The Rousseau-Portalis Doctrine: French Legal Thought and the Law of War – Part II
Editors’ note: This is the second in a two-part post illustrating the impact of French legal thought on the formation of the law of war with a specific focus on the Rousseau-Portalis Doctrine. The first entry provided a brief background on Jean-Jacques Rousseau and Jean-Étienne-Marie Portalis, their views on the law of nations, and their ideas that form the substance of the Rousseau-Portalis Doctrine. This entry will trace the evolution of that doctrine and discuss its impact on the law of war.
The Rousseau-Portalis Doctrine has significantly shaped the law of war applicable to inter-State conflicts. The doctrine reflects the idea that “war is taken as a relationship between states, while citizens are not enemies, hence military operations must be conducted exclusively against the enemy forces and not against enemy citizens who do not take an active part in hostilities.” This flows from an idea articulated in 1762 by the Enlightenment philosopher Rousseau, then expanded upon by the eminent French jurist Portalis in 1800, whose skillful rearticulation transmuted an abstract philosophical concept into “an ideology of judicial statesmanship.”
This post elaborates on how the ideas and pronouncements of these two Enlightenment thinkers ultimately fused into a single doctrine in international law. The post then traces the intellectual evolution of the doctrine, highlights the nature and degree of its reception globally, and discusses its impact on the law of war.
The Coalescence of the Rousseau-Portalis Doctrine
Portalis’ rearticulation and judicialization of Rousseau’s idea (discussed in the first part of this series) gave it a compounding sense of both philosophical and legal legitimacy. Writing in 1904, English lawyer John Westlake commented that:
[I]n a revolutionary age the very extravagance of Rousseau’s language helped to set it up as a standard for those who desired to limit the overthrow by war of all peaceful relations. It was employed with little or no variation by Portalis, in his discourse on the opening of the French prize court in 1801 [sic], and is often quoted with rather unreflecting approval, mainly for the sake of its denial of war as a relation of individual to individual, which element of it may be pronounced philosophically sound notwithstanding the hesitation of courts of law.
Note that Westlake incorrectly states that Portalis’s speech was given in 1801, an error to be repeated by later authors building on his work. In fact, Portalis delivered his speech in Paris in the year 1800 (“L’an huit de la république française, le 14 floréal”) at the inauguration of the French Prize Council.
In the decades after Portalis’s speech, commentators began to reference the doctrine (as rearticulated by Portalis) as legally authoritative. Initially, it was most strongly associated with Portalis. For instance, in 1844, in an international law text entitled Le droit commercial dans ses rapports avec le droit des gens et le droit civil, French jurist Gabriel Massé references Portalis’s speech (without citation to Rousseau) as the source for the idea that war is a phenomenon occurring between States and not individuals. French and Italian publications in the 1860s began doing the same. In 1869, in a text entitled Nouveau droit international public suivant les besoins de la civilisation moderne, Italian jurist (and leading authority on international law) Pasquale Fiore referenced the idea and cited Portalis’s speech without any reference to its philosophical derivation.
The notion, however, became reassociated with the work of Rousseau in succeeding decades. As early as 1871, the words of Portalis appeared in a book entitled The Study of Government by George Helm Yeaman (with a footnote acknowledging the debt to Rousseau). In that text, Yeaman wrote, “Portalis has given us a better moral summary of the law of nations[,]” and further noted that Portalis “seems to have derived the thought” from Rousseau’s The Social Contract. By the time English jurist William Edward Hall penned his more significant discussion of this doctrine in his 1880 work entitled A Treatise on International Law, both Rousseau and Portalis were more routinely attributed as joint progenitors of the idea. On that note, Hall’s discussion appears to be among the first English-language discussions of the concept, citing both names in reference to a single “doctrine.” Accordingly, by 1880, the Rousseau-Portalis Doctrine had cohered as a singular concept in international legal discourse.
Influence of the Rousseau-Portalis Doctrine
At the moment Portalis gave his famous speech in 1800, the ideas conveyed (the substance of the Rousseau-Portalis Doctrine) were not universally held. As Jeremy Rabkin has underscored,
It was not the traditional view that “civilians” must be protected from all harm in war, even as to property and material well-being. The term “civilian” does not appear in Eighteenth Century treatises, let alone in the works of earlier commentators. It does not appear at all in America’s Civil War Lieber Code nor in the humanitarian limitations set down in the Hague Regulations on land warfare in 1907. European commentators did not dispute that their favored doctrine was at variance with traditional views. They simply argued, in the decades before the First World War, “the progress of humanity” had opened the way to broader protections based on wider ethical perspectives.
