In the latter portion of the last lecture I endeavoured to establish
three propositions, which I hold to be extremely important to the
intelligent study of International Law. The first of them was that the
process by which International Law obtained authority in a great part of
Europe was a late st age of the process by which the Roman Law had also
obtained authority over very much the saline part of the world. Next, I
said that this process had little or no analogy to what is now
understood by legislation, but consisted in the reception of a body of
doctrine in a mass by specially constituted or trained minds. Lastly, I
contended that this doctrine, so spread over Europe, consisted mainly of
that part of the Roman Law which the Romans themselves had called Jus
Gentium or Jus Naturae -- Law of Nations, or Law of Nature; terms which
had become practicably convertible.
The inquiry into the exact meaning of the phrase 'Law of Nature'
belongs to a different department of juridical study, and I think it
will be sufficient if I briefly summarise the views, themselves
considerably condensed, which I published some years ago in a volume
from which I quoted in the last lecture. Jus Gentium, or Law of Nations,
had not, so I thought, much colour at first of the meaning which it
afterwards acquired. It was probably, I said, half as a measure of
police, and half in furtherance of commerce, that jurisdiction was first
assumed in disputes in which either foreigners, or a native and a
foreigner, were concerned. In order to obtain some principles upon which
the questions to be adjudicated on could be settled, the Roman praetor
peregrinus resorted to the expedient of selecting the rules of law
common to Rome and to the different Italian communities in which the
immigrants were born. In other words, he set himself to form a system
answering to the primitive and literal meaning of Jus Gentium, that is
law common to all nations. Jus Gentium was in fact the sum of the common
ingredients in the customs of the old Italian tribes. It was
accordingly a collection of rules and principles determined by
observation to be common to the institutions which prevailed among the
various Italian races. Now, it is to be remembered that every Roman of
position who followed public life was in the course of his official
career not only, so far as his powers went, a statesman, but specially a
general and a judge. Speculation upon legal principles manifestly
became common among the Roman aristocracy, and in course of time the
question suggested itself what was the essential nature of this Jus
Gentium which had at first very possibly been regarded as a mere market
law. The answer was shaped by the Greek philosophy, which was a
favourite subject of study among the class to which the Roman lawyers
belonged. Seen in the light of Stoical doctrine the Law of Nations came
to be identified with the Law of Nature; that is to say, with a number
of supposed principles of conduct which man in society obeys simply
because he is man. Thus the Law of Nature is simply the Law of Nations
seen in the light of a peculiar theory. A passage in the Roman
Institutes shows that the expressions were practically convertible. The
greatest function of the Law of Nature was discharged in giving birth to
modern International Law and the modern Law of War.
I ought to observe that in this account of the matter probably one
correction has to be made. Some acute scholars have examined the
authorities since I wrote, and they are inclined to think that very
anciently there are some instances of the use of Jus Gentium in a wider
and something like its modern sense; that is, law binding on tribes and
nations as such. Granting that this is so, still the impression that the
Roman Law contained a system of what would now be called International
Law, and that this system was identical with the Law of Nature, had
undoubtedly much influence in causing the rules of what the Romans
called Natural Law to be engrafted on, and identified with, the modern
law of nations. When the older Roman sense of the words died out cannot
be confidently ascertained, though of course in a world which was
divided between two great rival sovereigns, the Roman Emperor and the
King of Persia, there was little room for Law of Nations in the true
sense of the words.
When, however, at what period, did this Jus Gentium or Jus Natural
rise into the dignity which the Roman lawyers give to it? There is a
strong probability that this exaltation was not very ancient, but that
it took place during the period, roughly about three hundred years,
covered by the so-called Roman Peace. That Peace extended from the time
at which the Roman Empire was settled by the success of Augustus over
all his enemies to the early years of the third century. The Roman Law
transformed a large number of the ideas of a great portion of the world;
but its own transformation from a technical to a plastic system was one
of the results of the so-called Roman Peace. If we want to know what
war is, we should study what peace is, and see what the human mind is
when it is unaffected by war. We should study the Korean Peace, during
which the existing legal conception of the relation of the sexes framed
itself; during which the Christian Church was organised, and during
which the old Law of Nations or Nature transformed itself into an ideal
system specially distinguished by simplicity and symmetry, and became a
standard for the legal institutions of all systems of jurisprudence.
