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.