The Rousseau-Portalis Doctrine: French Legal Thought and the Law of War – Part I
Editors’ note: This is the first 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 post provides 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. The second post will trace the evolution of that doctrine and discuss its impact on the law of war.
Commentators describe the Rousseau-Portalis Doctrine as 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.” Grounded in Grotian thought but enhanced and refined by Enlightenment thinkers, this revolutionary idea has had a significant impact on the law of war over the past two centuries. The doctrine is understood today as a salient component in the undergirding framework of the law of war.
Even so, since its early formulation, the meaning and appropriate application of the Rousseau-Portalis Doctrine have been debated. It has been variously attacked as chimerical, lauded as “a ‘civilizational’ 18th century European achievement,” derided as “an objectionable fiction,” and memorialized as a revolutionary idea that evolved into a general theory of war. It is a doctrine that has endured vicissitudes, ascending in prominence during the Enlightenment, imploding at the dawn of the era of “total war,” only to reemerge as both a source of philosophical inspiration and a part of the legal foundation for important facets of the modern jus in bello, most notably as it applies to international armed conflict.
This is the first of a two-part post that explores the origins of the Rousseau-Portalis Doctrine and the role that this intellectual product of French legal thought has played in the formation of the law of war. The post begins by providing the historical context of the principle of distinction, then briefly discusses the Enlightenment thinkers whose names together form the doctrine’s hybrid compound eponym: Jean-Jacques Rousseau and Jean-Étienne-Marie Portalis. The post then reviews the respective views of each of these Enlightenment thinkers on international law and traces the history of the fusion of their ideas into the core doctrine that has had such a significant impact on the law of war.
Early Writers and the Principle of Distinction
The principle of distinction, one of the cardinal principles of the law of war, took time to evolve. Writing in 1880, English jurist William Edward Hall noted:
In the first hundred and seventy years of the existence of international law as a system, the notion of the separability of the individual from his state for the purposes of war was unknown to international jurists. To all, it was a matter of course that the subjects of an enemy state were themselves individually enemies.
During the sixteenth and seventeenth centuries, however, early legal scholars began to reforge the prevailing paradigm of international law. One may perceive an intellectual faultline in the writings of Hugo Grotius, the Dutch scholar and diplomat sometimes referenced as “the father of international law.” Grotius recognized that the international law of his time extended the right of killing and injuring “not only to those who actually bear arms, or are subjects of him that stirs up the war, but in addition to all persons who are in the enemy’s territory.” This even extended to women and infants. Even so, while acknowledging the unfortunate lex lata (settled law) of his era, Grotius gave “exhortations to moderation” and described a range of activity that, though legally permissible, should be avoided based on virtue and honor. For Grotius, these were behaviors from which one should abstain based “on higher grounds and with greater praise among good men.” Emily Camins explains that these prohibitions were presented by Grotius as lex ferenda (aspirational, future law), and they included the idea that one should distinguish between who can and cannot be harmed during war: “One must take care, so far as is possible, to prevent the death of innocent persons, even by accident.”
The writings of Grotius also permitted a reenvisioning of war as national in nature rather than as an interpersonal phenomenon. Pursuant to the Grotian view, soldiers in war were “being killed not because of any personal wickedness or acts of wrongdoing on their part, but rather by virtue of their status as members of the opposing armed force.” Such views made Grotius “an important intellectual bridge to the development of Enlightenment ideas about the nature and definition of war, particularly its justification.”
Building on such work, early writers of the Enlightenment who addressed issues of warfare began to recognize a general rule against harming those not involved in battle. Emer de Vattel, for instance, in his 1758 work entitled The Law of Nations (Le Droit des Gens), wrote, “At present, war is carried on by regular troops: the people, the peasants, the citizens, take no part in it, and generally have nothing to fear from the sword of the enemy.” Pablo Kalmanovitz highlights that such language was an incipient recognition of a need to distinguish between “those who actively engaged in hostilities and those who did not[.]” While Vattel articulated some legal protections for the latter category, he still maintained that all subjects of the adversary State were enemies and, therefore, subject to myriad forms of viciousness: their food could be destroyed, they could be taken hostage and held for ransom, they could be starved to death during sieges, etc. As Kalmanovitz emphasizes, this was “far from the contemporary humanitarian legal principle of distinction[.]”
Like so many other ideas in the eighteenth century, however, the precursive principle of distinction that was etched out in these earlier legal writings would be carried forward in a torrent of transformation. It would find new force and a new conceptual underpinning that would permit the idea to evolve to its current form. The most dramatic phase of that intellectual efflorescence began with the writing of Jean-Jacques Rousseau.