The second proposition for which I argued is one of very considerable
importance. It was that the Law of Nations, as framed by the jurists
who were its authors, spread over the world not by legislation, but by a
process of earlier date. On the appreciation of this position depends
not only the view taken of the Law of Nature and of the application of
International Law, but also certain practical consequences which nay be
momentous; and at a quite recent date our country was in danger of
adopting an opinion which would have separated it from the rest of the
civilised world, and from which it could only be saved by correct ideas
on this very point.
In order that you may convince yourselves what might be the
consequences of demanding a legislative sanction, or a sanction derived
from an authority on a level with that of a modern legislature, for the
rules of International Law, I recommend you to compare the view of it
taken by the statesmen and jurists of the United States of America with
that to which this country might have committed itself; and from which
it was delivered by the direct intervention of Parliament. The United
States are particularly worth examining in regard to the point before
us, because they were an instance of a new nation deliberately setting
itself to consider that new obligations it had incurred by determining
to take rank as a state. Italy is another and a later example, and there
have been some others in South America, but all these societies, made
up from smaller pre-existing territorial materials, were greatly
influenced by the example of the American Federal Union. The doctrines
which the United States adopted may be gathered from some very valuable
volumes which the American Government has quite recently caused to be
published, and to which I will presently call your attention. The
systematic American writers on International Law are less instructive on
the points which I am going to place before you than these books,
because they usually follow the order of topics taken up by older
European writers. But I will quote a passage from one of the most
careful and sober of writers, Chancellor Kent, and also from a writer
who unhappily died the other day, and whose productions were much valued
in the United States -- Mr. Pomeroy. You will have to recollect that
the question at issue between the English and Americans lawyers was less
what is the nature of International Law, and how it arose, than the
question how, and to what extent, have its rules become binding on
independent states. These questions are often confounded together, or
found to be indissoluble, as will be plain from the extracts which I am
about to read.
There has been a difference of opinion among, writers concerning the
foundation of the Law of Nations. It has been considered by some as a
mere system of positive institutions, founded upon consent and usage;
While others have insisted that it was essentially the same as the Law
of Nature, applied to the conduct of nations, in the character of moral
persons, susceptible of obligations and laws. We are not to adopt either
of these theories as exclusively true. The most useful and practical
part of the Law of Nations is, no doubt, instituted or positive law,
founded on usage, consent, and agreement. But it would be improper to
separate this law entirely from natural jurisprudence, and not to
consider it as deriving much of its force and dignity from the same
principles of right reason, the same views of the nature and
constitution of man, and the same sanction of Divine revelation, as
those from which the science of morality is deduced. There is a natural
and a positive Law of Nations. By the former, every state, in its
relations with other states, is bound to conduct itself with justice,
good faith, and benevolence; and this application of the Law of Nature
has been called by Vattel the necessary Law of Nations, because nations
are bound by the Law of Nature to observe it; and it is termed by others
the internal Law of Nations, because it is obligatory upon them in
point of conscience. We ought not, therefore, to separate the science of
public law from that of ethics, nor encourage the dangerous suggestion
that governments are not so strictly bound by the obligations of truth,
justice, and humanity, in relation to other powers, as they are in the
management of their own local concerns.
States, or bodies politic, are to be considered as moral persons,
having a public will, capable and free to do right and wrong, inasmuch
as they are collections of individuals, each of whom carries with him
into the service of the community the same binding law of morality and
religion which ought to control his conduct in private life. The Law of
Nations is a complex system, composed of various ingredients. It
consists of general principles of right and justice, equally suitable to
the government of individuals in a state of natural equality, and to
the relations and conduct of nations; of a collection of usages,
customs, and opinions, the growth of civilization and commerce; and of a
code of positive law.
