avec les puissances et etats dans d’autres parties du monde, depuis 1761
jusqu’à présent / tiré des copies publiées par autorité, des meilleures collections particu-
lières de traités, & des auteurs les plus estimés (Gottingen, Germany: Dieterich,
1791-1801).
863. See P. Haggenmacher, supra, note 672, at 17, who made the following remark:
“On vise moins ici la littérature spécialement consacrée à la discipline naissance du
droit international, de Zouche à Moser, en passant par Rachel, Textor, Leibniz et
Bynkershoek; ce sont là plutôt des reflets que les monteurs de ce réaménagement
de l’espace juridique.” See also D. Anzilotti, supra, note 269, at 12-13.
864. J.W. Textor, Synopsis iuris gentium (Basel: Rüdinger, 1680).
865. C. van Bynkershoek, De domini maris dissertatio, in C. van Bynkershoek, Opera
minora, 2nd ed. (Leyden: Kerckhem, 1744), 351.
866. C. van Bynkershoek, De foro legatorum liber singularis, in C. van Bynkershoek, Opera
minora, 2nd ed. (Leyden: Kerckhem, 1744), 425.
867. G.B. Mably, Droit public de l’Europe fondé sur les traités, 2 vols. (Geneva: n.b., 1748).
 CHAPTER 7 175

Moser, Erste Grundlehren des jetzigen europäischen Völker-Rechts in Fridens- und

Kriegs-Zeiten,868 published in 1778; Karl Gottlob Günther, Europäisches Völkerrecht
in Friedenszeiten,869 published in 1787; and, Georg Friedrich von Martens,
Précis du droit des gens moderne de l’Europe,870 published in 1789.
Substantially, not all of these authors followed Wolff ’s Ius gentium and
Vattel’s Droit des Gens 871 in embracing the so-called “enlightened”872 nat-
ural law,873 inherited from the 17th century 874 (Grotius in De Ius Belli ac

868. J.J. Moser, Erste Grundlehren des jetzigen europäischen Völker-Rechts in Fridens- und
Kriegs-Zeiten (Nuremberg: Raspe, 1778).
869. K.G. Günther, Europäisches Völkerrecht in Friedenszeiten, nach Vernunft, Verträgen
und Herkommen: mit Anwendung auf die teutschen Reichsstände, 2 vols. (Altenburg:
Richterschen Buchhandlung, 1787-1792).
870. G.F. von Martens, Précis du droit des gens moderne de l’Europe fondé sur les traités
et l’usage: auquel on a joint la liste des principaux traités conclus depuis 1748, jusqu’à
présent, avec l’indication des ouvrages où ils se trouvent, 2 vols. (Gottingen: Diete-
rich, 1789).
871. In the preface of Droit des Gens, Vattel refers to the contributions made to the sci-
ence of natural law by Grotius, Hobbes, Pufendorf, and Barbeyrac: see Droit des
Gens, vol. 1, at viii-xi; and also Law of Nations, at viii-x. See also F.S. Ruddy,
supra, note 693, at 60-65.
872. See A.P. d’Entrèves, supra, note 655, at 48-62, who distinguished between the
“natural law” of the medieval Scholasticism from the “natural rights” of the
Englightenment, and identified Grotius as the first proponent of the new school;
see also A.-H. Chroust, “Hugo Grotius and the Scholastic Natural Law Tradi-
tion” (1943), 17 New Scholasticism 101; and, D.M. MacKinnon, “Natural Law,”
in H. Butterfield & M. Wight (eds.), Diplomatic Investigations – Essays in the
Theory of International Politics (London: Allen & Unwin, 1966), 74. On the other
hand, see L. Strauss, Natural Right and History (Chicago: University of Chicago
Press, 1953), who put forward a different classification.
873. See A. Nussbaum, supra, note 311, at 134-135: “The natural-law school in the
eighteenth-century science of international law is represented mainly by the German
Christian Wolff in whom early Enlightenment strangely fuses with outdated scholas-
ticism (infra, pp. 148-155). In his disciple, the Latin-Swiss Vattel, the traits of the
Enlightenment are more marked (infra, pp. 155-163).” See also A.S. Hershey,
supra, note 275, at 37-38; and, E. Jouannet, supra, note 602, at 85-100.
874. See L. le Fur, “La théorie du droit naturel depuis le XVIIe siècle et la doctrine
moderne” (1927), 18 R.C.A.D.I. 259, at 295 ff.; J.-P.-A. François, “Règles
générales du droit de la paix” (1939) 66 R.C.A.D.I. 1, at 11-13; C. Rousseau, Principes
généraux du droit international public, vol. 1, Introduction – Sources (Paris:
Pedone, 1944), at 17-23; T. Ruyssen, supra, note 270, at 191-216; A. Dufour, Le
mariage dans l’école allemande du droit naturel moderne au XVIII e siècle (Paris: Librairie
générale de droit et de jurisprudence, 1972), 211; E.B.F. Midgley, The Natural
Law Tradition and the Theory of International Relations (London: Paul Elek, 1975),
132-174; A. Dufour, Le mariage dans l’école romande du droit naturel au XVIII e
siècle (Geneva: Librairie de l’Université Georg, 1976), at 1-35; A. Brimo, Les
grands courants de la philosophie du droit et de l’État, new ed. (Paris: Pedone, 1978),
at 95-105; M. Thomann, “Réalités et mythes du droit naturel en Europe vers
176 CHAPTER 7

Pacis,875 Hobbes in Leviathan, and Pufendorf in De iure naturae). However,

even those who favoured a more empirical and positivist method for the
law of nations876 – like Moser and Martens, who wrote along the line of
Richard Zouche877 and Samuel Rachel878 – could not but be influenced by
the naturalist school of thought,879 still overwhelming present in the 18th

1789” (1988), 6 Rev. d’histoire 63; S. Goyard-Fabre, “L’hésitation conceptuelle du

jusnaturalisme de Hobbes à Wolff ” (1989), 8 Rev. D’Histoire 51; and, E. Jouannet,
id., at 17-29.
875. H. Grotius, De Iure Belli ac Pacis Libri Tres. In quibus ius naturae & gentium: item
iuris publici praecipua explicantur (Paris: Buon, 1625). See also the French transla-
tion from the notes of J. Barbeyrac, H. Grotius, Le Droit de la Guerre et de la
Paix, 2 vols. (Amsterdam: Pierre de Coup, 1724); and, the English translation by
F.W. Kelsey, H. Grotius, The Law of War and Peace, 2 vols. (Indianapolis, U.S. &
New York: Bobbs-Merrill, 1925).
On Grotius, in general, see E. Dumbauld, The Life and Legal Writings of Hugo
Grotius (Norman, U.S.: University of Oklahoma Press, 1969); and, A. Dufour,
“Grotius – Homme de loi, homme de foi, homme de lettres,” in A. Dufour,
P. Haggenmacher & J. Toman (eds.), Grotius et l’ordre juridique international (Lau-
sanne: Payot, 1985), 9.
876. See A.S. Hershey, supra, note 275, at 34-36; E.D. Dickinson, supra, note 774, at
250-253; A. Nussbaum, supra, note 311, at 135; T. Ruyssen, supra, note 270, at
208-215 & 515-520; and, A. Anghie, “Finding the Peripheries: Sovereignty and
Colonialism in Nineteenth-Century International Law” (1999), 40 Harvard Int’l
L.J. 1, at 11-12.
877. See R. Zouche, Iuris et iudicii fecialis, sive, iuris inter gentes, et quaestionum de
eodem explicatio (Oxford: n.b., 1650). Although Zouche’s doctrine was very much
linked to natural law, his law of nations consisted mainly of unwritten customary
rules and written conventional principles. See also E. Jouannet, supra, note 602, at
74-76.
878. See S. Rachel, De iure naturae et gentium dissertationes (Kiel: Reumann, 1676). Rachel
was also positivistic, holding that international law develops by the express or tacit
consent of nations; yet the obligatory nature of his system was ultimately founded,
like Grotius, on natural law. See also E. Jouannet, id., at 81-85.
On natural law and its authority in relation to the law of men, Grotius
famously opined that natural law would exist even if there was no god – “What
we have been saying would have a degree of validity even if we should concede
that which cannot be conceded without the outmost wickedness, that there is no
God, or that the affairs of men are of no concern to Him;” The Law of War and
Peace, vol. 1, supra, note 875, at 13. See also Le Droit de la Guerre et de la Paix,
vol. 1, supra, note 875, at 10: “Tout ce que nous venons de dire aurait lieu en
quelque manière, quand même on accorderait, ce qui ne se peut sans un crime
horrible, qu’il n’y a point de Dieu, ou s’il y en a un, qu’il ne s’intéresse point aux
choses humaines.” [spelling modernised]
879. As P. Hazard, supra, note 846, at 145, theatrically wrote: “Haste, then, to work!
Garner in the fruits of the ground won by Grotius, Pufendorf, Cumberland,
Leibniz and Gravina. Let all Europe, nay, all the world, understand, at long last,
that there is but one law, one original law, whence all others have their source, and
 CHAPTER 7 177

century intellectual circles.880 Thus the direct filiation between natural law and
international law can hardly be doubted.881 Indeed, as Henry Maine wrote:
“The grandest function of the Law of Nature was discharged in giving birth
to modern International Law.”882
Therefore, the relatively stable political situation of 18th century Europe,
which had a tangible beneficial social impact of the affected populations,
was very much the result of the healthy interplay of the three core principles
of raison d’état, aggrandisement, and balance of power. Further, there was grow-
ing acknowledgement of a European commonality in terms of culture, intel-
ligentsia, and even people. This enthusiasm, however, did not translate into
the acceptance of the world federation proposals, mainly because of the emerg-
ing, yet already prominent, international relations system based on the ideas
of “state” and “sovereignty.” As well, the systematisation debut of the law of
nations as a scientific discipline showed that, along with the still dominant
enlightened natural law school, new perspectives based on the practice of
state and the realities of their rapports were gaining ground.883

