In his excellent 1976
study of Montesquieu and the Old Regime,
Mark Hulliung gives a vivid account of Montesquieu’s attitude toward “The World
of Leviathans” encountered in the 18th century. In the course of his
analysis Hulliung provides a commentary
on the relationship between Grotius and Machiavelli, of the law of nations and realpolitik,
that is startling in its implications:
* * *
By Montesquieu’s day, the Leviathans which had arisen at the
time of the Reformation were more menacing than ever. “Since Louis XIV,” he
complained, “there is nothing but great wars: half of Europe against half of
Europe,” a view historians have corroborated by referring to the Sun King’s
final conflicts as “the first world wars.” . . .Leviathan was a predator intent
on conquest, and everywhere it spied potential victims. There were other
Leviathans it hoped eventually to subdue, and in the meantime it could feast on
easier prey. To the Americas and the Orient it raced, knowing full well how
vulnerable those territories were. A great age of imperialism was at hand as
the struggles of the European Leviathans overflowed into the remote corners of
the earth. . . .
Such was Montesquieu’s immediate “is” of international
relations, the descriptive “is”
preceding theoretical explanation and understanding. “Ought” follows quickly on
its heels and assumes the form of a total rejection. Always morally outrageous, wars are never
legitimate, except when fought in self-defense. A state may not attack until it has been
attacked, unless a preventive war is its sole hope of survival. Lest prevention be construed as pretext for
attack, Montesquieu spells out its proper implications: "small states have
more often a right to declare war than great ones, because they are more often
in the situation of being afraid of destruction." Once victorious, the state forced to conquer
against its will remains bound by morality and may not fatten itself at the
expense of the loser. Success creates no
rights of rape and pillage, but the conquering state does incur additional
duties. "The right of . . . conquest I define thus: a necessary, lawful,
but unhappy power, which leaves the conqueror under a heavy obligation of
repairing the injuries done to humanity."'
Sometimes a prohibition of gratuitous violence, sometimes a
regulation of necessary force, the "ought" of international relations
can always be traced back to one value source. "The right . . . of war is
derived from necessity and strict justice."
In international relations, as at every
critical juncture, justice emerges as
the inexpendable evaluative principle of Montesquieu's thought. . . .
"Love of country, throughout history," Montesquieu
charged, "has been the source of the greatest crimes, because general
virtues have been sacrificed to this particular virtue.” Unwilling to allow that love of family entails
hatred of countrymen, he was also unwilling to allow that love of countrymen entails
hatred of foreigners.
To say that justice is the only general virtue is, then, to
interpret it as a rank-ordering device that puts the moral life of the group to
the test, granting it everything except the right to victimize outsiders.
Within a country, the legal system counteracts the moral liabilities which are
inseparable from the moral assets of the group. Whenever familial ties or the
bonds of friendship are manifest as an aggressive extended egotism, justice can
be asserted through the realm of law. Within international politics, however,
lawlessness abides, and each Leviathan is for itself. Hence Montesquieu's
concept of justice as a kind of super-value situated above a ladder of
particular virtues laden with the content of social and group relationships.
Making certain each rung in the ladder gets its due, but no more, is the
function of justice.
All we need add, now that the meaning of justice has been
determined, is that this norm applies to all times and places. Unlike the
Stoics of Hegel's interpretation, Montesquieu was not an advocate of a bogus
world citizenship and universal ethics because the genuine citizenship and
ethical life of the polis was no more. In Montesquieu 's opinion, the true
heroism of civic virtue can no more excuse unnecessary killings than can the
false heroism of honor.
Nor, however, was Montesquieu's opposition to war the
product of cosmopolitan sentimentality. More than the philosophes, he knew how unreal "humanity" is, how real a
Frenchman or Spaniard is. And he knew as well as Rousseau or Hegel how much the
substance of ethical life belongs to the community and not to the world.
Montesquieu's membership in the "party of humanity" diverges from the
position of the philosophes in being
entirely negative or remedial. His normative guidelines do no more than
indicate what a polity may not do to its fellow polities. They give to the
community what is the community's, most of all ethical life and the maximal
content of justice, but take from it the sword of doom.