Even decades later, one can still sense a tension and extant uncertainty (coupled with growing acceptance) in the liminal space between Article 21 and Article 22 of the Lieber Code of 1863:
21. The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war.
22. Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.
It is, therefore, no surprise that, although the impact of the Rousseau-Portalis Doctrine was ultimately significant, its initial reception was mixed. It was recognized as an authoritative statement of the law by some European governments during the nineteenth century. Quincy Wright writes that “a limited application of it is embodied in the preamble of the Declaration of St. Petersburg, 1868, which reads ‘That the only legitimate objects which states should endeavor to accomplish during war is to weaken the military forces of the enemy.’” Further, Julia Klaus writes, “In 1877, the year of the Russian war against the Ottoman Empire following the Bulgarian horrors, the Swiss legal scholar Johann Caspar Bluntschli classified the so-called Rousseau Portalis Doctrine as part of the legal advancement from barbarism to humanity.”
Even so, Eyal Benvenisti and Doreen Lustig highlight how some governments opposed the Rousseau-Portalis Doctrine as they were unwilling to accept the potential constraints on their military activity that the doctrine implied. For instance, with regard to the Brussels Declaration of 1874, Benvenisti and Lustig note that “[t]he initial Russian text invoked the famous Rousseau-Portalis doctrine,” but such language was strongly opposed by the German delegation. Accordingly, after negotiation, the proposed invocation of the Rousseau-Portalis Doctrine was excluded from the final draft of the Brussels Declaration.
But a powerful idea can have its own gravitational force and potency that pulses in the epistemological ether in a way that makes it difficult to disregard. Although the Rousseau-Portalis Doctrine was never expressly codified in the Brussels Declaration, its ethos permeated the language of the document. This is evident in the State-centric language of the Brussels Declaration (e.g., Articles 2 and 7); the articles that distinguish between combatants and non-combatants (e.g., Articles 36 and 38); as well as other articles that limit violence against private individuals and their property. Moreover, commentators have also underscored the influence of the Rousseau-Portalis Doctrine on subsequent, foundational law of war treaties such as the Hague Regulations of 1899 and 1907. Georg Schwarzenberger notes,
The Hague Regulations were drafted in a liberal age. Thus, unavoidably, one of the distinctive features of these Regulations is that, in these rules, the then prevalent assumptions on the proper division of functions between State and individual are taken for granted. Another, and even more significant, characteristic is that the Hague Regulations are largely based on the so-called Rousseau-Portalis Doctrine. War is conceived as an exclusive relation between belligerent States and, therefore, ought to affect private citizens as little as possible.
Even so, the Rousseau-Portalis Doctrine was still a contentious concept well into the twentieth century. It was championed by Continental writers, but opposed by some British and American writers, “because of its inconsistency with practice and because of the implication it carrie[d] with reference to the right to capture enemy private property at sea.” Thus, an ideological split emerged among some European jurists and others regarding the legitimacy of the Rousseau-Portalis Doctrine and its normative force. In the main, the dueling schools of thought were focused on the doctrine’s impact on the question of immunity of private property at sea and, in other respects, on its impact on the international law governing occupation.
Commentators note that this schism caused certain areas of the law of war to develop divergently in two directions: (1) the rules of land warfare (under French influence) would reflect the Rousseau-Portalis Doctrine and restrict the right to seizure of private property; and (2) the rules of sea warfare (under British influence) would continue a more permissive approach to the right of prize capture. A 1915 publication described the schism in the following way.
There have within the last two hundred years been two opposing theories of the nature of war. According to one it is a relation between Governments but not necessarily between their subjects. That was the view of Rousseau, it was strongly put forward by M. Portalis in opening the French Prize Court in 1801 [sic], and since then has obtained a considerable measure of support from Continental jurists. The other, and more conservative view, is that war is a personal relationship between the individuals of the States at war, and on this is founded the prohibition of trading with the enemy.
This schism, however, focused largely on a very specific implication of the Rousseau-Portalis Doctrine: its impact on the treatment of private property under the law of war. The broader, superordinate implication of the doctrine continued to shape international law and the modern understanding of the principle of distinction. And that aspect of the Rousseau-Portalis Doctrine has advanced uncontested. In fact, by the early twentieth century, Lassa Oppenheim wrote of the schism relating to doctrine’s receptivity but stated that “the point is unworthy of dispute, because it is only one of terms without material consequences.” Oppenheim continued, “Nobody doubts that [civilians] ought to be safe as regards their life and liberty, provided they behave peacefully and loyally; and that, with certain exceptions, their private property should not be touched.” Thus, the Rousseau-Portalis Doctrine’s broader implication—its undergirding of aspects of the principle of distinction in international armed conflict—began to gain general acceptance.