In the absence of these latter regulations, the intercourse and
conduct of nations are to be governed her principles fairly to deduced
from the rights and duties of nations, and the nature of moral
obligation; and we have the authority of the lawyers of antiquity, and
of some of the first masters in the modern school of public law, for
placing the moral obligation of nations and of individuals on similar
grounds, and for considering individual and national morality as parts
of one and the same science. The Law of Nations, so far as it is founded
on the principles of Natural Law, is equally binding in every age and
upon all mankind. But the Christian nations of Europe, and their
descendants on this side of the Atlantic, by the vast superiority of
their attainments in arts, and science, and commerce, as well as in
policy and government; and. above all, by the brighter light, the more
certain truths, and the more definite sanction which Christianity has
communicated to the ethical jurisprudence of the ancients, have
established a Law of Nations peculiar to themselves. They form together a
community of nations united by religion, manners, morals, humanity, and
science, and united also by the mutual advantages of commercial
intercourse, by the habit of forming alliances and treaties with each
other, of interchanging ambassadors, and of studying and recognising the
same writers and systems of public law.
This Jus Gentium of the Imperial jurisconsults is identical with the
Law of Nature, or Natural Law, of many modern ethical and juridical
writers; and both are, in fact, the law of God, made known somewhat
dimly to the whole human race at all times, and set forth with
unmistakable certainty and transcendent power in His revealed will. This
is, in truth, the highest law by which moral beings can be governed;
highest in its Lawgiver, who is omnipotent over each individual man, as
well as over societies and states; highest in the absolute perfection of
the rules which it contains; highest in the absolute cogency of the
commands which it utters; highest in the absolute obligation of the
duties which it enforces; highest in the absolute certainty and
irresistible coercive power of the sanctions which it wields, and which
operate upon the deepest spiritual nature of every human being.
It must be clear to you, I think, that writers who adhere to these
opinions are not likely to trouble themselves greatly with the question
of the original obligatory force of International Law. If the Law of
Nations be binding on states considered as moral beings on account of
its derivation from the Law of Nature or of God, states when in a
healthy moral condition will defer to them as individual men do to the
morality of the Ten Commandments. The whole question in fact, as laid
down by liens, and with less moderation by Pomeroy, is a question of
ethics, and all demand of a legislative sanction may be discarded. But
now let us turn to the four volumes of the American International Digest
edited by Dr. Francis Wharton. It is entitled, 'A Digest of the
International Law of the United States,' and it consists of documents
relating to that subject issued by Presidents and Secretaries of State,
of the decisions of Federal Courts, and of the opinions of
Attorneys-General. Among the propositions laid down in these volumes you
will find the following, all of them accepted by the American Federal
Government.
'The law of the United States ought not, if it be avoidable, so to be
construed as to infringe on the common principles and usages of nations
and the general doctrines of International Law. Even as to municipal
matters the law should be so construed as to conform to the Law of
Nations, unless the contrary be expressly prescribed. An Act of the
Federal Congress ought never to be construed so as to violate the Law of
Nations if any other possible construction remains, nor should it be
construed to violate neutral rights or to affect neutral commerce,
further than is warranted by the Law of Nations as understood in this
country.' Again: 'The Law of Nations is part of the Municipal Law of
separate states. The intercourse of the United States with foreign
nations and the policy in regard to them being placed by the
Constitution in the hands of the Federal Government, its decisions upon
these subjects are by universally acknowledged principles of
International Law obligatory on everybody. The Law of Nations, unlike
foreign Municipal Law, does not have to be proved as a fact. The Law of
Nations makes en integral part of the laws of the land. Every nation, on
being received at her own request into the circle of civilised
government, must understand that she not only attains rights of
sovereignty and the dignity of national character, but that she binds
herself also to the strict and faithful observance of all those
principles, laws, and usages which have obtained currency amongst
civilised states, and which have for their object the mitigation of the
miseries of war. International Law is founded upon natural reason and
justice, the opinions of writers of known wisdom, and the practice of
civilised nations.'
Here you see that according to American doctrine International Law
has precedence both of Federal and of Municipal Law, unless in the
exceptional case where Federal Law has deliberately departed from it. It
is regarded by the American lawyers as having very much the same
relation to Federal and State Law as the Federal Constitution has, and
this no doubt is the reason why in so many famous American law books
Constitutional Law and International Law are the first subjects
discussed, International Law on the whole having precedence of
Constitutional Law.