that law is the Law of Nature.” See also R. Derathé, Jean-Jacques Rousseau et la sci-
ence politique de son temps (Paris: Presses universitaires de France, 1950), at 28.
As well, it is interesting to draw a parallel between natural law and the 18th
century developments in physics, principally with Newton’s work: “The New-
tonian conception of physical law was projected into the spheres of legal and
political philosophy. The notion of ‘natural law’ as the rule of the Creator, im-
posed upon the universe, was frequently tangled up with the current conceptions
of the law of nature;” see J.S. Reeves, “The Influence of the Law of Nature upon
International Law in the United States” (1909), 3 American J. Int’l L. 547, at 550.
880. See F.S. Ruddy, supra, note 693, at 56: “The ‘kind of truth’ that the eighteenth
century would demand was that which conformed to natural law principles. That
is, the underlying presumption of the age was that those things which are in
accordance with natural law, and which can be demonstrated to be such, are for
that reason enjoined or forbidden. Therefore, a system of the law between states
would have to be based, and demonstrably so, on natural law principles.”
881. See J.L. Brierly, supra, note 265, at 16-25.
882. H.S. Maine, Ancient Law – Its Connection with the Early History of Society, and its
Relation to Modern Ideas, 5th ed. (New York: Holt, 1875), at 92. [emphasis added]
883. See M. Koskenniemi, “Theory: Implications for the Practitioner,” in P. Allott et al.
(eds.), Theory and International Law: An Introduction (London: British Institute of
International and Comparative Law, 1991), 1, at 28, who made the following point:
“What these representatives of Enlightenment jurisprudence sought to achieve was
precisely a distinction between themselves and their classical predecessors without
having to ratify whatever it was sovereigns wished to do. They defined voluntary
law to consist of the interpretations and ‘modifications’ which States have intro-
duced into necessary natural law in order to apply it in practice. It was subjectively
based and thus avoided the accusation of abstract utopianism (which Vattel threw
at Berbeyrac, Hobbes and Grotius). But it was not apologist, either, as it was still
natural law and maintained its connection with an objectively constraining moral-
ity. It was a mediating device to avoid, partially and temporarily, the immediate
178 CHAPTER 7

It is in this context that Vattel wrote Droit des Gens, which had a specific
mission. “The Law of Nations, though so noble and important a subject,
has not, hitherto, been treated of with all the care it deserves.”884 The aim of
his treatise was to remedy this shortcoming.885 The audience that Vattel tar-
geted was also explicitly identified886 – “The law of nations is the law of sov-
ereigns. It is principally for them and for their ministers, that it ought to be
written.”887 Although every citizen may be interested, it is the persons entrusted

objections that contemporaries (and successors) directed upon pure naturalism

(too objective) and pure positivism (too subjective).”
884. Law of Nations, at vii. See also Droit des Gens, vol. 1, at v: “Le Droit des Gens,
cette matière si noble & si importante, n’a point été traité jusqu’ici avec tout le
soin qu’il mérite.” [spelling modernised]
885. Vattel added: “Aussi la plupart des hommes n’en ont-ils qu’une notion vague, très
incomplète, souvent même fausse. La foule des Ecrivains, & des Auteurs même
célèbres ne comprennent guères sous le nom de Droit des Gens, que certaines maximes,
certains usages reçus entre les Nations, & devenus obligatoires pour elles, par l’ef-
fet de leur consentement. C’est resserrer dans des bornes bien étroites une Loi si
étendue, si intéressante pour le Genre humain, & c’est en même temps la
dégrader, en méconnaissant sa véritable origine;” [emphasis in original] [spelling
modernised] Droit des Gens, vol. 1, at v. See also Law of Nations, at vii: “The
greater part of mankind have, therefore, only a vague, a very incomplete, and
often even a false notion of it. The generality of writers, and even celebrated authors,
almost exclusively confine the name of ‘Law of Nations’ to certain maxims and
treatises recognised among nations, and which the mutual consent of the parties
has rendered obligatory on them. This is confining within very narrow bounds a
law so extensive in its own nature, and in which the whole human race are so inti-
mately concerned; it is, at the same time, a degradation of that law, in conse-
quence of a misconception of its real origin.”
886. See P. Guggenheim, supra, note 602, at 12, who wrote: “L’ouvrage de Vattel était
destiné aux hommes d’Etats et aux diplomates, en un mot aux professionnels des
affaires étrangères. Il ne devait pas seulement leur ‘dire’ le droit; l’ambition de
Vattel allait plus loin: il se flattait d’exercer une influence sur les hommes d’Etat et
de les amener à respecter ce droit international dont trop souvent ils font fi.” See
also E. Jouannet, supra, note 602, at 409 ff.
887. Law of Nations, at xvi. Also Droit des Gens, vol. 1, at xxiii: “Le Droit des Gens est
la Loi des Souverains. C’est pour eux principalement, & pour leurs Ministres,
qu’on doit l’écrire.” [spelling modernised] At the beginning of the second book Vattel
reiterated that he wrote for the conductors of states: “Et pourquoi n’espérerions-
nous pas de trouver encore parmi ceux qui gouvernent, quelques Sages, convain-
cus de cette grande vérité, que la Vertu, même pour les Souverains, pour les Corps
Politiques, est le chemin le plus assuré de la prospérité & du bonheur? Il est au
moins un fruit que l’on peut attendre des saines Maximes hautement publiées,
c’est qu’elles contraignent ceux-là même qui les goûtent le moins à garder quelque
mesure, pour ne pas se perdre entièrement de réputation. Se flatter que des hommes,
& surtout des hommes puissants, voudront suivre la rigueur des Lois Naturelles, ce
serait s’abuser grossièrement: Perdre tout espoir de faire impression sur quelques-
uns d’entre eux, c’est désespérer du Genre humain;” [spelling modernised] Droit
 CHAPTER 7 179

with public affairs who should “apply seriously to the study of a science
which ought to be their law, and, as it were, the compass by which to steer
their course;”888 and if they did, Vattel added, “what happy effects might we
not expect from a good treatise on the law of nations[?]”889

7.4. SUMMARY

Addressing the question outwardly, therefore, the examination of Droit des

Gens in its hermeneutic context supports the argument according to which
Vattel utilised and changed the word “sovereignty” for a particular purpose,
namely, to attempt the externalisation of the “highest unified power” by pro-
viding for the exclusivity of authority without as well as within. This objective
was carried out with the fiction of the juridical person (absorbing individu-
als forming society) that enjoys the exclusive power among other internal
authorities, but more significantly among other public authorities outside (that
is, other nations) to represent and rule the people within and in their rela-
tions with foreign states and individuals, that is, free of interference by other
nations and of submission to a higher legal order. Accordingly, the state was
the sole holder of ultimate authority in a society of states and represented the
reality of the “incorporated independent power,” as opposed to the reality of
the “personal interconnected power.”

des Gens, vol. 1, at 257. See also Law of Nations, at 134: “And why should we not
hope still to find, among those who are at the head of affairs, some wise individ-
uals who are convinced of this great truth, that virtue is, even for sovereigns and
political bodies, the most certain road to prosperity and happiness? There is at
least one benefit to be expected from the open assertion and publication of sound
maxims, which is, that even those who relish them the least are thereby laid under
a necessity of keeping within some bounds, lest they should forfeit their characters
altogether. To flatter ourselves with the vain expectation that men, and especially
men in power, will be inclined strictly to conform to the laws of nature, would be
a gross mistake; and to renounce all hope of making impression on some of them,
would be to give up mankind for lost.” Vattel came back to this theme in his con-
cluding remarks: Droit des Gens, vol. 2, at 375; and, Law of Nations, at 500.
888. Law of Nations, at xvi. See also Droit des Gens, vol. 1, at xxiii: “faire une étude
sérieuse d’une Science, qui devrait être leur Loi & leur boussole.” [spelling mod-
ernised]
889. Law of Nations, at xvi; in Chitty’s translation, the question mark is mistaken for
an exclamation mark. See Droit des Gens, vol. 1, at xxiii: “quels fruits ne pourrait-
on attendre d’un bon Traité du Droit des Gens?” [spelling modernised] See also
A. Mallarmé, supra, note 603, at 582, who wrote about Droit des Gens that, “il est
un manuel de politique, une encyclopédie pratique et positive à l’usage des hommes
publics.” [emphasis added] Finally, see J.L. Brierly, supra, note 265, at 37; and,
A. de Lapradelle, supra, note 606, at xxvii.
180 CHAPTER 7

Like Bodin, but unlike many of his predecessors on the law of nations,890
Vattel wrote in his “vernacular language-of-state”891 (as opposed to Latin),
namely French,892 already then the diplomatic language of the time.893 This
is said to explain in part the popularity of Droit des Gens,894 along with the
general readability of its prose, the systematic presentation of the arguments,
and the relevance of the work to the contemporary affairs.895 The last feature

