Machiavelli and His Influence On Modern International Law Victory Goes To The Swift, The Strong, and Sometimes, The Ruthless
Machiavelli and His Influence On Modern International Law Victory Goes To The Swift, The Strong, and Sometimes, The Ruthless
Machiavelli and His Influence On Modern International Law Victory Goes To The Swift, The Strong, and Sometimes, The Ruthless
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CHAPTER TWO
AN ABBREVIATED LOOK AT GREEK POLITICAL THEORY
If current realists such as Goldsmith and Posner do not fit
precisely the mold of realists in the Machiavellian vein of realism, they
certainly owe much of their political philosophy to that school of
thought. They follow in a long line of realistic political thinkers. An
examination of the antecedents of political realism will help us to
recognize the debt all realists owe to the long realist tradition that was
first described by Thucydides (c. 460-400 BC) in The War of the
Peloponnesians and the Athenians. In Thucydides account of a
meeting between Athenian and Melian diplomats over the
independence of the island of Melos, the Melians objected vehemently
to the Athenians that their invasion of Melos was unjustified. As
recounted by Thucydides, the Athenians responded as follows to those
protestations:
For ourselves, we shall not trouble you with
specious pretenses . . . and make a long speech that
would not be believed . . . since you know as well as we
do the right, as the world goes, is only in question
between equal power, while the strong do what they can
and the weak suffer what they must.23
The Athenians cited neither law nor morality as a basis for
their use of superior power. To them, the reality of the situation was
simple: you are weak and we are strong; our interests oblige us to take
over your island; you will do as we command. Even before the war
commenced, Athenian citizens had defended Athens right to an
empire, by brazenly asserting in a meeting before the assembly of
Sparta:
We have done nothing extraordinary, nothing contrary
to human nature in accepting an empire when it was
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Id. at 1.80.
LEO STRAUSS, HISTORY OF POLITICAL PHILOSOPHY 1-2 (Leo Strauss &
Joseph Cropsey eds., The University of Chicago Press 3rd ed. 1987).
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Id. at Book III (the elite rulers are to be trained separately from, and
differently than, the merchant and artisan class. The aim of society is to
create a ruling caste that is capable of true knowledge).
Id. at Book VI (especially lines 509b through 511b, where he introduces his
famous concept of the divided line).
Id. at Book VII.
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called for, but they are not the sweeping, revolutionary concepts of
Plato. In the very first chapter of The Politics by Aristotle, he writes:
Observation shows us, first, that every state
[polis] is an association; and, that every association is
formed with a view to some good purpose. I say good,
because in all their actions all men do in fact aim at
what they think good. Clearly then, as all associations
aim at some good, that association which is the most
sovereign among them all and embraces all others will
aim highest, i.e. at the most sovereign of all goods.33
There are several striking differences between Platos
and Aristotles approaches. First, observation is a valid method
in approaching truth. Unlike the murky shadows in Platos
cave, Aristotles vision is clear and trustworthy. Second,
political associations between persons of different backgrounds
are judged as good. These associations (family, city, state) are
teleologically destined to be good because they are observable
in the nature in which humanity finds itself. In this sense,
Aristotle is a practical realist as contrasted to Platos idealism.
Aristotle conflates a well managed city with the good. The
populace must be good; the rulers must be virtuous. The state is to be
an instrument of virtue, for a virtuous person strives for individual
good (health, money and family ties, all in moderation) and that leads
to the collective good. Although Aristotle can be considered a realist,
he is not the same kind of realist described by Machiavelli and those
that followed him. Here are some ways in which they differ:
1. As we shall see, Machiavelli sees the state not as an agent of
virtue, but as an instrument of virt, a masculine force that
allows an individual to assert his will.
2. Machiavelli warns his Prince that chasing ethereal principles
will bring the ruler to his ruin. Politics reflects life, real life, not
ethereal dreams.