The principle on which these American doctrines of International Law
repose is, I think, tolerably plain. The statesmen and jurists of the
United States do not regard International Law as having become binding
on their country through the intervention of any legislature. They do
not believe it to be of the nature of immemorial usage, 'of which the
memory of man runneth not to the contrary.' They look upon its rules as a
main part of the conditions on which a state is originally received
into the family of civilised nations. This view, though not quite
explicitly set forth, does not really differ from that entertained by
the founders of International Law, and it is practically that submitted
to, and assumed to be a sufficiently solid basis for further inferences,
by Governments and lawyers of the civilised sovereign communities of
our day. If they put it in another way it would probably be that the
state which disclaims the authority of International Law places herself
outside the circle of civilised nations.
There is, however, one community which on one occasion went near to
dissenting from the American opinion and from the assumptions which it
involves. This was our own country, Great Britain. In one celebrated
case, only the other day, the English judges, though by a majority of
one only, forged their decision on a very different principle, and a
special Act of Parliament was required to re-establish the authority of
International Law on the footing on which the rest of the world had
placed it. The case was one of great importance and interest, and it was
argued before all the English judges in the Court of Criminal Appeal.
It is known as the Queen v. Keyn, but is more popularly called the
'Franconia' Case (2 Ex. Div. 63). The 'Franconia,' a German ship, was
commanded by a German subject, Keyn. On a voyage from Hamburg to the
West Indies, when within two and a half miles from the beach at Dover,
and less than two miles from the head of the Admiralty pier, the
'Franconia,' through the negligence, as the jury found, of Keyn, ran
into the British ship 'Strathclyde,' sank her, and caused the death of
one of her passengers. Keyn was tried for manslaughter, and was
convicted at the Central Criminal Court; but the question then arose
whether he had committed an offence within the jurisdiction of English
tribunals.
The point on which that question turned was this. All the writers on
International Law agree that some portion of the coast water of a
country is considered for some purposes to belong to the country the
coasts of which it washes. There is some difference of opinion between
them as to the exact point to which this territorial water, which is
considered as part of a country's soil, extends. This doctrine, however,
if it were sound, must at some time or other have been borrowed by the
English courts and lawyers from international authority. Previous to the
appearance of International Law, the law followed in England was
different. The great naval judicial authority was then the Admiral of
England, whose jurisdiction was over all British subjects and other
persons on board British ships on the high seas. If the doctrine of the
international jurists prevailed, a change must, at some time or other,
have taken place in the law, and the point arose as to whether any such
change could be presumed, and by what agency it could have been
effected. The judges were very nearly equally divided on the point,
which is a fundamental one affecting the whole view to be taken of the
authority of International Law in this country. In the end it was
decided by the majority of the judges that no sufficient authority was
given for the reception in this country of the so-called International
doctrine; but there was no question that this doctrine was the doctrine
of the majority of states, and the inconvenience of having one rule for
England and another for the rest of the civilised world was palpably so
great that Parliament finally stepped in, and in the year 1878 passed
what is called the 'Territorial Waters Act,' by which the jurisdiction
of the English Courts which had succeeded to the jurisdiction of the
Admiral of England was declared to extend according to the International
rule to three miles from the coast line of England. In the course of
the judgments which were given, which are extremely learned, curious,
and interesting, Lord Coleridge. who was with the minority of the
judges, used the following language:
'My brothers Brett and Lindley have shown that by a consensus of
writers, without one single authority to the contrary, some portion of
the coast waters of a country is considered for some purposes to belong
to the country the coasts of which they wash. I concur in thinking that
the discrepancies to be found in these writers as to the precise extent
of the coast waters which belong to a country discrepancies, after all,
not serious since the time at least of Grotius are not material in this
question; because they all agree in the principle that the waters, to
some point beyond low-water mark, belong to the respective countries on
grounds of sense if not of necessity, belong to them as territory in
sovereignty, or property, exclusively, so that the authority of France
or Spain, of Holland or England, is the only authority recognised over
the coast Raters which adjoin these countries. This is established as
solidly as by the very nature of the case any proposition of
International Law can be. Strictly speaking, "International Law " is an
inexact expression, and it is apt to mislead if its inexactness is not
kept in mind. Law implies a lawgiver, and a tribunal capable of
enforcing it and coercing its transgressors. But there is no common
lawgiver to sovereign states; and no tribunal has the power to bind them
by decrees or coerce them if they transgress. The Law of Nations is
that collection of usages which civilised states have agreed to observe
in their dealings with one another. What these usages are, whether a
particular one has or has not been agreed to, must be matter of
evidence. Treaties and acts of state are but evidence of the agreement
of nations, and do not in this country at least per se bind the
tribunals. Neither, certainly, does a consensus of jurists; but it is
evidence of the agreement of nations on international points; and on
such points, when they arise, the English Courts give effect, as part of
English law, to such agreement' (p. 153).
