June 10, 2015

Legal Theorists On the Spanish Succession

Frederik Dhondt, Research Foundation Flanders, Department of Interdisciplinary Study of Law, Private Law and Business Law, Legal History Institute, is publishing History in Legal Doctrine. Vattel and Réal De Curban on the Spanish Succession in Rechtsgeschiedenis op nieuwe wegen: Legal History, moving in new directions (D. De ruysscher, B. Deseure, K. Capelle, M. Colette, & G. Van Assche, eds.; Antwerp: Maklu, 2015). Here is the 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.

Download the essay from SSRN at the link.

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