machiavelli and his influence on modern international law victory goes to the swift, the strong, and...

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MACHIAVELLI AND HIS INFLUENCE ON MODERN INTERNATIONAL LAW: VICTORY GOES TO THE SWIFT, THE

STRONG, AND SOMETIMES, THE RUTHLESS

Theodore J. Biagini

CHAPTER ONE

INTRODUCTION

International law was not born with Grotius, Vitoria, or Vattel. Nor was it created by the Treaties of Westphalia. Today’s international law is the law of a global international society, and this society came into existence around the end of the nineteenth century. What existed before were regional normative systems, each of which claimed universal validity based on each system’s particular view of humanity and of the world. Sinocentric, Islamocentric, and Eurocentric systems were leading examples. With the subjugation of competing powers in other civilizations by colonizing European powers, European international law became the global standard.1

This western concept of international law was not born in a vacuum. In this article, I will review the intellectual and philosophical antecedents that underlie international law as it is understood today. In particular, I will examine the role of Niccolò Machiavelli (1469-1527) in its development.

Machiavelli is considered a founder of modern political science. Machiavelli was a politician, diplomat, and writer. He was neither a jurist nor a lawyer. Nonetheless, through his widely-read

* Theodore J. Biagini, Attorney at Law, was first admitted to practice law in the State of California in 1965. He holds a B.S.C., J.D., and L.L.M. from Santa Clara University; as well as an M.L.A. from Stanford University.

1 See MALCOLM N. SHAW, INTERNATIONAL LAW 13-41 (Cambridge University Press, 5th ed. 2003).

2 LINCOLN LAW REVIEW [Vol. 37

thoughts on political science and politics as actually practiced, he had a significant influence on the evolution of international law. As Shirley V. Scott has written, “A mere glance through several mainstream journals, including The International and Comparative Law Quarterly and the European Journal of International Relations, suffices to demonstrate that linking politics and law is an accepted mainstream activity in both disciplines (though this is less apparent in the policy-oriented Foreign Affairs).”2 Thus, the political theory in Machiavelli’s writings, in particular The Prince, 3 had much to say about the evolution of international law as we know it.

I will show how Machiavelli, whether admired or despised, was instrumental in affecting the thinking and writing of many scholars and diplomats who succeeded him. Machiavelli and these successors inspired the philosophers and jurists who did have a direct effect on the evolution of the law of nations.

This Florentine statesman and writer of the late fifteenth and early sixteenth centuries has been vilified by many, praised by others, but ignored by few. Today, after five hundred years of scholarly debate and not-so-scholarly polemic, he remains the subject of intense scrutiny and controversy. His writing, at times shocking but always insightful, has generated a wide range of responses. “Variously, he is the sycophant who solicits his republican soul for aristocratic patronage. He is the nerd whose revenge is delivered vicariously in the form of macho prose. Or he is the feeble lecher trying to impress a fetching young actress.”4 On the other hand, some see a moral residue in his writing, furthering the cause of republicanism.5 The ultimate critic of Machiavelli is Leo Strauss, who is adamant that Machiavelli is

2 Shirley V. Scott, Identifying the Source and Nature of a State’s Political Obligation Towards International Law, 1 J. INT’L L. & INT’L. REL. 49, 50 (2005).

3 The copy of Niccolo Machiavelli’s The Prince used throughout this paper is an English edition. For research purposes, the corresponding Italian text has been provided. See infra note 64 for citations to both editions.

4 Timothy J. Lukes, Lionizing Machiavelli, 95 AM. POL. SCI. REV. 561 (2001) (citations omitted).

5 Id.

2009-2010] MACHIAVELLI AND HIS INFLUENCE 3

a teacher of evil.6 Whether nefarious or noble, Machiavelli is widely acknowledged as being the Renaissance precursor of modernity. In particular, he is often called the father of modern political science. E. H. Carr writes, “It was only with the break-up of the medieval system that the divergence between political theory and political practice became acute and challenging. Machiavelli is the first important political realist.”7

Machiavelli reintroduced realism into European political thought, borrowing from and enhancing the realism handed down by the ancients.8 Machiavelli’s view of humankind greatly influenced his political and literary works. “According to Machiavelli, men are selfish, greedy, and cowardly opportunists, who will never willingly do anything that does not further their own interests.”9 This line of thinking would reach its apex with the philosophy of the Englishman, Thomas Hobbes (1588-1679), who wrote that without the socializing influence of a sovereign, the world would devolve into a war by all against all.10

Machiavelli strongly believed that human nature is invariable, unchangeable, and universal. Thus, he contended, a study of past leaders and their actions could guide him and us to a usable political science. Roberto Ridolfi writes:

[B]y practice and by intuition, his genius had led him to be the first to appreciate in history that ‘flavour which it possesses,’ and to draw from it the principles and general rules of a new science. This had as its basis the theory that human nature, with its desires and vices, its

6 LEO STRAUSS, THOUGHTS ON MACHIAVELLI 11 (Chicago University Press 1958).

7 E. H. Carr, The Twenty Years’ Crisis, in FOUNDATIONS OF INTERNATIONAL LAW AND POLITICS Ch. 5 (Ooma A. Hathaway & Harold Hongju Koh eds., Thomson West 2005).

8 See discussion infra on the classical realists, particularly Thucydides, Aristotle, and St. Augustine.

9 ANNETTE FREYBERG-INAN, WHAT MOVES MAN: THE REALIST THEORY OF INTERNATIONAL RELATIONS AND HUMAN NATURE 58 (State University of New York Press 2004).

10 See LEO STRAUSS, THE POLITICAL PHILOSOPHY OF HOBBES 10-13 (Elsa M. Sinclair trans., The University of Chicago Press 1963).


virtues and weaknesses, does not change with the passage of time.11

Machiavelli was a product of his times, and the times were full of turbulence and stratagem. In Machiavelli’s day, the powerful and the wealthy created their own standards, irrespective and disrespectful of the laws of church and state. In his view, there is a clear division in the daily struggle of life—there are those who take, and those who are taken. In this way of thinking, it is not virtuous to meekly allow another to take what is there for the grabbing; it is unpardonable and utterly foolish. Being a feeble object of another’s actions is tantamount to an inexcusable sin. Virtue entails an understanding of the ways of the world, both in comprehending how the world works and in knowing how to get what one wants for one’s self. If one misses out on a God-presented opportunity, one is a fool for leaving behind what could be rightly his or hers; leaving it for a more clever person who will surely profit by the fool’s lack of acumen. These Machiavellian principles of personal behavior were grafted into his view of how a leader should conduct politics and warfare.

Machiavelli instructs his audience of princes and would-be princes in the art and means of statecraft, and what is required to become an accomplished, durable political leader. These qualities, a bundle of character traits, he encapsulates in the Italian word “virtù.”When Machiavelli speaks of virtù, he is not speaking of virtue as understood in the classic Aristotelian, Ciceronian, and Christian sense to be the habit of doing the right thing in the right way.12 Cascarelli says:

[A]ccording to the general consensus, subsequent writers such as Thomas Hobbes, John Locke, Jean-Jaques Rosseau, and even Karl Marx ultimately take their bearing from Machiavelli’s point of origin. And that point of origin is this: The pursuit of virtue, that is, moral perfection, is not possible, nor is it a legitimate

11 ROBERTO RIDOLFI, THE LIFE OF NICCOLO MACHIAVELLI 147 (Cecil Grayson trans., The University of Chicago Press 1963).

12 Joseph C. Cascarelli, Presumption of Innocence and Natural Law: Machiavelli and Aquinas 41 AM. J. JURIS. 229, 234-35 (1996).


goal of government or even a legitimate object of society.13

Virtù has much to do with machismo, an exaggerated sense of manliness. For Machiavelli, virtù in many contexts is a trait signifying a particular kind of strength, that of virility. In fact, virtù is derived from vir, the Latin word for a male.14 Machiavelli contrasts the manly virtù that leads to freedom and glory with a feeble effeminacy, which leads to slavery and infamy. Machiavelli’s virtù is the internal spirit and dynamic energy that drives a successful person to accurately analyze a situation, and then to act timely and in an effective manner to maximize the desired goal. And it is the end, the goal, and not the means, that becomes important.

Conventional theories of international law, as espoused by international law jurists, emphasize the normative aspects of international law and the moral compulsion both inherent in and compelled by those norms. Traditionalists in international law are akin to the idealist branch of international relations. Idealists believe international law and morality, rather than raw power alone, are key influences on international events. International law refers to principles and rules of conduct that nations regard as binding. Idealists think that human nature is basically good. They believe good habits (such as telling the truth in diplomatic dealings with other nations), education, and the existence of international organizations—such as the UN—facilitate good relations between nations, and will result in peaceful and cooperative international relationships.

Idealists see the world as a community of nations that have the potential, and the goal, to work together to overcome mutual problems. Even though there is generally no defined enforcement mechanism, international lawyers claim a high rate of voluntary compliance by states. As Louis Henkin has famously declared, “almost all nations observe almost all principles of international law and almost all of

13 Id. at 236-37 (emphasis added). 14 HANNA FENICHEL PITKIN, FORTUNE IS A WOMAN: GENDER AND POLITICS IN

THE THOUGHT OF NICCOLO MACHIAVELLI 25 (The University of Chicago Press 1999).


their obligations all of the time.”15 Further, even if it is not in a state’s best interests to comply with a norm of international law, international lawyers argue that it will do so “out of respect of its [universal law’s] universal legitimacy.”16

Machiavelli would treat such ideas as the unsophisticated ruminations of a fesso (fool). He was thoroughly convinced that knowing persons and states act exclusively out of self-interest. The hard international realism of Machiavelli and his followers’ follows from their view that states are created and operated by self-absorbed and self-interested women and men. The law that prevails in personal and political situations is not the law of nations, but the law of the jungle—the realm of realism, not starry-eyed idealism.

In their very controversial book, How Nations Behave, Jack L. Goldsmith and Eric A. Posner state their purpose in writing the book as follows: “Our aim is to integrate the notion of state interest with simple rational choice models in order to offer a comprehensive theory of international law.”17 “State interest” is the code term used by realist political scientists to describe their views on the interaction between and among states. Under this theory, politicians and diplomats use their offices to advance the interests of their own country, with little or no regard for morality, friendship, or law. Conflict is inevitable, and cooperation lasts only for as long as it is advantageous to the cooperating parties. Nations are selfish and need to be armed, both to advance their own interests and to thwart those of others. Power, economic and military, is the lever that operates the world of international relations. 18 Hans Morgenthau, one of the leading proponents of realism, has written that in the “iron law of international politics . . . legal obligations must yield to the national interest.”19

Dedicated realists hold “ . . . that sovereignty precludes constraint on

15 LOUIS HENKIN, HOW NATIONS BEHAVE 47 (Columbia University Press 2nd ed. 1979).

16 Thomas Meaney, Rules for Nations, THE WEEKLY STANDARD, Sept. 12, 2005, at 39.

17 JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 3-4 (Oxford University Press 2005).

18 See LORI F. DAMROSCH ET. AL., INTERNATIONAL LAW 37-40 (4th ed. 2001). 19 See id. at 37.


state behavior from without, barring the application of ‘carrots’ and ‘sticks’ that sweeten or embitter national leaders’ [the prince, in Machiavelli’s terms] cost-benefit analysis.”20

In this article, I will show how these views are foreshadowed by, and entirely consistent with, Machiavelli’s philosophy as spelled out in The Prince.

Idealists resist the notion that they deal exclusively in hypotheticals. As Andrew Moravcisk has written:

Postwar realist critics such as Hans Morgenthau and E. H. Carr took rhetorical advantage of liberalism’s historical role as an ideology to contrast its purported altruism (‘idealism,’ ‘legalism,’ ‘moralism,’ or ‘utopianism’) with realism’s theoretical concern with human nature as it actually is [and] historical processes as they actually take place.21

According to realists, the distribution of power (economic, political, and military) among states determines relations and outcomes in the international system.

These intellectual clashes between idealists and realists shape not only state practice (actions, treaties, correspondence, etc.), but also the way that the writers and practitioners view these actions. When country X acts in accord with international law, the idealist tends to view this act as X being bound by the legal principle involved, while the realist searches for the self-interest behind the action.

Why is this contrast between idealists and realists important to the study of international law? Why, and how, do Machiavelli’s five-century-old ideas matter? As Annette Freyberg-Inan writes:

All theoretically guided inquiry proceeds from assumptions. In the social sciences the most basic of

20 Noah Rubins, Book Review, 20 FALL FLETCHER FORUM OF WORLD AFFAIRS 189 (1996) (reviewing ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS (1998)).

21 Andrew Moravcisk, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 INTERNATIONAL ORGANIZATIONS 513-54 (1997).


such assumptions concern human nature and provide the researcher with an idea of how human beings operate and why they react to external stimuli the way they do . . . [R]ealist international relations theory suffers from overly pessimistic assumptions about human nature, which can be traced through the Athenians, the political philosophies of Niccolò Machiavelli, and Thomas Hobbes . . . . 22

Although I agree with the above quote, my thesis does not rely on Freyberg-Inan’s above-quoted conclusions. I will examine the ideas of various writers, including: Thucydides, Plato, Aristotle, Cicero, St. Augustine, St. Thomas Aquinas, Grotius, Hobbes, others, and, of course, Machiavelli himself. I shall outline the birth of the philosophies, both idealist and realist, that underlie modern international law. We shall see how powerful Machiavelli’s influence has been in the “law of nations.”

But first, it will be profitable to briefly examine some of the foundational theories that underlie Western thought. Any such exploration must begin with a look at the Greek philosophers, whom I discuss in the next chapter.

22 FREYBERG-INAN, supra note 9 at 155.


CHAPTER TWO

AN ABBREVIATED LOOK AT GREEK POLITICAL THEORY

If current realists such as Goldsmith and Posner do not fit precisely the mold of realists in the Machiavellian vein of realism, they certainly owe much of their political philosophy to that school of thought. They follow in a long line of realistic political thinkers. An examination of the antecedents of political realism will help us to recognize the debt all realists owe to the long realist tradition that was first described by Thucydides (c. 460-400 BC) in The War of the Peloponnesians and the Athenians. In Thucydides’ account of a meeting between Athenian and Melian diplomats over the independence of the island of Melos, the Melians objected vehemently to the Athenians that their invasion of Melos was unjustified. As recounted by Thucydides, the Athenians responded as follows to those protestations:

For ourselves, we shall not trouble you with specious pretenses . . . and make a long speech that would not be believed . . . since you know as well as we do the right, as the world goes, is only in question between equal power, while the strong do what they can and the weak suffer what they must.23

The Athenians cited neither law nor morality as a basis for their use of superior power. To them, the reality of the situation was simple: you are weak and we are strong; our interests oblige us to take over your island; you will do as we command. Even before the war commenced, Athenian citizens had defended Athens’ right to an empire, by brazenly asserting in a meeting before the assembly of Sparta:

We have done nothing extraordinary, nothing contrary to human nature in accepting an empire when it was

23 THUCYDIDES, THE WAR OF THE PELOPONNESIANS AND THE ATHENIANS 1.21 (Rex Warner trans., Penguin Books 1972).


offered to us and then in refusing to give it up . . . . And we were not the first to act in this way. Far from it. It has always been a rule that the weak should be subject to the strong; and besides, we consider that we are worthy of our power.24

After Thucydides, western political thinkers turned to a less confrontational, and a more idealistic, view of politics. Socrates is the person traditionally thought to be the founder of western political philosophy.25 Socrates was the teacher of Plato (c. 428-347 BC), who in turn taught Aristotle (384-322 BC). These latter two philosophers exerted a mighty influence on the Western (European) way of looking at politics and international law.

Socrates (469-399 BC) was a contemporary of Thucydides. They both lived through the Peloponnesian War. But in contrast to Thucydides, Socrates did not write books. He contented himself with being a gadfly to the conservatives who frequented the Athenian agora, engaging in dialogue and argument with anyone who would listen or who would submit to his incessant questioning. He was surrounded by students, the most famous of whom is Plato. Most of what we know about Socrates and his philosophy is found in Plato, who at times ascribed his own views to his master. Socrates’ contribution to philosophy was essentially ethical in character. He taught that abstract concepts, such as justice and love, were knowable. Knowledge of these constituted the basis of his teaching that an examined life leads to a good (happy) life. Vice is the result of ignorance. He believed that no one is willingly bad. Knowledge of the right way to live one’s life leads to virtue. Ignorance leads to vice. We will see later in this article how this Socratic idealism is in sharp contrast to Machiavelli’s views.

Plato was Socrates’ star pupil. The Republic, Plato’s major political work, is concerned with the question of justice, and, therefore, with the questions: “what is a just state?”, and “who is a just

24 Id. at 1.80. 25 LEO STRAUSS, HISTORY OF POLITICAL PHILOSOPHY 1-2 (Leo Strauss &

Joseph Cropsey eds., The University of Chicago Press 3rd ed. 1987).


individual?”26 In addition to describing the path to a good life, Plato set forth his theory of a good state, one which was not merely an agent of control, but an agent of virtue. A large portion of the first book of The Republic is devoted to a discussion of justice and whether or not might makes right. In challenging The Republic’s protagonist, Socrates, one of Plato’s characters, Thrasymachus, exclaims:

[J]ustice is simply the interest of the stronger . . . laws, then, are designed to serve the interests of the ruling class . . . . This is why I say that justice operates on the same principle everywhere and in every society. Justice is what advantages the interest of the ruling class . . . the strongest class.27

Plato patiently deconstructs Thrasymachus’ theory and proposes that the ideal state is composed of three classes of persons. The economic structure of the state is maintained by the merchant class; security needs are met by the military class; and political leadership is provided by the rulers, the philosopher-kings.28

A particular person’s class is determined by an educational process that begins at birth and proceeds until that person has reached the maximum level of education compatible with his or her interest and ability. 29 Those who complete the entire educational process become philosopher-kings. They are the ones whose minds have been so developed that they are able to grasp the Forms (described below) and, therefore, to make the wisest decisions. Indeed, Plato’s ideal educational system is primarily structured so as to produce

26 PLATO, THE REPUBLIC (Richard W. Sterling & William C. Scott trans., W.W. Norton and Company, Inc. 1985) (In particular, Book I).

27 Id. at 338c-e. 28 Id. at Books II-IV (Plato’s theory of education in a society is highly

specific. Children are to be bred and raised in a strict segregationist regimen. The elite rulers are trained separately from, and differently than, the merchant and artisan class. The aim of society is to create a ruling class that is capable of true knowledge. True knowledge leads to good government).

29 Id. at Book V (Plato is an early adopter of the concept that all positions in a society should be open to women and that they should fully receive the education necessary to thrive in those positions).


philosopher-kings.30 Undoubtedly, if all states were ruled by wise and prudent persons, international relations and the administration of international law would be much more straightforward. The aim of society is to create a ruling caste that is capable of true knowledge, because Plato held that no person would intentionally do wrong or evil; only an ignorant human would choose that course.