890. One only has to think of the works by Vitoria, Grotius, Pufendorf.
891. This is an expression borrowed from B. Anderson, Imagined Communities (London
& New York: Verso, 1983).
892. On the influence of French all over Europe, see F.S. Ruddy, “The Acceptance of
Vattel,” in C.H. Alexandrowicz (ed.), Grotian Society Papers 1972 (The Hague:
Martinus Nijhoff, 1972), 176, at 181, who explained: “The languages of Europe
matured or were maturing in the eighteenth century. Europe was the literary domin-
ion of France, and it exerted its influence everywhere. The French style was sim-
plicity and clarity, and where the native language had matured, as in England, it
influenced it. Where the language had not developed, as in Russia, it filled the
gap.” [footnotes omitted]
893. See A. Nussbaum, supra, note 311, at 127, who wrote that, in the 18th century,
“French was retained as the prevailing diplomatic language.” He later opined that
the use of the vernacular “is characteristic of an ascendant trend in the interna-
tional law literature of the second half of the century;” id., at 138. See also E.L.
Jones, The European Miracle – Environments, Economies and Geopolitics in the History
of Europe and Asia, 2nd ed. (Cambridge: Cambridge University Press, 1987), at 112:
“Over and above its diplomatic uses, French became the language of the fashion-
able set, to the extent that Tsarist nobles preferred it to Russian. By the death of
Louis XIV the French language had captured the high society of Europe in a way
that French arms had failed to do, and faster even than it was taking over the
provinces in France itself.”
894. See T. Ruyssen, supra, note 270, at 508: “La raison principale de ce succès est sans
doute qu’il est le premier théoricien notoire du droit international qui se soit exprimé
en français; Grotius, Zouch, Pufendorf avaient écrit en latin, Wolff en latin et en
allemand; Vattel eut le mérite d’offrir aux lecteurs de la République des Lettres,
qui lisaient tous la langue de Voltaire, un traité du droit des gens, clairement écrit,
point trop volumineux ni surchargé d’érodution pédante.” See also F.S. Ruddy, supra,
note 892, at 194, who expressed the following view: “Vattel wrote in French
rather than Latin because Latin would not reach the audiences he had in mind.”
895. See P.F. Butler, supra, note 742, at 57; and, P. Guggenheim, supra, note 602, at 12,
who spoke of Droit des Gens, as “un exposé clair, lumineux, immédiatement acces-
sible.” See also A. Chrétien, Principes de droit international public (Paris: Chevalier-
Marescq, 1893), at 58: “Le Droit des gens de Vattel, publié en français en 1758,
bien qu’il ne soit trop souvent que la paraphrase de l’ouvrage de Wolff, dut à la
clarté et à l’élégance du style dans lequel il était écrit un succès auquel on ne peut
comparer que celui obtenu plus d’un sciècle auparavant par le traité de Grotius.”
As well, on this point, see A. Nussbaum, supra, note 311, at 160-161; A. de Lapradelle,
supra, note 606, at xxxv; and, A. Mallarmé, supra, note 603, at 483. Finally see
R.P. Ward, An Enquiry into the Foundation and History of the Law of Nations in
Europe – From the Time of the Greeks and Romans to the Age of Grotius, vol. 2,
 CHAPTER 7 181

is linked to the inductive nature of the method used by Vattel, with the numer-
ous references to contemporary state practice.896 His approach was thus both
descending and ascending897 – unlike the ones favoured by the authors referred
to in his preface,898 who perhaps made excessive use of abstract deductions
from general principles899 – which was meant to help “persuade,” the stated
objective of the work.900
However, it is the unprecedented success of Droit des Gens during the
18th century and beyond901 – especially in Great Britain and the United States
of America902 – that best bears witness to the immense impact Vattel had on

(London: Butterworth, 1795), 626, who compared Vattel with his predecessors
and noted that, “he has throughly cleared them from the cumbrous ornaments which
were supposed to adorn them, and has rendered the way into the interior less dif-
ficult and obscure.” [spelling modernised]
896. See C. Phillipson, supra, note 612, at 494, who pointed out that Vattel preferred
contemporary cases over ancient ones: “He is above all a practical man, and there-
fore he abandons the stale precedents of the classical ages and uses modern
instances of the clearest kind.” See also A. de Lapradelle, supra, note 606, at xxvii-
xxviii; and, E. Jouannet, supra, note 602, at 133-140.
897. See P.P. Remec, supra, note 642, at 189: “Actually, he roughly adapted the extent
of his analogical deductions to the empirically observed practice of nations of his
time. By this process he gave to the more acceptable principles of contempor-
ary practice the respectable and fashionable cloak of a universally binding rational
rule in contrast to the practices which he personally abhorred and therefore
effectively branded as illegal and irrational. The wide acceptance of Vattel’s doctrine
is due exactly to these reasons.” [emphasis added] [footnotes omitted]
898. In the preface of Droit des Gens, Vattel made references to Grotius, Hobbes, Pufendorf,
Barbeyrac, and especially Wolff.
899. See M. Koskenniemi, supra, note 169, at 89.
900. See Droit des Gens, vol. 1, at xxiii: “Il me suffit de persuader; & pour cette effet,
de ne rien avancer comme Principe, qui ne soit facilement admis par toute per-
sonne raisonnable.” [emphasis added] [spelling modernised] See also Law of Nations,
at xvi: “It is sufficient for me to persuade, and for this purpose to advance nothing
as a principle that will not readily be admitted by every sensible man.” [emphasis
added] As F.S. Ruddy, supra, note 892, at 193, rightly pointed out, “[t]o persuade
one cannot be abstruse.”
901. The number of editions and translations of Droit des Gens provides a good indica-
tion of the great success and influence of Vattel. Between 1758 and 1863, there
were twenty editions of the work in its original French. In Great Britain, there
were ten English translations between 1759 and 1834; in the United States of
America, there were eighteen translations or reprints of translations between 1796
and 1872. His book was also translated into Spanish (six between 1820 and
1836), German (1760) and Italian (1805). See J.B. Scott (ed.), The Classics of
International Law – Vattel, vol. 1 (Washington: Carnegie Institution of Washing-
ton, 1916), at lviii-lix.
902. See A. de Lapradelle, supra, note 606, at xxvii-xlii, who provided a summary of
the information pertaining to the reception and authority of Droit des Gens in
Great Britain and in the United States of America during the 18th century and
182 CHAPTER 7

the shared consciousness of society with his use of the word “sovereignty.”903
As Charles Fenwick succinctly explicated:
Vattel’s treatise on the law of nations was quoted by judicial tribunals, in speeches
before legislative assemblies, and in the decrees and correspondence of executive offi-
cials. It was the manual of the student, the reference work of the statesman, and the
text from which the political philosopher drew inspiration. Publicists considered it
sufficient to cite the authority of Vattel to justify and give conclusiveness and force
to statements as to the proper conduct of a state in its international relations.904

19th century. See also J.S. Reeves, supra, note 879, at 549; C.G. Fenwick, supra,
note 726, at 406-410; G.A. Finch, supra, note 265, at 564-565; A. Nussbaum, supra,
note 311, at 161-162; P. Guggenheim, supra, note 602, at 15-16; T. Ruyssen,
supra, note 270, at 514-515; and, E. Jouannet, supra, note 602, at 14-15.
903. See H. Lauterpacht, “Les travaux préparatoires et l’interprétation des traités” (1927),
18 R.C.A.D.I. 709, at 713, who wrote: “Il n’est pas d’auteur dont le nom ait été
plus fréquemment mentionné devant les tribunaux internationaux que Vattel.”
Most interestingly, E.D. Dickinson, supra, note 774, at 259, note 132, com-
piled the number of times European internationalists were used before and by the
Supreme Court of the United States at the turn of the 19th century (1879-1920),
which shows how Vattel was ahead and had thus a real and comparatively great
impact on human consciousness – “Eighty-two cases were found in these [seven-
teen] volumes involving more or less important questions of international law. The
figures in parentheses indicate the number of instances in which the publicist named
was cited, quoted, or paraphrased. Cited in argument: Grotius (16), Pufendorf (9),
Bynkershoed (25), Burlamaqui (9), Rutherforth (18), Vattel (92). Cited in opinion:
Grotius (11), Pufendorf (4), Bynkershoek (16), Burlamaqui (4), Rutherforth (5),
Vattel (38). Quoted or paraphrased in opinion: Grotius (2), Bynkershoek (8), Burlamaqui
(2), Rutherforth (2), Vattel (22).” [emphasis in original] See also the compilation
of arbitration decisions which cite Vattel made by E. Jouannet, supra, note 602, at
15, note 22, which is based on A. de Lapradelle & N. Politis (eds.), Recueil des
arbitrages internationaux (Paris: Pedone, 1923).
904. C.G. Fenwick, supra, note 726, at 395. See also G. von Glahn, Law Among
Nations, 3rd ed. (New York: Macmillan, 1976), at 44: “It can seriously be main-
tained that despite the vital contribution of Grotius, no single writer has exercised
as much direct and lasting influence on the men engaged in the conduct of inter-
national affairs in the legal sphere, at least until very modern times, as did Vattel.”
It is also interesting to point out that even Vattel’s critics agreed that Droit des
Gens received a phenomenal success; see, for instance, C. van Vollenhoven, supra,
note 601, at 32; and, C. van Vollenhoven, Du droit de paix – De iure pacis (The
Hague: Martinus Nijhoff, 1932), at 98-99. Other negative assessments of Vattel’s
work were made by A.G. Heffter, Le droit international de l’Europe, 4th ed.
(Berlin: Müller; Paris: Cotillon, 1883), at 34; F. von Martens, supra, note 399, at
211-212; W. van der Vlugt, supra, note 599, at 467; and, J.L. Brierly, supra, note
265, at 40. One must also point out Bentham’s notorious quote – “Vattel’s propo-
sitions are most old-womanish and tautological;” see the citation reproduced in
E. Nys, “Notes inédites de Bentham sur le droit international” (1885), 1 Law Q.
Rev. 225, at 230.
 CHAPTER 7 183

This achievement may only be explained by recognising that Droit des Gens
provided legal and diplomatic answers to the current problems of interna-
tional relations and governance,905 which were along the lines of the political
principles and needs of the time.906 “It was a ‘realistic’ book,” wrote Koskenniemi,
“especially useful for diplomats and practitioners, not least because it seemed
to offer such compelling rhetorics for the justification of most varied kinds of
State action.”907

