Second, aggrandizement—so integral to the stature of the kingly state—was replaced by the goal of secure “barriers” to such a degree that claims for new accessions were universally clothed in the language of defensive barriers. Aggrandizement per se was frowned upon and even regarded as illegitimate.
Third, the word state underwent a change.8 A “state” became the name of a territory, not a people, as would occur later when state-nations began to appear, nor a dynastic house, as was the case at Westphalia. Bolingbroke, characteristically, swiftly picked up on the difference. When commenting on the dilemma facing Louis over Carlos's will, Bolingbroke wrote that “adhering to the partitions seemed the cause of France, [whereas] accepting the will [seemed] that of the House of Bourbon.”9
Fourth, whereas the kingly states had seen a balance of power as little more than a temptation for hegemonic ambition to upset, the territorial states viewed the balance of power as the fundamental structure of the constitutional system itself. “The concept was no longer applied simply as a procedural rule (‘counteract any power if and when it threatens to become dominant‘), but as a device for controlling and planning—in advance, on this occasion—the structure of the system as a whole.”10
At Utrecht, a new conception of the balance of power made its historic debut. Its novelty arose from the change the states of Europe were undergoing in their domestic constitutional orders. As the territorial state replaced the kingly state, the idea of the “balance of power” moved from providing the occasions for sovereign action to animating a constitutional structure for collective security itself. Consider this passage from one of the renunciation documents produced by the Congress and signed by Louis XIV's grandson, the Duke de Berry:
All the powers of Europe finding themselves almost ruined on account of the present wars, which have brought desolation to the frontiers, and several other parts of the richest monarchies among states, it has been agreed in the conferences and peace negotiations being held with Great Britain, to establish an equilibrium, and political limits between the kingdoms whose interests have been, and still are the sad subject of a bloody dispute; and to consider it to be the basic principle of the preservation of this peace that it must be ensured that the strength of these kingdoms give reasons neither for fear nor for any jealousies. It has been thought that the surest way of achieving this is to prevent them from expanding, and to maintain a certain proportion, in order that the weakest ones united might defend themselves against more powerful ones, and support one another against their equals.11
All of these developments are evident in the exchanges between the two principal negotiators at Utrecht, Bolingbroke and Torcy.
The immediate problem lay in persuading Philip V, king of Spain and prince of the French royal line, to give up one kingdom or the other in order to forestall the situation in which he, through a series of deaths in his family, might unite the two crowns in one person. This diplomatic objective underscored the preventive nature of the territorial states' concept of the balance of power, and the structural role of this concept. The issue was given new intensity in 1711–1712 – 1712 by the deaths of three heirs to the throne of France. When in March 1712, Torcy told Bolingbroke of the death two days earlier of the Duke of Brittany, only his younger brother—a child of two who was suffering from the same disease as the little duke who had just died—stood between Philip and the French crown. There immediately ensued an exchange of proposals between Bolingbroke and Torcy that unmistakably disclose the changed world of the territorial state confronting the world of the kingly state that it would supplant.
Bolingbroke began by urging that Philip simply renounce his right of succession to the crown of France, and retain the kingdom of Spain he was at present governing. Torcy demurred; succession was a matter of divine will—a principle of the kingly state—and could not be lawfully altered. Torcy proposed that if Philip became king of France, he could at that point abdicate the throne of Spain in favor of his brother, the Duke of Berry, another of Louis's grandsons.
Bolingbroke took this counterproposal as evidence that a renunciation document could be effective: on the premise of Torcy's counterproposal, if Philip's “right to the crown of France comes to take place, he is not to enjoy both [crowns]; [but] how can he choose if he cannot renounce either? And can he renounce the crown of France, and not the right of it?”12 Bolingbroke wrote Torcy:
We are happy to believe that you in France are persuaded that God alone can abolish the law upon which your right of succession is founded, but you will allow us to be persuaded in Great Britain that a prince can relinquish his right by a voluntary cession and that he, in favour of whom the renunciation is made, may be justly supported in his pretensions by the powers who become guarantors of the treaty.