Plato’s theory of forms and his theory of knowledge are so interrelated that they must be discussed together. Influenced by Socrates, Plato was convinced that knowledge is attainable. He was also convinced of two essential characteristics of knowledge. First, knowledge must be certain and infallible. Second, knowledge must have as its object that which is genuinely real, as contrasted with that which is an appearance only. Because that which is fully real must, for Plato, be fixed, permanent, and unchanging, he identified the real with the ideal realm of reason, as opposed to the physical world of perception, what he categorized as mere opinion. 31 To this phenomenon, Plato gave the name “Form.” One consequence of this view was Plato’s rejection of empiricism, the claim that knowledge is derived from sense experience. This concept of the unreliability of the senses is explained via his celebrated allegory of the prisoner in the cave. 32 The shadows projected on the human mind are, if taken literally, unexamined illusions and are not real in the sense that a philosopher-king must understand reality. Furthermore, the objects of sense experience are changeable phenomena of the physical world. Hence, objects of sense experience are not proper objects of knowledge. Only the knowledge of the Forms equates to truth and goodness. Reason, properly used, results in intellectual insights that are certain, and the objects of these rational insights are the abiding universals—the eternal Forms or substances that constitute the real world.

30 Id. at Book III (the elite rulers are to be trained separately from, and differently than, the merchant and artisan class. The aim of society is to create a ruling caste that is capable of true knowledge).

31 Id. at Book VI (especially lines 509b through 511b, where he introduces his famous concept of the divided line).

32 Id. at Book VII.


Plato associates the traditional Greek virtues with the class structure of his ideal state. Temperance is the unique virtue of the artisan class; courage is the virtue peculiar to the military class; and wisdom characterizes the rulers. Justice, the fourth virtue, characterizes society as a whole. The just state is one in which each class performs its own function well without infringing on the activities of the other classes. The result is social harmony and peace.

Plato’s ethical theory rests on the assumption that virtue is knowledge and can be taught, which has to be understood in terms of his theory of Forms. The ultimate Form for Plato is the Form of the Good, and knowledge of this Form is the source of guidance in moral decision making. Plato also argued that to know the good invariably leads one to do the good. The corollary of this is that anyone who behaves immorally does so out of ignorance. This conclusion follows from Plato’s conviction that the moral person is the truly happy person, and because individuals always desire their own happiness, they always desire to do that which is moral. Justice is produced in the soul as in the state, by allowing reason to rule.

An important feature of Socratic-Platonic philosophy is the concept that it is never right to do harm. One of the characters in TheRepublic, Polemarchus, argues that from ancient times Greek philosophers held that justice means that one should render every person her due. That is, justice means an eye for an eye and a tooth for a tooth. We reward friends and punish enemies. Plato asks the Socratic question: whether it is ever right to harm another person? Through the character of Socrates, Plato analogizes a ruler to a physician. A physician, in his profession, has as his object the health of the patient. And, the Hippocratic Oath says, “First, do no harm.” The “patient” of the ruler is the individual in society. The ruler’s, like the physician’s, professional responsibility is to promote the true excellence of the citizen. Each person in the state has within herself a special, unique gift, which the Greeks call arete. Arete is fostered when the ruler brings forth the best in the subject and never when the ruler harms the subject. Violence may exist, but we cannot rationalize it through morality (right conduct). The ideal is peace and harmony, not through force and brutality attained. It may be expedient to harm another—in


war, for example—but it can never be right conduct. At bottom, Plato denies that there is such a thing as a just war.

Plato’s pupil, Aristotle, broke with his tutor’s exaggerated idealism. Plato advocated a state-centered form of society. Nuclear families were to be abolished; the rearing and education of children was to be the prerogative of the state. Private property was to be extremely limited; except for personal items, all property would be held in common. Aristotle rejects these reforms as impractical. He sees the family as a natural institution that fosters civic virtue, as well as mutual caring among loved ones. Likewise, Aristotle views private property as natural, and efforts to abolish it as wrong and futile. Finally, Aristotle opposed Plato’s rule by philosopher-kings.

These key reforms of Plato—abolition of property and the family and the installation of philosopher-rulers—were viewed by Aristotle as expressions of Plato’s over-exaggerated idealism. Aristotle wrote in his Ethics that moral virtue was a voluntary habit inculcated by repetitive action of behaving in a morally virtuous manner. Virtue was seen as a mean between two extremes, the “just right” triangulation between opposite vices. For instance, courage was seen as the golden mean between rashness and timidity. Whereas Plato concentrated power in the hands of a few super-educated philosophers, and the democrats put power in the hands of every male citizen, Aristotle advocated a middle way—empowering the middle class as the polity.

In his famous fresco located near the Sistine Chapel in the Vatican Museums, Rafael (1483-1520) depicted a monumental scene in which the famous fresco, The School of Athens, on the wall beneath Philosophy, portrays an open architectural space in which Plato, Aristotle, Euclid, Pythagoras, and other ancient philosophers are engaged in discourse. The glory of Athens’ contributions to the Western world are in full display.


In the center of this epic painting, Plato is holding his Timaeus.Aristotle is carrying a copy of his Nichomachean Ethics Timaeus.Their gestures correspond to their interests in the philosophical fields; Plato’s hand is upraised, pointing upwards towards Heaven and its ideal Forms.


Aristotle is holding his hand directly in front of himself, depicting the middle way, the golden mean, between the intangible celestial ideas of Plato and the materialistic obsession of many with the goods and pleasures of the earth. Aristotle, with his background in biology, believes in empirical observation. He looks around and sees problems with the civic life in Athens. He sees that some changes are


called for, but they are not the sweeping, revolutionary concepts of Plato. In the very first chapter of The Politics by Aristotle, he writes:

Observation shows us, first, that every state [polis] is an association; and, that every association is formed with a view to some good purpose. I say ‘good’, because in all their actions all men do in fact aim at what they think good. Clearly then, as all associationsaim at some good, that association which is the most sovereign among them all and embraces all others will aim highest, i.e. at the most sovereign of all goods.33

There are several striking differences between Plato’s and Aristotle’s approaches. First, observation is a valid method in approaching truth. Unlike the murky shadows in Plato’s cave, Aristotle’s vision is clear and trustworthy. Second, political associations between persons of different backgrounds are judged as good. These associations (family, city, state) are teleologically destined to be good because they are observable in the nature in which humanity finds itself. In this sense, Aristotle is a practical realist as contrasted to Plato’s idealism.

Aristotle conflates a well managed city with the good. The populace must be good; the rulers must be virtuous. The state is to be an instrument of virtue, for a virtuous person strives for individual good (health, money and family ties, all in moderation) and that leads to the collective good. Although Aristotle can be considered a realist, he is not the same kind of realist described by Machiavelli and those that followed him. Here are some ways in which they differ:

1. As we shall see, Machiavelli sees the state not as an agent of virtue, but as an instrument of virtù, a masculine force that allows an individual to assert his will.

2. Machiavelli warns his Prince that chasing ethereal principles will bring the ruler to his ruin. Politics reflects life, real life, not ethereal dreams.

33 ARISTOTLE THE POLITICS 54 (T.A. Sinclair trans., Penguin Group 1992) (1962).


3. Machiavelli has a much more pessimistic view of human nature, closer to that of Thucydides than Aristotle.

When we later compare the three—Plato, Aristotle, and Machiavelli—we will find that Aristotle is in the middle position, the mean between Plato and Machiavelli. The Athenians described by Thucydides would side with Machiavelli for different reasons. They argue that it is a principle of natural law that the strong should rule the weak.34 Machiavelli understands that there are morals handed down by the ancients and the Christian Church, which are good standards to aspire to. But, he argues that they are not an everyday part of politics. Politics is the study of the efficacious, what Machiavelli calls la verità effetuale (the effective truth).35 This concept will be discussed in more detail later in this article.

The discussion now turns to the contributions of Cicero and two giants of the middle ages: Saints Augustine and Thomas Aquinas, who succeeded the Greeks and preceded Machiavelli. Their writing and political theories helped form not only Western political philosophy, but also international law, especially with reference to the doctrine of a just war.

34 THUCYDIDES, supra note 23 at 80: We have done nothing extraordinary, nothing contrary to human nature in

accepting an empire when it was offered to us and then in refusing to give it up . . . . And we were not the first to act in this way. Far from it. It has always been a rule that the weak should be subject to the strong; and besides, we consider that we are worthy of our power.

35 See the discussion of la verità effetuale infra Chapter Four.


CHAPTER THREE

CICERO, AUGUSTINE, AQUINAS,

AND NATURAL LAW

“Natural law” is an ethical concept that presents a set of principles based on what the theory assumes to be the permanent characteristics of human nature that can serve as a standard for evaluating personal conduct and civil laws. Natural law is contrasted with civil, positive law—the enactments of a sovereign that bind its subjects. With respect to the study of jurisprudence, Murphy and Coleman state that “Natural law theories maintain that there is an essential (conceptual, logical, necessary) connection between law and morality.” 36 A leading contemporary natural law scholar, Oxford and Notre Dame Professor John Finnis, says we can, in a broad sense:

[S]peak of laws wherever we speak of normativity, that is of general directions considered as counting . . . in one’s deliberations about what to do . . . . Though it too has a range of meanings, ‘natural’ can be used to signify that some of those criteria or standards are somehow normative prior to any human choices.37

Thus, Natural law, then, is one of the theories that intersect the rules of ethical conduct and the civil laws that govern humans. The concept is as old as the ancient Greeks. Heraclitus (c. 500 BCE) claimed that a divine wisdom infuses the universe and that all civil law springs from the divine.38 Plato and Aristotle argued against the notion

36 JEFFRIE G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: ANINTRODUCTION TO JURISPRUDENCE 11 (Westview Press 1990).

37 See John Finnis, Natural Law: The Classical Tradition, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 1 (Jules Coleman & Scott Shapiro eds., Oxford University Press 2002).

38 THE CAMBRIDGE DICTIONARY OF PHILOSOPHY 376 (Robert Audi ed., Cambridge University Press 1999).


that the only standards of action are those that are created by positive social facts, customs, or commands.39

Zeno (334-262 BCE) introduced Stoicism at the beginning of the third century BCE. Central to Stoicism was the concept that moral and natural law were the same. Upon death, philosophical detachment from good and evil or pain and pleasure was emphasized, because only in that way could one exercise good reason. The universe was said to consist of a living, material, reasoning substance known as Nature or God, which is the guiding principle of all being, including human existence. To use reason means not only using logic, but also to understand the natural processes, or universal reason, inherent in all things. In order to lead a happy, fulfilled life, one must live according to reason, that is, Nature.40

Marcus Tullius Cicero (106-43 BCE) was a Roman statesman, orator, and writer, but not, strictly speaking, a philosopher. In Rome, he studied law and oratory. In Greece, he continued his philosophical studies and inquiries. Cicero was eclectic in his thinking, adopting parts of a philosophy while adopting other parts of the same philosophy. Cicero was familiar with the Roman concept of the law of nature—jus natural—that came from the Greek Stoics.41

Roman concept of the law of nature—jus natural—comes from Greek Stoics (third century BC). In discussing the Stoic viewpoint, Cicero wrote:

He who is to live in accordance with nature [as Stoics recommend] must base his principles upon the system and government of the entire world. Nor again can anyone judge truly of things good and evil, save by a knowledge of the whole plan of nature and also of the life of gods, and of the answer to the question whether

39 Finnis, supra note 37, at 3-4. 40 THE CAMBRIDGE DICTIONARY OF PHILOSOPHY, supra note 38, at 879-81. 41 ARTHUR NUSSBAUM, A CONCISE HISTORY OF THE LAW OF NATIONS 20 (The

Macmillan Company 1950).


the nature of man is or is not in harmony with that of the universe.42

Among his many works, Cicero wrote two dialogues, DeRepublica (On the Commonwealth) and De Legibus (On the Laws). These dialogues were similar to Plato in title and form. However, Cicero departed from Plato in several ways. First, Cicero’s discussions were based on facts and history, not theoretical first principles. Second, in De Republica, Cicero put forth the Roman mixed constitution as the ideal form of government. Third, in his De Legibus,Cicero examines the actual laws (including the jus gentium) then existing in Rome, not the theoretical best practices found in Plato. Cicero claimed that law is “[T]he highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite.”43

Arguing against an early form of strict positivism, he wrote:

Socrates was right when he cursed, as he often did, the man who first separated utility from Justice; for this separation, he complained, is the source of all mischief . . . the most foolish notion of all is the belief that everything is just which is found in the customs or laws of nations.44

Finally, he concluded, “Law is the distinction between things just and unjust, made in agreement with that primal and most ancient of all things, Nature.”45 For Cicero, there could not be different laws in Athens and in Rome. There was only one eternal and unchanging law, valid for all nations and all times, which is knowable by the use of human reason.46

42 MARCUS TULLIUS CICERO, DE FINIBUS BONORUM ET MALORUM 293 (Harris Rackham trans., The Macmillan Company 1914).

43 MARCUS TULLIUS CICERO, THE GREAT LEGAL PHILOSOPHERS: SELECTED READINGS IN JURISPRUDENCE 44 (Clarence Morris ed., University of Pennsylvania Press 1971).

44 Id. at 46-48. 45 Id. at 51. 46 See BRIAN BIX, NATURAL LAW THEORY: A COMPANION TO PHILOSOPHY OF

LAW AND LEGAL THEORY 223-24 (Dennis Patterson ed., Blackwell Publishers, Ltd. 1996).


Cicero, a trained lawyer and brilliant practitioner, understood how Roman tradition influenced the evolution of international law. They had developed the idea of a jus gentium, a body of laws designed to govern the treatment of aliens (non-citizens) subject to Roman rule and the relations between Roman citizens and aliens.47 Jus gentiumwas Roman national law, particularly as applied to non-citizens.

Roman law recognized, in principle, the duty of a nation to refrain from engaging in warfare without a just cause, and originated the idea of a just war. The just war concept was re-examined, from a Christian point of view, by Aurelius Augustinus (354-430 CE) (more commonly “St. Augustine of Hippo”; often, simply “Augustine”).48 He was a towering and seminal figure in creating an intellectual bridge between classic Greco-Roman thought and the newer Christian belief system. Augustine brilliantly initiated the merging of his era’s Greek philosophical heritage and Judeo-Christian religious and scriptural traditions. He was one of the most respected of the early Christian philosopher-theologians and become an authority that was quoted and cited heavily in medieval philosophy. Augustine’s authority and thought came to exert a pervasive and enduring influence well into the modern period.

Augustine was born a Roman citizen in what is now Algeria and lived all but four of his seventy-five years in that country. In 383 CE, after completing his education and after he had been teaching for a number of years, he traveled from Northern Africa to Italy, where he found employment as a professor of rhetoric in Milan. While there, he was introduced to Neo-Platonism, underwent a conversion, and was baptized into the Christian faith. His justly famous autobiography, Confessions, chronicles the first thirty-two years of his inner life. In 391 CE, the congregation of Hippo Regius ordained Augustine a priest. He was elevated to the bishopric of Hippo four years later. Early in life, Augustine was heavily influenced by Cicero. He happened upon Cicero’s writings and became enamored of philosophy,

47 NUSSBAUM, supra note 41, at 19. 48 The history of Augustine’s life contained in this paper is largely based on

the article “St. Augustine,” found in the online Stanford Encyclopedia of Philosophy at http://plato.stanford.edu/archives/fall2002/entries/augustine (last visited March 16, 2010).


not as an academic study, but as a love of learning all he could about human nature and human behavior, encompassing philosophy, religion, and psychology.

The wisdom that Augustine sought was a fusion, correction, and reconciliation of the conflicting views of the various Greek schools; such as Epicurean, Stoic, Skeptic, and Neo-Platonist, with the many Christian views then prevalent: orthodox and unorthodox. His fascination with Neo-Platonism, dating back to his Milan days, allowed him to view both the Christian Church and its scriptural tradition as having an intellectually satisfying and unique content. Augustine came to regard God as the ultimate source and point of origin for all being, goodness, and truth. God is a fixed point which unifies all within an abiding and providentially ordained rational hierarchy. In holding that there is a unity in the universe, Augustine follows Cicero and the other Stoics, as described above in this chapter. Augustine’s legacy is that his works forever shaped Christian thought on politics, philosophy, psychology, theology, and many other subjects.

In exploring philosophy and religion, Augustine examined the relationship between Church and state, being mindful of Christ’s admonition to render unto Caesar that which belongs to Caesar, while at all times realizing that the eternal kingdom of heaven was much more important than a transitory earthly state. Later thinking on war, especially that of Thomas Aquinas, was based on St. Augustine’s theory of the just war as laid out in his On the City of God. Augustine developed a theology of just war, one which is acceptable under certain conditions. Firstly, war must occur for a good and just purpose rather than for self-gain or mere exercise of power. Secondly, it must be waged by a properly instituted authority such as the state. Thirdly, love must be a central motive even in the midst of violence. Augustine saw war as a means to deal with sin. War was a judicial action in which the people fighting were righting a wrong, or as Augustine put it, “justa bella ulciscuntur injuries” (just wars avenge injuries). One has only to look at the justification for intervention and the very recent bombing of Serbia by NATO to realize that Augustine’s ideas on a just war still exert an influence.


Thomas Aquinas (1225-1274) (“Saint Thomas”) is one of the most renowned proponents of natural law. His views were incorporated into a system known as scholastic philosophy and were accepted as authoritative by Christian Europe (that is, the West) from his lifetime through about 1450. Continuing to this day, Aquinas in particular, and his followers, exert an influence on Roman Catholic philosophy and theology. Aquinas was a Dominican friar born and educated in Italy, but came to prominence as a teacher, scholar, and writer at the University of Paris.49 He died at the rather young age of forty-nine en route to the Second Council of Lyon. His opus includes works on both philosophy and theology. When discussing philosophy, he attempted to rely solely on human reason. While writing and lecturing on theology, he clearly assumed a faith in divine revelation. He strongly denied that the things revealed by God to humans through faith could not be opposed to truths arrived at by a person’s use of right reason. Because Aquinas held that the existence of God could be proved by strictly logical and philosophical means, he was able to incorporate the concept of God and divine law into his theories of law.