The Philosopher: Jean-Jacques Rousseau
Jean-Jacques Rousseau was born in the independent city-state of Geneva in 1712. His parents were descended from French Huguenots who had fled to Geneva. His mother died shortly after his birth, and his father, a watchmaker, essentially abandoned him at an early age. He received a “haphazard education” during his youth, and “his early life was very unsettled and included much wandering.” As a young man, he was apprenticed to a notary and, subsequently, a horologist’s engraver, but he never pursued either vocation. Rather, he spent many years leading a somewhat shiftless existence before traveling to Paris in 1742 “to pursue a career as a musician and composer.” In Paris, he befriended other Enlightenment thinkers (such as Diderot) and found a significant measure of professional success, even serving for a time as Secretary to the French ambassador in Venice.
Rousseau’s literary career began in 1750, with the publication of A Discourse on the Sciences and the Arts (1750), in which he posited that nature made people happy and good, but that society was responsible for the depravity and misery of humankind. He would, of course, go on to author numerous influential works on a range of topics, including political works such as A Discourse on the Origin of Inequality (1755). His work, however, also encompassed foreign affairs. In 1756, he moved to a secluded cottage in Montmorency (L’Hermitage de Montmorency) where he worked on several projects, including extracts and critiques of the Abbé de Saint-Pierre’s Plan for Perpetual Peace. Through such writing, Rousseau began articulating more expansively his views on international relations, establishing himself as an early international relations theorist and as a kind of proto-realist who was “pessimistic about the prospect for fundamental changes in the war-prone ‘anarchical’ inter-state system.”
In 1762, Rousseau published his best-known work, The Social Contract, in which he put forth “a radical vision of political organization grounded in the idea that true freedom can only be achieved through collective sovereignty.” This idea was a challenge to “the established norms of governance” because it asserted that “legitimate political authority stems not from rulers, but from a social contract agreed upon by all members of society.” Consistent with his earlier writings, Rousseau also articulated the idea of “the state of nature,” in which he referred to “early humans as noble and untainted by the complexities and inequalities that later emerged with civilization.”
Rousseau, International Law, and the Law of War
Rousseau held poignant views concerning international law, including the law of war, and these views helped shape facets of the modern legal landscape. Gianluca Sadun-Bordoni writes, “in the tradition of international law, developed since the end of the 19th century, there is a common awareness that the basic character to which the law of war conforms is the concept of war defined by Rousseau.” Many of Rousseau’s views can be discerned from an analysis of his major works, and some are further illuminated in a fragmentary text called Principles of the Right of War, an unpublished work that was to be part of a larger work called Political Institutions, which Rousseau undertook between 1756 and 1758. In that text, Rousseau provides ruminations on the nature of war, peace, and humankind. He expresses a pessimistic skepticism of both the existing world order and the law of nations. For instance, Rousseau asserts,
As for what is commonly called the right of nations, it is certain that for want of sanction its laws are merely chimaeras, weaker even than the law of nature. The latter at least speaks in individual hearts, whereas, since the law of nations has no guarantee apart from its usefulness to the person who submits to it, its decisions are respected only insofar as interest confirms them.
Thus, for Rousseau, “the Law of Nations was the product of consent, express or tacit … .” It is not coextensive with natural law but, rather, a human construction. The State, in Rousseau’s view, is “an artificial creation governed by no natural laws of its own, and it is bound by no laws but those to which it consents.” Commentators have described this as a “starkly positivist” view of the international order, though it is a view that aligns with some of the Spanish scholastics of the preceding century (such as Francisco Suarez). To address the flaw of the international system as he viewed it, Rousseau proposed the creation of a federative system of small, independent republics in a sort of collective self-defense arrangement to mobilize their armed forces “in defense against the expansionist aims of imperialist powers[.]” He also proposed the creation of a European federation as a means of promoting greater international stability.
Beyond his vision of an international relations architecture, Rousseau also addressed the law of war. Notably, within The Social Contract, one finds a statement by Rousseau that has resulted in his most profound impact on the subject:
War is not a relation of man to man but of state to state, in which individuals are enemies only accidentally, not as men nor even as citizens but as soldiers, not as members of their country but as its defenders. In fact, a state can only have other states for enemies and not men, seeing that no true relation can be established between things of different natures.
This statement by Rousseau has been described as “best capturing the originating spirit of humanitarian law and the aspiration that non-combatants be spared the violence of war.” On that score, Gianluca Sadun-Bordoni notes, “It was in fact Rousseau who clearly presented war as a relation between States, according to the basic ‘classic’ conception of law of war, codified in the Hague Conventions of 1899 and 1907, based on ‘symmetric war’, or on war as a clash between organized armies.”
