THE SCIENCE OF INTERNATIONAL LAW. CHAPTER I. WHAT IS INTERNATIONAL LAW? Interna "I CONFESS," said Lord Salisbury, replying to a reso- What is lution in the Upper House advocating the establishment tional of a Court of International Arbitration, "I confess-and I Law? think it is the general feeling—that deeply as everybody sympathises with the object my noble friend has in view, and earnestly as we must desire to see the day when the horrors of war may be prevented by the establishment of some species of international arbitration, it is very far from us now, and further apparently than it was some years ago. No one, I think, can watch the progress of affairs on the Continent of Europe, and the tendency of various states, without seeing that the pacific spirit has not increased, and that the chances of avoiding war are not more favourable than they were.......I think, my lords, we are misled in this matter by the facility with which we use the phrase 'International Law.' International Law has not any existence in the sense in which the term 'law' is usually understood. It depends generally upon the prejudices of writers of text-books. It can be enforced by no tribunal, and therefore to apply to it the phrase 'law' is to some extent misleading, and I think It is a fact. has given rise to the somewhat exaggerated hope with which those persons who hold the views of my noble friend approach this matter." [The Times, July 26, 1887.] For two centuries and more, at any rate, men have been reasonably familiar with the name of the Law of Nations, and diplomatists and lawyers of every people have wrangled about the thing. It stands beyond contradiction that the peoples of today have advanced far since the time when every foreigner was an enemy or a barbarian; since the days of that jealousy of foreign intrusion which yet marks the international relations of China and Japan, or even since the heyday of droit d'aubaine and traite foraine, of Navigation Act1 and trading monopoly, Assiento Treaty and Alien Disability. The practice of the modern belligerent, moreover, albeit it falls short, perhaps, of the standard of Christian perfection, has improved no little since Grotius "observed throughout the Christian World a licentiousness in making war, which barbarous nations would be ashamed of; a running to arms upon very frivolous or rather no occasions; which arms being once taken up there remained no longer any reverence for law either Divine or human, just as if some Fury were sent forth with a general licence for all manner of wickedness";" since Gustavus Adolphus slept with the "Jus Belli et Pacis" under his pillow while Tilly was sacking Magdeburg, and the Elector Palatine instituted Pufendorf to the professorial chair in his warworn capital. And very clear it is that the world's peace depends in these days of colossal armaments, of dynamite and torpedo, and every agent of destruction and devilry, upon the being and growth in favour of some certain rules of Equity, which shall ease betimes the tension of the 1 Stat. 12 Car. II. c. 18. 2 Cf. Toulmin v. Anderson, 1 Taunt. 227: Stat. 15 Car. II. c. 7. ss. 5—9. 3 Hosack, Law of Nations, Appendix vII. 4 Cf. 1 Dyer, 26; King v. Boys, 3 Dyer, 283 b. b Jus Belli et Pacis, Proleg. s. 28. Transl. 1715, A.D. bonds of international relations without appeal to the logic of the big battalions. And yet is it so, that there has not been, there is not, and there may not be, an International Law? tion. International Law, if it be law, consists, we may not Whether capable or doubt, in certain rules of conduct which the progress of incapable civilisation teaches one portion of mankind to observe in of philosophical their mutual dealings as members of different states. explanaAnd, so premising, it need trouble him nothing who is willing to accept Practice itself as the International Legislator, and State-Character as the Foundation of International Obligation, that another regards that Practice as evidencing, as being the outward and visible sign of Consent, Conscience or Compulsion: it matters nothing, in effect, that with some definers' International Law is the expression of certain principles of abstract right which ought to regulate the relations of nations, Jus Naturale or Right Reason, Common Sense or Incarnate Justice, whilst with others' it is merely the embodiment of State ་ 1 For example, the definitions of : Wheaton. "A collection of rules deduced by reason as consonant with justice from the nature of the society existing among independent nations, together with such definitions and modifications as are established by general consent." Lorimer. "" nations." The Law of Nature realised in the relations of separate 2 For example, the definitions of : Woolsey. "The aggregate of the rules which Christian States acknowledge as