Classic natural law theory states that there is a logical and indispensable connection between law and morality. 50 Reason can discover both that which is moral and that which is right. The higher law, divine law, is reflected in the natural order of things, so that a reasonable person (using God-given powers of reasoning) can discover laws to govern oneself and the community by right reason alone. Right reason, of course, is that which allows humans to know what is necessary in order to lead a moral and happy life. Aquinas stated that law is:

[N]othing else than an ordinance of reason for the common good, promulgated by him who has care of the community . . . . Human law has the nature of law in so far as it partakes of right reason . . . . So far as it deviates from reason, it is called an unjust law . . . . Such are acts of violence rather than laws because, as

49 THE CAMBRIDGE DICTIONARY OF PHILOSOPHY, supra note 38, at 36-40. 50 MURPHY & COLEMAN, supra note 36, at 11.


Augustine says, a law that is not just seems to be no law at all.51

The logical conclusion is that a valid law needs to be based on the moral laws that a person discovers. In insisting on the primacy of reason, Aquinas is perfectly in step with the Western tradition as espoused by Socrates, Plato, Aristotle, and Cicero. Aquinas did not elaborate on international law as such.52 But, he did develop a very important concept known to both the ancient and modern eras––the determination of whether war is permissible to achieve political ends, and if so, under what circumstances it is allowed. The theory of a just war was not new to Aquinas. Socrates, speaking with and through Plato, doubted that there could be such a concept. Cicero and Augustus recognized that a war waged under proper circumstances could be in accord with the laws of nature, and consequently, could be considered as within the law of man. Aquinas fully developed a theory of just war, relying heavily on Augustine, as well as the Scriptures. In two of the early “modern” treatises on international law, Hugo Grotius (1583-1645) brings his own views of natural law on maritime law (Mare Liberum) and on war (De Jure Belli ac Pacis).It is worthwhile to here to quote Aquinas at an unusual length, so as to better understand his views on the morality of conducting war, which are important to those who wrote on international law. In his grand opus, Summa Theologica, Aquinas states that three things are necessary in order for a war to be just:

First, the authority of the sovereign by whose command the war is to be waged . . . . The natural order conducive to peace among mortals demands that the power to declare and counsel war should be in the hands of those who hold the supreme authority.

Secondly, a just cause is required, namely that those who are attacked, should be attacked because they deserve it on account of some fault. Wherefore Augustine says [citation omitted]: ‘A just war is wont to be described as one that avenges wrongs, when a

51 Id. at 15. 52 NUSSBAUM, supra note 41, at 45.


nation or state has to be punished, for refusing to make amends for the wrongs inflicted by its subjects, or to restore what it has seized unjustly.’

Thirdly, it is necessary that the belligerents should have a rightful intention, so that they intend the advancement of good, or the avoidance of evil. Hence Augustine says [citation omitted]: ‘True religion looks upon as peaceful those wars that are waged not for motives of aggrandizement, or cruelty, but with the object of securing peace, of punishing evil-doers, and of uplifting the good.’ For it may happen that the war is declared by the legitimate authority, and for a just cause, and yet be rendered unlawful through a wicked intention. Hence Augustine says [citation omitted]: ‘The passion for inflicting harm, the cruel thirst for vengeance, an unpacific and relentless spirit, the fever of revolt, the lust of power, and such like things, all these are rightly condemned in war.53

The influence of Aquinas, his predecessors, and his followers in the Middle Ages (1300-1450) can hardly be overstated. The continuing clashes between the Popes and the Emperors of the Holy Roman Empire resulted in many wars, fought on the ground and in the minds of the men and women living under their influence. Both claimed to be sources of universal law; i.e., law that applied throughout Europe. The Popes were quick to adopt Aquinas as both were sources of a kind of “universal law”—law that applied throughout Europe. And the Pope, of course, proclaimed himself to be the divinely installed and inspired protector of the divine law. In that role, he could trump the laws of other potentates, including the Emperor and his vassals.

At the time, there were no nation-states in the modern sense. Principalities and city-states had relationships among themselves and they created customary laws and treaties to govern their affairs. The law merchant and developments in maritime law promoted a fast-

53 THOMAS AQUINAS, SUMMA THEOLOGICA, available at http://www. newadvent.org/summa/3040.htm.


growing international trade. Lacking other means of enforcement, claims against other states were enforced via reprisal and self-help. A code of chivalry provided some relief from unrestrained warfare. Permanent consulates and emissaries, such as Machiavelli, needed diplomatic protection.54

These are the tiny seeds from which sprang a nascent international law that, over the centuries, slowly developed into international law as we know it. In the next chapter, I will examine the life and times of Machiavelli. He was in the middle of the transition from Middle Age beliefs to Renaissance thought. We will see how, though he was learned in the classical traditions of law and morality, he fiercely reacted to and shred the veil of classical natural law in such a way that it has never been the same.

54 See NUSSBAUM, supra note 41, at 31-36.


CHAPTER FOUR

MACHIAVELLI'S REVOLUTION

Machiavelli and The Prince are considered important today because the modern approach to political science began with Machiavelli and continued with Thomas Hobbes, writing in England a century later. Machiavelli is often counted as the first modern political scientist, searching for natural explanations of how things function without references to Nature or God. Like Aristotle and Plato, Machiavelli was familiar with compact city-states created by humans. He searched the “laws” that governed the founding and operation of a successful state. He believed he found them in history and the very nature of humans.

Machiavelli lived during the height of the Italian Renaissance. In the years preceding his writings, Western Europe, especially Italy, was undergoing dramatic political and cultural changes. Feudalism was dying. Commercial activity was on the rise. The medieval concept of unity was losing grounds to an individualistic humanism. Before examining Machiavelli’s role in the dramatic changes that took place, it is instructive to resume the analysis of the role that those thinkers who succeeded the Greeks had on western thought.

Machiavelli was somewhat acquainted with Greek thought, but his studies of the ancients concentrated on the Romans. He was familiar with Cicero and his writings. Among his many works, Cicero wrote two dialogues: On the Republic and On the Laws. These dialogues recalled those of Plato in title and form. Cicero’s conclusions, however, differed substantially from Plato’s. In On the Republic, Cicero portrays a discussion among political and intellectual leaders concerning the best form of government. In contrast to Plato’s Republic, where the best regime is entirely hypothetical, Cicero’s characters accept that Rome’s mixed constitution was best. Similarly, in Cicero’s On the Laws, the characters do not discuss theoretical legal systems as they do in Plato’s Laws. Instead, they focus on the laws promulgated for Roman citizens.


Cicero, while indebted to the ideals of Greek philosophy, was nonetheless wed to Roman practicality. His approach, reliance on experience while upholding certain ideals, is a middle way between Plato’s idealism and Machiavelli’s realism. There is a certain, but not altogether identical, resemblance between the lion and the fox discussed both in Chapter 18 of Machiavelli’s The Prince (discussed in more detail later) and in another of Cicero’s political work, De Officiis.55

In De Officiis, Cicero made the point that he took to be obvious—the methods of humans and beasts are different, and the human is nobler. Cicero had written, “[T]here are two ways in which injustice may be done, either through force or deceit; and deceit seems to belong to a little fox, force to a lion. Both of them seem alien to a human being; but deceit deserves a greater hatred.”56

Why did the idealist Cicero loathe deceit? Because deceit was the subversion of Cicero’s central virtue: justice that was the keystone to right living and the product of a properly formed mind. In Cicero’s mind, the seriousness of the subversion was compounded because the most human of faculties, the mind, perpetrated it. The appropriate exercise of one’s mind ought to promote, not subvert, justice. The realist Cicero then went on to say that only in exceptional circumstances, like war, could one use leonine force. He condemned, however, the use of fraud even in these extreme circumstances. That is, sometimes one could act as a lion, but never as a fox. Cicero, with a denunciation of duplicity, railed against those who “just at the time when they are most betraying trust, act in such a way that they may appear to be good men.” 57 This line of thinking—that honesty is required of a leader—later gained the support of Christianity, humanism, and traditional Italian society.

Medieval Christian scholars picked up much of their political philosophy from Plato, Aristotle, Cicero and their followers. They added theological inputs from Augustine, Thomas Aquinas, and other

55 J. Jackson Barlow, The Fox and the Lion: Machiavelli Replies to Cicero, 20 HISTORY OF POLITICAL THOUGHT 627-45 (1999).

56 Id. at 636. 57 Id. at 637.


Christian theologians. The result was that Western thought in medieval times (at least through the thirteenth century) continued the ideal tradition: in order to be a good ruler, one needed to be a good person. In other words, a good ruler needed to be a virtuous person.

In addition to the Greeks and Romans, western European medieval philosophical and theological traditions were heavily indebted to Augustine. According to the famous Protestant theologian and eminent realist, Reinhold Niebuhr, Augustine is “by general consent, the first great ‘realist’ in Western history.”58

Augustine’s realism is grounded, as most realism is, in a certain view of human nature. Man was forever changed by the sinful actions of Adam and Eve in the Garden. That sin of pride, direct disobedience to God’s command, henceforth tainted humans with Original Sin. In his elaboration of the doctrine, Augustine emphasized the notion that the taint of that original sin is transmitted from generation to generation by the act of procreation. He took this idea from an earlier theologian Tertullian, who actually coined the phrase original sin. The result is that every human is born imperfect and prone to pride, selfishness, and self-interest. Among the consequences of Original Sin, Augustine lists the ways of the world as exemplified by the city of man, Rome, where lust, power, and greed reign supreme. He contrasted this to the city of God, paradise, where peace, justice, and goodness triumphed. It is not accidental that Machiavelli took Rome as his model for his own realistic view. What Augustine saw as Rome’s vices, Machiavelli took as political virtues.

Under the classical view, when several virtues conflicted, such as courage and temperance, prudence was the habit that ordered the other virtues.59 In politics, justice was deemed the preeminent virtue, for justice collected all the other virtues toward the common good of a community as determined by the just, and, therefore, virtuous,

58 ED. R. M. BROWN, THE ESSENTIAL REINHOLD NIEBUHR 124 (Yale University Press 1986).

59 Machiavelli makes abundant use of the word “prudent” in describing the actions of those he considers to be imbued with virtù, with his virtù being liberally sprinkled with deception, fraud, and chicanery when deemed necessary.


lawgiver. 60 In the accepted wisdom, the successful prince was the virtuous prince, the one who did right in order to do good things for his charges. Such a prince acted in harmony with the order of things, with the subject rendering service and taxes to the governor, who in turn, as guide and protector, would act virtuously in protection of the governed.61 The realms and rules of heaven and earth were seen as a unity. The principles that governed the city of man were, by reflection, the same rules that governed the city of God. The leader who did not act in accordance with the principles of justice was not only deemed a bad person, but was also adjudged a bad leader, since he was in breach of the notion that only a good person could be a good ruler.

The classical ideals were not unchallenged in the decades before Machiavelli. Machiavelli’s predecessors modified some of this in the fourteenth and fifteenth centuries; they rebelled against the principle that the true law conforms to nature.62 Nevertheless, classical views of the good and just leader persevered as an ideal. Machiavelli brought this line of thinking forward. He single-mindedly wanted his prince to understand the practicalities of what it took to be an effective leader. At times, he said, doing wickedness was necessary for success.63 It was abundantly clear to him that history taught that the standard virtues needed to be breached in order for success, “for,” he wrote, “if everything is considered carefully, it will be found that something which looks like virtue, if followed, would be his ruin; whilst something else, which looks like vice, yet followed brings him security and prosperity.”64

60 Harvey C. MANSFIELD, MACHIAVELLI’S VIRTUE 6-23 (University of Chicago Press 1996) (my discussion of classic and humanistic concepts of virtue in this section is to a large extent based on Mansfield’s work).

61 There are obvious echoes of Plato’s Republic in humanistic moral and political philosophy.

62 See generally CESARE VASOLI, UMANESIMO E RINASCIMENTO (Palumbo 1969).

63 STRAUSS, supra note 6, at 59. 64 NICCOLO MACHIAVELLI, THE PRINCE Ch. 5 (N. H. Thompson trans., P. F.

Collier & Son 1910) (1515); See also NICCÒLO MACHIAVELLI, IL PRINCIPE (Tommaso Bavaro ed., Mursia 1990) (1943) (the Italian reads: “perchè, se si considera bene tutto, si troverà qualche cosa che parrà virtù, e


It was Machiavelli who finally broke the mold and the consistent chain of thought from Socrates to the early Renaissance political thinkers and, in the process, brought modernity to the study of political science. From Machiavelli forward, the study of political science was never the same. Francis Bacon wrote:

We are much beholden to Machiavelli and other writers of that class, who openly and unfeigned declare or describe what men do, and not what they ought to do . . . for without this, virtue is open and unfenced; nay, a virtuous and honest man can do no good upon those that are wicked, to correct and reclaim them, without first exploring all the depths and recesses of their malice.65

The classic political philosophers advanced the individual and collective search for higher quests, knowledge and a good life. Politics served a useful role in the pursuit of the summum bonum (greatest good). For the classicist, there was an all-important difference between the way things are and the way they ought to be––and that politicians should strive to bring conditions closer to the unreal, ideal ought-situation.They rejected the common view that “might make right,” that “justice is what is in the interest of the stronger.” For Machiavelli, by contrast, politics is the prime subject, second to none. “Reasons of state” (raisons d’état) are decisive reasons that outweigh any moral or ethical considerations. The good of the state is an end in itself and not just a means to encouraging the development of individual virtue or human happiness.

For example, Machiavelli inverts Cicero’s “self-evident proposition” that the human way is superior to the brute force exerted by a lion. In Chapter 18 of The Prince, Machiavelli presses Cicero’s logic, obliterates his ethic of honest action, validates foxy behavior, and demonstrates his complete approval of fraud and deceit as an acceptable modus operandi for humans. Machiavelli begins the chapter

seguendola sarebbe la ruina sua: e qualcuna altra cosa che parrà vizio e seguendola ne nasce la sicurità e il ben essere suo.”).

65 Id. at 273 (quoting Francis Bacon in the “Marginalia”).


by stating that while it is praiseworthy to act with integrity, “those princes have accomplished most who paid little attention to their promises, but who knew how to manipulate the minds of men craftiness and sharp thinking [con l’astuzia aggirare i cervelli]. In the end, these won out over those who tried to act honestly.”66 He goes on to say that there are two ways of fighting: by the laws of humans, which disdain fraud and violence; or by the force of animals. Since human methods do not always suffice to get what one wants, sometimes one must resort to animal-like behavior, and “thus a prince must know how to make good use of both the beast and the man.”67

His support for this proposition is original, an argument based on a reference to the centaur, Chiron, whom he asserts was the teacher of Achilles and other ancient heroes. His implication is that Chiron taught the heroes to seek and follow la verità effettuale, the way of the world, and lofty human methods were insufficient to get what one wanted.

Like Cicero, the animals Machiavelli presents for princely emulation are the fox and the lion. A prince, he says, should imitate the fox in order to avoid the traps laid out in life, and emulate the lion to overawe the strong (but less perceptive) wolves that abound. The worldly wiles of the fox—acuity, ingenuity, and the ability to deceive—are essential; those relying on the brutish qualities of a “lion alone are badly mistaken.”68 Thus, prudent princes should not keep their word if to do so goes against their interests, or if the circumstances for the promise have changed. The justification for this antisocial behavior is the perfidy of human beings. Further, since a prince’s subjects are untrustworthy, there is no reciprocal obligation on the part of the prince.

Machiavelli discussed two types of morality: pagan and Christian. According to Machiavelli, Greek and Roman virtue was

66 MACHIAVELLI, supra note 64, at Ch. 18 (the Italian reads: “quelli principi avere fatto gran cose che della fede hanno tenuto poco conto, e che hanno saputo con l'astuzia aggirare è cervelli delli uomini; et alla fine hanno superato quelli che si sono fondati in sulla lealtà.”).

67 Id. (the Italian reads: “Per tanto a uno principe è necessario sapere bene usare la bestia e lo uomo.”).

68 Id. (the Italian reads: “Coloro che stanno semplicemente in sul lione non se ne intendono.”).


characterized by discipline, valor, strength, and vigor, and, in particular, asserting one’s own proper claims and having the requisite skills to attain them. Christian virtue emphasized mercy, meekness, charity, concern with the after-life, and the paramount need for personal salvation.69 “Machiavelli deplored Christianity’s emphasis on humility and heaven. He instead urged individual virtù (manliness, courage, pluck, fortitude, boldness, valour, steadfastness, tenacity) to gain honor and glory—perhaps man’s highest pleasure.”70

His practical advice, based on detaching politics from morality, ran counter to the established religion and the then-prevailing humanistic philosophy, which was composed of a mixture of scholastic Aristotelianism and Ciceronian concepts. Both traditions mandated moral rectitude in politics. Aristotle wrote in his Ethics that moral virtue was a voluntary habit inculcated by repetitive action of behaving in a morally virtuous manner. Virtue was seen as a mean between two extremes, the “just right” triangulation between opposite vices. For instance, courage was seen as the mean between rashness and timidity.

Machiavelli is clearly interested in personal and political virtue, but one of a substantially different genre from the orthodox. First, he makes a clear division between personal morality and the conduct of politics. Machiavelli is concerned with earthly reality, with real pain, real joy, real situations, and not heavenly aspirations. His aim is for a government that provides everyday security and stability to its people, one that promotes peace and prosperity.71 Saving souls (if there are such entities) or winning debates is not his focus. Establishing a stable government is. This demands good orders (a constitution) and good modes (a set of laws and institutions to enforce

69 Timothy P. O’Neill, Two Concepts of Liberty Valance: John Ford and Isaah Berlin, and Tragic Choice on the Frontier, 37 CREIGHTON L. REV.480 (2004).

70 Allen Z. Hertz, Honour’s Role in the International States System, 31 DENV.J. INT’L L. & POL’Y 116 (2002).

71 HARVEY C. MANSFIELD, MACHIAVELLI’S NEW MODES AND ORDERS: ASTUDY OF THE DISCOURSES ON LIVY 84 (University of Chicago Press 1979) (according to Mansfield, Machiavelli held that the prime basis for a prince’s authority and power came from the populace’s need for security).


those laws). Constitutions and civil laws are human creations, not divine constructs.

Although he liberally sprinkles his works with references to Fortuna, that demigoddess of history that controlled human fate, not once does he invoke divine providence to explain a historical occurrence or to solve a problem of politics or war. The instability that was beleaguering Italy was the cause of continuing cycles of war, death, and poverty. Monks, priests, and philosophers might preach the delights of a distant and unseen heavenly city, but they were unable to cure the Italian disease. He, on the other hand, wanted to solve the ever-present pain of this earthly domain.

Machiavelli felt strongly that Italy and Italians were enfeebled and that the ancient Roman virtù had gone into hiding. He laid the blame on the philosophers, who had defined the good life as the leisurely contemplation of ideas and concepts, and on the Christians, who had preached that the ultimate good life was to be found not on earth, but in heaven. They held worldly concerns to be transitory and inferior distractions to one’s true goal, salvation. For Christians, God had become man in the person of Jesus, and Jesus, through the supreme example, had shown that the path to salvation was through poverty, humility, weakness, and long suffering. The consensus of both secular and religious thinkers was that earthly matters were of secondary importance to intellectual and spiritual pursuits. Machiavelli railed against the Christian humility and weakness that he said had displaced virtù in the Italians, in the process creating persons who, in order to enter Paradise, are more concerned with bearing their oppression than avenging it. Machiavelli’s viewpoint cannot be more different. Life is lived on this planet, and “Christian salvation and hope is absent from his writings and he speaks with contempt of Christian glorification of ‘humble and contemplative men.’”72 Eternal glory is obtained here and now. It is the fame that can be achieved only by vigorous action, not by otiose contemplation or meditation.