In this passage are the characteristic markers of the society of territorial states: the downgrading of the dynastic principle; the willingness to subordinate the rights of sovereigns to the interests of the states involved; and the use of collective security guarantees to ensure the balance of power itself.
When Torcy countered with a proposal that Philip commit himself at Utrecht to renounce one crown or the other in the event of a potential union, Bolingbroke underlined this essentially structural goal, and its difference from the Westphalian model of intervention: “You will say, all the powers are guarantors of this agreement; such a guarantee may really form a powerful alliance to wage war against the prince who would violate this condition of the treaty; but our object is rather to find out the means to prevent, than to support, new wars…”13
Accordingly, Bolingbroke argued, Philip must make his renunciation now: then the guarantee of “the powers of Europe” only had to prevent Philip from reversing his word and seizing one of the two states, as opposed to forcing him to give up a state which he had already invested. Torcy replied: “A rapprochement is easily brought about… [Philip V] must remove the disquietude of Europe by an immediate declaration of the part he will take should the succession be ever open to him.”
Torcy spoke from a perspective that sought to preserve the sovereign scope of action for Philip. All of his concessions amounted to promises to take a course of action in the event a certain situation arises; they were “promises to make a promise.” By contrast, Bolingbroke sought a decision that would foreclose Philip's freedom of action. He justified this on the basis of an appeal to the balance of power and the good of the society of states. This difference in perspective—kingly versus territorial state—put the two men on different wavelengths. Bolingbroke at this point exasperatedly remarked:
The French have undoubtedly a great advantage in treating in their own language, and I can easily believe that some of the expressions in my letter to Monsieur de Torcy may have been either faint, improper or ambiguous; but surely the whole tenor of them makes it plain that we never intended to separate the option and the execution of the option.*
Now the British put a new proposal on the table. Through a complicated set of contingencies, France was to receive Savoy and Piedmont if Philip agreed to stand down from the Spanish throne immediately, the Duke of Savoy replacing him. Having swapped titles with the duke, Philip would then carry Savoy with him when he inherited the French throne. If, on the other hand, Philip chose to remain king of Spain, he would renounce the French crown at once, and the House of Savoy, not Bourbon, would inherit the Spanish crown if Philip's line were to die out.
This scheme had the virtue of enlisting the energies of Louis because it promised an enlargement of his holdings. To this extent it was a Westphalian solution deployed for Utrechtian goals, as the balance of power would be maintained by separating the French and Spanish dynasties. Once he learned of the British offer, Louis pressed his grandson to give up Spain. Louis wrote Philip: “Should gratitude and affection for your [Spanish] subjects be strong inducements with you to adhere to them, I can tell you that you owe those same sentiments to me, to your family, and to [France]… I now call upon you to
show me their effects.”14
Philip complied, though he surprised his grandfather by choosing to renounce the throne of France and remain in Madrid. He had acquiesced to a plea from the old world of kingly states, but the effect was to ensure the success of the new world of territorial states. The treaty process now proceeded to a conclusion in the series of agreements known as the Peace of Utrecht. The elaborate French rituals of precedence that had so bedeviled sessions at Westphalia were dispensed with; it was agreed that the delegates would enter the meeting rooms in no fixed order and sit where they liked. As at Westphalia, the constitutional role of the congress was indicated by its power to recognize new states as members of the society of states. At Utrecht, Brandenburg appealed for such recognition and received it; henceforth the kingdom of Prussia was a member of the society of states, entirely apart from Brandenburg's role in the empire. The acquisition of defensive barriers15 dominated the negotiations (in contrast to the rights to “compensations” at Westphalia). These arguments were necessarily clothed in the language of a systemic balance of power, even if the motives of the negotiators were sometimes indistinguishable from simple aggrandizement.