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CHAPTER THREE
CICERO, AUGUSTINE, AQUINAS,
AND NATURAL LAW
Natural law is an ethical concept that presents a set of
principles based on what the theory assumes to be the permanent
characteristics of human nature that can serve as a standard for
evaluating personal conduct and civil laws. Natural law is contrasted
with civil, positive lawthe enactments of a sovereign that bind its
subjects. With respect to the study of jurisprudence, Murphy and
Coleman state that Natural law theories maintain that there is an
essential (conceptual, logical, necessary) connection between law and
morality. 36 A leading contemporary natural law scholar, Oxford and
Notre Dame Professor John Finnis, says we can, in a broad sense:
[S]peak of laws wherever we speak of normativity, that
is of general directions considered as counting . . . in
ones deliberations about what to do . . . . Though it too
has a range of meanings, natural can be used to
signify that some of those criteria or standards are
somehow normative prior to any human choices.37
Thus, Natural law, then, is one of the theories that intersect the
rules of ethical conduct and the civil laws that govern humans. The
concept is as old as the ancient Greeks. Heraclitus (c. 500 BCE)
claimed that a divine wisdom infuses the universe and that all civil law
springs from the divine.38 Plato and Aristotle argued against the notion
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that the only standards of action are those that are created by positive
social facts, customs, or commands.39
Zeno (334-262 BCE) introduced Stoicism at the beginning of
the third century BCE. Central to Stoicism was the concept that moral
and natural law were the same. Upon death, philosophical detachment
from good and evil or pain and pleasure was emphasized, because only
in that way could one exercise good reason. The universe was said to
consist of a living, material, reasoning substance known as Nature or
God, which is the guiding principle of all being, including human
existence. To use reason means not only using logic, but also to
understand the natural processes, or universal reason, inherent in all
things. In order to lead a happy, fulfilled life, one must live according
to reason, that is, Nature.40
Marcus Tullius Cicero (106-43 BCE) was a Roman statesman,
orator, and writer, but not, strictly speaking, a philosopher. In Rome,
he studied law and oratory. In Greece, he continued his philosophical
studies and inquiries. Cicero was eclectic in his thinking, adopting
parts of a philosophy while adopting other parts of the same
philosophy. Cicero was familiar with the Roman concept of the law of
naturejus naturalthat came from the Greek Stoics.41
Roman concept of the law of naturejus naturalcomes from
Greek Stoics (third century BC). In discussing the Stoic viewpoint,
Cicero wrote:
He who is to live in accordance with nature [as Stoics
recommend] must base his principles upon the system
and government of the entire world. Nor again can
anyone judge truly of things good and evil, save by a
knowledge of the whole plan of nature and also of the
life of gods, and of the answer to the question whether
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Id. at 15.
NUSSBAUM, supra note 41, at 45.
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CHAPTER FOUR
MACHIAVELLI'S REVOLUTION
Machiavelli and The Prince are considered important today
because the modern approach to political science began with
Machiavelli and continued with Thomas Hobbes, writing in England a
century later. Machiavelli is often counted as the first modern political
scientist, searching for natural explanations of how things function
without references to Nature or God. Like Aristotle and Plato,
Machiavelli was familiar with compact city-states created by humans.
He searched the laws that governed the founding and operation of a
successful state. He believed he found them in history and the very
nature of humans.
Machiavelli lived during the height of the Italian Renaissance.
In the years preceding his writings, Western Europe, especially Italy,
was undergoing dramatic political and cultural changes. Feudalism
was dying. Commercial activity was on the rise. The medieval concept
of unity was losing grounds to an individualistic humanism. Before
examining Machiavellis role in the dramatic changes that took place,
it is instructive to resume the analysis of the role that those thinkers
who succeeded the Greeks had on western thought.
