Hannoverian Court Councilor Gottfried Leibniz and His Concept of International Legal Person

Chapter Four

Hannoverian Court Councilor Gottfried Leibniz and his Concept of International Legal Person

There was another court councilor who developed an original concept of the law of nations on the occasion of the peace conference at Nijmegen. It was Gottfried Wilhelm Leibniz (1646–1716) who developed an idiosyncratic theory of sovereignty. Later he also developed a very modern concept of international legal person. Today, Leibniz, with Isaac Newton, is famous for his theory of calculus, and also for his philosophical doctrine of monadology.1 In addition to those famous contributions, Leibniz is also known for his contribution to the science of international law through publication of his Codex juris gentium diplomaticus (“Documented Code of the Law of Nations”)2 in 1693. It was a compilation of international agreements since the eleventh century, known to be one of first publications of its sort.3 In the eighteenth century, Ompteda praised Leibniz as one of the early defenders of the concept of voluntary law of nations.4 In the last century, Jan Hendrik Willem Verzijl noted that “the scholar who (. . .) was the first to use the technical term of ‘international person’ . . . was Leibniz.”5

1 For a general biography of Leibniz, see Hans-Peter Schneider, ‘Gottfried Wilhelm Leibniz’ in Staatsdenker, 1995, pp. 197–226. 2 G. G. Leibnitius, Codex Juris Gentium Diplomaticus, Hannover, 1693. 3 ompteda, Literatur, 1785, pp. 288–289 and 312–313; Nussbaum, Concise History, 1954, p. 138. 4 ompteda, Literatur, 1785, pp. 288–289. In the same sense, Kaltenborn, Kritik des Völkerrechts, 1847, p. 61; Robert Piédelièvre, Précis de droit international public ou droit des gens, F. Pichon, Paris, 1894, p. 58; Nussbaum, Concise History, 1954, pp. 138–139; Georg Stadtmüller, Geschichte des Völkerrechts, Teil 1, Hannover, 1951, p. 151; Ziegler, Völkerrechtsgeschichte, 1994, pp. 194–195; Truyol y Serra, Histoire du droit international public, 1995, p. 91. 5 Jan Hendrik Willem Verzijl, International Law in Historical Perspective, Vol. 2 [International Persons], A. W. Sijthoff, Leiden, 1969, p. 2. Cf. also Janne Elisabeth Nijman, The Concept of International Legal Personality: An Inquiry into the History and Theory of International Law, TMC Asser Press, The Hague, 2004, p. 29. While the idea of legal personality of state can be traced back to Hobbes (“artificial person”) or Suárez (“persona ficta”), as we shall see in this chapter, Leibniz’ idea of the 82 chapter four

However, despite his importance to the history of international law, little research has been undertaken to date on Leibniz’s doctrine of international law6 and still less on its relationship to the political con- text of his master, the Duke of Hannover.7 What’s more, his work, the Codex juris gentium diplomaticus, has not been included in the Carnegie Classics of International Law because of its archival nature as a compilation of treaties, even though its preface contains a succinct defense of the concept of the voluntary law of nations.8 In this work, Leibniz also mentions the concept of the international legal person, which strangely enough resembles the concept of the international legal person of twentieth-century positivism as described by Lassa Oppenheim in his famous treatise.9 It should also be noted that some fifteen years before the Codex juris gentium diplomaticus appeared, Leibniz published another remarkable work on the law of nations

international legal personality is significant in its complete denying of legal capacity of anyone other than sovereigns. 6 We do not have yet full English translations of two of his works touching the law of nations, which we will study below. Partial translations are made by Patrick Riley, Leibniz, Political writings, transs and ed. P. Riley, 2nd ed., Cambridge Univer- sity Press, Cambridge, 1988, pp. 111–120 and 165–176, but they do not cover most of the parts which are important for the conceptual development of the law of nations. Such a lack of research is not only on his international law doctrine, but also on his contribution to the legal science in general. Roger Berkowitz regretted that “[d]espite the fact that Leibniz placed such an emphasis on jurisprudence and exerted so much time and effort on the development of a legal code, surprisingly little attention has been paid to his legal work. There is next to nothing written in English on Leibniz’s codes themselves, and the few essays in German are a halting introduction at best. Philosophical commentaries on Leibniz routinely ignore the existence—let alon the importance—of his legal writings.” (Roger Berkowitz, The Gift of Science: Leibniz and the Modern Legal Tradition, Harvard University Press, 2005, p. 13) 7 some few exceptions are J. W. Jones, ‘Leibniz as International Lawyer’, British Yearbook of International Law, vol. 22, 1945, pp. 1–10; P. Schrecker, ‘Leibniz’s Princi- ples of International Justice’, Journal of the History of Ideas, Vol. 7, 1946, pp. 484–498; Nijman, The Concept of International Legal Personality, 2004, pp. 29–84. 8 “Praeter aeterna naturae rationalis jura ex divino fonte fluentia, jus etiam vol- untarium habetur, receptum moribus, vel a Superiore constitutum. Et in Republica quidem jus civile ab eo vim accepit, qui summam Potestatem habet; extra Rempub- licam vel inter eos qui summae potestatis participes sunt (quales interdum plures sunt etiam in eadem Republica) locus est juri Gentium Voluntario, tacito populo- rum consensu recepto. Neque vero necesse est, ut sit omnium gentium vel omnium temporum; cum in multis arbitrer aliud Indis aliud Europaeis placere, & apud nos ipso seculorum decursu mutari, quod vel hoc ipsum opus indicare potest.” (‘Benevolo lectori’, Codex juris gentium diplomaticus, 1693, which is reprinted in Leibnitii Opera omnia nunc primum collecta, ed. L. Dutens, vol. IV, 1768, part 3 [Jurisprudentia], pp. 287–309, with section numbers added) 9 see Chapter 4, Sec. 2.