Lord Chief Justice Cockburn, on the other hand, after discussing at
length the views of thirty writers of different countries and commenting
on the difference between them, goes on to remark: 'Can a portion of
that which was before high sea have been converted into British
territory without any action on the part of the British Government or
Legislature -- by the mere assertions of writers on public law -- or
even by the assent of other nations? And when in support of this
position, or of the theory of the three-mile zone in general, the
statements of the writers on International Law are relied on, the
question may well be asked, upon what authority are these statements
founded? When and in what manner have the nations, who are to be
affected by such a rule as these writers, following one another, have
laid down, signified their assent to it? -- to say nothing of the
difficulty which might be found in saying to which of these conflicting
opinions such assent had been given' (p. 202).
It would appear, therefore, from the authorities which I have cited
that in the two great English-speaking people of the world, one
descended from the other, there prevail two, and possibly three,
opinions as to the obligatory force of International Law on individual
states. The lawyers and statesmen of the United States of America regard
the acknowledgment of and submission to the international system as
duties which devolve on every independent sovereignty through the fact
of its being admitted into the circle of civilized Governments. Among
the English judges, Lord Coleridge considers that the assent of a nation
is necessary to subject it to International Law, but that in the case
of Great Britain and all the other civilised European Powers this assent
has been given either by express action or declaration, or at all
events by non-dissent. Lastly, Lord Chief Justice Cockburn, while
accepting the view that International Law became binding on states by
their assent to it, manifestly thought that this assent must somehow be
conveyed by the acquiescing state in its sovereign character, through
some public action which its Constitution recognizes as legally
qualified to adopt a new law or a new legal doctrine; that is, in Great
Britain by Act of Parliament or by the formal declaration of a Court of
Justice. The two opinions which I first mentioned, that over and over
again propounded in the American Digest and that of Lord Coleridge,
though the language used is somewhat inexact and in one case too
metaphorical, seem to me to express the doctrine of the whole civilised
world outside Great Britain, and to conform to the historical
explanation which I will presently place before you. On the other hand,
the opinion of Lord Chief Justice Cockburn, which is one to which
English judges, always busily occupied in interpreting and applying the
laws of this country, are naturally liable, would have caused the
greatest inconvenience if it had been declared to be part of the law of
England. It practically is that the international rules could only have
been imported into our system by one of the modern processes by which
our institutions are changed. In that case each separate alleged rule of
International Law would have had to be shown to have been engrafted on
our legal system by the legislation of Parliament, by the alternative
legislation, within certain limits, of the English Courts, or by the
conformity of the rule with some provable usage. For a simple rule a
most complicated rule would have been substituted.