905. Some contend that Vattel’s success derived, at least in part, from the many ambi-
guities and inconsistencies found in his work. See, for exemple, H. Lauterpacht, The
Function of Law in the International Community (Oxford: Clarendon Press, 1933),
at 7, who referred to his “elegant manner of evasion;” and, A. Nussbaum, supra,
note 311, at 159, who spoke of “the striking ambiguity of his formulas and [. . .]
the inconsistency of many of his conclusions.” See also M. Wight, “Western
Values in International Relations,” in H. Butterfield & M. Wight (eds.), Diplo-
matic Investigations – Essays in the Theory of International Politics (London: Allen &
Unwin, 1966), 89, at 119, who wrote that, “it is part of his charm (and no doubt
of his lasting influence) that he contains inconsistent arguments that can be used
to support contradictory policies.”
906. See P.P. Remec, supra, note 642, at 56, who explained thus: “Vattel’s system of
international law received through this synthesis a very ‘modern’ form, primarily
because it fitted actual contemporary practice so well, which it sought to justify
in high moral terms.” See also P.F. Butler, supra, note 742, at 57: “Vattel, I
suggest, recognised the major components of political life that were identified in
eighteenth-century Europe: the sovereign, the individual, the transnational moral
order, and property. He also dealt with these components in a way that settled
their relative moral significance. Acceptance of the general thrust of his arguments
contributed to the maintenance of the balance of power system.”
907. M. Koskenniemi, supra, note 169, at 89. [emphasis added] See also J.S. Reeves,
“La communauté internationale” (1924), 3 R.C.A.D.I. 1, at 37-38; and, F.S.
Ruddy, supra, note 892, at 194-195.
This page intentionally left blank
CONCLUSION

The purpose of the foregoing study was to enter into the history of the
mental-social phenomena that are the word sovereignty and the myth of
Westphalia. Given what was referred to as the “circularity of language” – that
meaning is meaningless because words cannot transcend themselves – the more
promising project pursued here consisted in examining the reality-creating role
of language, as an organic instrument of social power within humanity.908
Indeed, in semiotic terms, the complex structures of words and also myths
form part of sign-systems in which they can both represent and create reality.
These are the passive and active functions of language, which were examined
with the help of the Ogden & Richards’ Triangle. This sign-oriented theory
of language was thus based on the nominalist idea of the distinct represen-
tative status of words and expressions.
So it is then that language not only represents and describes reality for
the convenience of the human mind but may also play a leading part in cre-
ating and transforming reality through the same cognitive process of the mind,
including the activity of modelling the shared consciousness of society. The
most significant consequence of the active role of language is that words and
myths can demonstrate, and may actually be used to carry, fabulous power
within humanity. Further, like language itself, the creative and transforming
function of language is continuous and continuing, changing in its nature
and effects over time. It follows that words like the word sovereignty and
myths like the aetiological myth of Westphalia have their own history, which
is not only a history of their changing meaning, their changing definition,
but a history of the social effects of their changing meaning.
The Peace of Westphalia was examined to show that, in spite of what actu-
ally took place at the congress, the myth of Westphalia in international law
has had an incredible social effect, standing for the proposition that 1648
signalled the beginning of a new era based on state sovereignty. As regards
sovereignty, the history of the way Bodin and Vattel used the word in their

908. With respect to sovereignty, this aspect was succinctly addressed by A. Ross, A Textbook
of International Law – General Part (London: Longmans, 1947), at 34: “It is not
only that there are almost as many definitions of the term ‘sovereignty’ as there are
authors, but also that there is no agreement as to what purpose is served by this
concept in International lav [sic]. Often there is no clarity at all on this point.
Lengthy discussions about the correct definition of the concept abound, but not
one word in them makes it clear what scientific interest attaches to the positing of
such a concept. It is overlooked that the subject of science is problems and their
solution. The formation of concepts is merely a means towards that end, hence every
concept must be associated with a definite problem.” [emphasis in original] [foot-
notes omitted]
186 CONCLUSION

works aimed at uncovering the active function that this linguistic sign has
played in the formation of the socially constructed reality of, respectively, the
16th century and 18th century, and beyond.
The proposed metalogical inquiry was undertaken pursuant to an intel-
lectual strategy called the “inward-outward” approach to language. This method
benefited from the insights of the deconstruction school of language analy-
sis, which focussed on the discourse in which words exist by using a three-
step analysis (identification, negation, mutually self-constituting stages), as well
as from the hermeneutic school of historical knowledge, which attempted
the reconstruction of the totality of the historical shared consciousness of
society by considering contextual elements such as the author’s background,
the social, political and intellectual environments, and the targeted audience.
This approach was adopted in order to help bringing out the history of the
active forces of “Westphalia” and “sovereignty.”
The examination of the Peace of Westphalia was thus interested in the
material reality originally represented/created through language by the word
“Westphalia,” which essentially concerned the peace congress that ended the
Thirty Years’ War. In approaching the issue, it was crucial to have a clear
“inward” perspective of this linguistic sign, that is, to examine it on its own
terms by looking at the actual text of the Treaties of Osnabrück and Münster.
Further, a comprehensive analysis required an “outward” look at Westphalia,
taking into account the social and political situations of 17th century Eu-
rope, as well as the religious and intellectual environment, with a view to
reconstruct the historical shared consciousness of society prevailing then.
What clearly comes out of the discussion is that the material reality that
the linguistic sign “Westphalia” represented in 1648, through the human mind,
does not correspond to the reality with which the “Westphalian state system”
has been associated. Indeed, it was shown that the Peace did not turn the
page on multilayered ruling in Europe, but simply constituted a case where
distinct separate polities claimed more authority through enhanced auton-
omy, which was really fully reached only a century-and-a-half later. This
material reality strongly contrasts with the Westphalian dogma according to
which, by allegedly recognising the German Princes as sovereign, the Peace
marked the beginning of a new era.909
Such a demonstration makes a compelling case that Westphalia consti-
tutes a myth, an aetiological myth, which provides a way for society to
explain itself to itself, that is, a way for international society to explain its
genesis to itself. Semiotically, the linguistic sign “Westphalia,” which repre-

909. On the overlapping of periods in history, see C. Gallagher & S. Greenblatt, Practicing
New Historicism (Chicago & London: University of Chicago Press, 2000), at 7:
“In what sense is an era ever truly finished – who sets the boundaries and how are
they patrolled. Do we not have overwhelming evidence, in our time and in every
period we study of an odd interlayering of cultural perspectives and a mixing of
peoples, so that nothing is every truly complete or unitary.”
 CONCLUSION 187

sented/created the material reality of the twin peace congress, metamor-

phosed into a mythical sign which has represented/created a new reality, a
mythical reality, about the present international state system. Most importantly,
in the process whereby the initial sign was deemed a mythical sign, the his-
torical facts and events surrounding the Peace became irrelevant and/or
incontestable. Put another way, although “Westphalia” changed from lógos to
mûthos, it has nonetheless continued to be viewed in terms of lógos, that is,
as the rational explanation of the origin of modern international relations.
For human societies, and in particular for the international society, West-
phalia is real, it is not fiction.
By holding as unquestionably true and valid what is in fact a human-
made fabrication, the aetiological myth of Westphalia has contributed to
build a religious-like belief-system, about the whens, wheres and hows of the
becoming and the being of international society.910 This social production
has thus provided a shared explanatory structure for the socially constructed
international reality and, in doing so, has had an extraordinary impact upon
the shared consciousness of humanity. Furthermore, given that this myth man-
aged its way into the very fabric of our international legal order – as the basis
for the idea, and the ideal, of “state sovereignty” in international law – the
social power that Westphalia has continuously demonstrated within human
reality increased exponentially.
Indeed, one can imagine, for instance, that people involved in international
affairs who use the word “Westphalia” every day of the week – like the pub-
licists referred to at the beginning of chapter five – do not care about the
history, the material reality, of the Peace of Westphalia. They resort to the expres-
sion “Westphalian state system,” in the majority of cases, as a “convenient
shorthand”911 to explain the fundamental juristic basis of the world organi-
sation (or disorganisation) founded on the principle of the sovereign equal-
ity of states.
In sum, a reference to “Westphalia” will invariably bring up, through the
cognitive process of the mind, a legally-empowered image912 of our “interna-
tional system [as] an association of sovereign states.”913 This constitutes, in effect,
the absolutely fabulous power that the aetiological myth of Westphalia has
carried, sometimes strategically, within the shared consciousness of society.
Now, the metalogical inquiry into the word sovereignty was interested in
the two most important episodes of the history of this linguistic sign, per-
sonified by Jean Bodin and Emer de Vattel. This project required to have a

910. Interestingly, A.P. d’Entrèves, supra, note 655, at 69, expressed the view that,
“many fundamental concepts of modern political theory are nothing but ‘secularised’
theological concepts.”
911. R.A. Falk, supra, note 270, at 4.
912. See M. Koskenniemi, The Gentle Civilizer of Nation – The Rise and Fall of International
Law 1870-1960 (Cambridge: Cambridge University Press, 2002), at 51, who used
the expression “metaphoric sense of Westphalia” to express that idea.
913. T.M. Franck, supra, note 275, at 5.
188 CONCLUSION

most substantiated “inward” perspective of the word at hand which, in turn,

commanded to focus on the system of discourse in which it was found, that
is, the text of Six Livres and that of Droit des Gens. Moreover, a satisfactory
analysis had to avoid considering these recorded expressions through the
misleadingly biassed prism of modernity. Rather, it had to look at them out-
wardly to reconstruct the totality of the historical shared consciousness and
thus help reach an understanding of the discourse on sovereignty that corre-
sponded, as much as human-scientifically possible, to the original expression
in the texts considered.
Accordingly, two paradigms in the historical development of the word
sovereignty were identified, namely Bodin’s internal paradigm pertaining to
the “highest unified power” and Vattel’s external paradigm concerning the
“incorporated independent authority.” These two empirical case studies have
proven to be compelling examples where sovereignty, the word, has existed as
an organic instrument and has acted as a social force within the shared con-
sciousness of humanity, and more particularly within the shared conscious-
ness of the international legal community.
Indeed, the “inward-outward” approach to analysing sovereignty, first in Six
Livres, demonstrated that Bodin used the word for the particular purpose of
having the ruler enjoy the most supreme power in the hierarchical organisa-
tion structure of society, that is, the “highest unified power.” The definition
of “sovereignty,” its perpetual and absolute features, the power to make law,
the limited role of the Estates and Parlement, the obligations of magistrates
vis-à-vis the sovereign, all these elements proved that the word sovereignty
was intended to place the prince at the apex of a pyramid of authority. This
is the creative and transforming social effect on the shared consciousness of
humanity for which this linguistic sign must be credited. Such a powerful
social production providing a shared explanatory structure for the substantial
area of socially constructed reality pertaining to internal ruling was à propos
in France, which social fabric and political stability were in jeopardy, and where
constitutionalism was gaining popularity among intellectuals and in government.
With respect to the theory of government and system of international
law put forward in Droit des Gens, the same “inward-outward” approach to
understanding language allowed to look at the discourse on its own terms
and within the totality of the relevant historical shared consciousness. This
analysis showed that Vattel utilised and actually changed the reality repre-
sented/created with the word sovereignty for a specific reason, namely, to
carry out the externalisation of the “highest unified power,” which was trans-
posed from the internal plane to the international plane. This indeed created
a new reality associated with the linguistic sign at hand, namely, that of the
incorporated independent authority – the ruling political body was to enjoy
exclusive power to govern, which entailed being the sole representative of the
people both internally and externally, and also meant that it could not be
submitted to any foreign state or to any higher law externally.
Such a concern for the exclusivity of authority without came out of all
the material aspects of Vattel’s scheme. As regards the incorporation of power,
 CONCLUSION 189