His virtù goes beyond “a virtue of manliness derived from the marriage of philosophy and rhetoric that Petrarch had adopted from

72 MAURIZIO VIROLI, MACHIAVELLI 24 (Oxford University Press 1998).


Cicero.”73 Petrarch, an innovator of Renaissance humanism, promoted his own form of Ciceronian philosophy as a replacement for Aristotelian scholasticism.74 Cicero’s fortitude was the virtue proper to humans; stoic fortitude in performing one’s duty was the highest exercise of that virtue.75 Cicero’s virtuous person was a combination of a morally right thinker and a morally right actor. Petrarch’s marriage of philosophy and rhetoric differs from Cicero; it is not Cicero’s brand of rugged and heroic heroism, “but is rather a pious, moderate patriotism close to magnanimity and denouncing rather than appealing to base instinct.”76 Since Jesus himself had paid the ultimate price for performing his duty, Christian humanism could eagerly adopt the Ciceronian view as modified by Petrarch, while adding to it Christianity’s professed disdain for worldly pursuits. 77 Renaissance humanists followed and admired Petrarch’s Christianized Cicero. Machiavelli admired Petrarch, but not his philosophy. Machiavelli ended The Prince by appropriating Petrarch’s poetic promise that someday a hero would return a long-dormant Roman virtue to Italy: “Virtue will take up arms against fury and make the battle short, because the ancient valor in Italian hearts is not yet dead.”78

Machiavelli’s usurpation of Petrarch’s exhortation to the Italians to rise up masked his differences with both Cicero and Petrarch. Machiavelli’s refutation of the mentors of Renaissance humanism meant, of course, that Machiavelli ran headlong against the prevailing philosophy of the time; he was an innovator, many have said a revolutionary. His perspective can be summed up, as Vickie B. Sullivan says: “human beings need to reorient themselves in the world;

73 MANSFIELD, supra note 60, at 31. 74 PAUL OSKAR KRISTELLER, RENAISSANCE THOUGHT AND ITS SOURCES 46

(Michael Mooney ed., Columbia University Press 1979). 75 MANSFIELD, supra note 60, at 31-36. 76 Id. at 34. 77 St. Augustine had memorialized this early Christian disdain for things of

this world. Boethius had added Platonic and Stoic overtones to a philosophy that said transient temporal affairs mattered little. Dante captured the essence of the Middle Ages in the Divine Comedy, where he puts to poetry the quest for eternal heavenly bliss.

78 MACHIAVELLI, supra note 64, at Ch. 26 (the Italian reads: “Virtù contro a furore / prenderà l’armi; e fia combatter corto, / che l’antico valore / nelli italici cor non è ancor morto.”).


they need to reject the morality that they have inherited from Christianity and from classical philosophy by unleashing the passions in the service of unlimited—and armed—acquisition.”79

Machiavelli directly challenged the classic thinking that the drive to gain worldly goods, fame, and glory was immoral and unnatural; that property acquisitions must be limited by virtue, both in manner and amount. Justice required that goods be distributed fairly; Christian charity and love of God and neighbor commanded that one correct any injustice of distribution by giving away any surplus wealth. Classic learning and Christianity encouraged poverty in fact and in spirit.80 Machiavelli had a diametrically opposite view.

Much of Machiavelli’s writing points to politics and life in general as a “zero sum” game.81 That is, there is so little wealth, so little political power, and so few goods to be had, that there is not enough for everyone. The supply of life’s necessities is limited. It is only natural for a person to take the means necessary for survival. There are victors and victims; what one gains, the other loses. One has to figure out when, where, and how to grab goods and power, and then determine how to hold on to them, whether for one’s own personal gain and glory, or for the benefit of the state.

Once again inverting accepted notions, Machiavelli viewed anyone who limits acquisition in the name of virtue as foolish, since one can trust neither in nature nor in God to provide one’s necessità(necessities). 82 Trust, that naïve, childish notion that someone or something else will provide, is not a desirable quality. Neither is leisure that does not lead to Machiavellian virtù; it corrupts it.83 In Discourse on Livy, he wrote, “I say that those are called gentlemen

79 VICKIE B. SULLIVAN, THE COMEDY AND TRAGEDY OF MACHIAVELLI xiii(Vickie B. Sullivan ed., Yale University Press 2000).

80 Quinto Marini, Religione e letteratura in volgare nella Liguria del Trecento, in XXXVIII STUDI MEDIEVALI 203-41 (1997) (St. Francis of Assisi is said to have disliked ants because in the summer they stored up food for the winter. On the other hand, he was fond of birds, which, trusting in God’s bounty, lived day to day).

81 PITKIN, supra note 14, at 49. 82 MANSFIELD, supra note 60, at 14. 83 REBHORN, FOXES AND LIONS: MACHIAVELLI’S CONFIDENCE MAN 193-98

(Cornell University Press 1988).


who live idly in abundance from the returns of their possessions . . . are pernicious in every republic and every province.”84 Much of the blame for the lack of virtù in Italy he laid directly on the effeminate Christian religion that led Italians to a pathetic weakness that he said arose from the cowardice of the men who have interpreted Christianity according to indolence and not according to virtù.85 Necessità and the consequent struggle to satisfy it are concepts that underlie Machiavelli’s view of the world. For Machiavelli, necessità is that which is necessary for human survival, and being necessary for survival; acquisition of life’s essentials is not only natural and permissible, but also imperative. The need to survive, coupled with the uncertainty of not knowing when we have enough, creates a continuous struggle to grab one’s share, to keep acquiring in order to insure survival. Once acquired, a person with virtù will take all effective means to protect it from others who would commandeer it for their own use. Self-reliance and self-love is the cause of human strength and greatness, not trust in providence or self-denial.86

84 MANSFIELD, supra note 71, at 111 (the Italian reads: “dico che gentiluomini sono chiamati quelli che oziosi vivono delle rendite delle loro possessioni . . . sono perniziosi in ogni republica ed in ogni provincia.”).

85 Id. at 131-32 (Machiavelli writes of Christianity: “Our religion has glorified humble and contemplative more than active men . . . if our religion asks that you have strength in yourself, it wishes you to be capable more of suffering than of doing something strong. This mode of life thus seems to have rendered the world weak and given it in prey to criminal men, who can manage it securely, seeing that the collectivity of men, so as to go to paradise, think more of enduring their beatings than avenging them. And although the world appears to be made effeminate and heaven disarmed, it arises without doubt more from the cowardice of the men who have interpreted our religion according to idleness and not according to virtue.” The Italian reads: “La nostra religione ha glorificato più gli uomini umili e contemplative che gli attivi . . . e se la religione nostra richiede che tu abbi in te fortezza, vuole che tu sia atto a parire più che a fare una cosa forte. Questo modo di vivere adunque pare che abbi renduto il mondo debole e datolo in preda agli uomini scelerati, I quali sicuramente lo possono neggiare, veggendo come l’università degli uomini, per andarne in paradiso, pensa più a sopportare le sue battiture che a vendicarle. E benchè paia che si sia effeminato il mondo e disarmato il cielo, nasce piú sanza dubbio della viltà degli uomini, che hanno interpretato la nostra religione secondo l’ozio, e non secondo la virtù.”).

86 STRAUSS, supra note 6, at 190.


This necessità was seen as the primary drive underlying virtù,and it is virtù, which moves the knowing person to action, to acquisition, and to the satisfaction of one’s desires and needs. In exercising virtù in a zero-sum game, one’s gain is necessarily another’s loss. And so go the rules of nature. The knowledgeable, grownup furbo sees the effective truth and consequently takes what is available by wit and energy; the ignorant, infantile fesso blindly suffers on account of gullibility and lethargy.

Machiavelli’s virtù connotes passion and strength, particularly in the acquisition of political power. Cicero’s manliness was a stouthearted virtuous patriotism that would defend the fatherland with every sacrifice. Cicero understood the end of political action to be stasis, rest, and harmony. Machiavelli saw stasis as indolence. He perceived the need for continual struggle in order to preserve the security of person and state.87 He believed that the private drive to acquire goods and the political quest to gain power and territory as entirely natural. In The Prince, he writes of King Louis’ quest for expansion into Italian territory, noting that “the wish to acquire is in truth very natural and common, and men always do so when they can, and for this they will be praised not blamed.”88

The first lawgiver of a state has to be a selfish and ravenous dog that wants glory by forcing all the other would-be usurpers to obey the laws and be good.89 The need for constant agitation and acquisition is antithetical to Cicero and the classic thinkers, who see equilibrium, not strife, as the goal for the individual and the state. Machiavelli’s political works are primarily directed to a discussion of virtù as it affects the successes and failures of political enterprises. In his view, humans are by nature materialistic beings that seek to get a hold of what they want—material goods, wealth, land, power, and sex.90 Virtùincludes a person’s courage, energy, and perseverance to size up and satisfy one’s wants and desires. Machiavelli’s discussions of virtù,

87 Barlow, supra note 55, at 635. 88 MACHIAVELLI, supra note 64, at Ch. 3 (the Italian reads: “È cosa veramente

molto naturale e ordinaria desiderare di acquistare; e sempre quando gli uomini lo fanno che possono, ne saranno laudati, e non biasimati.”).

89 STRAUSS, supra note 6, at 286. 90 REBHORN, supra note 83, at 94.


within or outside of a political context, revolved around the theme of what it means to be a “real man,” a person of action, not inaction; a person of aggression and insatiability, not contemplation and satisfaction.

Machiavelli had no use for the abstractions of philosophy. He was an action oriented person with a specific view of political life: victory goes to the swift, the strong, and the sometime ruthless. He gave primacy to his experience and personal observation of actual events, as informed by his analysis of the effective historical deeds of past greats. His sense of reality impelled Machiavelli to attack the classical and medieval thought that had emphasized the abstract at the expense of the real and the material. In The Prince, he wrote:

For many Republics and Princedoms have been imagined that were never seen or known to exist in reality. And the manner in which we live, and that in which we ought to live, are things so wide asunder, that he who quits the one to betake himself to the other is more likely to destroy than to save himself.91

Ezio Raimondi has written that after Machiavelli, politics is a direct confrontation with events; it does not deal with the imagined. What is, not what should be, is important.92 Observing and analyzing concrete experience, not mental gymnastics, leads “alla verità effettuale” (to the effectual truth). La verità effettuale leads a prince to success. In the introduction to The Prince, Machiavelli offers Lorenzo de Medici his ideas on political action “acquired through long experience of contemporary affairs and extended reading in antiquity.”93 De Sanctis has written that “the scientific foundation of this [Machiavelli’s] world is the ‘effectual thing’; the thing as proved

91 MACHIAVELLI, supra note 64, at 53 (the Italian reads: “E molti si sono immaginati repubbliche e principati che non si sono mai visti nè conosciuti essere in vero; perchè elli è tanto discosto da come si vive a come si doverrebbe vivere, che colui che lascia quello che si fa per quello che si doverrebbe fare, impara più tosto la ruina che la persavazione sua.”).

92 EZIO RAIMONDI, LETTERATURA E IDENTITA NAZIONALE 20 (Bruno Mondadori ed. 1998).

93 MACHIAVELLI, supra note 64, at Dedication.


by experience and observation.”94 Machiavelli himself used the phrase when, in The Prince, he turned his attention to the “modes and governments of a prince.”95 Referring to the various manuals of advice to princes written by contemporary and earlier humanists, he said he proposed to write “something useful,” that it is better to go after the real truth (la verità effettuale) than to repeat the fantasies put out by others. 96 This effective truth cuts through the numbing effect of mystique and preconception and bores down to the essential reality, to the causative reasons why human conduct and political maneuverings have worked in the past and will work in the future. 97 La verità effettuale is based on a hard realism that leaves no place for romantic (read, abstract philosophical and theological) notions. Machiavelli’s revolutionary insistence was that politics and leadership must be based on material reality, rather than intellectual or religious rumination. This insight announced a new science of humanity, one that examines humans, not as they might or should be, but as they really are.98

His virtù is revolutionary, for his concept includes what others considered vices—trickery and deceit. Hanna Pitkin looks at the virtù of Machiavelli’s “real man” from three perspectives:

1. The virtù of the fox, a cunning and manipulative political agent.

2. The virtù of the heroic founder of a state, such as Brutus.

3. The virtù of the productive, patriotic citizen living in a successful republic.

Machiavelli considered astuteness and cleverness a sine qua non for a prince who wishes to exercise public rule with authority. In

94 FRANCESCO DE SANCTIS, HISTORY OF ITALIAN LITERATURE 585 (Joan Redfern trans., Basic Books, Inc. 1931).

95 MACHIAVELLI, supra note 64, at Ch. 15 (the Italian reads: “e’ modi e governi di uno principe.”).

96 Id.97 MANSFIELD, supra note 71, at 7-9 (Machiavelli is insistent that the past

actions of great persons can be studied and used as a model for the knowing leader who wishes to succeed in the political arena).

98 REBHORN, supra note 83, at 5.


addition, Machiavelli said, it is just as necessary for any person who wishes to satisfy private needs and desires. Pitkin says that Machiavelli’s idea of foxiness is intrinsically linked to his broader concept of la verità effettuale (the effective truth). “When young, one is told and believes in all kinds of fairy tales. Growing up means finding out how things really work and giving up childish illusions . . . Illusions make one vulnerable, infantile, a fesso.”99 In Dante’s DivineComedy, unbaptized but innocent deceased infants are sent to limbo, the same limbo where Machiavelli consigned the politically naive Florentine leader Piero Soderini “with the rest of the babies.” To be a political neophyte will cause the ruin of all who depend on you.100

An essential component of Machiavelli’s virtù is cunning, which can and does include fraud, deception, and treachery. 101

Machiavelli’s famous Chapter 18 of The Prince is entitled “The Way Princes Should Keep Their Word.”102 In this chapter, Machiavelli said that leaders need not keep their word if the necessity of maintaining a secure state requires otherwise. In particular, he wrote, “a prudent prince neither can nor ought to keep his word when to keep it is hurtful to him and the causes which led him to pledge it are removed.”103

One’s self-interest is the guiding factor in determining the conduct of the affairs of the state, not morality or accepted customs.

The element of foxiness is an essential ingredient of Machiavelli’s concept of virtù. Wayne Rebhorn writes that the word “virtù” sums up the qualities Machiavelli believes heroic—intelligence, foresight, and cunning.104 De Sanctis, in his History of Italian Literature, comments that Machiavelli’s theory of la verità effettuale encompasses the concept that “the means to anything must be based on intelligence and on a calculation of the forces that move

99 PITKIN, supra note 14, at 36. 100 Id. at 36-37. 101 REBHORN, supra note 83, at 146. 102 MACHIAVELLI, supra note 64, at Ch. 18 (the Italian reads: “In che modo e’

principi abbisno a mantenere la fede.”). 103 MACHIAVELLI, supra note 64, at 60 (the Italian reads: “Non può per tanto

uno signore prudente, nè debbe, osservare la fede, quando tale osservanzia li torni contro e che sono spente le cagioni che la feciono promettere.”).



men.” 105 Machiavelli finds virtù at the intersection of la verità effettuale and effectual action. Virtù is found in a “real man,” and virtùencompasses the cunning of a fox. A real man, then, is a mature person, a clever person, one who understands what is happening, and knows how and when to take effective action.

Machiavelli advocated autonomy and independence for both individuals and governments alike. Interconnectedness, dependence, and unity were part of medieval thought. In Machiavelli’s day, the process of displacing this conception was well along, being replaced by the Renaissance notions of autonomy and the discovery of the individual. But, the old concept was not altogether dead. Florence was part medieval and part Renaissance. Machiavelli’s city understood itself as taking part in the medieval hierarchical collegial sacred order, with God at the top of the ladder, while at the same time being under the influence of the mercantile mindset that prized individual ingenuity. 106 To counteract this duality, Machiavelli changed the model for his revitalized Florence from the initial Rome of Romulus (divinely created) to the republican Rome of Brutus (man-made). This widened the gap between the ideals of philosophy and religion, and actual practice. The community and its laws came to be understood not as institutions mandated by God or nature, but as created by humans. Renaissance people felt they could have some control of their own destiny, but in Italy, the long and agonizing period of European wars and domination had encouraged dependence; Machiavelli despised this state of affairs as a failure of Italian virtù. Although one has the potential to create one’s own life, what does this mean if one is without cease subjected to continual invasion, subjugation, and emasculation? Machiavelli prescribed autonomy as the cure for subjugation. The only free and autonomous citizens are the virtuous

105 DE SANCTIS, supra note 94, at 587. 106 In this construct, which pervaded medieval thought, every level of being

was subordinate to the superior strata. The ultimate level, the deity, was pure being itself. The mineral world participated in that being to a very limited extent. An artichoke was superior to a rock because it was a living plant. A person was superior to an animal because the person had an eternal soul. An angel trumped a human because the angel was living a purely spiritual life, thus more closely imitating and reflecting God.


who reside in a state that is armed and capable of maintaining its independence without depending upon outside support.

Autonomy, holds Machiavelli, is intertwined with manhood; dependence is for women, children and fools; for men it is despicably dangerous. Intimately connected with a dependent’s lack of autonomy is the trust that he or she must repose in others. Hanna Pitkin writes:

Trust, the intellectual form of dependence, is also a sign of weakness and a cause of failure; strength comes from doubt, skepticism, the refusal to be taken in by appearances. Only a child or a fool trusts in the conventional surface of things; it is always safer to assume the worst.107

A trusting child, a silly woman, someone imposing trust on others, all fall to ruin. Why? Machiavelli stated it directly and simply: “All men are evil,” and cannot be trusted in the slightest, “for of men it may generally be affirmed that they are thankless, fickle, false, studious to avoid danger, greedy of gain, devoted to you while you are able to confer benefits upon them . . . . ”108 One can trust only one’s “own arms”: strength, virtù, autonomy. In his writing, Machiavelli aimed to instruct those readers of his who comprehend that trust is a failing, not a virtue. His approval of a mature person’s cynicism and his abhorrence of trust, influence his diagnoses and his prescription for the ills of Italy. Machiavelli’s prince needs to use every possible tool to succeed. Foxiness (astuteness) is an essential instrument of policy and conduct. Of this, Machiavelli was well aware. He lived and breathed in the air of trickery in his Florence. Machiavelli was both an astute observer and crafty practitioner of deception.109

The lessons tendered Lorenzo in The Prince were meant to illustrate how a crafty political leader gains and maintains power. Foxy deception is part of the process by which a politician governs. As related in Chapter 7 of The Prince, Cesare Borgia appointed as the

107 PITKIN, supra note 14, at 21. 108 MACHIAVELLI, supra note 64, at 57. 109 This issue will be examined in greater detail in Chapter 5 of this article.


governor of Cesena his henchman, Remiro de Orco, a “stern and prompt ruler, who being entrusted with the fullest powers . . . . ”110

After Remirro had ruthlessly pacified the assigned territory, Cesare, fearing that the mood of the occupied city of Cesena might turn ugly, had Remirro assassinated and his body placed in the city square in two pieces, “ . . . in order to purge the minds of the people and gain their good-will, he sought to show them that any cruelty which had been done had not originated with him, but in the harsh disposition of his minister.”111 The gory display had the desired shocking effect on the populace, because, as Machiavelli writes, “the barbarity of which spectacle at once astounded and satisfied the populace.” 112 Thedeception practiced by Cesare on the citizens had a two-fold effect: he consolidated his rule, and the people of Cesena felt secure when they believed they were then freed from the oppression wrought by Remirro. In fact, they only saw the appearances—the illusion—that Cesare meant to convey. Cesare made fools of the people through actions that most would judge reprehensible; but, they were effective; now the burghers of Cesena were dependent upon him and under his control.