Machiavelli was somewhat acquainted with Greek thought, but
his studies of the ancients concentrated on the Romans. He was
familiar with Cicero and his writings. Among his many works, Cicero
wrote two dialogues: On the Republic and On the Laws. These
dialogues recalled those of Plato in title and form. Ciceros
conclusions, however, differed substantially from Platos. In On the
Republic, Cicero portrays a discussion among political and intellectual
leaders concerning the best form of government. In contrast to Platos
Republic, where the best regime is entirely hypothetical, Ciceros
characters accept that Romes mixed constitution was best. Similarly,
in Ciceros On the Laws, the characters do not discuss theoretical legal
systems as they do in Platos Laws. Instead, they focus on the laws
promulgated for Roman citizens.
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56
57
J. Jackson Barlow, The Fox and the Lion: Machiavelli Replies to Cicero, 20
HISTORY OF POLITICAL THOUGHT 627-45 (1999).
Id. at 636.
Id. at 637.
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seguendola sarebbe la ruina sua: e qualcuna altra cosa che parr vizio e
seguendola ne nasce la sicurit e il ben essere suo.).
Id. at 273 (quoting Francis Bacon in the Marginalia).
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68
MACHIAVELLI, supra note 64, at Ch. 18 (the Italian reads: quelli principi
avere fatto gran cose che della fede hanno tenuto poco conto, e che hanno
saputo con l'astuzia aggirare cervelli delli uomini; et alla fine hanno
superato quelli che si sono fondati in sulla lealt.).
Id. (the Italian reads: Per tanto a uno principe necessario sapere bene
usare la bestia e lo uomo.).
Id. (the Italian reads: Coloro che stanno semplicemente in sul lione non se
ne intendono.).
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those laws). Constitutions and civil laws are human creations, not
divine constructs.
Although he liberally sprinkles his works with references to
Fortuna, that demigoddess of history that controlled human fate, not
once does he invoke divine providence to explain a historical
occurrence or to solve a problem of politics or war. The instability that
was beleaguering Italy was the cause of continuing cycles of war,
death, and poverty. Monks, priests, and philosophers might preach the
delights of a distant and unseen heavenly city, but they were unable to
cure the Italian disease. He, on the other hand, wanted to solve the
ever-present pain of this earthly domain.
Machiavelli felt strongly that Italy and Italians were enfeebled
and that the ancient Roman virt had gone into hiding. He laid the
blame on the philosophers, who had defined the good life as the
leisurely contemplation of ideas and concepts, and on the Christians,
who had preached that the ultimate good life was to be found not on
earth, but in heaven. They held worldly concerns to be transitory and
inferior distractions to ones true goal, salvation. For Christians, God
had become man in the person of Jesus, and Jesus, through the
supreme example, had shown that the path to salvation was through
poverty, humility, weakness, and long suffering. The consensus of
both secular and religious thinkers was that earthly matters were of
secondary importance to intellectual and spiritual pursuits. Machiavelli
railed against the Christian humility and weakness that he said had
displaced virt in the Italians, in the process creating persons who, in
order to enter Paradise, are more concerned with bearing their
oppression than avenging it. Machiavellis viewpoint cannot be more
different. Life is lived on this planet, and Christian salvation and hope
is absent from his writings and he speaks with contempt of Christian
glorification of humble and contemplative men.72 Eternal glory is
obtained here and now. It is the fame that can be achieved only by
vigorous action, not by otiose contemplation or meditation.
His virt goes beyond a virtue of manliness derived from the
marriage of philosophy and rhetoric that Petrarch had adopted from
72
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they need to reject the morality that they have inherited from
Christianity and from classical philosophy by unleashing the passions
in the service of unlimitedand armedacquisition.79
Machiavelli directly challenged the classic thinking that the
drive to gain worldly goods, fame, and glory was immoral and
unnatural; that property acquisitions must be limited by virtue, both in
manner and amount. Justice required that goods be distributed fairly;
Christian charity and love of God and neighbor commanded that one
correct any injustice of distribution by giving away any surplus wealth.
Classic learning and Christianity encouraged poverty in fact and in
spirit.80 Machiavelli had a diametrically opposite view.
