CHAPTER II. WHAT IS INTERNATIONAL LAW? (Continued). nition of Law:" How, then, may we define "Law," define it so that The defiour definition may accord at once with the facts of history, and with the building up of a reasonably helpful legal science? The answer is not far to seek. Law is an affair of Human Conduct, and Human Conduct is an affair of Cause. Day by day with the progress of time, the Cause advances to greater prominence; but a definition historically perfect must take as its main foundations the article of Conduct, must look to Order, and not to Force, to Obligation, not to Sanction. And, being an affair of Human Conduct, Law must be always personal; and, being an affair of Order, it must operate within a definite Sphere. A "Law" is a rule of A "Law" conduct observed, or otherwise recognised as binding, by men, and observed or otherwise recognised by them wearers of a particular character, that is, as members of particular body. as a is a rule observed The sphere of operation will vary with the time. must be a body of persons, but it may be a body of individuals considered as a personal group or corporation, or it may be a body of individuals considered in connection with territorial limits. ty? Untrammelled personal authority within a particular What is sphere of operation is Sovereignty: Sovereignty localised Sovereignand referred to geographical limits is Territorial Sovereignty. The three historic types of Three types of Sovereignty have at various times commended themselves to the minds of men. Two of Sovereign- them were brought face to face by the German inroads ty. into the declining Roman Empire. The World Sovereignty Roman WorldSovereignty, of the Roman was confronted by the Tribal Sovereignty of the Barbarian. The Barbarian victory by force of arms was the practical denial of the reality of the World Empire, till ere long barbarian chieftains, usurping the claims of the conquered, gave form and life to the scattered bones'. But, with the irruption, the central authority was for the Tentonic time being broken and gone. Tribe Sovereignty failed vereignty, to dispossess World-Sovereignty, and the claims of WorldSovereignty agreed but little with actual facts. Decentralisation, individualism, was the tendency of the day. To fend off absolute unlaw and disorder was the mission of Feudalism. Tribal So Feudalism, Feudalism was not a system but a régime, a form of society, the society which was evolved in the great world seething pot when the barbarian at last burst the barrier, and overran the astonished West. It was the product of materials both Teutonic and Roman, but the creation was distinctly Frankish. The Teuton beyond the pale had, past doubt, been for long time reasonably familiar with the Roman conception of land tenure in the emphyteutic ownership, as developed in the veteran-planted agrilimitani which barred his onward progress; and, associating with the system of the imperial marchland his own native Comitatus, with its adjuncts of fidelity, ring-giving, and heriot return of horse and arms, there grew up naturally under his hand within his new dominions the machinery of the Beneficium, the Feud. And when the days of war and overthrow brought with them Commendation and local Immunity, the feudal framework was complete. Feudalism was a link, and a necessary link', between 1 Maine, A. L. p. 103 seqq. 2 Guizot, Civ. in Europe, Lect. iv. p. 69. 3 Maine, A. L. pp. 299-301. 4 Guizot, Civ. in Europe, Lect. iv. p. 66. ancient and modern political unity, between the unity of the World Empire and the unity of the Nation, between unity from without, from above, and unity within, from below, between unity of person in the monarch and unity of soul in the people. It was the temporary cement which availed to bind together the disintegrated fragments, which constituted the society created by the barbaric irruption into the World Empire of Rome, until new links could be forged, and man be bound to man, not by the force of fear, but by community of interest, community of feeling. "Feudalism was a pis-aller," and its work was done when it gave birth to Territorial Sovereignty. "Territorial Sovereignty... was distinctly an off-shoot, though a tardy one, of feudalism'." Sovereign Modern Sovereignty is territorial. The modern Sove- Modern reign is a Legislator, commanding and permitting, and Territorial the limit of his jurisdiction is a landmark, the boundary ty. stone of the State. The Human Law of to-day is the expression of the will of a Local Ruler in terms of Human Conduct. State-life is not as yet universal, but State-life is the Sovereigncommon lot of civilised men. Men being State-members ty is observe or recognise laws, and the laws which they by the 1 Maine, A. L. p. 106. Continental Feudalism was a system at once of Land-Holding and of Government. As a system of Land-Holding it combined the personal relation of lord and man, with the territorial relation of landlord and tenant. As a system of Government its root was private jurisdiction, private jurisdiction, which, freed from the control of the searching eye of the missi dominici and the strong hand of a Karl the Great, ran wild into the imperium in imperio. In England the elements