The point immediately before the English Court of Criminal Appeal can
never arise again since the passing of the Territorial Waters Act; but
it is conceivable, if not likely, that we have not heard the last of the
more general question of principle. I may say that it seems to me that
the solution of the difficulty can only be supplied by the historical
method. As I have asserted many times, these systems of law have not
always been extended over the countries in which they are found
prevailing by what we call legislation. In more ancient times, and to a
great extent even at this day, in that Eastern portion of the world in
which so much of the usages of earlier mankind still survive, systems of
religion and systems of morals, generally drawing with them some system
of laws, gain currency by their own moral influence; certain minds
being naturally predisposed to recede them acquiesce in them even with
enthusiasm. Mr. Justice Stephen, in the controversial work which he
calls 'Liberty, Equality, and Fraternity,' has an eloquent passage on
the subject. 'The sources of religion lie hid from us. All that we know
is, that now and again in the course of ages some one sets to music the
tune which is haunting millions of ears. It is caught up here and there,
and repeated till the chorus is thundered out by a body of singers able
to drown all discords and to force the vast unmusical mass to listen to
them. Such results as these come not by observation, but when they do
come they carry away as with a flood and hurry in their own direction
all the laws and customs of those whom they affect.' What is here said
of religion, is true to a certain extent of morality. In the East a body
of new moral ideas is sure in time to produce a string of legal rules;
and it is said by those who know India and its natives well that the
production of what for want of a better name we must call a Code is a
favourite occupation with learned and active minds, though of course in a
country which nowadays follows to a great extent the morality (though
not the faith) of Christian Europe, and receives new laws from a
regularly constituted Legislature, the enthusiasm for new moral
doctrines is ever growing feebler and the demand for legal rules
accommodated to them is becoming less. Now, International Law was a Code
in the same sense in which many Eastern collections of rules were
Codes. It was founded on a new morality, that which had been discovered
in the supposed Law of Nature, and in some minds it excited unbounded
enthusiasm.
The same process had previously been followed in Europe as regards
Roman Civil Law. We may not quite understand the admiration which the
technical part of the Roman Law inspired, but of the fact there is no
doubt. This process by which laws extended themselves had not quite died
out when the international jurists appeared, and in point of fact their
system of rules was received by the world very much as a system of law
founded on morals is received to this day in the East. No doubt it fell
on soil prepared for it. The literate classes, the scholars, great parts
of the clergy, and the sovereigns and statesmen of Europe accepted it,
and the result was an instant decay of the worst atrocities of war.
Indeed, it is only necessary to look at the earliest authorities on
International Law, in the 'De Jure Belli et Pacis' of Grotius for
example, to see that the Law of Nations is essentially a moral and, to
some extent a religious, system. The appeal of Grotius is almost as
frequent to morals and religion as to precedent, and no doubt it is
these portions of the book, which to us have become almost commonplace
or which seem irrelevant, which gained for it much of the authority
which it ultimately obtained.
The bulk of these lectures will consist of an account, as summary as I
can make it, of such portions of the International system as appear to
me to be reasonably settled; but before I proceed to this portion of my
course, I think I ought to say something on some modern criticisms of
the basis of International Law which have made their appearance quite
recently, and which I think have a tendency to multiply. The criticisms
to which I refer appear to me to be a singular proof of the great
authority which in our day has been obtained by the treatise of John
Austin on the Province of Jurisprudence. They are in fact to a
considerable extent a re-statement of his positions. The scope of
Austin's undertaking in this classical work is often nowadays
exaggerated. He attempted, by analysis of the various conceptions which
law in its various senses includes, to select one sense of law in which
legal generalizations were possible. His ultimate object appears to have
been to effect a scientific rearrangement of law as a Code. Little
unfortunately has been done at present, save perhaps in the German
Empire and in India, to carry out this object; but no doubt Austin did
do something towards the ultimate codification of positive law by
confining his investigation to the various subordinate conceptions which
make up law as so understood. As probably many of you know, his
fundamental assertion is that in every country there is some portion of
the community which can force the rest to do exactly what it pleases.
This is called by him the 'Sovereign,' a word on which it is necessary
as soon as possible to observe that it is here taken in a different
sense from that in which it is employed by the classical writers on
International Law. From Austin's point of view International Law
resembled morality more than law; it was chiefly enforced by
disapprobation of acts committed in violation of it; it could not be
resolved into the command of any sovereign.
In my next lecture, I shall contrast this word 'Sovereignty' as used
by Austin and the so-called school of analytical jurists with its use in
International Law, and specially consider the rights over land and
water which are asserted by international lawyers to arise logically
from the conception of Sovereignty.