The Utrecht settlement and the regime it created brought about a major transformation of the international system… After Utrecht—with its emphasis upon, and indeed development of, the “Public Law of Europe”—there was a greater collective concern for preserving stability. Policymakers were therefore functioning in a new decision-making environment after Utrecht, basing their policies upon assumptions and interests quite different from the years before 1713.16
This assessment reflects a consensus among historians about the significance of Utrecht; that this significance lies in its constitutional aspects is less generally emphasized.
CONSTITUTIONAL INTERPRETATION: THE INTERNATIONAL JURISTS
The balance of power was a constitutional concept for the society of European states, and also, as we saw in Book I, played a similar role in ordering the internal relationships of the states that composed that society. Indeed historians have only recently come to appreciate the complicated means by which the territorial states that were later characterized as the states of the ancien régime maintained the principles of an internal balance of power, in contrast to the absolutism that preceded them. But why did the balance of power, a concept long antedating the modern state, 17 achieve such a pervasive dominance in the society of territorial states?
Territorial states are so named owing to their preoccupation with the territory of the state. As part of the Treaty of Utrecht, the first agreements were introduced fixing customs duties levied at the state frontier and diminishing the role of internal customs duties. The “most favored nation” clause makes its appearance at Utrecht. This attentiveness to commercial matters—the peace was accompanied by an extensive series of commercial treaties among the signatories—is also characteristic of the territorial states. Rather than focusing on the communities and towns that defined the boundaries of the kingly state, the territorial state attempts to fix a frontier boundary, a line, that marks the jurisdiction of the state. These boundaries are crucial if bartering is to take place, and dynastic rights to be ignored, in maintaining the balance of power, so we may say that for this reason also the territorialism of the eighteenth century state favored a system of perfecting the balance of power among states—but why did these states seek such a system in the first place?
The territorial state aggrandizes itself by means of peace because peace is the most propitious climate for the growth of commerce. Maintaining the balance of power was believed to be the way to maintain peace; and in fact the so-called cabinet wars fought for strictly limited territorial objectives replaced the religious wars of the previous century that were potentially limitless in their destruction. As this new constitution took hold in Europe, a new international jurisprudence accompanied it. International law, which had, as we have seen, been influenced by Catholic theology in the period of the princely states and by Protestant theology in the time of kingly states, now found itself in the hands of deists, those empirico-rationalists who believed in a divine order that ordained and was constrained by the rules of reason. The most powerful and influential of the philosophers of this period, Berkeley and Leibniz, took a very different view of the human condition than had Hobbes and Spinoza. This new perspective, with its emphasis on human freedom and the role of human perception, was crucially influential in the work of the two writers who dominated international jurisprudence during the era of the territorial state: Christian Wolff and Emmerich de Vattel.
The political theories that supported absolutism, like those of Thomas Hobbes, were consistent with assumptions about the behavior of individuals: because, like the State, the individual sought only to preserve himself in a conflict over the resources necessary for self-preservation, and to aggrandize himself at the expense of others in order to better ensure his survival, he would unceasingly pose violent threats unless prevented from doing so by an even more powerful individual. Only an all-powerful person could bring order to the natural and otherwise inevitable and continual chaos of human conflict. These ideas were the intellectual basis for the kingly state; Grotian ideas of a society of states had to contend with the wilful elements of which that society was composed.
