« ПредыдущаяПродолжить »
always been studied with purely scientific, not "practical" ends in view.
Ordinarily the laws of a society, whether legal or otherwise, bind only members reciprocally of the same society. They have no external force or operation. Says the author:
But there is a number of legal norms which are more general in their operation and bind all men. These are either part of the municipal law (staatliches Recht) or they are mere judicial norms, rules of decision-in a word, they are law only for courts and public officials, they are not rules of human conduct. So, too, private international law (including international criminal law) embodies only judicial norms and addresses itself exclusively to the governmental authorities and not to the people. Living law, on the contrary, is by its very subject-matter, even when it is of governmental origin, confined in its operation to a particular society or group. The rights and duties arising under national law presume the existence of citizenship, family law presumes membership in a family, corporation law participation in a corporation; the law of contracts presumes a contract, the law of succession presumes relationship. But a different rule prevails to-day as to life, liberty, and the right of property: the right to these is respected by all men, wherever European thought dominates, irrespective of national or racial lines. This is a modern achievement, for as late as the sixteenth century life and property of a stranger in Europe were far from safe on foreign soil. Nor are they so yet in the outposts of civilization, as colonial history and the lot of the negroes in America demonstrate. The antislavery laws of the nineteenth century show how difficult it was to bring the most civilized nations of the globe to respect the right of the helpless negro to life and freedom. But with these temporary and local exceptions, the regard for the life, liberty, and property of every man is to-day not merely a judicial norm and a governmental regulation, but it has effectually become a principle of the living law. To this modest extent, the whole human race has become a great legal union. This fact signifies that in the minds of the choicest spirits (auserlesensten Geister) of the world the conception of an all inclusive morality (Sittlichkeit), of a law unrestrained by state or social boundaries, is already born. This is no longer the mere dream of noble minds which forecasts a glorious future, but it is now partly materialized in the living law, which assures to every man wherever civilization has raised its standard, his life, his liberty, and his property.
The book is rich in thought and suggestion. The style is simple and direct. Abstruse ideas are developed fully and illustrated concretely. It is a work that could readily be translated into English and that would appeal strongly to Anglo-American jurists because of the author's evident appreciation of our system and his discussion of it (Chapter XII) from the sociological standpoint. In the United States, we are just beginning to turn our attention to sociological jurisprudence. Our legal science (to say nothing of our legislators!) has all but disregarded those elements of our law of fas and boni mores and bona fides
which were the living spirit of the Roman Law, and has engrossed itself with the jus of the law as if that were all of it. We await with interest the forthcoming book of Roscoe Pound on "Sociological Jurisprudence," which will introduce the American bar to a new science. It's high time. "The fact is," says Professor Ehrlich, "modern jurisprudence has no scientific conception of the law at all. As the machinist, when he mentions iron has in mind not the chemically pure element that the chemist or mineralogist designates by this term, but impure, commercial iron that is used in the factory, so the jurist now-a-days understands by the term law not what lives and operates as law in organized society, but exclusively what the judges on the bench apply as law in litigation that it is the province of Courts to decide."
And how often, even at that, the judges disagree.
GEORGE C. BUTTE.
The Bibliography of International Law and Continental Law. By Edwin M. Borchard. Washington: Government Printing Office. 1913. pp. 93.
Although this volume is the second in point of time in the series of guides to foreign law which are being published under the auspices of the Library of Congress, logically it stands at the beginning of the series. It deals with the bibliography of international law, in its modern manifestations after it emerged from the Roman conception of a law common to nations rather than a law applicable between nations; and of modern Continental law beginning with the seventeenth century, when the conception of national law was just beginning to be held. This volume is therefore the proper point of departure in the study of the bibliography of foreign national law, exemplified in Dr. Borchard's Guide to the Law and Legal Literature of Germany, published in 1912.
In his introduction, the author summarizes the causes of the growing interest in international and foreign law, emphasizing the needs felt by the practitioner because of the cosmopolitan character of modern business, which gives to the study of comparative law a practical application quite apart from its value in the field of legal history and education. The body of the work bears evidence of painstaking industry and discriminating judgment. The information compiled is increased in value by the form of presentation. It is not an annotated list of titles, but a critical text with references to footnotes giving author, title, publisher, and place and date of publication for each book. For the American
lawyer, librarian and publicist, in need of guidance in a subject less familiar than American and English legal literature, the textual form is more useful; while the index referring to authors and subjects completes the bibliographical apparatus.
The section relating to international law, public and private, fills sixteen pages, and includes general bibliographies, selected and subject lists, bibliographical periodicals, and concludes with the literature of the peace movement. The bibliographies of modern continental law are discussed first in a section containing general legal bibliographies dealing with the Continent as a whole, and second under sections devoted to the autonomous countries of Europe. The material is further subdivided into (1) bibliographies in the form of independent books, (2) treatises in which bibliography is a prominent feature, (3) bibliographic information to be found in periodicals, (4) catalogues of law libraries, jurists or publishers, having bibliographic value, and (5) bibliographies on special subjects.