Elsewhere in The Social Contract, Rousseau further articulated a philosophical basis for the idea of non-combatant immunity and the protection for those who are placed hors de combat, writing, “Since the purpose of war is to destroy the enemy State, it is legitimate to kill the latter’s defenders so long as they are carrying arms; but as soon as they lay them down and surrender, they cease to be enemies or agents of the enemy, and again become mere men, and it is no longer legitimate to take their lives.” Such assertions, stemming from his conceptualization of war as a relationship between States rather than individuals, emphasized the plight of prisoners of war and helped provide a cognitive anchor or intellectual rationale for legal protections for others, such as those placed hors de combat. Importantly, Rousseau also highlighted the strategic importance of such an approach. Blaise Bachofen notes,
[Rousseau] deals with the question of jus belli in the light of his theory of the social contract and the general will, showing that a war is only really won when the defeated people have submitted freely to the law of the victor; this formulation suggests a certain moderation and prudence in the manner of waging war, always keeping in mind the fate of civilian populations and the manner of ending the war.
Rousseau, therefore, set forth important ideas regarding the nature of the State and armed conflict, as well as the rules that should govern during times of war. Those ideas would garner force after his death on July 2, 1778, at the threshold of the French Revolution. He would posthumously achieve “political and intellectual sainthood,” and he would rise to become “one of the most influential figures of the 18th century and French Enlightenment period … .” Alberto M. Piedra posits, “Rousseau was not only a key figure in the Enlightenment, but probably the most popular and widely read intellectual revolutionary in France.” His work influenced the Founding Fathers of the American Revolution, and it was exalted (and almost sacralized) by key figures of the French Revolution such as Maximillian Robespierre.
Rousseau is generally grouped among French philosophers. Although he was born Genevan, Rousseau later lost (and subsequently renounced) his Genevan citizenship. He was francophone, wrote in French, lived in France, and largely contributed to the Enlightenment from France (which was the intellectual and spiritual epicenter of the movement.) After his death, he was interred in the Panthéon in Paris among other great intellectual figures in French history.
The Jurist: Jean-Étienne-Marie Portalis
Jean-Étienne-Marie Portalis (sometimes called “Portalis the Elder”) was born in 1746 in Le Beausset, France. His father was a royal notary and a professor of canon law at the University of Aix-en-Provence. During his childhood, he was educated in Toulon by Oratorians who provided an “eclectic education” that emphasized the work of Enlightenment authors. Nicolas Laurent-Bonne remarks that Portalis assiduously read writers such as Montesquieu, Grotius, and Rousseau.
At the age of nineteen, Portalis became a lawyer at the Parliament of Aix-en-Provence, the highest court of justice in the Provence region. His brilliance as a legal scholar and practitioner was evident from the outset of his career, earning the attention of other eighteenth-century luminaries (such as Voltaire) and officials in the highest echelons of the French government. The focus of his legal career was primarily French domestic law: family law; tax law; penal law; etc. According to Laurent-Bonne, “The most renowned of his clients was Louis XV’s minister, the Duke of Choiseul, with regard to the validity of Protestant marriages.”
Beyond his work as a lawyer, Portalis was also a government official and politician. He was first elected to lower-level public offices in Provence, serving as a provincial administrator, though his government career would take on new dimensions with the French Revolution. He traveled to Paris in 1793 and served as an official in the First Republic. He was then elected in 1795 to the Council of Elders, the upper house of the legislature established by the French Constitution of 1795, and eventually became its president. The Coup of 18 Fructidor (1797) disrupted his career, however, as members of the Directory (the executive body of the Revolutionary government) sought to seize power and expel members of the Council of Elders whom they viewed as conservative and royalist in orientation. Portalis, the staunch Catholic with traditionalist tendencies, was viewed as a royalist, and was “condemned to deportation” by the law.
Forced to leave France, he traveled to Switzerland and ultimately spent much time in exile with his family in Germany. There, he engaged with a circle of German intellectuals who discussed the French Revolution and its aftermath. During this time, Portalis wrote a philosophical work entitled On the Usage and Abuse of the Philosophical Spirit During the 18th Century, which offered a strong critique of certain aspects of Enlightenment thought and, notably, of Rousseau. It has been described as “an extremely wide-ranging work, tackling topics ranging from philology to jurisprudence to Kant’s critical philosophy.”