these elements included the definitions of “sovereignty,” the juridical person

of the state, self-preservation and self-perfection, rejecting patriarchal king-
doms, the rules on war, and the law of nations applying only to nations.
With respect to the independence of power, the relevant features in Droit des
Gens were the principle of non-intervention, the absence of submission to
outside authorities, the offices of humanities, equality of states, the different
laws of nations, the replacement of civitas maxima by the fiction of a pre-
sumed consent, and the voluntary law of nations as external and imperfect.
Vattel’s utilisation of the word sovereignty had a most extraordinary effect
on the shared consciousness of society, including the consciousness of the
emerging international society, which was in relative stability during the
18th century. The main reason why Droit des Gens had such an impact in
Europe and beyond is because it provided a realistic way to regulate the
international relations chessboard through diplomatic and legal means,
which was in line with the core political principles of the time – raison d’é-
tat, aggrandisement, and balance of power. In fact, there was already then an
agreement about the relations among nations based on the ideas of “state”
and “sovereignty,” which was creating refractory sentiments against any sug-
gestion of an overarching authority above nations. The raising discipline of
the law of nations, which was increasingly taking into account state practice
as well as natural law to identify the rules governing international relations,
welcomed Vattel’s system at the centre of which was the word sovereignty.
This powerful remodelled social production thus provided a shared explana-
tory structure for the substantial area of socially constructed reality pertain-
ing to the regulation of international relations.
These two archetype cases in which sovereignty developed show how this
word has really had two paradigms over the years, that is, it has repre-
sented/created the two distinct realities of internal sovereignty and external
sovereignty.914 In semiotic terms, they illustrate how this mental-social phe-
nomenon, comprising complex interactions, began to exist and act as an organic
instrument within human consciousness. Put another way, “sovereignty” in
Bodin’s and Vattel’s works was involved both passively and actively in reality,
reflecting and inventing large-scale dynamic models pertaining to the need
of the time, and the continuing need, to frame the internal ruling system
and hence the internal legal system, as well as the international state system
and hence the international legal system.

914. See A. Truyol Serra, supra, note 306, at 323, who wrote: “Au terme de notre
analyse, la souveraineté de l’État se présente à nous sous un double aspect: comme
souveraineté interne, dans le sens que l’État est pour ses membres et sur son terri-
toire l’autorité suprême, dont les décisions ne sont pas susceptibles d’appel devant
une instance supérieure; et comme souveraineté externe ou internationale, dans le
sens que les États, dans leurs relations réciproques, ne sont soumis à aucun pou-
voir supérieur, mais au seul droit international.” [emphasis added]
190 CONCLUSION

As such, the word sovereignty has demonstrated, and has been strategically
used to carry, fabulous social power within the shared consciousness of human-
ity.915 Further, it has never stopped creating and transforming reality through
the cognitive process of the human mind, as the socially constructed world
evolved and changed over the years. These two paradigms have indeed remained
most relevant to the contemporary discourse on internal governance and inter-
national relations. Internal sovereignty and external sovereignty have long been
adopted in political science, for instance, which operates a strict demarcation
between “internal” and “external” political realms.916 Johann Bluntschli wrote
in the 19th century that, “sovereignty of the State may be looked at from with-
out and from within: from without, as the independence of a particular
State in relation to others [and] from within, as the legislative power of the
body politic.”917
Likewise, several international legal commentators,918 such as Henry Wheaton,
have expressed the view that sovereignty “may be exercised either internally
or externally.”919 He further opined thus:
Internal sovereignty is that which is inherent in the people of any State, or vested in
its rulers by its municipal constitution or fundamental laws. External sovereignty
consists in the independence of one political society, in respect to all other political
societies.920

915. See J.L. Brierly, “Règles générales du droit de la paix” (1936), 58 R.C.A.D.I. 1, at
24-25, who forcefully made this very point: “Celle-ci [sovereignty] à aucune péri-
ode de son histoire n’a été une déduction scientifique dérivée de l’examen de la
nature essentielle de l’autorité politique; pratiquement, chaque théoricien de cette ques-
tion a eu un but de propagande et non un but simplement scientifique. Ainsi, Bodin
était convaincu de la nécessité de renforcer l’autorité centralisée du roi de France;
Hobbes était épouvanté par les bouleversements civils au milieu desquels il avait
vécu; Locke voulait défendre une révolution; Rousseau, soutenir les droits de la
démocratie.” [emphasis added]
916. See the recent literature by J.G. Ruggie, supra, note 283, at 142-143; J.S. Barkin
& B. Cronin, “The State and the Nation: Changing Norms and the Rules of
Sovereignty in International Relations” (1994), 48 Int’l Org. 107, at 111; and,
R. Jackson, supra, note 278, at 433.
917. J.K. Bluntschli, supra, note 446, at 501.
918. See the recent literature by R.A. Brand, supra, note 309, at 1689-1690; and,
A. Treppoz, “Les sujets du droit international public dans la jurisprudence du Conseil
constitutionnel,” [2000] Droit Public 1629, at 1644, who wrote: “Elle [sover-
eignty] est à la fois interne (autorité suprême des État à l’intérieur de ses fron-
tières) et externe (indépendance et égalité des États).” [footnotes omitted]
919. H. Wheaton, supra, note 265, at 27. See also P. Fauchille, Traité de droit interna-
tional public, vol. 1 (Paris: Rousseau, 1922), at 224, who wrote: “La souveraineté
est, ou intérieures et intranationale, ou extérieure et internationale.”
920. H. Wheaton, ibid. One author has argued, however, that external sovereignty is an
erroneous idea; see L. Henkin, supra, note 9, at 352-353, where he forcefully expressed
this view: “I have become persuaded that, as applied to States in their external
relations, sovereignty – even the term, surely some of its assumed connotations –
 CONCLUSION 191

Thomas Lawrence, spoke of “the conception of a Sovereign or Independent

State, which possesses not only internal sovereignty, or the power of dealing
with domestic affairs, but external sovereignty also, or the power of dealing
with foreign affairs.”921 Internally, sovereignty would represent the reality of
“the state’s exclusive right or competence to determine the character of its
own institutions, to ensure and provide for their operation, to enact laws of
its own choice and ensure their respect.”922 Externally, Judge Anzilotti in the
case of Austro-German Customs Union, spoke of “sovereignty (suprema potes-
tas), or external sovereignty, by which is meant that the State has over it no
other authority than that of international law.”923
Furthermore, the association of the words “sovereignty” and “indepen-
dence”924 found in Vattel’s Droit des Gens925 has been maintained to this day

is a mistake. Sovereignty is essentially an internal concept, the locus of ultimate author-

ity in a society [. . .] ‘Sovereignty,’ I conclude, is not an axiom of the inter-state sys-
tem of secular States; it is not per se a normative conception in international law.”
[emphasis added]
921. T.J. Lawrence, The Principles of International Law (London: Macmillan, 1895), at
56-57. [emphasis in original]
922. N. Mugerwa, “Subjects of International Law,” in M. Sørensen (ed.), Manual of
Public International Law (London: Macmillan, 1968), 247, at 253. Similarly, see
also H.J. Morgenthau, supra, note 277, at 345: “The individual state has the right
to give itself any constitution it pleases, to enact whatever laws it wishes regardless
of their effects upon its own citizens, and to choose any possible system of admin-
istration. It is free to have whatever kind of military establishment it deems neces-
sary for the purposes of its foreign policy which, in turn, it is free to determine as
it sees fit.”
923. Austro-German Customs Union case, supra, note 653, at 57, [emphasis in original]
in a separate opinion.
924. Independence constitutes one of the formal requirements for a state to be recog-
nised as such; see the Convention on Rights and Duties of States, 165 L.N.T.S. 19,
signed in Montevideo on 26 December 1933, which is generally deemed to encap-
sulate the so-called criteria of statehood, although “it is no more than a basis for
further investigation,” as I. Brownlie, supra, note 272, at 72, rightly pointed out.
Article I provides: “The State as a person of international law should possess the
following qualifications: (a) a permanent population; (b) a defined territory; (c) gov-
ernment; and (d) capacity to enter into relations with the other States.” It is the
last condition which corresponds to the polity’s independence or external sovereignty.
See also P. Daillier & A. Pellet, supra, note 265, at 388-408; H. Mosler,
“Subjects of International Law,” in R. Bernhardt (ed.), Encyclopedia of Public
International Law, vol. 7, History of International Law – Foundations and Principles
of International Law – Sources of International Law – Law of Treaties (Amster-
dam: North-Holland, 1984), 442, at 449-450; and, J. Crawford, “The Criteria for
Statehood in International Law” (1976-77), 48 British Y.B. Int’l L. 93.
925. See A. Hurrell, supra, note 856, at 234, who wrote: “Finally, for many interna-
tional lawyers, it is Vattel’s emphasis on the absolute independence of states that was the
most significant characteristic of his writing – the “principle of legal individualism”
192 CONCLUSION