Like Boccaccio’s pranksters, Machiavelli’s prince “dwells in an amoral no-man’s-land without ethical imperatives.”113 This freedom of choice between good and evil gives his prince the ability to create a new order out of existing chaos, exemplified in the way Machiavelli urges Lorenzo Medici in the last chapter of The Prince. Such a leader, exercising the amoral astuteness that is part and parcel of Machiavelli’s virtù, can readily impose his will on the largely passive populace—the pathetic, unseeing, and unknowing unwashed of the world. Machiavelli’s prince consciously chooses to discard traditional morality when its abandonment is advantageous. The people are thereby made impotent. They are led to blindly adhere to moral scruples out of rote habit, to their disadvantage; the subjects are no

110 MACHIAVELLI, supra note 64, at 27 (the Italian reads: “uomo crudele ed espedito, al quale dette plenissima potestà.”).

111 Id. (the Italian reads: “volse mostrare che, se crudeltà alcuna era seguita, non era causata da lui ma dalla acerba natura del ministro.”).

112 Id. (the Italian reads: “la ferocità del quale spettaculo fece quelh populi in uno tempo rimanere satisfatti e stupidi.”).



match for a morally nimble prince who manipulates them by playing on their stultifying sense of goodness. The intellectual justification for this radical departure from the classic and humanist philosophers is based on Machiavelli’s belief in the thorough perfidy of humans.114 He remarks in The Prince that “for of men it may generally be affirmed that they are thankless, fickle, false, studious to avoid danger, greedy of gain . . . . ”115 In breaking from tradition and grasping la verità effettuale, the political actor is liberated from its restraints.

Freed from any consideration, except the expedient, the prince, like Cesare in Cesena, is free to use cruelty or piety as circumstances dictate, caring more about creating fear than love. Machiavelli’s prince with virtù uses whatever means necessary to remain in control of the situation.116 Therefore, after contemplating the question, “Is it better to be feared than loved?,” he concludes it is better to be feared. Why? Because men love at their own inclination, but can be made to fear at the inclination of the prince; a shrewd prince will lay his foundation on what is under his own control, not on what is controlled by others. “Nevertheless a Prince should inspire fear in such a fashion that if he

114 DESIDERIUS ERASMUS, PRAISE OF FOLLY 105-06 (Betty Radice trans., Penguin Books 1971) (humanists such as Erasmus continued to follow the classic concept that a prince’s goodness was paramount).

115 MACHIAVELLI, supra note 64, at 57 (the Italian reads: “degli uomini si può dire questo generalmente: che siano ingrati, volubili, simulatori e dissimulatori, fuggitori de’ pericoli, cupidi di guadagno.”).

116 Id. at Ch. 8 (Machiavelli even includes murder and other nefarious vices in virtù when it is used to attain and keep a state. He writes: “Yet it cannot be called virtue [virtù] to murder his fellow citizens, betray his friends, be devoid of truth, pity, or religion; a man may get power by means like these, but not glory. If we consider simply the courage [virtù] of Agathocles in facing and escaping from dangers, and the greatness of his soul in sustaining and overcoming adversity, it is hard to see why he should be considered inferior to the greatness of captains.” The Italian reads: “Non si può ancora chiamare virtù ammazzare e’ suoi cittadini, tradire gli amici, essere sanza fede, sanza pieta, sanza religione e’ quail modi possono fare acquistare imperio, ma non gloria. Perchè, se si considerrassi la virtù di Agotocle nello entrare e uscire de’ pericoli e la grandezza dello anima suo nel sopportare e superarre le cose averse, non si vede perchè egli abbai a essere indicato inferiore a qualunque eeccellentissimo capitano.”).


do not win love he may escape hate.”117 The Machiavellian prince, the one who knows that humans are stingy (in Italian, misero)—that is, they wish to accumulate and hold on to boundless quantities of material goods (necessità)—is advised to:

[N]ot meddle with the property or with the women of his citizens and subjects. And if constrained to put any to death, he should do so only when there is manifest cause or reasonable justification. But, above all, he must abstain from the property of others. For men will sooner forget the death of their father than the loss of their patrimony.118

It is the insight of a crafty, unscrupulous leader that allows the prince to comprehend that a subject’s property is sacrosanct. For Machiavelli, a foolish leader does not possess the virtù of an energetic leader. He is like a child. When one is young, one is told and believes in all kinds of tales; growing up means giving them up.119 Holding onto illusions makes one childish and gullible (one might add that when a child becomes an adolescent, his immaturity is enriched with idealism, which Machiavelli also condemns). A prince is a mature, knowing adult (a realist), a person with virtù, not an immature child (idealist), infused with illusion and utopianism. Machiavelli’s prince, an astute realist, has no use for idle speculation and fantasies. Those living in an unperceiving world of dreams are constantly in danger of being ensnared. In the political sphere, to be unknowing is to consign yourself and those who depend upon you to doom. 120 Machiavelli wrote to Lorenzo Medici:

117 Id. at Ch. 17 (the Italian reads: “amando li uomini a posta loro e temendo a posta del principe, debbe uno principe savio fondarsi in su quello che è suo, non in su quello che è d’altri: debbe solamente ingegnarsi di fuggire lo odio.”).

118 Id. (the Italian reads: “astenga dalla roba de’ sua cittadini e de’ sua sudditi, e dalle donne loro . . . ma sopra tutto, astenersi dalla roba d’altri; perché li uomini sdimenticano piú presto la morte del padre che la perdita del patrimonio.”).

119 PITKIN, supra note 14, at 36. 120 Id. at 36-37.


Since it has been my intention to write something of use to one who understands, it seemed to me that it would be better to go direct to la verità effettuale rather than imaginary ideas. Many have imagined republics that never existed and princedoms never known or seen in reality . . . . Because there is so much difference in how we actually live and how we ought to live, he who leaves behind that which we do for that which we ought to do very quickly realizes his ruin rather than his preservation.121

Machiavelli’s “one who understands” is the opposite of one who does not see through the appearances of things to get to la verità effettuale. The idealist, regardless of age, continues to see through the immature eyes of a child, believing what the more perceptive realist wishes him to believe. Maturity is a matter of insight and astute intelligence; these qualities belong to someone who is able to avoid others’ snares, while simultaneously scheming to realize the desired end.

In Machiavelli’s view, in order to be successful, a prince must be a realist, someone who is able to understand la verità effetuale of political power—the effective force that brings with it political power. Unlike the governors praised by Plato, Aristotle, Cicero, Augustine, and Thomas Aquinas, the shrewd prince “who desires to maintain his position, [must] learn [] how to be other than good, and to use or not to use his goodness as necessity requires.”122

121 MACHIAVELLI, supra note 64, at Ch. 15 (a natural assumption is that Machiavelli included Plato’s Republic in his scathing criticism of utopias) (the Italian reads: “Ma sendo l’intenzione mia stata scrivere cosa che sia utile a chi la intende, mi è parso piú conveniente andare dreto alla verità effettuale della cosa che alla immaginazione di essa. E molti si sono imaginati republiche e pricipati che non si sono mai visti né conosciuti in vero essere. Perché gli è tanto discosto come si vive a come si doverrebbe vivere, che colui che lascia quello che si fa, per quello che si doverrebbe fare, impara piú presto la ruina che la perservazione sua.”).

122 Id. (the Italian reads: “Onde è necessario a uno principe, volendosi mantenere, imparare a potere essere non buono, et usarlo e non usarlo secondo la necessità.”).


Virtue is stood on its head. The classic ideal (effective) leader practiced the accepted virtues known to paganism and Christianity alike—compassion, justice, temperance, and the like. Machiavelli instructs his virtuous prince to forget accepted morals and become astute “in order to preserve his Princedom, to act in opposition to good faith, charity, humanity, and religion.”123 La verità effettuale requires a leader to do whatever is necessary to take and retain power, even to resort to the cruelty of a Cesare Borgia when necessary to gain an advantage. Machiavelli explains why some princes who use cruelty to rise to power, keep their power, while others lose it:

I believe that it all depends on whether the cruelty is used well or badly. Cruelty can be described as well used (if it is permissible to say good words about something evil in itself) when it is performed all at once, for reasons of self-preservation; and when the acts are not repeated after that, but rather are turned as much as possible to the advantage of the subjects.124

A leader’s primary obligation to her citizens is to provide security. He emphasizes to his readers that:

A Prince should therefore disregard the reproach of being thought cruel where it enables him to keep his subjects united and obedient. For he who quells disorder by a very few signal examples will in the end be more merciful that he who from too great leniency permits things to take their course and so to result in rapine and bloodshed.125

123 Id. at 61 (the Italian reads: “spesso necessitato, per mantenere lo stato, operare contro alla fede, contro alla carita, contro alla umanità, contro alla religione.”).

124 Id. at Ch. 8 (the Italian reads: “Bene usate si possono chiamare quelle—se del male è lecito dire bene—che si fanno a uno tratto per la necessità dello assicurarsi: e di poi non vi si insiste dentro, ma si convertono in piú utilità de’ sudditi che si può.”).

125 Id. at Ch. 17 (the Italian reads: “Debbe, per tanto, uno principe non si curare della infamia di crudele, per tenere e’ sudditi sua uniti et in fede . . . sarà piú pietoso che quelli e’ quali per troppa pieta, lasciono seguire e’ disordini, di che ne nasca occisioni o rapine.”).


One of Machiavelli’s model princes is the aforementioned Cesare Borgia. He is praised for exceptional virtù, cunning and capable of putting malice and deception to good use. Cesare’s shocking presentation of Remirro to the townsfolk of Cesena has already been described. The Prince records, without condemnation, other examples of Cesare’s audacity. He places the duke, in Wayne Rebhorn’s words, “in a zone beyond any simple moral judgment, whether good or bad, making him a figure as fundamentally amoral as the confidence men in La mandragola or as any of the beffatori[tricksters] in the novella tradition that lies behind that play.”126 As reported by Machiavelli, Cesare’s father, Pope Alexander VI (Rodrigo Borgia, 1431-1503), wished to grab as much of Italy for himself and his family as possible.127 The father conferred a dukedom on the son and supplied him with the funds to wage war, an art of which Cesare was a master. The two struck up alliances with the French and the Orsini, all to further their desire to dominate central Italy. Fearing reliance on the others would prove fateful, Cesare first spurned the Orsini and then decided to put no further trust in the French. 128

Machiavelli says Cesare then “… resorted to stratagem, and was so well able to dissemble his designs, that the Orsini, through the mediation of Signor Paolo [Orsini] (whom he failed not to secure by every friendly attention, furnishing him with clothes, money, and horses), were so won over . . . ”129 Machiavelli writes that it was the Orsini’s simple-mindedness (simplicità), the sign of a fesso, which impelled them to a meeting where Cesare had them all murdered. The Orsini clan’s inability to see the reality of the situation (la verità effettuale) led them to ruin. Machiavelli is more critical of the simplicità of the Orsini band than he is of the deception and treachery of Cesare. In fact, he praises this method by which Cesare Borgia obtained territory and went on to govern it well. If one wonders how

126 REBHORN, supra note 83, at 86. 127 MACHIAVELLI, supra note 64, at 25. 128 Id. (the Italian reads: “nè si fidando di Francia.”). 129 Id. at 26 (the Italian reads: “si volse alli inganni; e seppe tanto dissimulare

l’animo suo, che li Orsini, mediante el signor Paulo, si reconciliorno seco; con il quale el d’ogni ragione di offizio per assicurarlo, dandoli danari, veste e cavalli.”).


well, one is advised to reread the story of Remirro. After reviewing Cesare’s life of duplicity and perfidy, Machiavelli writes:

Taking all these actions of the Duke together, I can find no fault with him; nay, it seems to me reasonable to put him forward, as I have done, as a pattern for all such as rise to power by good fortune and the help of others. For with his great spirit and high aims he could not act otherwise than he did, and nothing but the shortness of his fathers life and his own illness prevented the success of his designs.130

Following this passage, he goes on to say that “whoever, therefore, on entering a new Princedom, judges it necessary to rid himself of enemies, to conciliate friends, to prevail by force or fraud, to make himself feared yet not hated by his subjects . . . can find no brighter example than in the actions of this Prince.”131 Machiavelli then spurned the ideal for the real. He advocated efficacy, not moral rigor. He saw no conflict between an effective amoral leader and a virtuous person. Life was not for the faint of heart. He who succeeded was the one who saw the world for what it was—a cruel, savage place where the lion dominates and the fox perpetuates. Keeping one’s words, respecting the rights of others, and conciliation were not the ways of effective leadership. As pointed out above, the academic and practicing fields of international relations and international law overlap.132

In international relations, realists such as Morgenthau, Waltz, and Kissinger predominate, following the spirit, if not the letter of, Machiavelli. The international relations realists reflect Machiavelli’s

130 Id. at 29 (the Italian reads: “Raccolte io adunque tutte le azioni del duca, non saprei riprenderlo; anzi mi pare, come ho fatto, di preporlo imitabile a tutti coloro che per fortuna e con l'arme d'altri sono ascesi allo imperio. Perché lui avendo l'animo grande e la sua intenzione alta, non si poteva governare altrimenti.”).

131 Id. (the Italian reads: “Chi, adunque, iudica necessario nel suo principato nuovo assicurarsi de' nimici, guadagnarsi delli amici, vincere o per forza o per fraude . . . non può trovare è più freschi esempli che le azioni di costui.”).

132 See the discussion in Chapter One of this paper.


view of conflict, strife, and even occasional warfare as a part of the international landscape. States observe international law when it is to their advantage. That it often is advantageous to be in legal compliance does not mean to the realists that the law is what compels adherence. Like the Athenians described by Thucydides, they say that the powerful do what they wish with the weak, without seeking permission. Both Bill Clinton and George Bush have taken that course; the former did so successfully against Serbia and the latter much less successfully in Iraq.

International lawyers and scholars, most of whom are idealists (although they claim to be the real realists),133 agree with Henkin that states almost always honor almost all legal obligations, which, they assert, proves that international law has a large measure of compulsion attached to it. Realists might agree with the degree of observance of the law, but certainly not the reasons for it. For realists, adherence is a matter of practicality. Adhering to World Trade Organization (WTO) principles advances the economies of the observant state. However, when it appears advantageous to the authorities to breach international agreements (for instance, provide illicit financial support to farmers), the state will follow the route that appears most advantageous—breach.

133 See Jonathan D. Greenberg, Does Power Trump Law?, 55 STAN. L. REV.1789-1820 (2003) (in this paper, I have adhered to the traditional definitions of realists and idealists).


CHAPTER FIVE

MACHIAVELLI’S LIFE, TIMES, AND POLITICS

Machiavelli’s importance in the field of international law is often underestimated. Arthur Nussbaum comments:

Machiavelli’s ideas may be linked to international law in so far as his perfect and cynical disregard of any political morality (not of morality in general) contrasted sharply with, and formed an extreme reaction to, the scholastic teachings which purported to subordinate the whole province of politics and especially the relations among rulers to the demands of moral theology.134

It is essential, then, for our purposes, to explore Machiavelli’s life, contemporary events, and his political experience.

Niccolò Machiavelli’s public career began on May 24, 1498, when he was nominated to be secretary of the Second Chancery of the Florentine Republic, four days after the public execution of the firebrand Franciscan friar, Girolamo Savonarola (1452-1498). The Second Chancery handled foreign affairs and relations with Florence’s dominions.135 Florence had hailed Savonarola as a republican hero only four years earlier when he negotiated a treaty with Charles VIII (1470-1498) of France that had spared Florence from a sacking. Piero Medici (1416-1469) had invited the French king into Italy as his protector, but when Piero surrendered six key Florentine fortresses to Charles without a shot being fired, the enraged Florentines drove Piero and his supporters into exile, ending sixty years of Medici rule. Charles’ successful invasion profoundly affected the balance of power in Italy.136 Prior to Charles’ entry, the five major Italian powers—Milan, Venice, Florence, Naples, and the Holy See—had achieved a

134 NUSSBAUM, supra note 41, at 56. 135 VIROLI, supra note 72, at 28. 136 Id. at 19.


balance of power whereby no single state could dominate the others, keeping Italy perpetually divided. Alliances of expediency were furtively formed and then surreptitiously unraveled as the Italian powers took turns teaming with each other to block the others’ ambitions. The events of 1494 introduced centuries of foreign invasion and subjugation, with the French, Spanish, Germans, and Austrians each taking their turns at despoiling the peninsula. The city-states had neither the resources nor passion to defend themselves.

Machiavelli undoubtedly had witnessed the French entry into Florence when Charles’ emissaries went door-to-door marking the properties that would house the conquering army. It was a sad day for Niccolò. For a fiery Florentine patriot like Machiavelli, this humiliation was a never-ending wound; the weakness of Italy had been exposed for all to see. As he later wrote, “Charles the King of France was enabled to seize Italy with sticks of chalk.”137 His work in the Florentine government and his writing were profoundly affected by Italian military and political impotency and the struggles he witnessed. He was enmeshed in social, political, and religious changes that were shaking the very foundations of Europe. Arthur Nussbaum writes:

From the political point of view the tremendous upheaval that brought the transition from the Middle Ages to modern times is marked predominately by the Reformation . . . . The ensuing religious wars further weakened the power of the Empire . . . this evolution favored the rise of national states, especially of France, England, and Spain.138

Machiavelli was confirmed to his chancery position in the new republican government in June of 1498. The Italian Renaissance was at its peak. Roman and Greek literature, art, and philosophy were rediscovered. Western civilization was reborn and enlightened, and the center of the intellectual conflagration was Italy, particularly Florence and Rome. To his dismay, Machiavelli was witness to the dimming of this illumination as the energies and resources that had poured into the

137 Id. at 22 (the comment refers to the actions of the French who marked with chalk the Florentine homes that were commandeered for use by the French).