Portalis was able to return to France after the coup of 18 Brumaire, which brought Napoleon Bonaparte to power and ended the French Revolution. From that time onward, his political career resumed its ascendance. In 1800, Napoleon appointed him a “commissioner in the Prize Council and a few months later Conseiller d’Etat (member of the Council of State).” That same year, he was selected as one of four jurists for the commission tasked with preparing the draft of the French civil code. On that score, Professor Alain Levasseur, Professor of Law Emeritus at Louisiana State University Paul M. Hebert Law Center, notes,
Portalis’ leading role in the drafting of the French Civil Code was acknowledged by his colleagues in the Commission who entrusted him with the task of writing the general report on the works achieved by the Commission, to bring to light the spirit that inspired and guided the drafters. His previous works, his philosophical mind, his wide knowledge, everything marked him out for this task. He called his report, “Preliminary discourse on the projet of Civil Code.” This preliminary discourse is a masterpiece of legal science and rightfully considered as such.
A deeply religious person, Portalis “brought to his role a patriotic pride in the antiquity of French Catholicism with its Gallican respect for the rightful role of the temporal sovereign.” One sees this in his early philosophical writing, in which Portalis criticized the work of Rousseau as being irreligious and destructive. In Rousseau’s writing, commentators note that Portalis “discovered a philosophy without religion, tearing natural law from the heart of the moral and the virtuous.” This is also evident in his Preliminary Address on the First Draft of the Civil Code, in which Portalis writes, “We have, in our modern times, loved change and reform too much; if, when it comes to institutions and laws, centuries of ignorance have been the arena of abuses, then centuries of philosophy and knowledge have all too often been the arena of excesses.”
During his lifetime, Portalis would rise to the heights of power as a French jurist and politician. He was bestowed the Grand Eagle of the Legion of Honor in 1805, died in Paris on August 25, 1807, and is buried in the Pantheon (not too far from the tomb of Rousseau).
Portalis, International Law, and the Law of War
Although his primary focus was French domestic law, Portalis did provide his views on the law of nations and the international order. Professor Levasseur has highlighted the following passages from various works by Portalis that provide insight into his thoughts on such issues.
Nations live among themselves only beneath the authority of law. Members of each community are ruled as men by law, and, as citizens, by legislation.
Natural law and the law of nations (ius gentium) do not differ in terms of substance, only in terms of their application. Reason, insofar as it governs all men, is called natural law, and this reason is called the law of nations (ius gentium) when applied to relations of one people with another.
When we speak of a natural law of nations and a positive law of nations, it is to distinguish eternal principles of justice, which nations have not created but which dominate them like the humblest of men, from conventions, treaties, and customs that are the work of nations.
His express views on the law of nations reflect the strong influence of the eighteenth-century school of natural law and the proposition that “reason does not impose order upon human nature but discovers an order that is already present.” When reading Portalis’s words, one can also detect echoes of Vitoria’s conceptualization of natural law and the law of nations, according to which the law of nations derives from natural law but also contains rules which were made by humans, articulated through treaties and custom but “ultimately subject to the law of nature.”
As the intellectual force behind the French civil code, Portalis, of course, impacted international law at the meta-level. This is due to the global influence of the French civil code, which has, in turn, informed the substance of international law. (I have written about the influence of civil codes and Roman law on international law here and elsewhere.) But Portalis also made more direct contributions to international law. Interestingly, it is not in Portalis’s academic writing where we find his most significant contributions to international law. Rather, it is in his disquisitions as a jurist and senior government official. Although most famous for his work on the civil code, Portalis was an intellectual and juridical polymath, and his high position in the French government required him to address a wide range of legal issues. Among these was prize law: the law relating to captured enemy property, including vessels and cargo, during war.
This was the case in 1800 when Portalis was appointed to be a commissioner in the French Prize Council, a body reinstituted by Napoleon on 6 Germinal, Year VIII (March 27, 1800) to adjudicate vessel disputes. Many understand prize law as “a function of the law of war,” so when Portalis gave an address on 14 Floréal Year VIII (May 3, 1800) at the investiture of the French Prize Council, it was only natural that the topic should arise and that the great jurist would opine on its substance. Within the text of this speech, we find Portalis’s most significant (and most frequently reproduced) comment relating to the law of war. Excerpts from this speech are frequently reproduced without context. They are more fully provided below, drawn from a transcription of the speech that appeared in Gazette nationale, ou le moniteur universel, Volume 26 (1800):
CITIZENS,
The importance of our mission heralds that of our duties. A wise government that senses the need and has the firm will to be just, calls us to exercise, alongside it, the functions, both delicate and sublime, of conscience. It establishes us, in a way, as ministers of the sacred alliance of politics and morality.