by a large number of international publicists.926 For instance, Ian Brownlie

wrote: “The term ‘sovereignty’ may be used as a synonym for independence,
an important element in statehood.”927 Antony Carty noted: “For the inter-
national lawyer, then, sovereignty equals independence and consists of the bun-
dle of competences which have not already been transferred through the exercise
of independent consent to an international legal order.”928 In the Island of
Palmas case, Arbitrator Huber declared: “Sovereignty in the relations between
states signifies independence. Independence in regard to a portion of the globe
is the right to exercise therein, to the exclusion of any other State, the func-
tions of a State.”929

as Brierly labels it – a characteristic widely applauded in the nineteenth century

but increasingly criticised in this century.” [emphasis added] [footnotes omitted]
926. See, among many authors, J.E.S. Fawcett, “General Course on Public Inter-
national Law” (1971), 132 R.C.A.D.I. 363, at 381 ff.; O. Beaud, supra, note 42,
at 128-132; and, P. Daillier & A. Pellet, supra, note 265, at 409-410. See also, to
the same effect, the opinion of the Soviet international commentator S. Krylov,
“Les notions principales du droit des gens (La doctrine soviétique du droit inter-
national)” (1947), 70 R.C.A.D.I. 407, at 451: “Le droit international met en relief
non seulement la notion d’une autonomie absolue de l’Etat souverain dans ses affaires
intérieures, dans la mesure où il proscrit toute intervention dans les affaires intérieures
de cet Etat, mais encore un autre aspect de la souveraineté, qui est l’indépendance
de l’Etat souverain. Dès lors qu’un Etat a perdu la capacité d’agir (à titre d’Etat
indépendant) dans la vie internationale, il n’est plus un Etat souverain, aurait-il
même gardé un certain degré d’autonomie dans ses affaires intérieures, perdant seule-
ment la capacité de déterminer sa politique extérieure. Du point de vue de la doc-
trine juridique internationale, la souveraineté, c’est l’indépendance et l’autonomie
de l’Etat dans ses affaires.”
An author has even advocated to substitute sovereignty by independence; see R.R.
Foulke, A Treatise on International Law (Philadelphia: Winton, 1920), at 69: “The
word sovereignty is ambiguous. [. . .] We propose to waste no time in chasing
shadows, and will therefore discard the words entirely. The word ‘independence’ suf-
ficiently indicates every idea embraced in the use of sovereignty necessary to be
known in the study of international law.” For his part, M. Koskenniemi, supra,
note 169, at 209, pointed out that replacing sovereignty by independence is really
to substitute one ambiguous expression for another.
927. I. Brownlie, supra, note 272, at 78.
928. A. Carty, “Sovereignty in International Law: A Concept of Eternal Return,” in
L. Brace & J. Hoffman (eds.), Reclaiming Sovereignty (London & Washington: Pinter,
1997), 101, at 101. [emphasis added] See also C. Parry, “The Function of Law
in the International Community,” in M. Sørensen (ed.), Manual of Public Interna-
tional Law (London: Macmillan, 1968), 1, at 13, who opined that, in interna-
tional law, “sovereignty no longer conveys the idea of supremacy but rather that of
independence.”
929. Island of Palmas case (1928), 2 R.I.A.A. 829, 838. [emphasis added] See also, on
the territorial dimension of sovereignty, the arbitration case of the North Atlantic
Coast Fisheries (1910), 11 R.I.A.A. 167, 180; and, the Corfu Channel (Merits) case,
[1949] I.C.J. Reports 2, 35.
 CONCLUSION 193

This illustrates the modern history of the true power that “sovereignty”
has exercised in framing the international state system and hence the inter-
national legal system. Like the word itself, therefore, the creative and trans-
forming function of the linguistic sign sovereignty is continuous and continuing,
changing in its nature and effects over time. Fundamentally, the vision Vattel
had of international law has been dominant ever since the publication of Droit
des Gens,930 and has remained thus to this day in spite of the recent organi-
sational and institutional developments on the international plane.931 In
international legal terms, the world is indeed still essentially a society of sov-
ereign states that are “independent,” that is, free from foreign intervention or
constraining rule of law.932 In both its “internal” and “external” paradigms, in
sum, sovereignty has never stopped being relevant to the discourse because it
has never stopped, through the cognitive process of the human mind, to
represent/create the changing reality and thus contribute to the modelling of
the shared consciousness of society.

930. See J. Huntzinger, Introduction aux relations internationales (Paris: Éditions du

Seuil, 1987), at 36-37. See also how the following description by Georges Scelle is
reminiscent of Vattel’s prescriptions: “La Société internationale est une société d’Etats.
Les Etats sont des personnes juridiques; sinon les seules personnes du droit interna-
tional, au moins les personnes originaires et principales de cet ordre juridique. Les
Etats sont sujets de droit et créateurs du Droit. Les gouvernants et agents des sociétés
étatiques sont leurs organes; les individus leurs ressortissants. Les Etats-personnes
sont souverains, la souveraineté étant donnée comme une qualité juridique qui fait
de la volonté de son possesseur la source et le régulateur du droit. La règle de droit
élaborée n’a de valeur obligatoire pour l’Etat que si elle a été voulue, ou du moins
reconnue et acceptée par l’Etat. La validité des situations juridiques où se trouve im-
pliqué l’Etat ne relève que de l’appréciation de l’Etat ou de ses délégués. Il n’existe
dans la Société des Etats aucun pouvoir superétatique compétent pour imposer
à l’Etat l’acceptation d’une règle de droit ou d’une sentence juridictionnelle et
employer à ces fins la coercition. Les organes institutionnelles interétatiques peu-
vent être créés par les Etats, mais ils n’existent et ne subsistent que par leur con-
sentement;” G. Scelle, “Règles générales du droit de la paix” (1933) 46 R.C.A.D.I.
327, at 331. [emphasis in original]
931. See R. Jackson, supra, note 278, at 431, who wrote, quite metaphorically: “The
institution is, shall we say, a basic element of the grammar of politics. It exists as
a normative postulate or premise or working hypothesis of modern political life. It
may not always be explicitly acknowledged as such and may, like an iceberg, be
mostly hidden from view. But it silently frames the conduct of much of modern
politics nevertheless. Sovereignty is like Lego: it is a relatively simple idea but you
can build almost anything with it, large or small, as long as you follow the rules.”
[footnotes omitted]
932. See H. Steinberger, supra, note 307, at 408, who described thus the reality repre-
sented/created by the word at hand: “Sovereignty in the sense of contemporary
public international law denotes the basic international legal status of a State that
is not subject, within its territorial jurisdiction, to the governmental, executive,
legislative, or judicial jurisdiction of a foreign State or to foreign law other than
public international law.”
194 CONCLUSION

The present study, therefore, attempted to show the function that has played
the word sovereignty and the myth of Westphalia in the formation of socially
constructed reality – in particular the reality of international relations – and
also the role they are playing in the present-day reality-creating, that is to
say, in the present understanding of the world as it is and the world as it
might be in the near future.933 Hopefully, with its historical and semiotic dimen-
sions, this project will contribute to modern legal scholarship and to con-
temporary debates on domestic and international legal issues of governance.934

This socially constructed model, however, has long been challenged by intellec-
tuals around the world, and never more vigorously than now, in the era of the so-
called “globalisation” or “mondialisation,” which calls more than ever for a new
legal order that corresponds better to the contemporary reality. See, among many
international publicists on this, O. Schachter, “Sovereignty – Then and Now,” in
R.St.J. Macdonald (ed.), Essays in Honour of Wang Tieya (Dordrecht: Martinus Nijhoff,
1994), 671, at 671, who wrote: “We cannot fail to recognise that as the twentieth
century draws to a close, the idea of sovereignty as the supreme governing princi-
ple of the State system is no longer implicitly accepted. Increasingly, questions are
raised as to its significance in a world where national frontiers are of decreasing
importance. Economics, technology, ecology, communications, human contacts have
radially changed the perception of self-contained independent States. The metaphors
of the ‘global village’ and the ‘space-ship earth’ reflect new conditions that seem
incompatible with the primacy of State sovereignty;” and, most recently, P. Allott,
“The Emerging Universal Legal System” (2001), 3 Int’l L. Forum 12, at 17, who
opined: “International social reality has overtaken international social philosophy.
The Vattelian mind-world is withering away under the impact of the new interna-
tional social reality. The reconstruction of the metaphysical basis of international law
is now well advanced. The deconstruction of the false consciousness of politicians, pub-
lic officials, and international lawyers is only just beginning.” [emphasis added]
933. This, of course, contrasts with the “end of history” thesis put forward by Francis
Fukuyama, according to which the end of the Cold War constitutes compelling
evidence that a worldwide consensus has emerged in favour of capitalism and lib-
eral democracy; see F. Fukuyama, The End of History and the Last Man (New York:
Free Press, 1992). For a critique of this argument, see J. Derrida, Specters of Marx –
The State of the Debt, the Work of Mourning, and the New International (New York
& London: Routledge, 1994), at 56 ff.; and, S. Marks, “The End of History?
Reflections on Some International Legal Theses” (1997), 8 European J. Int’l L. 449.
934. As such, the present study would certainly fall within what David Kennedy has
referred to as the “newstream” of international legal scholarship, as opposed to the
“mainstream:” see D.W. Kennedy, “A New Stream of International Law Scholarship”
(1988), 7 Wisconsin Int’l L.J. 1; and also, D.W. Kennedy, “A New World Order:
Yesterday, Today, and Tomorrow” (1994), 4 Transnat’l L. & Contemp. Probs. 329.
More particularly, on these new schools and the history of “sovereignty” as well as
the role of language, see D.Z. Cass, “Navigating the Newstream: Recent Critical
Scholarship in International Law” (1996), 65 Nordic J. Int’l L. 341. On history
and sovereignty: “The second way in which Newstream work is altering one of the
conceptual bases of international law is through its redefinition of the relationship
between the history of international law and the doctrine of sovereignty. Newstream
 CONCLUSION 195