Much of Machiavellis writing points to politics and life in
general as a zero sum game.81 That is, there is so little wealth, so
little political power, and so few goods to be had, that there is not
enough for everyone. The supply of lifes necessities is limited. It is
only natural for a person to take the means necessary for survival.
There are victors and victims; what one gains, the other loses. One has
to figure out when, where, and how to grab goods and power, and then
determine how to hold on to them, whether for ones own personal
gain and glory, or for the benefit of the state.
Once again inverting accepted notions, Machiavelli viewed
anyone who limits acquisition in the name of virtue as foolish, since
one can trust neither in nature nor in God to provide ones necessit
(necessities). 82 Trust, that nave, childish notion that someone or
something else will provide, is not a desirable quality. Neither is
leisure that does not lead to Machiavellian virt; it corrupts it. 83 In
Discourse on Livy, he wrote, I say that those are called gentlemen
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80
81
82
83
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MANSFIELD, supra note 71, at 111 (the Italian reads: dico che gentiluomini
sono chiamati quelli che oziosi vivono delle rendite delle loro possessioni . .
. sono perniziosi in ogni republica ed in ogni provincia.).
Id. at 131-32 (Machiavelli writes of Christianity: Our religion has glorified
humble and contemplative more than active men . . . if our religion asks that
you have strength in yourself, it wishes you to be capable more of suffering
than of doing something strong. This mode of life thus seems to have
rendered the world weak and given it in prey to criminal men, who can
manage it securely, seeing that the collectivity of men, so as to go to
paradise, think more of enduring their beatings than avenging them. And
although the world appears to be made effeminate and heaven disarmed, it
arises without doubt more from the cowardice of the men who have
interpreted our religion according to idleness and not according to virtue.
The Italian reads: La nostra religione ha glorificato pi gli uomini umili e
contemplative che gli attivi . . . e se la religione nostra richiede che tu abbi
in te fortezza, vuole che tu sia atto a parire pi che a fare una cosa forte.
Questo modo di vivere adunque pare che abbi renduto il mondo debole e
datolo in preda agli uomini scelerati, I quali sicuramente lo possono
neggiare, veggendo come luniversit degli uomini, per andarne in
paradiso, pensa pi a sopportare le sue battiture che a vendicarle. E
bench paia che si sia effeminato il mondo e disarmato il cielo, nasce pi
sanza dubbio della vilt degli uomini, che hanno interpretato la nostra
religione secondo lozio, e non secondo la virt.).
STRAUSS, supra note 6, at 190.
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90
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do not win love he may escape hate.117 The Machiavellian prince, the
one who knows that humans are stingy (in Italian, misero)that is,
they wish to accumulate and hold on to boundless quantities of
material goods (necessit)is advised to:
[N]ot meddle with the property or with the women of
his citizens and subjects. And if constrained to put any
to death, he should do so only when there is manifest
cause or reasonable justification. But, above all, he
must abstain from the property of others. For men will
sooner forget the death of their father than the loss of
their patrimony.118
It is the insight of a crafty, unscrupulous leader that allows the
prince to comprehend that a subjects property is sacrosanct. For
Machiavelli, a foolish leader does not possess the virt of an energetic
leader. He is like a child. When one is young, one is told and believes
in all kinds of tales; growing up means giving them up.119 Holding
onto illusions makes one childish and gullible (one might add that
when a child becomes an adolescent, his immaturity is enriched with
idealism, which Machiavelli also condemns). A prince is a mature,
knowing adult (a realist), a person with virt, not an immature child
(idealist), infused with illusion and utopianism. Machiavellis prince,
an astute realist, has no use for idle speculation and fantasies. Those
living in an unperceiving world of dreams are constantly in danger of
being ensnared. In the political sphere, to be unknowing is to consign
yourself and those who depend upon you to doom. 120 Machiavelli
wrote to Lorenzo Medici:
117
118
119
120
Id. at Ch. 17 (the Italian reads: amando li uomini a posta loro e temendo a
posta del principe, debbe uno principe savio fondarsi in su quello che suo,
non in su quello che daltri: debbe solamente ingegnarsi di fuggire lo
odio.).