…
The law of war is based on what a people, for the sake of its preservation or for the sake of its defense, wants, can, or must do violence to another people. It is the relationship of things, and not of persons, which constitutes war: it is a relationship of State to State, and not of individual to individual. Between two or more belligerent nations, the individuals of which these nations are composed are enemies only by accident; they are not so as men, they are not even so as citizens; they are so only as soldiers.
Let us do justice to our philosophy, which, based on these fundamental truths, has more than once invited the governments of Europe to stipulate, in their treaties, the freedom and security of trade during war, respect for agricultural work, works of art, and for all private property; but politics, which is not political law, has so far refused to accept the conclusions of philosophy.
It must even be admitted that theory, even the most seemingly perfect is not always the most suitable in practice. The maxim of the wise must be not to seek an absolute best which things and men perhaps can never achieve, but that relative best which is always within our reach, which is shown by experience, and which arises from the principles of reason matched with the needs of society.
In the new position that the invention of the compass and the discovery of America have given to the world, it is mainly our commercial relations that become the source of our wars. It is almost always for well or ill-understood interests, for well or ill-conceived ideas of commerce, that the earth is bloodied.
….
Moreover, whatever one may think of the question, whether trade must be interrupted, or whether it must remain free between belligerent nations, it is at least certain that neutral nations, as long as they take no part in the war, must continue to enjoy all the advantages of peace.
The ancients, to lessen the disasters of one of the most terrible scourges that can afflict humanity, established sacred and free cities, which served as an asylum for commerce, and … in which, in the midst of the bloodiest hostilities, industry found a safe haven against brigandage and death.
….
The French shipowners who will address the council are delegates of the government; for privateering is only a delegation of the right of war made by the sovereign to individuals who devote themselves to these perilous speculations. On the other hand, the foreigners whose fate your decisions will determine cannot separate their cause from that of the nations themselves of which they are a part. Now, it would be ridiculous, said the Roman orator once, to decide the rights of nations and of the whole world, by the same maxims on which one decides the right to a gutter between individuals.
….
War is a necessary, legitimate, and unfortunate right, which always leaves an immense debt to be paid with regard to human nature. But let justice and peace embrace each other, and already most of the evils of war will be repaired.
The hero of France, today the first magistrate of the Republic, has just placed his victories and his name above envy, by proposing peace to the belligerent nations, and by professing justice towards all. Let us associate ourselves with the great and beneficent thoughts which animate him. Equity is the virtue of empires. Moderation is the wisdom of great states, as it is that of great men. Let us know that if war kills citizens, a misguided policy prevents them from prospering, and can even prevent them from being born. We have stunned and shaken Europe by the brilliance and force of our arms: it is time to reassure it by our principles and to console it by our virtues.
Portalis did not expressly cite Rousseau in this speech, but he clearly mirrored Rousseau’s famous language from The Social Contract in such a way that it would be readily familiar to the audience. Portalis further mined enough essence from Rousseau’s language to nourish an extrapolation by which he could assert “that civilian commerce should not be an object of attack in war.” Most importantly, Portalis extends Rousseau’s idea about the nature of war to the law of war (le droit de la guerre). This legal assertion was nested in the context of a more sweeping speech that invoked the luminous history of French intellectualism, held forth Rousseau’s philosophy as an ideal, lamented that mankind has fallen short of this ideal, and asserted the importance of the work of the Prize Council as a mediating force that can help repair “the evils of war.” The speech was a magisterial invocation of French values and a reminder of the solemn duties of those in the French Prize Council who were charged with adjudicating sensitive claims that were, by their nature, rooted in acts of war and matters of State. And, beyond all of that, it was the integration of Rousseau’s philosophical postulation into international law.
Conclusion
Rousseau and Portalis are both important (but contrasting) figures in French intellectual history who shaped law and government through the force of their ideas. The parallels in their lives and careers are interesting to observe. One was a philosopher whose work impacted law and who traveled to France, where he found greater purpose; the other was a jurist who imbued law with philosophical qualities and wrote philosophical works while exiled in Switzerland and Germany. While there are certainly areas of intellectual alignment between the two, their points of divergence become readily apparent as Portalis never accepted Rousseau’s ideas fully. Rousseau was critical of religion and Catholicism, while Portalis was staunchly Catholic and a traditionalist. Further, while both ascribed to the school of natural law, they each interpreted its principles differently. Nevertheless, although buried in different places in the Pantheon, their names are conjoined in discourse related to the law of war.
Both Rousseau and Portalis were Enlightenment thinkers who put forward ideas that have influenced international law. The second post in this series will elaborate on how their writings and statements were inosculated into a single doctrine. That post will also trace the evolution of that doctrine, highlight the nature and degree of its reception globally, and discuss its impact on the law of war.
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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: Horace Vernet