In closing – and to suggest perhaps future research topics – it is certainly

possible to argue that, indeed, one can hear echos of Westphalia and of the
two paradigms of sovereignty in the discourse over the constitutional future
of Quebec within the Canadian federation,935 for instance, or in the discus-
sions over the legal status of the member states and the political institutions

scholarship maintains that Mainstream international legal history is self-servingly

repetitive, excessively linear in focus, unstable, and, that it conceal interests other
than purely legal. Newstream writers therefore propose various ways in which
the relationship between history and sovereignty could be reconceptualized;” [em-
phasis added] id., at 354. On language, she further wrote: “The final conceptual
redefinition which Newstream introduces into international law is its focus on
language as a constitutive tool of law-making. While Mainstream literature on
law-making emphasizes the role of custom in the form of state practice, beliefs,
and values, Newstream writers borrow from ideas associated with French post-
structural theory, to argue that as law is made up of language, language generates
rather than simply describes, legal rules;” [emphasis added] id., at 359. See also S.J.
Toope, “Emerging Patterns of Governance and International Law,” in M. Byers (ed.),
The Role of Law in International Politics – Essays in International Relations and
International Law (Oxford: Oxford University Press, 2000), 91.
On the contemporary situation and role of the history of international law, see
I.J. Hueck, “The Discipline of the History of International Law – New Trends and
Methods on the History of International Law” (2001), 3 J. History Int’l L. 194.
935. Interestingly, there was a judicial pronouncement by the Supreme Court of
Canada on this controversial issue that looked at both domestic constitutional
rules and international law principles, including the right to self-determination;
see Reference re Secession of Quebec, [1998] 2 S.C.R. 217. For all the judicial mate-
rials pertaining to this case, including expert opinions by James Crawford, Luzius
Wildhaber, Thomas Franck, Alain Pellet, Malcolm Shaw and George Abi-Saab,
see A.F. Bayefsky, Self-Determination in International Law – Quebec and Lessons
Learned (The Hague: Kluwer Law International, 2000). For commentaries on the
decision, see D. Turp, “International Recognition in the Supreme Court of Canada’s
Québec Reference” (1998), 36 Canadian Y.B. Int’l L. 335; D.J. Mullan, “Quebec Uni-
lateral Secession Reference: ‘A Ruling that Will Stand the Test of Time’” (1998), 9
Public L. Rev. 231; R. Rayfuse, “Reference re Secession of Quebec from Canada: Break-
ing Up is Hard to Do” (1998), 21 New South Wales L.J. 834; S.J. Toope, “Case Com-
ment on the Reference re Secession of Quebec” (1999), 93 American J. Int’l L. 519;
C.L. Brown-John, “Self-Determination, Autonomy and State Secession in Federal
Constitutional and International Law” (1999), 40 S. Texas L. Rev. 567; P.J. Monahan,
“The Public Policy Role of the Supreme Court of Canada in the Secession
Reference” (1999), 11 National J. Const’l L. 65; P. Oliver, “Canada’s Two Solitudes:
Constitutional and International Law in Reference re Secession of Quebec” (1999),
6 Int’l J. Minority & Group Rights 65; M.D. Walters, “Nationalism and the Pathology
of Legal Systems: Considering the Quebec Secession Reference and its Lessons for
the United Kingdom” (1999), 62 Modern L. Rev. 371; P. Bienvenu, “Secession by
Constitutional Means: Decision of the Supreme Court of Canada in the Quebec
Secession Reference” (1999), 21 Hamline J. Publ. L. & Pol’y. 1; J.-F. Gaudreault-
Desbiens, “The Quebec Secession Reference and the Judicial Arbitration of Conflicting
Narratives about Law, Democracy, and Identity” (1999), 23 Vermont L. Rev. 793;
196 CONCLUSION

of the European Union,936 as another example. Here too, undoubtedly, dynamic

mental-social phenomena in language – be them words or myths, and be them
existent, new, or transformed – will help provide a shared explanatory struc-
ture for these changing socially constructed realities and will also demon-
strate, and certainly be strategically used to carry, fabulous social power
within the shared consciousness of humanity.

