1The law common to nations present within the Roman
empire, the jus gentium had
as its vocation to extend to all of them and to
represent, alongside the natural law common to
animate beings, the particular one of humankind.
Grotius reserves natural law to men: jus gentium becomes the law
that independent peoples (the empire no longer
existing) institute to complement the regulation
of natural laws. While accepting this point of
departure (a plurality of independent states), the
other moderns were to refuse (Hobbes, Pufendorf)
or admit (Locke) the existence of a law instituted
by mutual consent and not the decision of a
sovereign. Montesquieu is on Grotius’s side: the
law of nations is part of the positive laws, it is
non-natural, established, with no need of a
sovereign to institute it (EL, I,
3). Yet Grotius’s point of view undergoes three
inflections:
1. The natural laws are
discovered through the hypothesis, absent in
Grotius, of a state of nature anterior to the
establishment of societies: common to animals,
instinctive and affective, they go beyond the
rules taught late by reason (duties toward God,
the mutual necessity of relations with others), at
the end of a process in which the faculty of
knowing is activated and the social bond takes a
human form.
2. Montesquieu uses freely the
Hobbesian notion of state of war: following on the
institution of societies, non-natural
(EL, I, 3), it causes the positive
laws to be established (law of nations, political
or civil law, according to whether it concerns the
settling of relations between nations, between the
government and the governed, or between all
citizens). Between nations, the relation to war is
never eliminated: the things concerned “are of a
nature not to be able to be settled without force
or a suspension of force” (“sont de nature à ne
pouvoir être réglées que par une force ou par une
suspension de force”, Pensées, no.
1814). The law of nations settles the offensive
force of each state (EL, X, 1). In
the mutual relations, princes “are governed by
force; they can continually force and be forced.
Whence it follows that the treaties they have made
by force are as obligatory as those which they
would have made voluntarily” (EL,
XXVI, 20). If treaties suspend only the use of
force and are valid even when they are made under
constraint, there is, as in Hobbes, a state of war
between states, settled and not suppressed by the
law of nations, with however this capital
difference: to be governed by force and what
settles it (the law of nations) is to be deprived
of the freedom that consists of being governed by
civil laws. The law of nations is thus not civil
law. It is however “a civil law, not in truth that
of a particular country, but of the World”
(LP, 91), or yet again “the civil law of the
universe” (EL, XXVI, 1). This is to
play loosely with a Stoic formula: it is each
people and not, in the Stoic manner, each man, who
is a citizen of the universe. The law of nations
is public, it connects governments and not
individuals, it supposes the plurality of peoples
which the size of the planet makes necessary. To
refer to civil law is to refuse to let the law of
nations be foreign to the natural justice that
founds the civil law among individuals. To mark
the limits of this comparison (peoples have
neither a common government nor common civil
laws), Montesquieu defined Jus
gentium as “the political law of nations”:
the veritable law of nations sometimes authorizes
preventive attack, each time a state is too weak
to exert otherwise its right to natural defense,
whereas an individual must abstain from it because
he lives under the protection of civil law
(EL, X, 1 et 2).
3. For Grotius,
all instituted law is voluntary and thus measured
by will. It is the usages to which peoples have
in fact consented that
legitimize rules often more permissive than what
natural defense would authorize, for example the
right to exterminate and enslave the women and
children of the state against which one has waged
a declared war. Montesquieu dispenses with this
reference to will: the law of nations is
established without resulting from a contract;
like any human law, it is related to material
(climate, terrain, mode of subsistence), religious
and political conditions; finally the established
fact (a specific right of peoples, proper to the
Iroquois, the Romans, the Franks or the Tartars)
never makes the veritable law, the law of nations
“based on the true principles” (EL,
I, 3), that which goes no farther than what is
necessary for natural defense (EL,
X, 2, 3), and the exact practice of which
presupposes political (moderation), religious (a
gentle religion) and economic (the progress of
trade) conditions.
Bibliography
Mark H. Waddicor, Montesquieu and the Philosophy of Natural Law, La Haye (The Hague): Martinus Nijhoff, 1970.
Marc Belissa, “Montesquieu, L’Esprit des lois et le droit des gens”, in Le Temps de Montesquieu, Michel Porret et Catherine Volpilhac-Auger ed., Geneva: Droz, 2002, p. 171-185.
Jean Terrel, “À propos de la conquête : droit et politique chez Montesquieu”, Revue Montesquieu 8 (2006), http://montesquieu.ens-lyon.fr/spip.php?article330.
Jean Terrel, “Sur le livre X de L’Esprit des lois : le problème de la conquête”, (Re)Lire L’Esprit des lois, Luigi Delia et Catherine Volpilhac-Auger ed., Publications de la Sorbonne, 2014, p. 107-122.