of feudal Land-Holding already existed before the Norman Conquest in the personal relation of the king and thegn, and in the possession of land by the latter. Knut, moreover, went far towards setting up a feudal form of Government when he created the great earldoms. It was the work of the Normans, assimilating these elements, to familiarise the Saxons with the conception of tenure, while guarding against the introduction of the feudal form of government; and in his keen and statesmanlike appreciation of this mission William the Bastard won for himself greater glory than he gained at Senlac. The reign of the Conqueror was a reign of Centralisation. bounded State limit lines. The relation of observe or recognise, they observe or recognise either as members of the same State, or as members of different states. And thus arises the distinction between Municipal and International Law. Municipal Laws are rules of conduct observed by men, Municipal or by men recognised as binding, towards each other as and Inter- members of the same State. national Law. Constitutional Laws are a species pal Law, of Munici International Laws are rules of conduct observed by men towards each other as members of different States, though members of the same International Circle. Municipal Laws may be subdivided in respect of the subjects with which they are conversant. And so Constitutional Laws are a species of Municipal Law: they are rules of conduct observed by men towards each other as members of the same state, and occupying the relation of governors and governed. As against subjects, or members of the Sovereign government individually, such rules may be mere custom resting upon opinion and so alone enforced, or they may be adopted by the State, and by it endowed with the force of Municipal Law. But as against the Sovereign One, or Sovereign Government collectively, Constitutional Laws cannot be enforced as Municipal Laws: they may be Custom, or they may be Constituent Law: they may be rules of conduct imposed by the will of the Sovereign Whole, though not expressed in solemn and con- form, or they may be Fundamental Law, law whereof the vanishing maker is the Sovereign Whole, the Sovereign Demos, point of legislating in his might, at once for private individuals and for the Sovereign Delegate. stitute the State Power. Fundamental Law is the vanishing point of StatePower, the exact expression of State-Power in terms of conduct. State-Power is the power of the Territorial Sovereign. And International Law is now neither more nor less than the expression, in the like terms of conduct, of the recognition by men of the applicability of the doctrine of territorial sovereignty to international relations. State jurisdiction is conterminous with State-territory: this is the foundation of all Municipal Law, and its recognition Law are damental by the members of the International Circle, together with certain similarly recognised exceptions, must constitute the root-basis of the science of International Law. In- International ternational Law and Municipal Law alike express the Law and all-comprehensive principle, that each and every State- Municipal Sovereign is over all persons, and in all causes, within his based on a dominions supreme.) The Municipal lawyer, however, finds single funthat principle set out in regularly recognised and appro- premise: priate fashion, in ordinance and enactment, in Reports but the and Statutes at Large. He hears it proclaimed by not comidentity is specially appointed judges, and sees it enforced by specially monly re cognised. appointed officials in specially appropriate ways. And the absence from International Law of all the trappings to which his trained mind is accustomed, the absence of specially appropriate and recognisable law giver, of specially appropriate and recognisable arbitrator, and of specially appropriate and recognisable court and police, cannot but militate against the immediate acceptance by him of the rules of the less familiar system in the same way as those of that which he himself professes. And his perplexity commonly works in twofold fashion. He perceives on inspection that, "The expression 'inter"national law,' is sometimes applied to principles and rules "which obtain, or are said to obtain, as between nation "and nation, and sometimes to parts of the law of one "nation in which other nations are interested." ment Law is because it lacks a And he goes on, "In each of these senses the expression The argu"is likely to mislead, unless its inexactness and ambiguity Interna"is borne in mind. When it is applied to principles and tional "rules prevailing between independent nations, the word not "law" "law' conveys a false idea, because the principles and "rules referred to are not, and cannot be, enforced by any common superior, "common superior upon the nations to the conduct of which "they apply. When it is applied to parts of the law of "each nation in which other nations are interested, the or because it is part "word 'law' is correct, but the word 'international' is likely of the law "to mislead, because though such laws are laws in the fullest of an indi"sense of the word, and are enforced as such, they are the nation vidual |