G.G. Mitchell, “Developments in Constitutional Law: The 1998-99 Term – State

Craft and Status Quo” (2000), 11 Supreme Court L. Rev. (2nd ser.) 101; and S.
Choudhry & R. Howse, “Constitutional Theory and the Quebec Secession Reference”
(2000), 13 Canadian J. L & Jur. 143.
936. There is arguably no context in recent years where the social power of the word
“sovereignty” has been more palpable than in the debate over European supra-national
governance of the economic and political integration of the member states of the
Union: see, among the vast literature in the area, E.B. Hass, The Uniting of Europe –
Political, Social and Economic Forces, 1950-1957 (Stanford: Stanford University Press,
1958); L.N. Lindberg & S.A. Scheingold (eds.), Europe’s Would-Be Polity – Patterns
of Change in the European Community (Englewood Cliffs, U.S.: Prentice-Hall, 1970);
S. Hoffmann, “Reflections on the Nation-State in Western Europe Today” (1983),
21 J. Common Market St. 21; G.F. Mancini, “The Making of a Constitution for
Europe” (1989), 26 Common Market L. Rev. 595; J.H.H. Weiler, “The Transformation
of Europe” (1991), 100 Yale L.J. 2403; P. Allott, “The European Community is
Not the True European Community” (1991), 100 Yale L.J. 2485; J. Pinder, European
Community – The Building of a Union (Oxford & New York: Oxford University
Press, 1991); N. MacCormick, “Liberalism, Nationalism and the Post-Sovereign
State” (1996), 44 Political St. 553; J.A. Caporaso, “The European Union and
Forms of State: Westphalian, Regulatory or Post-Modern?” (1996), 34 J. Common
Market St. 29; M. Newman, Democracy, Sovereignty and the European Union (London:
Hurst, 1996), 4-23; P. Allott, “The Crisis of European Constitutionalism: Reflec-
tions on the Revolution in Europe” (1997), 34 Common Market L. Rev. 439;
J. Peterson, “The European Union: Pooled Sovereignty, Divided Accountability”
(1997), 47 Political St. 559; W. Wallace, “The Sharing of Sovereignty: The European
Paradox” (1999), 47 Political St. 503; J.H.H. Weiler, The Constitution of Europe –
“Do the New Clothes Have an Emperor?” and Other Essays on European Integration
(Cambridge: Cambridge University Press, 1999); J.-M. de Forges, “Fédéralisme et
souveraineté” (2001), 3 Int’l L. Forum 221; and, P. Allott, The Health of Nations –
Society and Law Beyond the State (Cambridge: Cambridge University Press, 2002).
INDEX
Abbé de Mably, Gabriel Bonnot: 174
Abbé de Saint-Pierre, Charles Irénée Castel:
172-173
Aggrandisement: 169, 171, 177, 189
Althusius, Johannes: 138
Allott, Philip: 7, 28-29, 41, 74, 99, 194, 196
Alsatian territory: 87
Ancien –
India: 13
Greece: 138
Rome: 13, 138
Aristotle: 96
Augustus III (King of Saxony): 130
Austin, J.L.: 23, 26
Austro-German Customs Union: 137, 191
Balance of power: 170-171, 177, 189
Barthes, Roland: 20, 35-38, 46
Bentham, Jeremy: 39, 127, 182
Betti, Emilio: 60-61
Bodin, Jean: 4, 51, 95, 100, 101-125
Colloquium heptaplomeres: 106
Démonomanie de des sorciers (La): 104
Elizabeth I (Queen of England): 105
Historical context: 118-122
Humanism: 111
Juris universi distributio: 103
Methodus ad facilem: 103, 121
Personal background: 102-106
Religion of: 105-106
Response à M. De Malestroit (La): 103
Six Livres de la Republique: 95, 104,
106-118
St. Bartholomew’s Day Massacre: 104
Universae naturae theatrum: 106
Boutros-Ghali, Boutros: 1
Brownlie, Ian: 192
Burlamaqui, Jean-Jacques: 128
Bynkershoek (van), Cornelius: 174
Calvin, John: 76
Cambridge University: 63, 123
Canada: 195
Carr, Edward: 57
Carty, Antony: 192
Catherine the Great (Tsaress of Russia): 169
Catholic League: 80, 89, 105, 119
Chomsky, Noam: 11
Christendom: 73
Civitas maxima: 160-162, 189
Collingwood, Robin: 56-57
Corfu Channel case: 2, 192
Crawford, James: 2
Croce, Benedetto: 56
Crusades: 73
Cuius regio eius religio: 79
Davidson, Donald: 11
Derrida, Jacques: 45-48, 194
Deconstruction: 4, 42, 45-51, 100, 107,
118, 165-166, 186
Defenestration of Prague: 81
Dilthey, Wilhelm: 55-56
Dit and non-dit: 48
Différance: 47, 100, 118, 166
Droit des Gens: 130, 133-166, 188-189, 193
Aggrandisement: 169, 171, 177, 189
Audience for: 178-179
Balance of power: 170-171, 177, 189
Citations by courts of: 182
Civitas maxima (rejection of ): 160-161,
162, 189
Definition of state (or nation): 134-135
Definition of sovereignty: 136
Different laws of nations: 158-159
Editions of: 181
Equality of states: 154-156
European federation (idea of ): 172-173,
177
Forms of government: 136
French (written in): 180
Functions of government: 145
Historical context: 166-179
Humanity in wars: 167-168
“Incorporated independent power”: 133,
137, 148-149, 157, 165, 179,
188-189
Inductive method: 181
Intellectual context: 172-177
Internal and external rights and
obligations: 162-163
Law of nations: 156-165
Mission of: 178, 181
Moral person of the state: 135, 138-149,
156
Natural law (and): 175-177
Non-intervention: 150-156, 189
Obligations to preserve and to perfect:
145, 153
Offices of humanities: 152-154
Patrimonial kingdoms (rejection of ):
145-146
Perfect and imperfect rights and
obligations: 162-163
198
Positivist law (type of ): 176-177
Presumed consent theory: 161-162
Raison d’État: 169, 171, 177, 189
Religious matters: 152
Right to revolution: 144
Social contract: 136
Social effect of: 181-183, 189-190,
191-192, 193
Society of nations: 161-162, 179, 193
State independence: 149-156, 164,
191-192
Systematisation of law of nations:
173-175, 177
Translations of: 181
Unity of Europe: 171-173
Voluntary law of nations: 158-159, 162,
164, 189
War: 147-148
Elizabeth I (Queen of England): 105
End of history thesis: 194
England: 78, 105, 120, 123, 181-182
Equality of states: 154-156
European federation (idea of ): 172-173,
177
European Union: 73, 195-196
Evangelical Union: 80, 89
Externalisation of sovereignty: 127, 133,
137, 151, 156, 165, 179, 188
Father of international law (debate over):
127
Favret-Saada, Jeanne: 27-28
Forms of government: 115, 136
Foucault, Michel, 13-16, 17
France: 78-79, 123-124
Franck, Thomas: 69
Frederick the Great (King of Prussia):
129-130
French language (importance of ): 180
French Revolution: 167
Fukuyama, Francis: 194
Gadamer, Hans-Georg: 58-60
Gallie, W.B.: 12
Globalisation: 194
Grotius, Hugo: 127, 146, 175-176
Günther, Karl Gottlob: 175
Hegel, G.W.F.: 3, 46
Heidegger, Martin: 46, 58
Henry VIII (King of England): 76
Hermeneutics: 4, 42, 53-64, 100, 186
Cantab hermeneutics: 63
Definition of: 53
Epistemological hermeneutics: 53-56
Hermeneutic circle: 56-57
Horizon: 59-60
Ontological hermeneutics: 58-60
INDEX
“Highest unified power”: 107, 109,
117-118, 121-122, 137, 151, 173, 188
Hirsch, Eric: 61-62
Hobbes, Thomas: 96, 138-139, 141, 176
Holmes, Justice (U.S.S.C.): 24
Holy Roman Emperor (Empire): 67,
73-74, 76-77, 82, 91-96, 120,
122, 123
Constituting parts: 91-92
Diet: 92-93
Dissolution of: 94
Emperor: 94
Imperial Constitution: 91
Imperial Courts, Imperial Circles,
Imperial Army: 92, 93-94
Napoleon Bonaparte and: 94, 96
Theoretical assessment of: 95, 123
Hospital (de l’), Michel: 121
Humanism: 111
Hume, David: 170
Humpty Dumpty: 19-20
“Incorporated independent power”: 133,
137, 148-149, 151, 157, 165, 179,
188-189
Idée-force: 29
International law –
Classical authors in 18th century:
174-175
Etymology of: 127
Father of (debate over): 127
First collections of treaties: 174
French language (importance of ): 180
Natural law (influence on): 177
Newstream of: 194-195
Roman civil law (influence on): 138
Systematisation of: 173-175, 177, 189
Vattelian system of: 193-194
Inward perspective on language: 50-51, 63,
71, 100, 106, 166, 186, 188
Island of Palmas case: 2, 192
Italy (cities of Northern): 77-78
Kant, Immanuel: 3
Kennedy, David: 67, 194
Koskenniemi, Martti: 46, 49-50, 183, 187
Language –
Archeology of: 13-16
Circularity of: 2, 7-13, 43, 185
History of: 4
Inward perspective on: 50-51, 63, 71,
100, 106, 166, 186, 188
Outward perspective on: 63-64, 71, 75,
100, 122, 128, 166, 179, 186, 188
Role of: 2, 24-26
Social power of: 1, 4, 24-26, 43, 185,
189-190, 193-194, 196
Study of: 13-16
 INDEX
Leibnitz, Wihelm: 129, 162
Lévi-Straus, Claude: 36, 38, 50
Locke, John: 20, 144
Louis XIV (King of France): 124-125
Luther, Martin: 75
Magna Carta: 78
Maria Theresa (Empress of Austria): 130
Marks, Susan: 194
Martens (von), Georg Friedrich: 174-176
Medici (de), Catherine: 121
Medieval organisation and institutions:
71-75
Metalogical inquiry: 43, 71, 133, 187
Mondialisation: 194
Montesquieu, C.-L. de S.: 136, 173
Moral person of the state: 135, 138-149,
156
Althusius, Johannes: 138
Ancient Greece: 138
Hobbes, Thomas: 138-139, 141
Pound, Roscoe: 138
Pufendorf (von), Samuel: 140-141
Vattel (de), Emer: 141-149, 156
Wolff, Christian, 142
Morgenthau, Hans: 70
Moser, Johann Jakob: 174-176
Myth: 3, 31-40
Definition of: 32-33
Classes of: 33
Origin myths: 33-35, 186-187
Role of: 3, 35-38
Westphalia as a: 3, 35, 39-40, 70-71, 97,
186-187
Napoleon Bonaparte: 94, 96
Natural law: 175-177
Netherlands (United Provinces of the): 87
Nominalism: 20, 24
Non-intervention: 150-156, 189
Ogden (Charles) & Richards (Ivor)’
Triangle: 21-22, 29, 36-37, 185
Outward perspective on language: 63-64, 71,
75, 100, 122, 128, 166, 179, 186, 188
Patrimonial kingdoms (rejection by Vattel):
145-146
Peace –
Augsburg (of ): 79-80, 85
Copenhagen (of ): 82
Hubertsburg (of ): 132
Olivia (of ): 82
Pyrenees (of the): 82
Utrecht (of ): 170-171
Westphalia (of ): 3, 50, 79, 82, 91, 96,
186
Peirce, Charles Sanders: 21-22
Peter the Great (Tsar of Russia): 169
199
Pocock, John: 63
Pope (Papacy): 67, 73-77, 82, 120, 122
Positivist law: 176-177
Pound, Roscoe: 138
Pufendorf (von), Samuel: 91, 96, 140-141,
176
Quebec (province of ): 195
Rachel, Samuel: 176
Raison d’État: 124, 169, 171, 177, 189
Reference re Secession of Quebec case:
195-196
Rhetoric: 13, 183
Richelieu (Cardinal de), Armand: 124
Roles of language and myth: 2, 24-26,
35-38, 185, 189-190, 193, 196
Rorty, Richard: 11
Rousseau, Jean-Jacques: 41-42, 143, 173
Russell, Bertrand: 7, 23
Saussure (de), Ferdinand: 16, 17-21, 29, 35
Schleiermacher, Friedrich: 53-54
Semiotics: 17-19, 23-24, 29, 43, 183, 185,
187, 194
Six Livres de la Republique: 95, 104,
106-118, 188
Absolute power: 109
Areas of shared sovereignty (four): 116
Cambridge University (used in): 123
Customs: 114
Deductive method: 106-107
Definition of sovereignty: 106-107
Diagram: 118
English Parliamentarians (used by): 123
Forms of government: 115
French (written in): 180
General assemblies and magistrates:
115-117
German theorists (used by): 123
“Highest unified power”: 107, 109,
117-118, 121-122, 188
Historical context: 118-122
Intellectual context: 120-121
Law of God and of nature: 110-111
Marks of sovereignty (nine): 113
No right to revolution: 109
Perpetual and absolute power: 107-112
Power to make law: 112-115
Social effect of: 122-125, 188-189
Skinner, Quentin: 26, 63
Social power: 1, 4, 185, 189-190, 193-194,
196
Droit des gens (of ): 181-183, 189, 193
Language (of ): 24-26, 30, 185, 193
Law (of ): 41-42
Myth (of ): 38-39, 186-187
Six Livres de la Republique (of ): 122-125,
188
200 INDEX
Society of nations: 161-162, 179, 193
Sovereignty: 3, 50, 100, 185, 194
Abuse of word: 124-125
Canadian federation (and): 196
Definition: 2
Etymology: 99-100
European Union (and): 195-196
External paradigm: 100, 188-191, 193,
195
Externalisation of: 127, 133, 137, 151,
156, 165, 179, 188
Internal paradigm: 100, 188-191, 193,
195
Origin of the idea: 101
State independence: 149-156, 164, 191-192
St. Bartholomew’s Day Massacre: 104, 119
Structuralism: 45-46, 48-49
Switzerland: 88
Textor, Johann Wolfgang: 174
Thirty Years’ War: 3, 68, 70, 75, 81-82, 89,
97, 186
Treaties of Westphalia: 69, 83-91, 186
Religious issues: 85-86, 90
Territorial settlement: 86-88, 90
Treaty-making power: 88-90
Trubetzkoy, Nikolai: 46
Two swords doctrine: 74
United States of America: 181-182
Vattel (de), Emer: 4, 51, 100, 127-183
Burlamaqui, Jean-Jacques (influence of ):
128
Defense du système leibnitzien: 129
Droit des Gens: 130, 133-166
Historical context: 166-179
Leibnitz, Wilhelm (influence of ): 129
Loisir philolsophique (Le): 129
Mélanges de littérature, de morale et de
politique: 131-132
Mémoires pour servir à l’Histoire de notre
tems: 130-131
Personal background: 128-132
Poliergie, ou Mélange de littérature et de
poësie: 131
Questions de Droit Naturel, et Observations
sur le Traité de Wolf : 132
Wolff, Christian (influence of ): 129,
157-158, 160
Vassalage system: 72
Vitoria (de), Francisco: 76-77
Voltaire: 91, 173
War –
French wars of religion: 119
Hundred Years’ War: 79
Nationalism (of ): 167
Roses (of the): 78
Seven Years’ War: 130, 132
Thirty Years’ War: 3, 68, 70, 75, 81-82,
89, 97, 167, 186
Westphalia: 3, 50, 67-97, 185-187,
194
Aftermath: 91-96
Negotiations: 81-82, 89
Netherlands (United Provinces of the)
and: 87
Medieval organisation and institutions:
71-75
Myth of: 70-71, 97, 186-187
Treaties of: 69, 83-91, 186
Switzerland and: 88
Westphalian state system: 67-70, 185
Wheaton, Henry: 67, 190
White, Hayden: 62
Williams, Glanville: 23
Wittgenstein, Ludwig: 8-10, 12, 43
Wolf, Christian: 129, 132, 142, 145,
157-158, 160, 162, 175
Zouche, Richard: 176