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1916), p. 251.
9 Ibid., p. 340. As I will explain in more detail in chapter 2, Grotius had developed a
completely different way of justifying resistance, and arguably a rather more opaque
one, based on the divisibility of the sovereign power rather than appeal to natural law.
10 See, for example, Heeren, History of the Political System of Europe, vol. I, p. 173.
For example, Frederic Leonard, Recueil des Traitez de Paix . . . depuis pres de Troi Siecles,
11
6 vols. (Paris, 1693); ˜S.W.™, A General Collection of Treatys . . . from 1648 to the Present,
4 vols. (London, 1710“32); Jean-Yves de Saint-Prest, Histoire des Trait´s de Paix . . . depuis
e
18 Beyond the anarchical society

only a few exceptions, the treaties in question had been made by dynastic
rulers, and usually involved the transfer of speci¬c prerogatives from one
family to another. They thus served the counter-revolutionary purpose
well in so far as they trapped France, like other states, in a restraining
web of treaty obligations, while reinforcing the claim that European pub-
lic order as a whole rested on the principle of respect for the lawful rights
of dynastic rulers codi¬ed in the treaties.12 This led easily enough to the
conclusion that the European system had traditionally been a ˜system of
predominant monarchies™, which, the reactionaries added, had performed
a valuable function by limiting the potential for disorder and con¬‚ict by
˜preventing the people from taking a more active part in public affairs™.13
The republicanism of the French revolutionaries, their interventions on
behalf of revolutions elsewhere and their ˜sophistical™ notion of popular
sovereignty, could be labelled not merely as subversive and unlawful, but
as destructive of the sensible ˜cabinet policy™ that had been an indispens-
able element of order in the European system over the preceding century
and a half.14
Although it reinforced the rights of dynastic monarchs, the mere anal-
ysis of treaties was not quite enough, however. Unfortunately for the
counter-revolutionaries, the historical literature on prior agreements be-
tween European rulers did not fully endorse the idea that the basic prin-
ciple of the European legal order was the preservation of the mutual
independence of the members of the states-system. On the contrary, the
close reading of treaties often pointed towards patterns of overlapping
rights and privileges, more a system of mutual dependency than the re-
verse. An excellent example was the constitution of the Holy Roman
Empire as codi¬ed by the Peace of Westphalia, a subject particularly dear
to the heart of the historians at the University of Gottingen (arguably,
¨

la Paix de Vervins, 2 vols. (Amsterdam, 1725); Jean Dumont, Corps Universel Diploma-
tique du Droit des Gens . . . depuis le Regne de l™Empereur Charlemagne, 6 vols. (Amsterdam,
1726); and G.F. de Martens, Summary of the Law of Nations, Founded on the Treaties and
Customs of the Modern Nations of Europe, trans. William Cobbett (Philadelphia, 1795).
Martens, incidentally, was a professor at the University of Gottingen, which perhaps
¨
provides an institutional connection explaining the importance of this line of argument
to the counter-revolutionaries, and especially Heeren. For some biographical details, see
Arthur Nussbaum, A Concise History of the Law of Nations (New York: Macmillan, 1947),
pp. 163“77.
12 For an interesting early version of this line of argument, which almost anticipates
the later fusion of treaty obligations with the balance of power made by the counter-
revolutionaries, see Jean Dumont, Les Soupirs de l™Europe, Or the Groans of Europe at the
Prospect of the Present Posture of Affairs, anonymous translator (1713), especially pp. 32,
75 and 84ff. Dumont was one of the most highly respected international legal historians
of the eighteenth century.
13 Heeren, History of the Political System of Europe, vol. I, p. 9.
14 Ibid., vol. I, p. 10 and vol. II, p. 162.
The orthodox theory of order 19