Id. (the Italian reads: astenga dalla roba de sua cittadini e de sua sudditi,
e dalle donne loro . . . ma sopra tutto, astenersi dalla roba daltri; perch li
uomini sdimenticano pi presto la morte del padre che la perdita del
patrimonio.).
PITKIN, supra note 14, at 36.
Id. at 36-37.
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125
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127
128
129
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132
Id. at 29 (the Italian reads: Raccolte io adunque tutte le azioni del duca,
non saprei riprenderlo; anzi mi pare, come ho fatto, di preporlo imitabile a
tutti coloro che per fortuna e con l'arme d'altri sono ascesi allo imperio.
Perch lui avendo l'animo grande e la sua intenzione alta, non si poteva
governare altrimenti.).
Id. (the Italian reads: Chi, adunque, iudica necessario nel suo principato
nuovo assicurarsi de' nimici, guadagnarsi delli amici, vincere o per forza o
per fraude . . . non pu trovare pi freschi esempli che le azioni di
costui.).
See the discussion in Chapter One of this paper.
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CHAPTER FIVE
MACHIAVELLIS LIFE, TIMES, AND POLITICS
Machiavellis importance in the field of international law is
often underestimated. Arthur Nussbaum comments:
Machiavellis ideas may be linked to
international law in so far as his perfect and cynical
disregard of any political morality (not of morality in
general) contrasted sharply with, and formed an
extreme reaction to, the scholastic teachings which
purported to subordinate the whole province of politics
and especially the relations among rulers to the
demands of moral theology.134
It is essential, then, for our purposes, to explore Machiavellis
life, contemporary events, and his political experience.
Niccol Machiavellis public career began on May 24, 1498,
when he was nominated to be secretary of the Second Chancery of the
Florentine Republic, four days after the public execution of the
firebrand Franciscan friar, Girolamo Savonarola (1452-1498). The
Second Chancery handled foreign affairs and relations with Florences
dominions. 135 Florence had hailed Savonarola as a republican hero
only four years earlier when he negotiated a treaty with Charles VIII
(1470-1498) of France that had spared Florence from a sacking. Piero
Medici (1416-1469) had invited the French king into Italy as his
protector, but when Piero surrendered six key Florentine fortresses to
Charles without a shot being fired, the enraged Florentines drove Piero
and his supporters into exile, ending sixty years of Medici rule.
Charles successful invasion profoundly affected the balance of power
in Italy. 136 Prior to Charles entry, the five major Italian powers
Milan, Venice, Florence, Naples, and the Holy Seehad achieved a
134
135
136
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Id. at 22 (the comment refers to the actions of the French who marked with
chalk the Florentine homes that were commandeered for use by the French).
NUSSBAUM, supra note 41, at 52.
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140
See generally JAMES B. ATKINSON & DAVID SICES, MACHIAVELLI AND HIS
FRIENDS: THEIR PERSONAL CORRESPONDENCE (Northern Illinois University
Press 1996).
GIOVANNI SILVANO, MACHIAVELLI AND REPUBLICANISM 53 (Gisela Bock
et al. eds., Cambridge University Press 1990).
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144
145
146
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147
148
149
See MANSFIELD, supra note 71 (for the English translations used in this
paper); see NICCOL MACHIAVELLI, DISCORSI SOPRA LA PRIMA DECA DI
TITO LIVIO, IN OPERE (Corrado Vivanti ed., Einaudi-Gallimard 1997) (for
the Italian used in this paper).
See LUIGI BARZINI, THE ITALIANS xiii (Atheneum Publishers 1964) (Luigi
Barzini continues the discourse centuries later: This is why the riddle
which fascinated Machiavelli is still endlessly debated amongst us: why did
we not achieve national unity and a centralized government when other
European nations did? Id.).