At last both the "is" and the "ought" of
international relations are clarified. Destructive Leviathans constitute the
"is," and an antidotal concept of justice constitutes the
"ought." But instead of a solution, the upshot is a problem grown
more acute than ever. How can the "is" be forestalled from shaking
off the "ought"? How can "ought" be proven something more
than Montesquieu's personal "ought"? A bond had to be formed between
empirical and normative so that the "ought" could be solidly grounded
in, and follow inescapably from, the "is."
Natural law philosophy, in alliance with the "law of
nations" school, was the established genre in which a bridge had been
built between "is" and "ought." But Montesquieu bitterly
denounced the revitalized natural law/law of nations of Grotius, and for good
reason. Norms had indeed been saved from irrelevant transcendence by the author
of The Rights of War and Peace, but
they were plunged so deeply into the empirical world as to be swallowed by it.
Interpreters miss the mark, historically speaking, when they dwell on Grotius'
belief in an a priori natural law.
The keenest political minds of the old regime —Montesquieu and Rousseau — were
surely correct in concentrating on the a
posteriori version of Grotian natural law, for it was this which informed
everything Grotius had to say about international relations. Rousseau stated
the case against Grotius most succinctly: "His constant manner of
reasoning is to establish right by fact. A more satisfactory mode might be
employed, but none more favorable to tyrants."
At the start of his treatise, Grotius sets out to impose the
yoke of legality upon masterless Leviathans, but by the end he has studded his
performance with so many rationalizations and apologetics that Leviathan can
find excuses for the worst of crimes. How is this possible? Purely intellectual
factors provide part of the answer. An a
posteriori determination of natural law and a prescriptive law of nations
can be learned, Grotius argued, from the practices common to most civilized
nations. But it was not the practices of contemporary powers to which he was
attentive. Accepting the Renaissance penchant for classical pedantry, he turned
antiquity upside down and shook examples of foreign politics from it. The
momentous consequences of this procedure were not lost on Montesquieu.
The authors of our public law, guided by ancient histories, . . . have fallen into very great errors. They have adopted tyrannical and arbitrary principles, by supposing the conquerors to be invested with I know not what right to kill: from this they have drawn consequences as terrible as the very principle, and established maxims which the conquerors themselves, when possessed of the least grain of sense, never presumed to follow.
Machiavelli would have savored the irony of having Grotius,
an international lawyer, as his accomplice. "Those cannot be considered
wars in which no men are slain, cities plundered, or sovereignties
overthrown," wrote the great Florentine who wanted nothing to do with the
halfhearted bloodletting of modern times. Christianity was the culprit. Its
influence on "the way of life and values of mankind" was evident in
the regrettable contrast of the ancient and modern laws of nations. Greeks and
Romans, unlike the moderns, were never squeamish in dealing with their victims.
"Then, all who were vanquished in battle were either put to death or
carried in perpetual slavery into the enemy's country where they spent the
remainder of their lives in labor and misery. . . . But at present, those
terrible apprehensions are in great measure dissipated and extinguished."
Things had degenerated to such an impasse, the will to power was so enfeebled,
that fighting a war was no longer a profitable venture.
The predilection of Grotius and his kind for antiquity could
mean but one thing. Thinkers in the law of nations tradition were giving back
to Machiavelli everything the modern age had denied him. Rights of conquest, enslavement, and pillage
were affirmed. From one perspective a posteriori natural law had added
"ought" to a preexistent, morally noxious "is"; from
another perspective it went further by encouraging the development of an
"is" far exceeding the evil already existent. Grotius had set out to
subject a Machiavellian international reality to legality; he finished by
making legalism an extension of Machiavellism. As Montesquieu insisted, the
effect of international law was "to erect injustice into a system."
* * *
Mark Hulliung, Montesquieu
and the Old Regime (Berkeley: University of California Press, 1976), pp. 173-77.
