NEW PAPER ON SSRN: History in Legal Doctrine. Vattel and Réal De Curban on the Spanish Succession (forthcoming)

(image: Vattel's Le droit des gens, 1758 edition; source: Liberty Fund)

 
With the kind permission of the editors, I posted "History in Legal Doctrine. Vattel and Réal De Curban on the Spanish Succession" (22 p.) on the Social Science Research Network. This paper was presented at the Belgian-Dutch Legal History Colloquium, and will be part of its proceedings.

Abstract:

The War of the Spanish Succession (1701-1713/1714) counts as a continent- and even world-spanning confrontation among the main European powers. Its long shadow hung over diplomacy for almost three decades until a new world conflagration arose in 1740. The war remains a subject of controversy in diplomatic history, and has been of paramount importance to contemporary eighteenth-century journalists, historians, philosophers and legal scholars. "La dernière guerre" counted as an anti-norm, a situation never to return to, and a permanent deterrent. Yet, as time progressed another conflicts dominated the world stage, the conflict became an object of legal writing, as it seemingly lost much of its contentiousness. Emer de Vattel (1717-1767), author of the much-acclaimed Droit des gens (Leiden: 1757) and abbot Réal de Curban (1682-1752), whose Science du Gouvernement (Paris: les libraires associés, 1764) covers the law of nations as well, took the war as an object to illustrate diverse themata of the law of nations: treaties, ius ad bellum, embassies or alliances. The aim of the present paper is to demonstrate how Vattel, writing from a specific Swiss and German perspective, took a different strand of argumentation from that of Réal de Curban, who repeated at several instances the French crown's point of view. Although both authors' use of historical material evokes strict objectivity, they continued the war in their selective use of exempla. Whereas Réal has fallen into relative oblivion, Vattel counts among the classics of International Law. Consequently, the image of the war in doctrine tends to be one-sided. Incoherences and contradictions in Vattel's work are not uncommon. The War of the Spanish Succession can serve as an example of the gulf between doctrinal tradition and practical legal argumentation, or of the instrumental use of history in two distinct elaborations of a shared natural law-framework. Classifying Vattel as a "Tier I"-author and Réal as inferior is not a neutral operation.

(Distributed in SSRN-e-Journals Law&Humanities vol. XIX (2015), No. 46 Jun), Law& literature Vol. IX (2015), Issue 10 (Jun), Legal History, vol. XIX (2015), No. 67 (Jun), Public International Law: Human Rights, vol. II (2015), No. 93 (Jun), Public International Law: Foreign Relations & Policy Law, vol. II (2015), No. 36 (Jun), Conflict Studies: Intra-State Conflict, vol. II (2015), No. 23 (Jun), Social & Political Philosophy, vol. VIII (2015), Issue 117 (Jun)).

(See also: Law & Humanities Blog)

Update 30/07/2015: The book has now appeared with Maklu publishers (click here), or check the preview on Google Books.

MASTERCLASS: International Law and Constitutional Development in 19th Century Europe (Ghent Law Faculty, Moot Court Room, 25 June, 14:30)

On Thursday 25 June, I will give a masterclass with dr. Judit Beke-Martos (Universität Jena/Universität Mannheim, currently Visiting Fellow at the Ghent Legal History Institute) on International Law and Constitutional Development in 19th Century Europe. All participants are welcome, either to listen or to engage in a hopefully lively and stimulating discussion.

The event takes place at the Ghent Law Faculty, in the Moot Court Room at 14:30.

Summary:

Present-day lawyers look back at the 19th century as a repository of amusing “antiquities”, or, at best, as the cradle of the Belgian Constitution or the Civil Code. Politicians often snub the era of “Napoleon” or “old jurisprudence”, either by blatant ignorance or shrewd opportunism, in order to sell own short-sighted ad hoc “réformettes” in a 16 seconds-quote. Yet, the study of the past offers a unique surrogate for lack of personal experience. As such, legal history is the most valuable asset for policy-makers and an efficient handmaiden for scholars interested in the structure of legal rules.

The present interactive masterclass proposes to address the highly political issues of legitimacy, sovereignty and multi-level governance. An evergreen of legal theory, public law and international law, but an especially challenging and relevant topic for the “century of revolutions” stretching from 1776 to 1917. The masterclass will consist of two parts. The first section will be a presentation by dr. F. Dhondt (UGent) on public international law. Dr. J. Beke-Martos (visiting in Ghent, Univ. Mannheim/Jena) will present the case of constitutional order in the composite Austro-Hungarian monarchy.

Registration required: Karin.Pensaert@UGent.be.
More information here.

Update (1 July 2015): slides available in the UGent Repository.