MACHIAVELLI, supra note 64, at 5 (the Italian reads: cognizione delle
azioni degli uomini grandi; imparata da me con una lunga sperienza delle
cose moderne ed una continua lezione delle antiche.).
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In the earlier Middle Ages, often bishops were also civil rulers,
so that there was convergence between civil and religious authority.150
Unlike most of the rest of Europe, Florence and the rest of northern
Italy were not feudal. They were more secular and maintained greater
contact with antiquity and the secular culture that was inherited from
the Romans. 151 Northern and north-central Italians established
independent communes that were more or less free; structures that
grew out of and enhanced the flourishing trade and commerce that
supported their prosperous and growing economies. 152 While not
perfect republics, the communes did imbue their citizens with a desire
to have a voice in a government that was based on the consent of the
governed.153
The one hundred years between 1150 and 1250 saw an
explosion in the population and wealth of Florence. The mercantile
trade centered in the cities spurred the power and prosperity of the
communes that were found everywhere in north and central Italy. The
humble and the powerful, day laborers and master craftsmen, servants
and financiers, all migrated into the cities, creating a more democratic
mix of populace. Many communes, such as Florence, gained the right
not only to govern them, but took the opportunity to incorporate the
surrounding countryside into their expanding states.154 The peninsula
150
151
152
153
154
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158
imitated the Greek. But deception and trickery seemed to have been
incorporated into the Roman from indigenous southern Italian culture.
However, Roman comedy imparted moral lessons and upheld the virtuous
traits of honesty, loyalty, and nobility of character. The social order was
maintained).
Ugo Foscolo, Boccaccio, in THE DECAMERON 208-15 (Mark Musa and
Peter Bondanella trans., W. W. Norton and Co. 1977).
Francesco De Sanctis, Boccaccio and the Human Comedy, in THE
DECAMERON 222 (Mark Musa and Peter E. Bondanella trans., W. W.
Norton and Co. 1977).
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stultified social order no respect. For instance, in day 7, all the stories
are about wives pulling the wool over their husbands eyes, with
impunity.159 Thomas Bergin has written that one thing is certain:
[T]he world of the Decameron is no longer the world of
the High Middle Ages . . . . In such a society the knight
and the priest were supreme . . . [However] the citizens
of the Decameronian commonwealth are less concerned
with preparing for the world to come . . . than with
enjoying what the world of the living has to offer.160
In Boccaccios work, saints are humbled and sinners exalted.
The Decameron marked a huge shift in the character of Italian culture,
demarcating a movement from the theocentric to the
anthropocentric.161 The times were changing from the stale idealism of
the past to a new world founded on a fresh sense of reality. At the
same time, society was moving forward, literature was traveling a
parallel path, shifting from allegorical poetry to down-to-earth
narrative, with its adventures, festivals, descriptions, pleasures and its
malice.162 The high priest of medieval literature was Dante Alighieri
(1265-1321), who echoed the scholastic philosophy and theology of
St. Thomas Aquinas. Illicit lovers Dante placed in Hell. Boccaccio
inverted the moral lessons of Dante and extolled, rather than
condemned, his lovers. What Dante saw as immorality, Boccaccio saw
as the freedom to live ones own life. 163 While Dante demonized
Odysseus for his deception, Boccaccio applauded his characters that
used trickery as an effective weapon to satisfy their desires.