138 NUSSBAUM, supra note 41, at 52.


renewal of civilization were turned to resisting or appeasing foreign invaders.

Despite the artistic and intellectual renaissance occurring throughout Italy, the relatively small and thoroughly disunited Italian states could not fend off the wave of foreign intrusions. In this maelstrom, Machiavelli conducted his career as a diplomat and adviser. He was sent on missions to Catherine Sforza (1499), to France (1500, 1510, 1511), to the German emperor (1507, 1509), to Rome (1503, 1506), to Cesare Borgia (1502), and to lesser missions in Perugia, Lucca, and Siena. His assignment was to observe and to analyze, to determine the state of affairs, and to divine the intentions of those leaders he visited, and then to report all this back to Florence.139

His observations, experiences, and deductions are recorded in his dispatches and monographs that presage the brilliant insights, inferences, and conclusions which he developed in his later historical, literary, and political works.

Spurred by the bellicose Pope Julius II (Giuliano Della Rovere, 1443-1513), the Spanish army in 1512 encamped outside Florence, and tendered an ultimatum to an overmatched Florence: either expel the government of gonfalonier Piero Soderini and allow the Medici to return, or face devastation. Soderini made an impassioned plea to save the republic. The Florentines chose to save their necks and property and capitulated, effectively bringing to an end the republican experiment in Florence. 140 Machiavelli’s services were no longer needed, and he was driven from the Palazzo Vecchio, fined, and banished to his country property outside Florence.

Machiavelli referred his friend, Francesco Vettori, to his book, De Principatibus (The Prince), which discussed the definition of princedoms, how they are acquired, retained, and lost. He hoped that Vettori might be able to present the book to Cardinal Giuliano Medici (1479-1516), whom Machiavelli wrote should welcome it, especially

139 See generally JAMES B. ATKINSON & DAVID SICES, MACHIAVELLI AND HIS FRIENDS: THEIR PERSONAL CORRESPONDENCE (Northern Illinois University Press 1996).

140 GIOVANNI SILVANO, MACHIAVELLI AND REPUBLICANISM 53 (Gisela Bock et al. eds., Cambridge University Press 1990).


since he was a new prince.141 Thus, in a few sentences, Machiavelli introduced to his friend Vettori and the rest of us one of the most influential volumes ever written. The Prince is the natural result of his continuing interest in politics and foreign affairs. He recommended an antidote for the threats and oppressions of foreign rulers. In the book, he did not deal with the concepts offered by philosophy or religion; rather, he elucidated how an Italian leader, by comprehending the realities of attaining power, might rid the peninsula of its barbaric usurpers and unite them as a strong and independent entity.142

As Harvey Mansfield has put it, “the renown of The Prince is precisely to have been the first and the best book to argue that politics has and should have its own rules and should not accept rules of any kind from any source where the object is not to win or prevail over others.”143

Several years after The Prince was written, Giuliano died. Machiavelli changed the dedication in The Prince from Giuliano to Leo X’s nephew, Lorenzo Medici, expressing the hope that Lorenzo might “attain that eminence which Fortune and your own merits promise you.” 144 Perhaps at this time, Machiavelli added the final chapter to The Prince, in which he places on the Medici his great expectations on their “illustrious house,” with the hope that the new prince, Lorenzo, will remove a stench from the Italian air, because “this barbarian stinks in all nostrils.”145

Fortunately for Machiavelli, new interests began to occupy his time. Machiavelli was the senior member of an intellectual group that came to the Oricellari Gardens in Florence to discuss politics and military techniques. The young aristocrats in attendance were being instructed by Machiavelli to attain the greatness that his status and poverty denied him. 146 He finished another great political treatise,

141 ATKINSON & SICES, supra note 139, at 264.142 MACHIAVELLI, supra note 64, at 273 (quoting Francis Bacon in the

“Marginalia”).143 MANSFIELD, supra note 60, at 176. 144 MACHIAVELLI, supra note 64, at 6 (the Italian reads: “che lei pervenga a

quella grandezza che la fortuna e le altre sua qualità li promettano.”).145 Id. at 90 (the Italian reads: “A ognuno puzza questo barbaro dominio.”).146 VIROLI, supra note 72, at 185-86.


Discourses on Livy, 147 on which he had labored for years. In it, Machiavelli returns to a study of ancient virtue, meaning Rome and its republic’s virtù, pretending to explain Livy’s history of Rome, but in fact usurping and transforming Livy’s material into a rhetorical argument for Machiavelli’s new order. The Prince is intended to advise a political actor how to obtain power, while Discourses on Livyinstructs how to establish and preserve an enduring republic. In this latter work, Machiavelli argues that the ancients were strong and the moderns weak. Christian attitudes of meekness and humility had subverted the virtuosity of heroes into the effeminacy of his fellow Italians.148

Machiavelli was a prodigious thinker and a prolific writer. The Machiavelli canon includes serious work, such as The Art of War,comedy such as Mandragola, Belfagor and Clizia, and numerous letters, dispatches, and diplomatic reports. All of these, even the literary works, contain insights into his mind and thoughts. In the introduction to The Prince, he offered up his compilation of the “knowledge of the actions of great men, acquired in the course of a long experience of modern affairs and a continual study of antiquity.”149 Like Aristotle, Machiavelli claimed to be an observer of human actions and claimed to extract from his observations the truth of the matter studied. The difference: Machiavelli’s observations led him to conclusions opposite those of Aristotle.

147 See MANSFIELD, supra note 71 (for the English translations used in this paper); see NICCOLÒ MACHIAVELLI, DISCORSI SOPRA LA PRIMA DECA DI TITO LIVIO, IN OPERE (Corrado Vivanti ed., Einaudi-Gallimard 1997) (for the Italian used in this paper).

148 See LUIGI BARZINI, THE ITALIANS xiii (Atheneum Publishers 1964) (Luigi Barzini continues the discourse centuries later: “This is why the riddle which fascinated Machiavelli is still endlessly debated amongst us: why did we not achieve national unity and a centralized government when other European nations did?” Id.).

149 MACHIAVELLI, supra note 64, at 5 (the Italian reads: “cognizione delle azioni degli uomini grandi; imparata da me con una lunga sperienza delle cose moderne ed una continua lezione delle antiche.”).


In the earlier Middle Ages, often bishops were also civil rulers, so that there was convergence between civil and religious authority.150

Unlike most of the rest of Europe, Florence and the rest of northern Italy were not feudal. They were more secular and maintained greater contact with antiquity and the secular culture that was inherited from the Romans. 151 Northern and north-central Italians established independent communes that were more or less free; structures that grew out of and enhanced the flourishing trade and commerce that supported their prosperous and growing economies. 152 While not perfect republics, the communes did imbue their citizens with a desire to have a voice in a government that was based on the consent of the governed.153

The one hundred years between 1150 and 1250 saw an explosion in the population and wealth of Florence. The mercantile trade centered in the cities spurred the power and prosperity of the communes that were found everywhere in north and central Italy. The humble and the powerful, day laborers and master craftsmen, servants and financiers, all migrated into the cities, creating a more democratic mix of populace. Many communes, such as Florence, gained the right not only to govern them, but took the opportunity to incorporate the surrounding countryside into their expanding states.154 The peninsula

150 J.K. HYDE, SOCIETY AND POLITICS IN MEDIEVAL ITALY: THE EVOLUTION OF CIVIL LIFE 1000-1350 43 (St. Martin’s Press 1973).

151 Id. at 5-8. 152 ROBERT D. PUTNAM, MAKING DEMOCRACY WORK: CIVIC TRADITIONS IN

MODERN ITALY 121-25 (Princeton University Press 1993); see KRISTELLER,supra note 74, at 87; see also ELENA F. GUARINI, MACHIAVELLI AND THE CRISIS OF THE ITALIAN REPUBLICS, MACHIAVELLI AND REPUBLICANISM 39 (Gisella Bock et al. eds., Cambridge University Press 1990) (Elena F. Guarini stated that Machiavelli’s vision of politics was profoundly influenced by the northern Italian commune tradition that promoted independence and republicanism).

153 Edward Muir, The Sources of Civil Society in Italy, 29.3 J. INTERDISC. HIST.379-406 (1999); see also Gene Brucker, Civic Traditions in Premodern Italy, 29.3 J. INTERDISC. HIST. 357-77 (1999) (Gene Brucker has written that the republican traditions established in the early communes were less than absolute; for instance, personal rights and liberty were severely limited by governmental authority).

154 CHRIS WICKHAM, COMMUNITY AND CLIENTELE IN TWELFTH-CENTURY TUSCANY 13 (Clarendon Press 1998).


was not united under a single regime; it was composed of city-states, church lands, and princedoms of varying sizes and strength. No one entity had the wherewithal to consolidate power. Medieval and Renaissance Italy can be seen as a culture, but not as a state or unified political entity.

The height of the growth of Florence and the other city-states was from 1250 to about 1325. By then, the size of cities had reached its zenith and the communes had expanded their economy to provide the inhabitants with more and more goods and services. Their citizens had grown rich.

The substantial and ongoing social and economic changes of a hundred years caused turmoil, which in turn produced a need for a new civic morality to prevent the new society from tearing itself apart.155

Universities sprang up in the principal Italian cities to supply lawyers and politicians to manage the new order. A renewed interest in Justinian law and Ciceronian rhetoric spurred interest in Roman learning and civilization. Humanists took up Latin learning and infused it.

Unsurprisingly, the literary tradition of Renaissance Italy and Florence that profoundly influence Machiavelli followed the preceding political and cultural progression. In Machiavelli’s day, Florence had lost whatever stable moral compass it had. Trickery in public and private life had replaced a great part of the characteristics that had been inherited from western culture, that tradition based on Greek, Roman, and Christian antecedents. This was reflected not only in Machiavelli’s writings, but also in those of his predecessors.

Machiavelli himself was a student and ardent admirer of the Roman culture, which had incorporated Greek philosophy and literature.156 Perhaps the first trickster recorded in western European

155 HYDE, supra note 150, at 83. 156 See P. E. EASTERLING & B. M. W. KNOX, GREEK DRAMA 103 (Cambridge

University Press 1989) (nowhere was this truer than in Roman comedy, which closely imitated the Greek. Greek comedy had focused on the social and economic issues of the day, but invariably upheld the traditional mores; trickery does not appear to have played much of a part in Greek comedy); see also GEORGE F. DUCKWORTH, THE NATURE OF ROMAN COMEDY 393-94 (Princeton University Press 1952) (Roman comedy in many ways closely


literature is the Greek hero Odysseus, whose heroics are chronicled in the Odyssey and later in the Aeneid, with which Machiavelli was very familiar. Greek and Roman literature, while including tricksters, had the effect of supporting the established social order. For instance, while Homer portrayed Odysseus as tricky, his trickiness was heroic; Odysseus used his sophisticated wit and ingenuity to trick and defeat brutish hostile forces. Likewise, the denouement of Roman literature, even comedy, supported the prevailing society and customs.

As Christian religiosity took hold, attitudes toward deception changed. The medieval mindset did not appreciate the ruses that gained Odysseus his fame. In fact, Dante, one of its chief apologists, placed Odysseus in hell with other deceivers. There is no doubt that this disapproving attitude changed dramatically in the two centuries from Dante’s Commedia to Machiavelli’s Principe, a shift in outlook that was narrated in the literature. The link from one era to another was forged by a Florentine writer, Giovanni Boccaccio (1313-1375).

Boccaccio’s The Decameron followed in the novelliere (story teller) tradition with which Boccaccio was intimately familiar. Some of Boccaccio’s tales were new, but most of them were not inventions; they were a masterful rewriting of older tales taken from the medieval stock of fables, the fabliaux. He brought to these old accounts variety, passion, a unique rich style, and spicy commentary on contemporary Florentine and Italian society.157 He used light comedy mixed with exquisite writing to make his pithy points. Although he may have borrowed the story lines, his treatment of them was entirely his own. Boccaccio took the original and the new and “created a picture of the living world of his society with all its good and evil traits.” 158

Boccaccio subverted the accepted power structure, and he gave the old

imitated the Greek. But deception and trickery seemed to have been incorporated into the Roman from indigenous southern Italian culture. However, Roman comedy imparted moral lessons and upheld the virtuous traits of honesty, loyalty, and nobility of character. The social order was maintained).

157 Ugo Foscolo, Boccaccio, in THE DECAMERON 208-15 (Mark Musa and Peter Bondanella trans., W. W. Norton and Co. 1977).

158 Francesco De Sanctis, Boccaccio and the Human Comedy, in THE DECAMERON 222 (Mark Musa and Peter E. Bondanella trans., W. W. Norton and Co. 1977).


stultified social order no respect. For instance, in day 7, all the stories are about wives pulling the wool over their husbands’ eyes, with impunity.159 Thomas Bergin has written that one thing is certain:

[T]he world of the Decameron is no longer the world of the High Middle Ages . . . . In such a society the knight and the priest were supreme . . . [However] the citizens of the Decameronian commonwealth are less concerned with preparing for the world to come . . . than with enjoying what the world of the living has to offer.160

In Boccaccio’s work, saints are humbled and sinners exalted. The Decameron marked a huge shift in the character of Italian culture, demarcating a movement from the theocentric to the anthropocentric.161 The times were changing from the stale idealism of the past to a new world founded on a fresh sense of reality. At the same time, society was moving forward, literature was traveling a parallel path, shifting from allegorical poetry to down-to-earth narrative, “with its adventures, festivals, descriptions, pleasures and its malice.”162 The high priest of medieval literature was Dante Alighieri (1265-1321), who echoed the scholastic philosophy and theology of St. Thomas Aquinas. Illicit lovers Dante placed in Hell. Boccaccio inverted the moral lessons of Dante and extolled, rather than condemned, his lovers. What Dante saw as immorality, Boccaccio saw as the freedom to live one’s own life. 163 While Dante demonized Odysseus for his deception, Boccaccio applauded his characters that used trickery as an effective weapon to satisfy their desires.

Written some fifty years after the Divine Comedy, Boccaccio’s novelle must have shaken Dante in paradise; they certainly created lasting tremors on earth. In The Decameron, the medieval sense of sin is entirely absent from its ribald tales. The aristocratic young revelers

159 Albert R. Ascoli, Pyrrhus’ Rules: Playing with Power from Boccaccio to Machiavelli, 114.1 MLN 17-18 (1999).

160 Thomas Bergin, An Introduction to Boccaccio, in THE DECAMERON 163-64 (Mark Musa and Peter Bondanella trans., W. W. Norton & Company 1977).

161 De Sanctis, supra note 158, at 223. 162 Id. at 221. 163 Stelio Cro, The Masks of a Trickster: A New Hero(ine) for a New Age, 16

CAN. J. ITALIAN STUD. 20 (1993).


recount their stories in the relaxed naturalness of the Florentine countryside, without remorse or embarrassment. Gone, too, from its pages is any sense of divine protection or providence over human affairs. Humans are constrained to deal with the world on their own, as it is, and to make the best of it. Human ingenuity and wit, not prayers and petitions to the Almighty, are the weapons of choice against the onslaughts of fortune. The transcendental ideals of the High Middle Ages totally fade away in The Decameron and are replaced by the material values of the mid-fourteenth century.164 On a moral level, De Sanctis says of this era that a weakness and servility of character developed that became predominate in society that manifested itself strongly. Cynicism became a part of everyday life.165 Gone was the Code of Chivalry; it was replaced with the new code of the Italian middle class—skeptical, intelligent, and positive—that sought its own best interests in a world full of promising possibilities.166

While Italian society in the fourteenth and fifteenth centuries was in some ways clinging to the past traditions of spirituality, the ethics of the rapidly ascending merchant class burrowed into everyday life and undermined the existing order. For the rich, and the soon-to-be rich, profit was the goal and materialism became the result. While paying lip service to tradition, these movers and shakers were inwardly adopting new morals. Heavenly rewards were subordinated to earthly acquisitions. This attitude filtered through to the rest of society, and suspicion and mistrust became the order of the day. In the midst of the decline of medieval values and outlooks, Boccaccio took up this new attitude of cynicism with brio, chronicling the foibles of an evolving, less morally correct, society with stinging prose. Previously, immoral shrewdness was infiltrating the society and becoming accepted, and this was reflected in the literature and magnified by the emphasis placed on it by Boccaccio.

On the subject of merchants and their conduct, Thomas Bergin has written, “Vittore Branca calls [The Decameron] the ‘epic of the merchant class,’ but that definition . . . has reference rather to its ethos

164 HYDE, supra note 150, at 165. 165 DE SANCTIS, supra note 94, at 372. 166 Id. at 593.


than to the status of the characters that are set before us.”167 The themes of the tales corresponded to the newly rising mercantile class which first appeared in Boccaccio’s Italy.168 The Italy of Boccaccio’s time was rapidly developing a new individualism that glorified earthly fame as man’s goal on earth, and minimized or even ignored the heavenly glory of Dante and older generations. Boccaccio, in TheDecameron, and Machiavelli throughout his works, offered a vision of human nature that differed sharply from the hierarchic, divinely created order of Dante and the Middle Ages.169 That structure was vertical, reaching to the heavens, commencing with Satan in the deepest reaches of hell and reaching its apex in the beatific vision in Paradise. Life, whether one was a prince or pauper, was to be lived to make one worthy of attaining eternal heavenly rewards. Boccaccio, like Machiavelli, viewed life as horizontal, material, rooted to the earth, never arising much above the human perspective. Life was to be lustily lived and enjoyed here and now.

Machiavelli was the first to argue that political issues are created by humans, and their solutions can be arrived at through observation and reasoning. In order to do so, we must put aside the idealistic, theological goals of the classic philosophers, from Socrates to the Christians. Politics depend, not on Fortune, but on the necessary actions taken by a resolute man. Thus, Machiavelli moved the discussion from metaphysics to modern political science.

He saw the world through the prism of literature, both ancient and Italian. His political vision was affected by the literature he read, including Boccaccio, who was a precursor of Machiavelli. 170

Machiavelli took Boccaccio’s process one step further. He crafted a virtuous political hero, his mythical prince, out of Boccaccio’s mischievous prankster and its darker version, the trickster, in ways that earlier generations had not. The trickster, when dealt with by Machiavelli, turns into a more sinister agent. As Stelio Cro has written,

167 Bergin, supra note 160, at 161. 168 Mark Musa and Peter Bondanella, The Meaning of The Decameron, in THE

DECAMERON 323 (Mark Musa and Peter Bondanella trans., W. W. Norton & Co. 1977).