the leading centre of counter-revolutionary historical scholarship). At the
core of the imperial constitution was the idea of ˜territorial sovereignty™
(Landeshoheit), which de¬ned the speci¬c bundles of prerogatives “ often
known as the ˜German liberties™ “ that were held by the imperial electors,
princes and so on, in contrast to the ˜reserved rights™ held by the emperor
himself. Of course, this was not ˜territorial sovereignty™ as we would un-
derstand it today, and it certainly did not equate to outright indepen-
dence. One of the pre-revolutionary Gottingen experts on the subject,
¨
Johann Stephan Putter, maintained that the Westphalian settlement had
¨
not simply worked against imperial despotism, but also served to pre-
vent the estates from abusing their limited rights of territorial sovereignty
by claiming to be completely independent entities. In this respect, he
likened the imperial constitution to arrangements in other carefully bal-
anced ˜compound™ bodies with mixed constitutional systems, such as the
United Provinces of the Netherlands and the United States of America.15
That posed a serious problem for the later counter-revolutionary schol-
ars: if the French could establish their own set of ˜reserved rights™ through
treaties, the new imperial system (or ˜federal™ system, as the French pre-
ferred to call it) might even be legitimized as the successor to the old
one.16 Ostensibly, the counter-revolutionaries wanted to present them-
selves as the defenders of the traditional liberties of the German and other
states, but they were hardly going to commit themselves to that role if it
merely meant replacing the Habsburg dynasty with a Napoleonic one at
the head of a revitalized European empire.
Not unlike Vattel™s fusion of the theory of natural law with the prac-
tice of the balance of power, the solution was to build a bridge between
15 Johann Stephan Putter, An Historical Development of the Present Political Constitution of the
¨
Germanic Empire, trans. Josiah Dornford, 3 vols. (London, 1790), vol. II, pp. 168ff.
16 Although not articulated in quite these terms, something like this argument was made
by the French themselves, who argued that they were actually restoring the traditional
European pattern of law and order after its destruction by the expansiveness of Russia and
Prussia, and by the rival commercial and maritime system established by Great Britain:
Alexandre Maurice Blanc de Lanautte, Comte d™Hauterive, De l™Etat de la France a la `
Fin de l™An VIII (Paris: Henrics, 1800). The power of Hauterive™s thesis is evident from
the fact that one of the ¬rst counter-revolutionary responses was to deny that the Peace
of Westphalia had created a general European system at all: Friedrich von Gentz, On the
State of Europe before and after the French Revolution; Being an Answer to the Work Entitled
´
De l™Etat de la France a la Fin de l™An VIII, trans. John Charles Herries, 2nd edn (London:
`
Hatchard, 1803). This argument ran perilously close to ruling out the idea of a traditional
legal order that the Revolution was subverting, and in later counter-revolutionary works
the central position of the Westphalian settlement as the foundation of the European
balance of power was largely restored. For an interesting discussion of some of the
international legal issues raised by the Napoleonic system, and an illustration of how
quickly the counter-revolutionary position found its way into mainstream textbooks on
international law, see William Manning, Commentaries on the Law of Nations (London:
Sweet, 1839), ch. 10.
20 Beyond the anarchical society