Written some fifty years after the Divine Comedy, Boccaccios
novelle must have shaken Dante in paradise; they certainly created
lasting tremors on earth. In The Decameron, the medieval sense of sin
is entirely absent from its ribald tales. The aristocratic young revelers
159
160
161
162
163
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than to the status of the characters that are set before us. 167 The
themes of the tales corresponded to the newly rising mercantile class
which first appeared in Boccaccios Italy.168 The Italy of Boccaccios
time was rapidly developing a new individualism that glorified earthly
fame as mans goal on earth, and minimized or even ignored the
heavenly glory of Dante and older generations. Boccaccio, in The
Decameron, and Machiavelli throughout his works, offered a vision of
human nature that differed sharply from the hierarchic, divinely
created order of Dante and the Middle Ages. 169 That structure was
vertical, reaching to the heavens, commencing with Satan in the
deepest reaches of hell and reaching its apex in the beatific vision in
Paradise. Life, whether one was a prince or pauper, was to be lived to
make one worthy of attaining eternal heavenly rewards. Boccaccio,
like Machiavelli, viewed life as horizontal, material, rooted to the
earth, never arising much above the human perspective. Life was to be
lustily lived and enjoyed here and now.
Machiavelli was the first to argue that political issues are
created by humans, and their solutions can be arrived at through
observation and reasoning. In order to do so, we must put aside the
idealistic, theological goals of the classic philosophers, from Socrates
to the Christians. Politics depend, not on Fortune, but on the necessary
actions taken by a resolute man. Thus, Machiavelli moved the
discussion from metaphysics to modern political science.
He saw the world through the prism of literature, both ancient
and Italian. His political vision was affected by the literature he read,
including Boccaccio, who was a precursor of Machiavelli. 170
Machiavelli took Boccaccios process one step further. He crafted a
virtuous political hero, his mythical prince, out of Boccaccios
mischievous prankster and its darker version, the trickster, in ways that
earlier generations had not. The trickster, when dealt with by
Machiavelli, turns into a more sinister agent. As Stelio Cro has written,
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CHAPTER SIX
GROTIUS AND THE EARLY MODERN
ADVOCATES OF THE NATURAL LAW THEORY
IN INTERNATIONAL LAW
In the sixteenth and early seventeenth centuries, the Dominican
Francisco de Vitoria (1486-1546), the Jesuit Francisco Suarez (15481617) and Hugo de Groot (Grotius) (1583-1645) emphasized the moral
aspects of the law of nations and were part of the natural law
tradition.180 The Catholics, de Vitoria and Suarez, were adherents of
the Scholastic tradition promulgated by Aquinas and his followers.
Alberto Gentili (1552-1608) studied law at Perugia, became a
Protestant, and fled to England where he lectured on the Roman law at
Oxford. He wrote On the War of Law in 1598, which centered on the
concept of just war, separating international law from theology.
Gentilis natural law is not so much a self-contained body of moral
rules, evolved by scholastics, as it is simply what a sound mind teaches
us as being manifest.
Following Gentilis divorce of religion from natural law, the
pendulum swung to a more pragmatic approach. Emmerich de Vattel
(1714-1769) was among those jurists who started to consider the
positivist aspects of international law. These writers considered that
the way nations actually behaved, not the way they should behave,
defined international law. This chapter will briefly explore Grotius
role in initiating the modern natural law tradition. The next chapter
will briefly examine the early positivists, including Vattel.
According to David J. Bederman, Grotius has earned the title
father of international law. 181 Countering Machiavellis evil
principle of reason of state was one of Grotius primary objects in
his major opus, De Jure Belli ac Pacis (1625). From the middle of the
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Id. (the Italian reads: si volse alli inganni; e seppe tanto dissimulare
l'animo suo, che li Orsini, mediante el signor Paulo, si riconciliorono seco;
con il quale el duca non manc d'ogni ragione di offizio per assicurarlo,
dandoli danari, veste e cavalli.).
Id. at 29 (the Italian reads: Raccolte io adunque tutte le azioni del duca,
non saprei reprenderlo; anzi mi pare, come ho fatto, di preporlo imitabile a
tutti coloro che per fortuna e con l'armi d'altri sono ascesi allo imperio.
Perch lui, avendo l'animo grande e la sua intenzione alta, non si poteva
governare altrimenti.).
Id. (the Italian reads: Chi adunque iudica necessario nel suo principato
nuovo assicurarsi de' nimici, guadagnarsi delli amici, vincere o per forza o
per fraude . . . non pu trovare e pi freschi esempli che le azioni di
costui.).