169 Id. at 330-31. 170 REBHORN, supra note 83, at ix.


the artful prankster of The Decameron metamorphoses into Machiavelli’s man of the world, “the individual gifted with a superior ability to simulate, to mask his true feelings in order to achieve his deception.” 171 Wayne Rebhorn uses the term “confidence man” to describe such a trickster. Machiavelli was drawn to the confidence man to make sense of the world he lived in and to diagnose the historical crisis of contemporary Italy, as well as to propose remedies for it.172

Machiavelli’s macho man knows how to exercise his own abilities to seize what he wants, without being dependent on others’ largesse. In Greek and Roman times, the moving force of history was the gods’ intrusion into human affairs; in the Middle Ages, it was God’s providence. Machiavelli transformed the divine into the natural and called it fortune. In the fullness of the Italian Renaissance, Machiavelli proclaimed that the forces that rule humanity are found inside, not outside, the person.173

The Italian Renaissance at the end of the fifteenth-century was more cultural than scientific. The new order swept away old customs, by audaciously mislabeling what was occurring and thus hiding its reality from the main part of the people. “Materialism was in everything; in literature, in morals, in politics, in man, and in Nature. But it was not called ‘materialism’; it was known as ‘culture,’ ‘civilization,’ ‘erudition,’ ‘beauty,’ ‘elegance,’. . . ”174 Political life in Machiavelli’s Florence was schizophrenic, displaying a lip-service devotion to outward religious and social customs, while in actuality worshipping at the altar of materialism and earthly pleasure. Florence was a city of piety and impiety. This dichotomy in society carried over to political life, which was marked by its own divisions, bitter conflicts, and constantly shifting alliances.175

171 Cro, supra note 163, at 7. 172 REBHORN, supra note 83, at 22-25. 173 DE SANCTIS, supra note 94, at 594-97 (in this regard, De Sanctis says that

Guicciardini extended Machiavelli’s notion of autonomy, extending its power over history, asserting that acts that appeared to be due to chance and uncontrolled were in fact determined by the inner motives of the actor[s]).

174 Id. at 462. 175 RIDOLFI, supra note 11, at 149.


But by the end of the 15th century, Machiavelli astutely saw corruption where others naively saw prosperous health. The corruption was the Middle Ages in putrefaction, still surviving in forms and institutions, but dead in the people’s consciousness. Francesco De Sanctis has commented:

Though forms were elegant and decorous, customs were licentious, and there was a spirit of ridicule, vented chiefly on the priests, the friars, and the lower classes. The bourgeois class was not in process of formation but was a class with its history already behind it; it was already dissolving, in spite of all the wonderful flowering of culture and art, and in spite of all the appearance of a prosperous and pleasant life.176

The Medici, beginning with Cosimo in 1434 and completed by Lorenzo the Magnificent sixty years later, had consciously been accomplices in the extended process of killing and burying the medieval tradition. Roberto Ridolfi, in speaking of the time of Lorenzo, wrote:

As freedom ebbed away, there went also the old way of life of the city . . . surviving only in the regrets of those who had enjoyed its last moments. The corruption of morals, beginning with the corruption of political life . . . was favoured by Lorenzo as an instrument of government. These were precisely the years in which the generation of Machiavelli was at an age most susceptible to corruption.177

Machiavelli’s Florence was infused with a mercantile sense of materialism, a breaking down of old civic solidarity, and a newfound sense of individualism. Machiavelli wrote of the pervasive and ceaseless machinations of his Florence, commenting that, “the one who could rend his fellows most cleverly, was deemed the wisest and most estimable.”178

176 DE SANCTIS, supra note 94, at 422. 177 RIDOLFI, supra note 11, at 8.178 Id.


Machiavelli, then, was influenced by the changing times and the changing mores. The medieval way of thinking about politics and political leaders was in many ways a Christianization of classical political philosophy. Based on his experiences and observations, Machiavelli concluded that the old way was not serving his state well. Based on extensive reading and experience, he shocked his society and formed his own view of the political world. His views were, and continue to be, hotly debated and often condemned by some. Machiavellian tremors continue to ripple through today’s world, affecting the way that international relations and international laws are debated and practiced.

The originators of modern international law, commencing with Grotius, did not wholeheartedly adopt the ways and views of Machiavelli. To the contrary, many of them reacted to Machiavelli’s strict separation of morality and politics. 179 Now follows an examination of a few such early writers.

179 See MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1879-1960 353-55 (Cambridge University Press 2002).


CHAPTER SIX

GROTIUS AND THE EARLY MODERN

ADVOCATES OF THE NATURAL LAW THEORY

IN INTERNATIONAL LAW

In the sixteenth and early seventeenth centuries, the Dominican Francisco de Vitoria (1486-1546), the Jesuit Francisco Suarez (1548-1617) and Hugo de Groot (Grotius) (1583-1645) emphasized the moral aspects of the law of nations and were part of the natural law tradition.180 The Catholics, de Vitoria and Suarez, were adherents of the Scholastic tradition promulgated by Aquinas and his followers. Alberto Gentili (1552-1608) studied law at Perugia, became a Protestant, and fled to England where he lectured on the Roman law at Oxford. He wrote On the War of Law in 1598, which centered on the concept of just war, separating international law from theology. Gentili’s natural law is not so much a self-contained body of moral rules, evolved by scholastics, as it is simply what a sound mind teaches us as being manifest.

Following Gentili’s divorce of religion from natural law, the pendulum swung to a more pragmatic approach. Emmerich de Vattel (1714-1769) was among those jurists who started to consider the positivist aspects of international law. These writers considered that the way nations actually behaved, not the way they should behave,defined international law. This chapter will briefly explore Grotius’ role in initiating the modern natural law tradition. The next chapter will briefly examine the early positivists, including Vattel.

According to David J. Bederman, “Grotius has earned the title ‘father of international law’.” 181 Countering Machiavelli’s “evil” principle of “reason of state” was one of Grotius’ primary objects in his major opus, De Jure Belli ac Pacis (1625). From the middle of the

180 NUSSBAUM, supra note 41, at 58-59. 181 DAVID J. BEDERMAN, THE SPIRIT OF INTERNATIONAL LAW 5 (The

University of Georgia Press 2002).


sixteenth century until the French Revolution, Machiavelliism represented a powerful current in intellectual life. Late in the sixteenth century, Machiavelliism was so greatly acknowledged as a distinct attitude that the term “Machiavellist” appeared in print. The condemnation of his writings wrapped around him a mystery that fostered the belief that his teachings were applicable to any kind of human activity, especially politics and the conduct of foreign affairs. The common denominator of all Machiavellist attitudes was that successful action was incompatible with behaving strictly according to a fixed moral code. The view, which in the sixteenth century was formed about Machiavelli’s prescriptions for human behavior, can be summarized in the simple formula that he was considered to be a teacher of evil. His message was that being evil was more useful and efficient than being good. One might deceive, lie, commit crimes, even murder, and start wars, if this helped to achieve a prince’s success. As an advocate of such evil doctrines, Machiavelli moved close to the Devil and an identification of Machiavelli with Satan was made early on.182

The continental upheavals wrought by the Thirty Years War (1618-48) ended in the Peace of Westphalia, which many writers cite as the beginning of the modern era of International Law. The winners were France, Netherlands and England. The losers were the Catholic Church and Spain.183

In De Jure Belli ac Pacis, the Dutchman Grotius made recourse to the natural law principle of good faith to counter the notion that sovereignty had no bounds.184 He attempted to show that his view of natural law could combat the moral skepticism of a Machiavellist, through a rational settlement of disputes. Grotius writes that humans are both social and competitive. The laws of nature show how we can live together despite a tendency toward conflict. By observation and reason, we can deduce those laws that establish international rights and circumscribe the sovereign rights of an individual state. Thus, Grotius’

182 See STRAUSS, supra note 6, at 11 (the ultimate modern critic of Machiavelli is Leo Strauss, who was adamant that Machiavelli was a teacher of evil).

183 NUSSBAUM, supra note 41, at 86. 184 BEDERMAN, supra note 181, at 13.


belief that “all aspects of the relations (including belligerent ones) between states (including non-Christian ones) are subject to law …”185

The Machiavelli criticized by the anti-Machiavels was definitely different than the optimistic and idealistic Grotius. Francis Bacon wrote:

We are much beholden to Machiavelli and other writers of that class who openly and unfeignedly declare or describe what men do, and not what they ought to do . . . for without this, virtue is open and unfenced; nay, a virtuous and honest man can do no good upon those that are wicked, to correct and reclaim them, without first exploring all the depths and recesses of their malice.186

At times, Machiavelli believed that doing wickedness was necessary for success. It was abundantly clear to him that history taught that the standard virtues needed to be breached in order for success. He wrote, “consider[ing] the whole matter, he will find that there may be a line of conduct having the appearance of virtue, to follow which would be his ruin, and that there may be another course having the appearance of vice, by following which his safety and well-being are assured.”187

Having laid waste to placing trust, Machiavelli turns to its obverse—keeping one’s word. In examining Machiavelli’s position on truth and keeping commitments, Machiavelli brings forth two model princes: Castruccio Castracani (1281-1328) and Cesare Borgia (1476-1507). Each is praised for exceptional virtù. He considered both crafty, each capable of putting malice and deception to good use; neither was a stranger to the practice of cruelty.

185 G. R. BERRIDGE ET AL., DIPLOMATIC THEORY FROM MACHIAVELLI TO KISSINGER 53 (Palgrave 2001).

186 FRANCIS BACON, 5 THE COLLECTED WORKS OF FRANCIS BACON:TRANSLATIONS OF THE PHILOSOPHICAL WORKS 17 (James Spedding et al. eds., Routledge/Thoemmes Press 1996) (1887).

187 MACHIAVELLI, supra note 64, at 54 (the Italian reads: “perchè, se si considererà bene tutto, si troverà qualche cosa che parrà virtù, e seguendola sarebbe la rovina sua; e qualcun'altra che parrà vizio, e seguendola, ne riesce la sicurtà ed il ben essere suo.”).


Castruccio was a leader of Florence’s western neighbor, Lucca. Machiavelli memorialized him in a fictional “biography,” La Vita di Castruccio Castracani (The Life of Castruccio Castracani). Machiavelli’s Castruccio displays all of the qualities of a Machiavellian hero: ambition, physical prowess, and virtù, including the craftiness that allowed him to outwit his enemies and gain substantial territory. In one incident, Machiavelli approvingly describes how Castruccio extended a truce to the Poggio family and then deftly killed them all off as soon as their guard was relaxed; a gory example of a crafty politician gulling a fool.188 Machiavelli does not condemn such criminality; he simply describes it as Castruccio’s means to an end—the consolidation of his official power so as to be able to better rule his subjects and provide them with security. Castruccio comprehended la verità effettuale (the reality of the situation; the effectual truth). He understood that in order to unite his country he needed to eliminate the Poggio family. Machiavelli concludes that the false truce and subsequent murders were the most efficacious way to be rid of the opposition and achieve Castruccio’s political goals. The unity that followed resulted in greater peace and security for the Lucchesi, an end that, for Machiavelli, justified the means.

The Prince places Cesare Borgia, in Wayne Rebhorn’s words, “in a zone beyond any simple moral judgment, whether good or bad, making him a figure as fundamentally amoral . . . ”189As reported by Machiavelli, Cesare’s father, Pope Alexander VI (Rodrigo Borgia, 1431-1503), wished to grab as much of Italy for himself and his family as possible.190 The father conferred a dukedom on the son and supplied him with the funds to wage war, an art of which Cesare was a master. The two struck up alliances with the French and the Orsini clan, all to further their desire to dominate central Italy. Fearing reliance on the others would prove fateful, Cesare first spurned the Orsini and then decided to put no further trust in the French. 191 Machiavelli says Cesare then:

188 REBHORN, supra note 83, at 89, 102. 189 Id. at 87. 190 MACHIAVELLI, supra note 64, at 41. 191 Id. at 25 (the Italian reads: “nè si fidando di Francia.”).


[R]esorted to stratagem, and was so well able to dissemble his designs, that the Orsini, through the mediation of Signor Paolo (whom he failed not to secure by every friendly attention, furnishing him with clothes, money, and horses), were so won over as to be drawn in their simplicity into his hands at Sinigaglia.192

Machiavelli writes that it was the Orsini’s simple-mindedness (simplicità), the sign of an utter fool (fesso), which impelled them to a meeting where Cesare had them all murdered. The Orsini clan’s inability to see the reality of the situation (la verità effettuale) led them to ruin. Machiavelli is more critical of the simplicità of the Orsini band than he is of the deception and treachery of Cesare. In fact, he praises this method by which Cesare Borgia obtained more territory and went on to govern it well. After reviewing Cesare’s life of duplicity and perfidy, Machiavelli writes, “Taking all these actions of the Duke together, I can find no fault with him; nay, it seems to me reasonable to put him forward, as I have done, as a pattern for all such as rise to power by good fortune and the help of others.”193

Following this passage, he goes on to say that anyone “who[], therefore, on entering a new Princedom, judges it necessary to rid himself of enemies, to conciliate friends, to prevail by force or fraud . . . can find no brighter example than in the actions of this Prince.”194

The words “force or fraud” prefigure the theme of Chapter 18 of ThePrince, entitled “The Way Princes Should Keep Their Word,” in which Machiavelli discusses his famous “fox and lion” metaphor.

192 Id. (the Italian reads: “si volse alli inganni; e seppe tanto dissimulare l'animo suo, che li Orsini, mediante el signor Paulo, si riconciliorono seco; con il quale el duca non mancò d'ogni ragione di offizio per assicurarlo, dandoli danari, veste e cavalli.”).

193 Id. at 29 (the Italian reads: “Raccolte io adunque tutte le azioni del duca, non saprei reprenderlo; anzi mi pare, come ho fatto, di preporlo imitabile a tutti coloro che per fortuna e con l'armi d'altri sono ascesi allo imperio. Perché lui, avendo l'animo grande e la sua intenzione alta, non si poteva governare altrimenti.”).

194 Id. (the Italian reads: “Chi adunque iudica necessario nel suo principato nuovo assicurarsi de' nimici, guadagnarsi delli amici, vincere o per forza o per fraude . . . non può trovare e più freschi esempli che le azioni di costui.”).


There is a parallel between the lion and the fox in Chapter 18 and Cicero’s political work, De Officiis.195 Cicero made the point that he took to be obvious—the methods of humans and beasts are different, and the human is nobler. Cicero had written, “[T]here are two ways in which injustice may be done, either through force or deceit; and deceit seems to belong to a little fox, force to a lion. Both of them seem most alien to a human being; but deceit deserves a greater hatred.”196 Why did Cicero loathe deceit? Because deceit was the subversion of Cicero’s central virtue—justice—that was the key to right living and the product of a properly formed mind. In Cicero’s mind, the seriousness of the subversion was compounded because the most human of faculties, the rational mind, which ought to seek truth, perpetrated it. The appropriate exercise of one’s mind ought to promote, not subvert, justice. Cicero then went on to say that only in exceptional circumstances, like war, could one use leonine force, but he condemned the use of fraud even in these extreme circumstances. That is, sometimes one could act as a lion, but never as a fox. Cicero concluded with a denunciation of duplicity, of those “who just at the time when they are most betraying trust, act in such a way that they might appear to be good men.”197 This line of thinking, of course, had the support of Christianity, humanism, and European thinkers and society.

Machiavelli inverted the supposedly self-evident proposition that the human way is superior. In Chapter 18, Machiavelli presses Cicero’s logic, obliterates his ethic of honest action, validates foxy behavior, and demonstrates his complete approval of trickery (furberia) as a modus operandi for humans. Machiavelli begins the chapter by stating that while it is praiseworthy to act with integrity, history tells us that “those Princes who have set little store by their word, but have known how to overreach men by their cunning, have accomplished great thing, and in the end got the better of those who trusted to honest dealing.”198 He goes on to say that there are two ways

195 Barlow, supra note 55, at 627-45.196 Id. at 636 (quoting Cicero). 197 Id. (quoting Cicero). 198 MACHIAVELLI, supra note 64, at 59 (the Italian reads: “quelli principi avere

fatto gran cose che della fede hanno tenuto poco conto, e che hanno saputo


of fighting: by the laws of humans, which disdain fraud and violence, or by the force of animals. Since human methods do not always suffice to get what one wants, sometimes one must resort to animal-like behavior, and a “Prince should, therefore, understand how to use well both the man and the beast.”199 His support for this proposition is original, an argument based on a reference to the centaur, Chiron, whom he asserts was the teacher of Achilles and other ancient heroes. His implication is that Chiron taught the heroes to seek and follow laverità effettuale, the way of the world, and human methods were insufficient to get what one wanted.

The animals Machiavelli presents for princely emulation are the fox and the lion. A prince, he says, should imitate the fox in order to avoid the traps laid out in life, and emulate the lion to overawe the strong (but less perceptive) wolves that abound. The worldly wiles of the fox—acuity, ingenuity, and the ability to deceive—are essential; those relying on the brutish qualities of a lion alone are badly mistaken.200 Thus, a prudent prince cannot and should not keep his word if to do so would go against his interest or if the circumstances for the promise have changed. The justification for this antisocial behavior is the perfidy of human beings. He believes human beings are a sad lot, and keep no faith with you. Therefore, you in turn are under no obligation to them. In order to get what they wanted, Castruccio and Cesare could betray and kill their allies without incurring Machiavelli’s criticism.

This concept is undoubtedly a marked departure from the existing early sixteenth order. Dante, the most prominent exponent of traditional morality, had buried deceivers like Guido of Montefeltro (??-1298) in the deeper recesses of hell. Guido was the victim of a deception by Pope Boniface VIII, another inhabitant of Dante’s nether region. An accomplished general and highly astute politician, Guido was known in Dante’s day as the “Fox.” Conscience-stricken, Guido

con l'astuzia aggirare e cervelli delli uomini; e alla fine hanno superato quelli che si sono fondati in su la lealtà.”).

199 Id. at 59-60 (the Italian reads: “pertanto a uno principe è necessario sapere bene usare la bestia e lo uomo.”).

200 Id. at 60 (the Italian reads: “coloro che stanno semplicemente in sul lione, non se ne intendono.”).


entered a monastery to amend his ways. Boniface later approached Guido for his counsel. At first Guido hesitated, contending that the appropriate advice would include deceit. In order to placate him, Boniface gave Guido absolution in advance for any sin committed by Guido. Thus emboldened, Guido acknowledged that his advice to “promise large with scant observance” was sinful, but he felt justified by the pope’s absolution. When Guido died, he was taken to hell, for he gave “false counsel” (consiglio frodolente) and, Dante wrote, there could be no absolution for an unrepentant soul. Dante caused Guido to lament from his despair-filled inferno:

While I was still the form of bone and pulp my mother gave to me, the deeds I did were not those of a lion, but a fox. The machinations and the covert ways I knew them all, and practised so their craft that to the ends of earth the sound went forth.201

Machiavelli never anguished over his counsel as Guido did in the Inferno; and he never recanted his advice to princes that they adopt the ways of a fox or a lion, as the circumstances dictated. He held on to this view until the end. On his deathbed, Machiavelli had a dream of ragged beggars going to heaven; then he saw a nobly dressed group of philosophers and writers going to hell. Machiavelli told his friends “that he would be far happier in hell, where he could discuss politics with the great men of the ancient world, than in Heaven, where he would languish in boredom among the blessed and the saintly.”202

A fox is a wily animal, one that can slink unobserved close enough to the center of action to observe the goings-on firsthand, and from such a position, is able to figure out the situation and formulate an action plan.203 On August 26, 1513, he writes to Francesco Vettori that at first, Vettori’s letter relating some disturbing political news

201 DANTE ALIGHIERI, THE DIVINE COMEDY OF DANTE ALIGHIERI: INFERNO 168 (Henry Wadsworth Longfellow trans., George Routledge and Sons 1867) (the Italian reads: “Mentre ch'io forma fui d'ossa e di polpe / che la madre mi diè, l'opere mie / non furon leonine, ma di volpe. / Li accorgimenti e le coperte vie / io seppi tutte, e sì menai lor arte / ch'al fine de la terra il suono uscie.”).

