Istanbul Law Review
The Development of the Theory of Sovereignty and the Modern Law of Nations from Machiavelli to GrotiusMehmet Emin Büyük
Political thought that continued until the Middle Ages, has been transformed both in the field of sociology and politics and in the theoretical field, alongside modernity. The keyword for this transformation is sovereignty. Sovereignty brings the relationship between auctoritas and potestas, which was previously sought in an external source, to a mundane level. Machiavelli was one of the first to see this change and went beyond a priori judgments brought by medieval political thought, leaving it to Bodin to replace the legitimacy relationship that he destroyed. Sovereignty is an inherent element of the state. It is absolute, perpetual, one, and indivisible. A true sovereign is one who possesses all these. Ultimately, basing legitimacy on a divine source―which was the missing point in Bodin’s definition of the secular state― became a component of the framework drawn by Suárez, which was based on the social contract theory. The modern states that emerged manifested their sovereignty in various ways, both internally and externally. The relations of such sovereign structures with each other achieved order within the system of international law. Vitoria foresaw modern international law regulating such a relationship between equals. Suárez rethought the facts seen by his predecessor with a positivist interpretation. Grotius took his place as the founder of modern international law by systematizing these previous interpretations. The current structure of international law is based on this background.
Machiavelli’den Grotius’e Egemenlik Kuramının ve Modern Devletler Hukukunun GelişimiMehmet Emin Büyük
Orta Çağ’a kadar gelen siyaset düşüncesi, moderniteyle birlikte hem sosyoloji ve siyaset alanında hem de teorik alanda dönüşüme uğramıştır. Bu dönüşümün anahtarı olan kelime egemenliktir. Egemenlik, daha önce dışsal bir kaynakta aranan yasa ile uygulama arasındaki ilişkiyi dünyevi bir düzleme indirecektir. Machiavelli bu değişimi en önce görenlerdendir ve Orta Çağ siyaset düşüncesinin getirdiği a priori yargıların dışına çıkar. Onun yıktığı meşruiyet ilişkisi yerine yenisini koymak ise Bodin’e düşecektir. Egemenlik, devletin özünde var olan bir unsurdur. Mutlaktır, süreklidir, bir ve bölünmezdir. Gerçek bir egemen bu unsurların tümüne sahip olandır. Bodin’in düşüncesindeki laik devletin tanımlanmasında eksik nokta olan, nihai olarak meşruiyetin Tanrısal bir kaynağa dayandırılması ise, Suárez’in sosyal sözleşme kuramı temelli çizdiği çerçeve ile yetkinleştirilecektir. Böylece ortaya çıkan modern devletler içeriye ve dışarıya karşı egemenliklerini çeşitli biçimlerde ortaya koyar. Bu türden egemen yapıların birbiriyle ilişkisi ise devletler hukuku sistemi içerisinde bir düzene kavuşur. Bu türden bir eşitler arasındaki ilişkiyi düzenleyen modern uluslararası hukuku ise Vitoria önceden görmüş; Suárez selefinin gördüğü olguları pozitivist bir yorumla yeniden düşünmüş; Grotius da kendisinden önceki yorumları sistematikleştirerek modern devletler hukukunun kurucusu olarak yerini almıştır. Uluslararası hukukun bugün halen geçerli olan yapısı bu arkaplana dayanmaktadır.
In this article, I will try to explain the transformation of the theory of sovereignty and modern international law, through the perspectives offive famoustheoreticians.In this way, the emergence of today’s international law system may be better understood and the predictions for the future will be more tenable. The international legal system that exists today is based on a system called European Public Law, which regulates relations between modern states. Thus, choosing the phrase “modern law of nations” for the title of the study emphasizes this point.
The development of modernity in political science can be explained from two different contexts. One is the sociological/historical plane that presents the facts, and the second is the theoretical plane. Theoretical explanations are given in this study. The key concept in understanding the modern state from an intellectual point of view is sovereignty. It is the name given to the modern interpretation of the legitimacy relationship on which political power is based. In the Middle Ages, the legitimacy of power was derived from external or divine principles. With its development over time, the concept of sovereignty brought a completely nonreligious understanding of politics. Auctoritas and potestas were united in one hand, and this emerging structure became permanent and absolute.
Machiavelli, in his work Il Principe, is not interested in what should be related to politics and distances himself from the a priori judgments of medieval political thought. Legitimacy is identified with politics and the practice that ensures the retention of power is legitimate to the extent that it serves this purpose. In this respect, there is no need to seek further legitimacy. Bodin sees the element of continuity that Machiavelli could not. He defines the République/State as the lawfull government of many families and what is common to them by the sovereign power. Sovereignty is inherent in the state, and this distinguishes the state from other forms of community. According to Bodin, sovereignty is absolute and cannot be limited by any other power; it is perpetual, being isolated from the body of the sovereign; is one, indivisible and inalienable. Suárez, on the other hand, comes up with the idea of twostage empowerment. For him, political power is given primarily to society by God— which is the first empowerment. Society decides for itself how to use this power, and whether the democratic structure is maintained or transferred to a monarch or an aristocratic structure―which is the second empowerment. The social contract theory is thus empowered by placing the public between auctoritas and potestas.
Each of these new sovereign structures, which do not need external legitimacy and whose legitimacy originates from itself, manifests sovereignty in various ways, both internally and externally. A set of rules is needed to define the relationships in this emerging new system of modern states. International law regulates this area. The subjects of this legal system are equal structures. Three theoreticians, thinking of international law in the modern sense, have drawn the basic framework that remains relevant today.
In his Relectiones Theologicae, Vitoria reinterpreted the concept of jus gentium, which came from Roman law and which consisted of regulating legal matters between Roman citizens and foreigners. He envisaged a new system that can today be called the “law of peoples.” What is at issue in Vitoria is the establishment of applicable rules between all nations, peoples, or tribes of the world, which is also different from the system of international law in the modern sense. He views this, particularly through the Spanish discoveries and relations with the natives, and constructs his thoughts on the theory of just war.
Suárez also uses the term jus gentium, but this concept will now be drawn into positive boundaries. In De Legibus, the theoretician reveals the difference of jus gentium from other disciplines. He even distinguishes different uses of jus gentium and concludes that jus gentium is a legal discipline that different societies and nations have to follow in their relations with each other. Thus, the ideas of this famous theologian subsist in the international law of modern times. He cites the law of war, slavery, peace treaties, and ceasefires as examples of the issues this principle regulates. Moreover, Suárez distinguishes jus gentium from natural law in that it is subject to the consent and therefore can be changed.
The Dutch writer, Grotius, fulfills the task of compiling and systematically explaining the views of early writers, such as Vitoria and Suárez, and others, like Balthazar Ayala and Alberico Gentili, who will be mentioned only by name in the study. In his comprehensive work of international law, De Jure Belli ac Pacis Libri Tres, Grotius dealt with broad issues from legal theory, just war, sovereignty to property, liability law, and the law of war. He also now understands jus gentium as rules based on the consent of sovereign modern states and which regulates the relations between them.
As a result, the state-like structures of the Middle Ages evolved into sovereign states with modernity, jus gentium, one of the unique premodernity legal disciplines, transformed into international law, which regulates interstate relations in the modern sense.