obligatory in relation to each other and to each other's subjects." Manning. "The rules which control the conduct of independent states in their relations with each other." Kent. "That collection of rules, customary, conventional and judicial, which independent states appeal to for the purpose of determining their rights, prescribing their duties and regulating their intercourse, in peace and war, imposed by opinion and based upon the consent of nations." Hall. "Certain rules of conduct which modern civilised states regard as being binding on them in their relations with each other with a force comparable in nature and degree to that binding the conscientious person to obey the laws of his country, and which they also regard as being enforcible by appropriate means in case of infringement." What is Austin's ral and compre literal ac of the term. practice, the plain unvarnished tale of international life, the sum of the rules which have been, and in very fact are, actually operative amongst peoples in their relations with each other. But it does matter, and it is an affair of the utmost moment, that men should clearly appreciate the true nature of International Law, it does matter that a definite and certain term be put to the doubt commonly and freely expressed whether there can indeed be "international law," law regulating the mutual dealings of independent states. And what, then, we ask is "Law?" Laws, says John Austin,-in the outset of that work "Law?" which must now constitute the starting point of all English Law in the dissertations on legal science, a work of which the sustained most gene- and serried logic, and masterly marshalled argument have so far sufficed to conceal the partial character of his prehensive mises that, just as the Elizabethan polite world went ceptation mad after John Lilly and his Euphuistic diction, so the language of the Victorian English Law School is the language of the Province of Jurisprudence Determined, and each jurist of the mode talks Austinese-Laws “in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed," are rules of conduct "laid down for the guidance of an intelligent being by an intelligent being having power over him," and so embrace two species of regulation, to wit: A. Laws set by God to Men, which may be styled the Laws of God, or Divine Law, and B. Laws set by Men to Men. Laws of this latter class are either set by Determinate, that is, by definitely assignable and recognisable Authors, or they are set by Authors Indeterminate, i.e. Austin's not definitely recognisable. This distinction, i.e. in re"Proper Law.' spect of imposition by Authors Determinate or Indeterminate, may be briefly and commodiously marked by the antithesis Proper and Improper. A Law set by a Determinate Author may be styled a Law Proper. The Laws of God, therefore, are "Laws Proper;" as are likewise certain of the Laws set by Men to Men. A Law set by an Indeterminate Author is a Law Improper, or a Law improperly so-called. But the close sequence in order of cause and effect observable in the phenomena of the natural world, and an apparent regularity in the conduct of the non-human animate creation, suggest a more or less distinct analogy or resemblance between such seeming rules, and the rules of human action imposed by a determinate lawgiver. To such seeming rules, therefore, the epithet properly belonging to rules of human action is commonly extended by metaphor or figure. Such so-called Laws may be styled Laws Metaphorical or Figurative. Now this scientific age recognises amongst sciences a Austin's science of Law; and that science is Jurisprudence. Science of Jurisprudence, however, is not concerned with all the dence. rules which fall within the field of "Law in its most general and comprehensive acceptation." Jurisprudence is the science of certain rules only. The determination or definition of these rules it is which forms the end and object of "The Province of Jurisprudence Determined." And that determination Austin effects on this wise: Of Laws Proper set by Men to Men, some are set by a determinate imposer being a Political Superior acting as such; that is, by a Sovereign qua Sovereign to Subjects directly, or by a Sovereign qua Sovereign to Subjects through delegates. Some are set by a determinate imposer not being a Political Superior, or being a Political Superior though not acting as such; that is, by a Sovereign or Magistrate not in the exercise of his Sovereign or Magisterial duty, or by a mere private person. To the small division of Law Proper set to Men by Men being Political Superiors acting as such, Austin applies the epithet "Positive Law”—“ Positive,” i.e. set Austin's by Man (as opposed to set by God), " Law," i.e. Rule set by a Political Superior (as against Rule not so set, or Morality). "Positive Law." |