202 VIROLI, supra note 72, at 3.203 PITKIN, supra note 14, at 35.


upset and confused him. After reflecting on the events, Machiavelli responds, “as I became more familiar with it, the same thing happened to me as it did the fox when he saw the lion: the first time he almost died of fright; the second he halted behind some bushes to take a look; the third, he chatted with him.” 204 Experience, observation, and reflection had led the crafty furbo (fox) to reverse his first view of the lion and to come to an understanding that this lion posed no threat. So would a wise prince behave with a prudence informed by a realism that only astute observation and analysis could bring. The successful Machiavellian prince acts out a role, but must do so with consummate skill. Machiavelli writes, “It is necessary, indeed, to put a good colour on this nature, and to be skilful [sic] in simulating and dissembling.”205

Wayne Rebhorn has argued that in Machiavelli’s world, everyone is either a trickster or a gull, a furbo or a fesso, and this dichotomy includes the characters in his fictional work.206 In Chapter 18 of The Prince, Machiavelli advises the prince to always simulate being good and virtuous, so that all who see or hear him will judge him compassionate, honorable, humane, honest, and religious, for “men in general judge rather by the eye than by the hand, for every one can see but few can touch. Every one sees what you seem, but few know what you are …”207The perceptive fox in Machiavelli’s letter reads the situation and understands reality after getting close to the matter; the fool (fesso) may see, but does not comprehend.

204 NICCOLÒ MACHIAVELLI, LETTERE A FRANCESCO VETTORI E FRANCESCO GUICCIARDINI 180 (Giorgio Inglese ed., Biblioteca Universale Rizzoli 1996) (the Italian reads: “Ma nel praticarla mi è intervenuto come alla volpe, quando la vedde il leone, che la prima volta fu per morire di paura, la seconda si fermò a guardarlo drieto ad un cespuglio, la terza gli favellò; et così io, rassicuratomi nel praticarla, vi risponderò.”).

205 MACHIAVELLI, supra note 64, at 60 (the Italian reads: “Ma è necessario questa natura saperla bene colorire ed essere gran simulatore e dissimulatore.”).

206 See Stephen M. Fallon, Hunting the Fox: Equivocation and Authorial Duplicity in The Prince, 1185 PMLA 107 (1992).

207 MACHIAVELLI, supra note 64, at 61 (the Italian reads: “E li uomini in universali iudicano più alli occhi che alle mani; perché tocca a vedere a ognuno, a sentire a pochi. Ognuno vede quello che tu pari, pochi sentono quello che tu se'.”).


Ruth Grant has written that hypocrisy is a great force in Machiavelli’s view of politics; that a leader must say one thing and do another in order to achieve political power.208 Machiavelli presents Alexander VI as a successful deceiver who concealed his deception through sham promises based on his knowledge of la verità effettuale,that “men are so simple, and governed so absolutely by their present needs, that he who wishes to deceive will never fail in finding willing dupes.”209This crafty (furbo) pope always found fresh material (fessi),and he consistently succeeded in turning them to his purpose. “Yet, because he understood this side of human nature, his frauds always succeeded.”210

At the end of Chapter 18 of The Prince, Machiavelli lauds the skullduggery (furberia) of Ferdinand of Aragon that allowed him to seize Spain from the Moors. He comments that Ferdinand “always preach[ed] peace and good faith, although the mortal enemy of both; and both, had he practised them as he preaches them, would, oftener than once, have lost him his kingdom and authority.”211 Because they are victorious in their quests, the Castruccios, Borgias, and Ferdinands of the world will be praised, regardless of their unscrupulous methods, since they provide the timorous multitude with the security they desperately desire, but are too weak to obtain on their own. This allows the prince to gain the people’s support and make them into impotent and dependent fools (fessi).

In the same chapter, Machiavelli paints the Roman general, Severus, as a very ferocious lion and the cleverest fox (astutissimavolpe). He marched his army into Rome under a pretext that he cleverly concealed from the Senate. Once he entered the city, the Senate, out of fear, had him crowned emperor. He took care of two

208 RUTH GRANT, HYPOCRISY AND INTEGRITY: MACHIAVELLI, ROUSSEAU, AND THE ETHICS OF POLITICS 12-13 (University of Chicago Press 1997).

209 MACHIAVELLI, supra note 64, at 60 (the Italian reads: “e sono tanto semplici gli uomini, e tanto obediscano alle necessità presenti, che colui che inganna troverrà sempre chi si lascerà ingannare.”).

210 Id. (the Italian reads: “nondimeno sempre gli succederno gl'inganni ad votum, perché conosceva bene questa parte del mondo.”).

211 Id. at 61 (the Italian reads: “non predica mai altro che pace e fede, e dell'una e dell'altra è inimicissimo; e l'una e l'altra, quando e' l'avessi osservata, gli arebbe più volte tolto o la reputazione o lo stato.”).


rivals in exemplary Machiavellian fashion. First, he defeated one by force, and then he convinced the other to become co-emperor. Once he gained his partner’s confidence, he eliminated him. There is no criticism by Machiavelli of either the murders or the deceptions; he simply offers them as an example of successful cleverness.212

Perhaps the greatest deceiver was Machiavelli himself. In a well-known letter to Francesco Guicciardini, dated May 17, 1521, Machiavelli indicts himself when he writes:

As for the lies of these citizens of Carpi, I can beat all of them out, because . . . for some time I have never said what I believe and I never believed what I said; and if indeed I sometimes tell the truth, I hide it among so many lies that it is hard to find it out.213

One of his most vociferous critics, Leo Strauss, has argued that Machiavelli, in Chapter 18 of The Prince, advises his prince to act like a beast and not as a humane or human being. As Ann Davies has written, “The supreme political realist, Machiavelli separated questions of religion and morality from Politics.”214

Machiavelli writes that deceit is not considered wrong if it obtains the deceiver’s desired goal, whether it is power or possessions. Strauss wrote that Machiavelli believes that it is not only natural to want to acquire wealth and glory, but that it is within human nature to be selfish, jealous, unhappy, and predatory. Strauss further stated that Machiavelli and his friend, Francesco Guicciardini, firmly held to a theory that a strong self-love was a healthy instinct that needed to be expressed, not restrained. Therefore, a selfish deed is not per se an evil act, and, in fact, it can be virtuous when in furtherance of a desirable

212 Id at 64.213 MACHIAVELLI, supra note 204, at 195 (the Italian reads: “Quanto alle bugie

de' Carpigiani io ne vorrò misura con tutti loro, perché . . . da un tempo in qua, io non dico mai quello che io credo, né credo mai quel che io dico, et se pure e' mi vien detto qualche volta il vero, io lo nascondo fra tante bugie, che è difficile a ritrovarlo.”) (Machiavelli, in dissembling, was in notorious company. Luigi Barzini has written of Casanova’s diary, “My secret is simple: I always say the truth, and people naturally believe me, he lied.”).

214 Ann Davies, Niccolò Machiavelli, in POLITICAL PHILOSOPHY 253 (Seymour Lipset ed., CQ Press 2001).


objective.215 Mary Dietz claims that Machiavelli’s entire writing is an exercise in subterfuge. “The theme of deceit weaves through all his work—his drama, his political theory . . . The Prince is not simply about deception, but is in itself an art of deception.”216 In contrast to Machiavelli’s rather loose interpretation of a prince’s duty to rule consistently with honesty and morality, Grotius proposes that law is based on its adherence to humanity’s rational nature. 217 This law applies to the prince himself. In the next chapter, we look at several other important figures in the history of law and then make some conclusions about Machiavelli’s influence on international law.

215 STRAUSS, supra note 6, at 279. 216 Mary G. Deitz, Trapping the Prince: Machiavelli and the Politics of

Deception, 80 AM. POL. SCI. REV. 777-78 (1986). 217 JOHN FINNIS, ON THE INCOHERENCE OF LEGAL POSITIVISM: PHILOSOPHY OF

LAW AND LEGAL THEORY 135 (Dennis Patterson ed., Blackwell Publishing 2003).


CHAPTER SEVEN

CONCLUSION

The introduction to this article stated my intended purpose: To show that Machiavelli was instrumental in affecting the thinking and writing of many scholars and diplomats who succeeded him. Machiavelli and these successors inspired the philosophers and jurists who did have a direct effect on the evolution of the law of nations. Chapter Two looked at the theories of idealism and realism in Aristotle, Plato, Augustine and others, as these concepts and thinkers affected Western philosophy and political thinking. Chapter Three introduced the concept of natural law, an idealistic philosophy that starts with a priori first principles, encompassing the fields of political philosophy and jurisprudence. Chapter Four studied Machiavelli’s unique contributions in breaking away from traditional idealist thinking that morality and politics were intertwined. Chapter Five looked more closely at the father of political science’s radical and realistic theory of political science. Chapter Six reviewed Grotius, the father of international law and his natural law reaction to Machiavelli’s divorce of ethics and politics.

This Chapter will look at a sampling of philosophers and thinkers who have continued in the Machiavellian tradition of the separation of idealistic morality from a realistic examination of how nations and their rulers behave. I will start with Hobbes and then move on to Zouse and others.

Thomas Hobbes (1588-1679) was a contemporary of Grotius. Grotius’ theory of natural law, although secular in nature, echoed scholastic idealism. Nussbaum states:

Machiavelli’s ideas may be linked to international law in so far as his perfect and cynical disregard of any political morality (not of morality in general) contrasted sharply with, and formed an extreme reaction to, the scholastic teachings which purported to subordinate the


whole province of politics and especially the relations among rulers to the demands of moral theology.218

While Grotius described international relations and international law as encouraging high ideals among nations, Hobbes set forth an opposite, more Machiavellian view. 219 In 1650, his Elements of Law, Natural and Political was published. But he is much better known for Leviathan (1651), where self-preservation was emphasized to an elevated degree. One’s greatest motivation is not only to avoid death, but particularly a violent death.220 In a pristine state of nature, one would be governed by one’s reason as to what is right conduct. A rational person naturally wants to live in a peaceful and stable society. But, humans also have more base propensities. In society, there invariably will be those that cannot be trusted to behave socially. Rather, they behave as sociopaths. Arthur Nussbaum says, “Hobbes thought, [these types of] men are actuated only by strife for more and more power. Hence, they are engaged in a war of every man against every man . . . and aggression is just as legitimate as defense.”221 Like Machiavelli, Hobbes looks at human conduct and comes to a realistic picture of how humans actually behave. Hobbes understood that morality promotes ethical individual conduct; but that in political settings, dishonorable persons and groups require rational and just humans to group together for common defense and protection. Therefore, they enter into a social compact whereby they surrender some of their personal rights and freedoms to a government that in turn will provide laws and enforcement, compelling the citizens to behave. Domestic law, says Hobbes, is the will of such a sovereign power.

According to Hobbes, outside the state constituted by its own citizens, there is a state of war by all against all. This is the situation that prevails between sovereign states, tempered only by enlightened international self-interest, which Hobbes calls jus gentium.222 Note that Hobbes does not characterize jus gentium as the same genus as domestic law, which is imposed and enforced by an absolute

218 NUSSBAUM, supra note 41, at 56. 219 Id. at 112. 220 THE CAMBRIDGE DICTIONARY OF PHILOSOPHY, supra note 38, at 388. 221 NUSSBAUM, supra note 41, at 112 (emphasis added). 222 Id. at 113.


sovereign. Lacking an autocratic prince, Hobbes, like Machiavelli, sees that there is no effective means to prevent aggressive efforts to pursue the state’s interests. Covenants without swords are mere words. In pursuing interests, the sovereign (the prince), of course, is the state.

Hobbes’ strong views on International relations “have greatly and in various ways influenced the doctrine of international law.”223

Hobbes was totally secular. He saw the derivation of the law of nature as coming from the naked self-interest of the individual, not from God. For Hobbes, the law of nature is not law as a jurist would understand; it is how to act in self-preservation. He conflated the natural law into the law of nations, so that an anarchic state was the norm, with war as a legitimate tool of advancing national self-interest and self-preservation.

Early international law positivists, the Englishman Richard Zouse (1590-1660) and the German Samuel Rachel (1628-1691), held that international law has been accepted by customs or agreed upon by treaties.224 That is, the states themselves create whatever international law there is. This law of nations comes not from a natural law theory of jus gentium, but from a realistic appraisal that states by their acts and deeds create codes of international conduct. Like Hobbes’ individuals, these consenting states surrender some sovereignty to achieve peace and harmony under settled rules.

Realism, positivism, and skepticism about international law abound. John Austin (1790-1859) commented that the duties which international law imposes are enforced by moral sanctions, and can only be viewed as positive international morality because of the lack of a central authority that can legislate law and enforce it.225 H.L.A. Hart (1907–1993) also denies the status of “true law” to international law, arguing that since the international order lacks a supreme government inclusive of a legislature, courts, and enforcement authority, the resulting ambiguous and uncertain norms lack the specificity required of law.226

223 Id. at 113-14. 224 See generally BEDERMAN, supra note 181. 225 Id.226 Id.


Regardless of whether international law is “real” law or not, the Machiavellian dilemma as to how and when to actually live by the rules, whether established by nature or consent, remains. There is no doubt where Machiavelli would stand. Whenever there is a conflict between a prince’s self-interest and adhering to abstract moral principles, his man of praiseworthy virtù would invariably choose the action which promotes the prince’s self-interest. The master himself writes:

Every one understands how praiseworthy it is in a Prince to keep faith, and to live uprightly and not craftily. Nevertheless, we see from what has taken place in our own days that Princes who have set little store by their word, but have known how to overreach men by their cunning, have accomplished great things, and in the end got the better of those who trusted to honest dealing.227

Since Machiavelli completely identifies the state with the persona of the prince, he would argue that for a government to blindly follow a virtuous and ethical path is not a virtue, but a grievous fault. An effective ruler does what works, follows la verità effetuale, not what is morally prescribed.

Given that prescribed norms are fundamental to a system of laws, how does Machiavelli’s political realism, permitting defiance of the law, fit into today’s system of international law? I argue that the evidence establishes that Machiavelli has had an indirect, but very pervasive, influence on international law as we know it. As noted above, linking politics and law is an accepted mainstream activity in both disciplines.228 I believe that Machiavelli’s influence has come down in three different ways:

First, Machiavelli broke with the classical and Christian way of thinking about what makes a good ruler. Rather than a person who aligned his personal morality with political action, Machiavelli argued that the good ruler was a man of action who acted in an effective manner, not necessarily in the ethical mode. When necessary, his

227 MACHIAVELLI, supra note 64, at 59. 228 See generally SHAW, supra note 1.


prince acted like a fox, dissimulating, saying one thing and doing another. This philosophy, that in matters of state the ends justify the means, is a base of the political theory of the “reason of state,” the knowledge of the effective means of establishing, preserving, and enlarging the state by whatever means that succeed.

Second, Machiavelli introduced a hard realism into the art of politics. It is fitting to recall his own words in the The Prince:

Since it is my object to write what shall be useful to whosoever understands it, it seems to me better to follow the real truth rather than an imaginary view of them. For many Republics and Princedoms have been imagined that were never seen or known to exist in reality.229 And the manner in which we live, and that in which we ought to live, are things so wide asunder, that he who quits the one to betake himself to the other is more likely to destroy than to save himself.230

This realism has influenced international law in a unique way: by referencing law to actual, observable conduct. For example, Article 38 of the Statute of the International Court of Law lists four sources of international law:

1. International treaties, establishing rules expressly recognized by the contesting states;

2. International custom, as evidence of a general practice accepted as law;

3. The general principles of law recognized by civilized nations; and

229 A thinly veiled reference to Plato’s Republic.230 MACHIAVELLI, supra note 64, at 53 (the Italian reads: “Ma sendo l'intento

mio scrivere cosa utile a chi la intende, mi è parso più conveniente andare drieto alla verità effettuale della cosa che alla imaginazione di essa. E molti si sono imaginati republiche e principati che non si sono mai visti né conosciuti essere in vero. Perché egli è tanto discosto da come si vive a come si doverrebbe vivere, che colui che lascia quello che si fa per quello che si doverrebbe fare, impara più tosto la ruina che la perservazione sua.”).


4. Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Each of these sources requires the court to exercise its competence by looking at real facts and real situations. Treaties are concrete agreements arrived at by the parties, containing words that can be scrutinized and analyzed. International custom is determined by an examination of state practice, not by considering abstract principles of jurisprudence. General principles are those that are distilled from the laws and legal systems actually used by states. Judicial decisions and the writings of jurists are looked to for their analysis of what actually is the law, not what it ought to be. As Ian Brownlie states, “Judicial decisions are not strictly speaking a formal source, but in some instances at least they are regarded as authoritative evidence of the state of the law . . . ”231 With respect to the writings of publicists, Professor Brownlie writes, “Once again the source only constitutes evidence of the law . . . ”232

Third, Machiavelli created a maelstrom in Europe that profoundly affected writers such as Grotius, who in reaction to him, updated and secularized natural law theories of international relations and law. Others, including authors such as Pufendorf and Vattel, were influential naturalists in the sixteenth and seventeenth centuries.233

Nevertheless, the early positivists scorned natural law and turned to an examination of specific principles evidenced from state practice. Locke’s empiricism denied the existence of innate principles and held that ideas were derived from experience. Positivism developed after the Peace of Westphalia and relied heavily on an analysis of real state practice—treaties and international custom. Deductive appeals to abstract a priori principles were eliminated. Inductive conclusions based on the realism of state practice were brought to the forefront.

It is the re-introduction of an unadorned realism that is the hallmark of Machiavelli’s political philosophy. For Machiavelli, it was

231 IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 19 (Oxford University Press 2003).

232 Id. at 23. 233 SHAW, supra note 1, at 106.


“better to follow the real truth of things than an imaginary view of them.” 234 Whether one agrees or disagrees with Machiavelli’s philosophy, his influence on international law, through his very direct influence on international relations, is manifest.

234 MACHIAVELLI, supra note 64, at 53.

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