In my first lecture I spoke of the criticisms on International Law
conducted by John Austin in his 'Province of Jurisprudence Determined'
as very interesting and quite innocuous; but the results are sometimes
so stated as if they showed that Austin had intended to diminish, and
had succeeded in diminishing, the dignity or imperative force of
International Law. An observation here must be made that one sense of
law is just as good and dignified as another, if it be only consistently
used. In philosophy the commonest sense of law is that in which it is
used by such writers as the author of the book called 'The Reign of
Law.' No term can be more dignified or more valuable than 'law' as thus
employed. What we have to do, is to keep this meaning of law separate in
our minds from law in other senses. It is very convenient, when the
main subject of thought is positive law, that we should remember that
International Law has but slender connection with it, and that it has
less analogy to the laws which are the commands of sovereigns than to
rules of conduct, which, whatever be their origin, are to a very great
extent enforced by the disapprobation which attends their neglect. What
is most important to recollect are the points of collection which do
exist between International Law and positive law.
Here one cannot but remark that a serious mistake as to human nature
is becoming common in our day. Austin resolved law into the command of a
sovereign addressed to a subject, and always enforced by a sanction or
penalty which created an imperative duty. The most important ingredient
brought out by this analysis is the sanction. Austin has shown, though
not without some straining of language, that the sanction is found
everywhere in positive law, civil and criminal. This is, in fact, the
great feat which he performed, but some of his disciples seem to me to
draw the inference from his language that men always obey rules from
fear of punishment. As a matter of fact this is quite untrue, for the
largest number of rules which men obey are obeyed unconsciously from a
mere habit of mind. Men do sometimes obey rules for fear of the
punishment which will be indicted if they are violated, but, compared
with the mass of men in each community, this class is but small --
probably, it is substantially confined to what are called the criminal
classes -- and for one man who refrains from stealing or murdering
because he fears the penalty there must be hundreds or thousands who
refrain without a thought on the subject. A vast variety of causes may
have produced this habit of mind. Early teaching certainly has a great
deal to do with it; religious opinion has a great deal to do with it;
and it is very possible, and indeed probable, that in a vast number of
cases it is an inherited sentiment springing from the enforcement of law
by states, and the organs of states, during long ages. Unfortunately it
has been shown in our day that the mental habit, so far as regards
positive civil and criminal law, may be easily destroyed by connivance
at violations of rule; and this is some evidence of its having a long
descent from penal law once sternly enforced.
What we have to notice is, that the founders of International Law,
though they did not create a sanction, created a law-abiding sentiment.
They diffused among sovereigns, and the literate classes in communities,
a strong repugnance to the neglect or breach of certain rules
regulating the relations and actions of states. They did this, not by
threatening punishments, but by the alternative and older method, long
known in Europe and Asia, of creating a strong approval of a certain
body of rules. It is quite true that some of the reasons given by
Grotius for International Law would not now commend themselves if they
were presented to the mind for the first time; but it does not do to
look too far back into the origins of law for the reasons of its
establishment. Much of the beginnings of English Law is to be found in
the Year Books; but it would not be too harsh to say that some of the
reasons given for rules now received, which are to be found in the Year
Books, are mixed with a great deal of sheer nonsense. The original
reasons for the International rules are possibly to some extent
nonsense: they often seem to us commonplace, they are often rhetorical,
they are often entangled with obsolete theories of morals or deductions
from irrelevant precedents, and on the other hand they often assume a
power of discerning what the Divine pleasure is on a particular subject
which the ideas of the present day would not admit. As to their
expediency, that has to be decided by experience, and experience has, on
the whole, pronounced decisively in their favour.
There are, however, at the same time some real defects in
International Law which are traceable to the difference between that law
and positive law, and the absence of mechanism by which positive law is
developed. International Law was not declared by a Legislature, and it
still suffers from want of a regular Legislature to improve and to
develop it. It is still developed by the antiquated method of writer
commenting on writer, no security being nowadays taken for the
competence or authority of the writer except vague opinion. There are
really writers who through confusedness, or through natural prejudice,
are open to the implied censure of Dr. Whewell that they have rather
encouraged than diminished the risk and the evils of war. International
Law suffers also from the absence of any method of authoritatively
declaring its tenor on some of its branches, and above all from the
absence of any method of enforcing its rules short of war or fear of
war. All these are real and often formidable drawbacks on the usefulness
of International Law,and no teacher of International Law can neglect
them. Before the end of this course, though not quite immediately, I
propose to examine them, and to consider whether the grooving experience
of civilised mankind points to any new remedies or better means of
enforcing old ones.
http://avalon.law.yale.edu/19th_century/int02.asp
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