the empirical studies on European treaties and the numerous pre-
revolutionary books on the strategic nature of the European system, which
had long argued that it was in the common interest of all rulers to operate
a balance of power that would guarantee their mutual independence.17
A vital early text in the counter-revolutionary arsenal by C.W. Koch18
(subsequently revised by his colleague F. Schoell) made precisely this
move, producing an account of the modern European political system
that captures the core elements of current thinking about international
society in a way that has undergone remarkably little change in the
200 years since the book ¬rst appeared. From a starting point rooted
in the empirical-historical analysis of European treaties, Koch developed
a much more wide-ranging analysis of the underlying principles of the
balance of power and mutual independence in the European system as
a whole than was usually the case in earlier historical works, which had
tended to focus on the details of individual treaties. His central point was
that:
The object of this system is to maintain public order, to protect the weak against
the strong, to put obstacles in the way of the ambitious projects of conquerors,
and to prevent dissensions that might lead to the calamities of war. Uniting the
different sovereigns of Europe in a common interest, it commits them to sacri-
¬cing their individual desires to the general good, and creates, so to speak, one
family.19
Unlike Vattel™s thesis, however, Koch™s account of this system rested not
upon natural law but upon the normative and legal order furnished by
treaties. The system™s foundation, he argued, was the Peace of Westphalia,
which had established the basic conventions of modern international af-
fairs and had been ˜constantly refreshed by all the subsequent treaties
up to the French Revolution™: the Peace was thus ˜the turning-point of
17 The early works on the balance of power had typically been nervous about the threat
from Spain: the leading example is Henri, Duc de Rohan, A Treatise of the Interests of
the Princes and States of Christendom, trans. ˜H.H.™ (Paris: Thomas Brown, 1640). By the
late seventeenth century, Spain had been replaced by France as the likely candidate for
world monarchy: see Fran¸ ois Paul de Lisola, The Buckler of State and Justice (London:
c
James Fisher, 1667); Slingsby Bethel, The Interest of Princes and States (London: John
Wickins, 1680); and John Campbell, The Present State of Europe, Explaining the Interests,
Connections, Political and Commercial Views of its Several Powers, 3rd edn (London:
Longman, 1752).
18 Koch™s attitude to the Revolution was more complex than some of the other counter-
revolutionaries. He was a deputy extraordinaire to the French National Assembly (seeking
recognition for the rights of Protestants in Alsace, for which the Peace of Westphalia may
well have been an important touchstone), was imprisoned during the terror, and brie¬‚y
served in the Tribunate before its suppression by Napoleon, when he retired from public
life to return to academia in Strasbourg.
19 C.W. Koch and Frederic Schoell, Histoire Abr´g´ des Trait´s de Paix, entre les Puissances de
ee e
l™Europe, depuis la Paix de Westphalie, revised edition (Paris: Gide, 1817), p. 3; this and
the following citations are my translation (1st edn published c. 1797).
The orthodox theory of order 21

modern politics™.20 Its unique signi¬cance was asserted on the grounds
that the Westphalian treaties had con¬rmed the German states ˜for ever
in the exercise of their territorial supremacy [sup´riorit´ territoriale] and
e e
in the other rights, prerogatives and privileges that they had hitherto
enjoyed™; it had thus set them up as ˜a barrier against the other pow-
ers™, and hence as the foundation of the balance of power in Europe as
a whole.21 At a stroke, Koch had provided exactly what the counter-
revolutionaries needed: an account of the traditional pattern of public
order in the European political system that highlighted the importance
of the balance of power between mutually independent sovereigns, but
derived the legitimacy of that system from agreements between dynastic
rulers rather than abstract principles of natural law.
Koch™s description of the development of the European political system
from its Westphalian origins was one of the principal sources for the book
that eventually became the starting point for the English school™s own
historical research programme: A.H.L. Heeren™s Manual of the History
of the Political System of Europe (originally written in German).22 Apart
from his observations about the importance of monarchical government
to maintaining political order in general, to which I have already alluded,
Heeren™s main claim was that the ˜essential property™ of the European
states-system was its ˜internal freedom; that is, the stability and mutual
independence of its members™.23 Like Koch, he saw a considerable role
for Westphalia in this respect: while he admitted that the Peace had not
dealt with all the important political relations on the European continent,
it was ˜by settling the leading political maxims that the Peace of Westphalia
became the foundation of the subsequent policy of Europe™.24 Crucially,
the Peace had attached a new importance to the imperial constitution
20 Ibid., p. 6, my translation. The same af¬rmation about the signi¬cance of the Westphalian
treaties was also made in C.W. Koch, Table des Trait´s entre la France et les Puissances
e
´
Etrang`res, depuis la Paix de Westphalie jusqu™a nos Jours, 2 vols. (Basle: Decker, 1802),
e
p. 5, and Koch, History of the Revolutions in Europe, including additions by Schoell, trans.
Andrew Chrichton, 3 vols., Constable™s Miscellany, 33“5 (Edinburgh: Constable, 1828),
pp. 63ff. Few other treaty historians had attached so much signi¬cance to the Peace;
most, indeed, tended to go back to much earlier treaties as their starting point, and
regarded Westphalia as part of a continuum, although it was acknowledged as special
because of the widespread participation of so many different rulers.
21 Koch and Schoell, Histoire Abr´g´, pp. 6 and 182.
ee
22 Heeren quite rightly described Koch™s Histoire Abr´g´ as ˜very important, and indeed,
ee
indispensable™ to his own work: Heeren, History of the Political System of Europe, vol. II,
p. 262. It was the only source to which he referred for his account of the crucial period
from the death of Frederick the Great in 1766 to the French Revolution. For the English
school™s discussions of the importance of Heeren, see note 3 above. If any one person
invented the orthodox history of modern Europe in terms of the evolution of the states-
system, Koch has as good a claim as any; one might almost call the English school™s
theory of international society a Koch and Bull story.
23 Heeren, History of the Political System of Europe, vol. I, p. 6.
24 Ibid., vol. II, p. 162.
22 Beyond the anarchical society