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con l'astuzia aggirare e cervelli delli uomini; e alla fine hanno superato
quelli che si sono fondati in su la lealt.).
Id. at 59-60 (the Italian reads: pertanto a uno principe necessario sapere
bene usare la bestia e lo uomo.).
Id. at 60 (the Italian reads: coloro che stanno semplicemente in sul lione,
non se ne intendono.).
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Id at 64.
MACHIAVELLI, supra note 204, at 195 (the Italian reads: Quanto alle bugie
de' Carpigiani io ne vorr misura con tutti loro, perch . . . da un tempo in
qua, io non dico mai quello che io credo, n credo mai quel che io dico, et
se pure e' mi vien detto qualche volta il vero, io lo nascondo fra tante bugie,
che difficile a ritrovarlo.) (Machiavelli, in dissembling, was in notorious
company. Luigi Barzini has written of Casanovas diary, My secret is
simple: I always say the truth, and people naturally believe me, he lied.).
Ann Davies, Niccol Machiavelli, in POLITICAL PHILOSOPHY 253 (Seymour
Lipset ed., CQ Press 2001).
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CHAPTER SEVEN
CONCLUSION
The introduction to this article stated my intended purpose: To
show that Machiavelli was instrumental in affecting the thinking and
writing of many scholars and diplomats who succeeded him.
Machiavelli and these successors inspired the philosophers and jurists
who did have a direct effect on the evolution of the law of nations.
Chapter Two looked at the theories of idealism and realism in
Aristotle, Plato, Augustine and others, as these concepts and thinkers
affected Western philosophy and political thinking. Chapter Three
introduced the concept of natural law, an idealistic philosophy that
starts with a priori first principles, encompassing the fields of political
philosophy and jurisprudence. Chapter Four studied Machiavellis
unique contributions in breaking away from traditional idealist
thinking that morality and politics were intertwined. Chapter Five
looked more closely at the father of political sciences radical and
realistic theory of political science. Chapter Six reviewed Grotius, the
father of international law and his natural law reaction to Machiavellis
divorce of ethics and politics.
This Chapter will look at a sampling of philosophers and
thinkers who have continued in the Machiavellian tradition of the
separation of idealistic morality from a realistic examination of how
nations and their rulers behave. I will start with Hobbes and then move
on to Zouse and others.
Thomas Hobbes (1588-1679) was a contemporary of Grotius.
Grotius theory of natural law, although secular in nature, echoed
scholastic idealism. Nussbaum states:
Machiavellis ideas may be linked to international law
in so far as his perfect and cynical disregard of any
political morality (not of morality in general) contrasted
sharply with, and formed an extreme reaction to, the
scholastic teachings which purported to subordinate the
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Id. at 113-14.
See generally BEDERMAN, supra note 181.
Id.
Id.
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prince acted like a fox, dissimulating, saying one thing and doing
another. This philosophy, that in matters of state the ends justify the
means, is a base of the political theory of the reason of state, the
knowledge of the effective means of establishing, preserving, and
enlarging the state by whatever means that succeed.
Second, Machiavelli introduced a hard realism into the art of
politics. It is fitting to recall his own words in the The Prince:
Since it is my object to write what shall be
useful to whosoever understands it, it seems to me
better to follow the real truth rather than an imaginary
view of them. For many Republics and Princedoms
have been imagined that were never seen or known to
exist in reality.229 And the manner in which we live, and
that in which we ought to live, are things so wide
asunder, that he who quits the one to betake himself to
the other is more likely to destroy than to save
himself.230
This realism has influenced international law in a unique way:
by referencing law to actual, observable conduct. For example, Article
38 of the Statute of the International Court of Law lists four sources of
international law:
1. International treaties, establishing rules expressly recognized
by the contesting states;
2. International custom, as evidence of a general practice
accepted as law;
3. The general principles of law recognized by civilized
nations; and
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