The Westphalian settlement, which affirmed the absolute and mutual independence of all the sovereigns, created an uncivilized system. It encouraged war because differences between princes must be resolved by the right of the strongest. Insecurity reigned.18
In contrast, the settlement at Utrecht depended upon very different ideas about the nature of states, though these too were consistent with, perhaps even extrapolated from, assumptions about individuals. Leibniz held, for example, that the naturalistic view of human nature given by Hobbes was too fragmentary to be accurate. The key to human behavior was not compulsion and inevitability, but free will, and the society of free human beings was characterized not only by self-preservation, but by development. Leibniz opposed Hobbes's view that absolute sovereignty was essential to justice because Leibniz saw in human nature a will to cooperate that had its basis in the need for individual development. Law was not founded on the exercise of raw power, but rather it reflected practical arrangements that enabled the pursuit of human happiness. Thus the operation of reason, which Grotius saw as the unifying element in international law, was for Leibniz the tangible expression of this inner human desire for pursuing and nurturing happiness.
Much about the Grotian order appealed to Leibniz: he approved of the essential Grotian premise that there were deep principles of human nature that were reflected in experience but were independent of that experience. Moreover, he endorsed the most controversial of Grotius's positions, that natural law would be the same even if there were no God, a view that Pufendorf derided as “impious and idiotic.” Actually, this position made good sense if, as I have argued, natural law for Grotius was not a set of substantive rules but rather the operation of reason itself, of rule making. But Grotius had agreed with his contemporaries about the need for a domestic absolutism; he was, after all, the international spokesman for the kingly state. Leibniz rejected this necessity (and the views of human nature on which it was founded) and replaced Grotius's deterministic account with concepts of free will. It was the paradox of free will, by which happiness was maximized but the possibility of error enshrined, that drove justice, according to Leibniz. Therefore there was no necessity for an overarching sovereign on an international scale. The division of the society of states into separate sovereignties was not fatal to international law because all the constituent members were moved to act in accord in order to develop; their very freedom to act, in which Hobbes saw the state's will to war, instead made possible the realization of peace and cooperation. True, it also made war possible, but there was no condition of international relations in which this was not the case, because the possibilities of free will always included the option of error, and even the pu
rsuit of evil. For this reason, moral values were an inescapable part of the natural order—they played a role when men were free to choose.
WOLFF
Leibniz's most celebrated apostle was Christian Wolff, a German Enlightenment figure of polymath scope. Born in 1676, he ultimately became the principal apologist for the territorial state and came to regard Frederick the Great as the model of a “philosopher king.” His sympathy for natural religion, a kind of deism, drew criticism from his colleagues at the University of Halle, and when, in a public address in 1719, he pointed to certain non-Christian rulers as exemplary, he caused a public sensation. In 1721 Frederick William I (the father of Frederick the Great) suddenly ordered Wolff into exile on pain of hanging, probably as a result of a campaign against him by the Protestant orthodoxy. Wolff immediately became a figure of European fame, a martyr for the Enlightenment. He took up a new post at Marburg and remained there for some years, despite the remorse of Frederick William and the latter's repeated efforts to bring Wolff back in honor. When Frederick the Great became king in 1740, one of his first acts was to extend to Wolff a generous and public invitation to return to Halle, which Wolff accepted, remaining there until his death in 1756.
Of the leading Enlightenment figures, only Wolff took a particular interest in the law of nations. In his writings, he followed Leibniz. Hobbes and Spinoza had taken the society of nations to be a kind of presocial jungle, replicating at the international level that world of human beings that had existed before the appearance of the absolute sovereign. Wolff accepted that society reflected nature—the nature of human beings. As Leibniz held, however, Wolff believed that it is in the nature of man not simply to preserve himself, but to seek to thrive and mature, to realize a potential to achieve harmony, a potential that is embedded in the possibilities of free will. Therefore the formation of states without a common sovereign, even if it did create a “state of nature” on the international scale, did not create a lawless jungle. Accordingly the interests of any state must include the promotion of this developmental aspect of human beings. In a concept remarkably characteristic of Frederick the Great and of the territorial state, Wolff held that states have fundamental interests derived from their obligation to themselves. These obligations include self-preservation and the development of the human resources of the state. This desire for harmony pre-exists the State and is residually existent also in the society of states. The obligations of one state to other states are nascent, “imperfect,” until they are perfected through treaties.
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