as the linch-pin of European order, ˜indissolubly connected with the
maintenance of the balance of power™, and this had been achieved by
ensuring that ˜[t]he imperial power was now constitutionally restricted
within the narrowest limits; the princes were in the fullest sense rulers
of their respective states™.25 Putter™s earlier point about the proximity be-
¨
tween the empire and mixed republican systems like the United Provinces
or the United States was grudgingly acknowledged in the admission that
the empire was ˜a federation under a limited sovereign™, but really Heeren
saw the imperial constitution in a quite different light, as an example for
all of Europe of how a states-system should be organized on the basis of
mutual independence and respect for those rights of territorial sovereignty
which rendered the princes effectively independent rulers.26


The states-system in the English school™s
research programme
The English school derived its core historical proposition about the nor-
mative structure of modern international society from Heeren: that it
rests on a system of states, the character of which is de¬ned by the prin-
ciple of internal freedom, established by agreements between states that
re¬‚ect their common interest in mutual independence. ˜It is this feature™,
Heeren had argued, ˜which distinguishes such a system from one of an
opposite class, that is, where an acknowledged preponderance of one of
its members exists.™27 Or, as Adam Watson put it, re¬‚ecting on the British
committee™s choice of an historical research programme: ˜The European
system since Westphalia “ that is, during most of its existence “ has theo-
retically been a society of independent states who all recognize each other
as such. The committee accepted the theory.™28
25 Ibid., vol. II, p. 160“1.
26 Ibid., vol. II, p. 161. Heeren was contemptuously dismissive about the Dutch Republic,
describing it as an ˜imperfectly formed™ polity that would lead to no republican enthusi-
asm in the rest of Europe (ibid., vol. II, p. 114). As for the Americans, he remarked (in,
I imagine, something of a sneering tone) that ˜the state of society in these colonies™ in-
evitably led to a ˜considerable leaven of republicanism™ (ibid., vol. I, p. 182). On the other
hand, he thought that the German Empire was a wonderful arrangement that showed
how small states could coexist with large ones (ibid., vol. I, p. 12). Gradually, partly
thanks to Heeren™s in¬‚uence, international lawyers began to move from the rather re-
stricted imperial concept of territorial sovereignty contained in the idea of Landeshoheit,
to a more broadly applicable notion of Staatshoheit: see Jean Louis Kluber, Droit des Gens
¨
Moderne de L™Europe, 2 vols. (Stuttgart: Cotta, 1819), p. 40, and, for his reference to
Heeren, see pp. 27“8n.
27 Heeren, History of the Political System of Europe, vol. I, p. viii.
28 Watson, ˜Systems of States™, 103. Note the slip here in labelling this theory in terms of
the concept of society. As I have shown, the idea of the states-system and the idea of a
societas gentium really originated from completely distinct literatures.
The orthodox theory of order 23

Of course, the English school realized that they could not simply re-

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