FREDERICK C. HICKS.
Rechte und Pflichten der Neutralen Mächte im Seekrieg nach dem Haager Abkommen vom 18 Oktober 1907. By Paul Einicke. Tübingen: J. C. B. Mohr. 1912. pp. xi, 405.
This work is from the Abhandlungen aus dem Staats-Verwaltungs- und Völkerrecht edited by Dr. Zorn and Dr. Stier-Somolo. After a brief sketch of the development of neutrality as applied to warfare on the sea, Dr. Einicke proceeds to the consideration of the Hague convention concerning the rights and duties of neutral Powers in maritime war, tracing the course of the negotiations and the differing propositions of the delegations at the Hague Conference. The articles of the convention are analyzed and the tendency to place responsibility upon the belligerent to respect neutral rights is shown. The rules of the Treaty of Washington naturally receive much consideration. Article 5 of the Hague convention, which contains the general prohibition of the "use of neutral ports and waters as a base of naval operations" and also the particular prohibition in regard to the erection of "wireless telegraph stations," is properly criticised, though the reason for the form was plain when the events of the Russo-Japanese War of 1904-5 were in the minds of the negotiators. It is clearly shown that in many respects this convention embodies compromises which were necessary in order that any action might be secured. This is particularly pointed out in
such provisions as that in Article 19 in regard to coaling, which says of vessels of war "these vessels can take only sufficient fuel to enable them to reach the nearest port of their own country. They may on the other hand take the fuel necessary to fill up their bunkers, properly so called, when in neutral countries which have adopted this method of determining the amount of fuel to be supplied." That this and other articles may conflict with existing international agreements, as with the treaty of Germany and Spain, is mentioned. Each article and the preamble receives attention. There is brief reference to the application of the convention in the Turco-Italian War. A convenient list of neutrality laws, proclamations, etc., is appended, together with a selected bibliography. Such a treatise upon each of the Hague conventions would be very serviceable.
Proyecto de Ley de Aplicación del Derecho Internacional Privado. By Dr. Pedro Manuel Arcaya, Venezuelan Delegate to the Committee of Jurists in Charge of the Codification of American International Law, Minister of Interior of Venezuela. Caracas: Tipografía "Cosmos," 1915. pp. 25.
The above is a draft law apparently intended to codify the Venezuelan application of private international law. The project is divided into four general heads or titles, and some general principles by way of preliminary provisions dealing with the laws which must have precedence as well as with the manner in which they shall be proved whenever private international law is to be applied, are stated in a preliminary title.
Title first deals with persons in general: nationality and personal status, absence and presumption of death; marriage, divorce and separation; filiation and adoption; administration and guardianship; foreign juridical persons. Title second deals with property, inheritance and gifts. Title third deals with contractual obligations in general and with certain contracts in particular. Title fourth deals with procedure: jurisdiction, execution of judgments and letters rogatory.
Some of the provisions of this code may serve perhaps as illustrations of the great difficulties which must be encountered by those endeavoring to codify the so-called American private international law. Take, for instance, Article 10 of this project, which provides: "The naturalization of a Venezuelan in a foreign country shall have no effect as regards the Republic." This provision can be very well regarded as a declaration of national policy, the result of theories prevailing in the majority of the
republics to the south of the Rio Grande. On the other hand, this doctrine of the inability of a citizen to throw off his allegiance to his country has been the subject of much controversy in this country in days long past, when prior to any legislation on the subject by Congress there was some uncertainty and conflict of authority concerning the right of expatriation. The question first arose in 1795, when it was held that a citizen could not denationalize himself without the consent of his government. The general doctrine was, according to Story, J., that no one could by any act of his own, without the consent of his government, put off his allegiance, and become an alien. But there was, at that time, no legislation permitting expatriation. It was also held that the right of expatriation is fundamental and inherent, and of this same opinion were some State courts. The denial of the right of voluntary expatriation was somewhat inconsistent with the law of the United States providing for the naturalization of foreigners, the first of which was enacted in 1790.
The question, however, was practically set at rest by the Act of July 26, 1868 (15 U. S. Stats. 223; U. S. Rev. Stats., sec. 1899), where it is declared that the right of expatriation is a natural and inherent right of all people, and further that any decision of any officer of the government denying, restricting or impairing the right of expatriation is "inconsistent with the fundamental principles of this government." And this language seems to be but little more than a legislative declaration of national policy. The absolute right of expatriation is now recognized as a settled doctrine of this country, and the conflict therefore is apparent.
But in this great task of codifying American private international law, in which it will be necessary to harmonize so many opposing legal doctrines and declarations of national policy, it certainly will be of great help to have available individual codifications of it as applied in the different American Republics, and in this sense, as an endeavor to approach a simplification of this task, the project drafted by His Excellency the Minister of Interior of Venezuela becomes of real importance.
PEDRO CAPÓ RODRÍGUEZ.