The Rousseau-Portalis Doctrine (and much of the law of war) has, of course, seen vicissitudes throughout history and has sometimes given way “to a broader conception of war, in which entire populations were transformed into enemies in war.” While it is true that during the great wars that consumed the world in violence during the early twentieth century, belligerents made efforts to treat prisoners of war humanely and to confine the fighting to combatants rather than targeting civilian populations, these conflicts also included dark examples of particularly heinous treatment of civilians (such as Germany’s deliberate attacks on civilians and Nazi efforts to exterminate the Jewish population). Such atrocities only illuminated the importance of the Rousseau-Portalis Doctrine as a cornerstone of international law. Thus, when Raphael Lemkin, in the wake of the Nazis’ systematic slaughter of European Jews and others, coined the term genocide, he deliberately characterized this international crime as one that is antithetical to the Rousseau-Portalis Doctrine. According to Lemkin,
Genocide is the antithesis of the Rousseau-Portalis Doctrine, which may be regarded as implicit in the Hague Regulations. This doctrine holds that war is directed against sovereigns and armies, not against subjects and civilians. In its modern application in civilized society, the doctrine means that war is conducted against states and armed forces and not against populations. It required a long period of evolution in civilized society to mark the way from wars of extermination, which occurred in ancient times and in the Middle Ages, to the conception of wars as being essentially limited to activities against armies and states. In the present war, however, genocide is widely practiced by the German occupant.
Lemkin used the Rousseau-Portalis Doctrine as the legal reference point from which to highlight the degree to which the Nazi regime had strayed from accepted international norms. War may never be waged against the civilian population; “in civilized society,” war is conducted against States and armed forces. The Rousseau-Portalis Doctrine was, thus, an important device for articulating the dire illegality of waging war with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.
In the aftermath of the Second World War, the doctrine would also impact the substance of the Geneva Conventions of 1949, which reflect “the distinction between combatants and non-combatants, and the sparing of the lives and property of non-combatants from the scourges of war.” This is especially true of the Fourth Geneva Convention, which provided unprecedented, explicit protection for civilians in wartime. But, as Eyal Benvenisti and Doreen Lustig observe, it would take well over a hundred years before the idea articulated by Portalis in 1800 would be codified in the provisions of the 1977 Additional Protocols to the Geneva Conventions.
Today the principle of distinction is widely recognized as customary international law. As noted in a letter from Fred Buzhardt, General Counsel of the Department of Defense, to Senator Edward Kennedy (cited in the Department of Defense Law of War Manual),
A summary of the laws of armed conflict, in the broadest terms, reveals certain general principles including the following: … (c). That a distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the civilians be spared as much as possible. These general principles were recognized in a resolution unanimously adopted by the United Nations General Assembly in its Resolution dated 13 January 1969 (Resolution 2444 (XXIII)). We regard them as declaratory of existing customary international law.
The customary status of the principle of distinction has been likewise recognized by numerous courts, including the United States Supreme Court (“By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants”); the Israeli Supreme Court (“Customary international law regarding armed conflicts distinguishes between combatants and military targets, and non-combatants, in other words, civilians and civilian objectives”); and the International Court of Justice (“States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets”). The elevation of this principle to the status of customary international law was facilitated in no small part by the anchoring effect of Rousseau’s philosophical writing and the subsequent judicialization of the concept by Portalis.
Conclusion
The notion, articulated in the Saint Petersburg Declaration of 1868, that “the only legitimate object which states should endeavor to accomplish during war is to weaken the military forces of the enemy,” now seems an axiomatic element of the law of war. And yet for most of its history, international law was slow to fully embrace such a concept. This was, in part, due to conflicting views on the nature of war and the appropriate characterization of the enemy during warfare. The law of war has evolved from this underwrought state into its current form for manifold reasons and influences. One key influence to which the law of war owes a particular debt is the shaping force of French legal thought, specifically through the elaboration of what has come to be called “the Rousseau-Portalis Doctrine.”
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Dan E. Stigall is the Director for Counterterrorism Policy, Special Operations & Low-Intensity Conflict, Office of the Secretary of Defense (Policy). He is also a Distinguished Professorial Lecturer in National Security Law at the George Washington University Law School where, among other subjects, he teaches a course on the law of armed conflict and talks to his students about the influence of Rousseau and Portalis. Any opinion expressed is solely that of the author.
The views expressed are those of the authors, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
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Photo credit: Hippolyte Lecomte
