CHAPTER IV. GROTIUS AND THE SCIENCE OF INTERNATIONAL LAW. tional Law THE first view of International Practice presents to Internathe student no Rule notion, but a mass of shifting to be intelprecedent and contradictory dicta. International Law to ligible be read and appreciated must be reduced to a few simple scientific. statements: in a word, it must be treated as a science. must be And a science of International Law, being a science, must take as its foundations facts as they are. It must rest, therefore, upon the fact of State-Being; and, so resting, it must rest upon State-Being with its historic concomitants. A science of International Law in old Greece had been a science of Citizenship and Alienage, citizenship of a City Commonwealth'. A science of International Law in Republican Rome had been a science of the Roman People and the Stranger; in Rome of the Empire a science of World Sovereignty, of the Imperial Ruler and of subject provincials. A science of International Law among the Barbarian assailants of the Roman barrier had been a science of the mutual practice of tribe and tribe, of Vandal and Alan, Burgundian and Goth, Frank, Saxon and Lombard. (A science of Inter- The national Law of to-day must be a science of Territorial Science of Sovereignty. International Law It was this science which the Peace of Westphalia made realisable; and it was this science that Grotius expoundexpounded. Modern International Law sets out the conduct, in the varying circumstances of life, of Territorial Sovereignty 1 Cf. Laurent, Histoire du Droit des Gens, Tom. 11. Liv. 3. ed by Gro tius. "De Jure Belli et 1625. Meanings touched and softened by the improving influences of all the agencies which go to create, or the facts which constitute, the mysterious evolution which men term Civilisation. And of that Law Grotius was "the Father." In "De Jure Belli et Pacis" Hugo Grotius stands forth as the Prophet of Justice' to an age of lawlessness. His eye saw the evil in his day, the cruelty and the unlaw; and he knew his Call. In his very title he enunciates his thesis. There is a State of War, and there is a State of Peace, but Justice is eternal: men around may be lawless fighters, but there is a definitely ascertainable Law of Nations. The term Jus, he notes, covers a threefold ambiguity. of "Jus." It may express : (A) An attribute of action, i.e. that which is just, or rather, that which, as not being repugnant to the nature of a rational society, is not unjust. (B) A personal attribute, or moral quality, faculty or capacity, i.e. a right or title "qualitas moralis personae "competens ad aliquid juste habendum vel agendum*. (C) A rule of moral action, or law"." 1 The Dedication to Louis XIII, "the Just" is not unworthy of notice. 2 Proleg. 28 and 30. 3 Nam jus hic nihil aliud quam quod justum est significat, idque negante magis sensu quam ajente, ut jus sit quod injustum non est. Est autem injustum, quod naturae societatis ratione utentium repugnat. De Jure Belli et Pacis, Lib. I. Cap. I. III. 1. 4 Ibid. Lib. I. Cap. I. IV. 5 Est et tertia juris significatio, quae idem valet quod lex, quoties vox legis largissime sumitur, ut sit regula actuum moralium obligans ad id quod rectum est. Obligationem requirimus: nam consilia, et si qua sunt alia praescripta, honesta quidem, sed non obligantia, legis aut juris nomine non veniunt. Permissio autem proprie non actio est legis, sed actionis negatio, nisi quatenus alium ab eo cui permittitur obligat ne impedimentum ponat. Diximus autem, ad rectum obligans, non simpliciter ad justum, quia jus hac notione, non ad solius justitiae, qualem exposuimus, sed et aliarum virtutum materiam pertinet. Attamen ab hoc jure, quod rectum est, laxius justum dicitur. Cap. I. IX. This passage is suggestive of the origin of Blackstone's definition of "Municipal Law." (Ante, p. 26.) "A Municipal Law," says Blackstone, "is a rule of civil conduct 'prescribed by the supreme power in a State, commanding what is right; There is Law Natural and there is Law Voluntary. Law and Law Man is by nature a social animal and endowed with Voluntary. "and prohibiting what is wrong." to justify his positions. And, Firstly, And at great length he proceeds Black It is a rule, i.e. "not a transient sudden order from a superior "to or concerning a particular person; but something permanent, uni"form and universal." Moreover the term rule further operates (a) "To distinguish it from Advice or Counsel, which we are at "liberty to follow or not, as we see proper... Counsel is only matter of 66 'persuasion, law is matter of injunction :" (8) "To distinguish it from a Compact or Agreement: for a "Compact is a promise proceeding from us, law is a command directed "to us." "In compacts we ourselves determine and promise what shall be "done, before we are obliged to do it; in laws, we are obliged to act "without ourselves determining or promising anything at all.” stone's "Munici pal Law" Whence, in brief, it is clear that Blackstone's "Municipal," like Austin's "Proper," and so also Austin's "Positive," Law is command is a comaddressed to one formerly obliged to obey. But commands are of two kinds, general commands which are laws, and special or particular commands which fall short of law. mand addressed to one formerly With Austin "As contradistinguished or opposed to an occasional or obliged to "particular command, a law is a command which obliges a person or obey, "persons, and obliges generally to acts or forbearances of a class." [Province of Jurisprudence, p. 15.] And he takes to task Blackstone as having understood by the gener ality of a Law, as opposed to a Particular Command, obligation on persons of a class, not obligation to actions of a class. [Austin, 1. 97: Clark, Pract. Jur. p. 112 seqq.: Holland, Jur. p. 19 n.] It is, however, by no means obvious that Blackstone's words are so to be interpreted. Rather it would seem that he desired to lay stress on the permanent character of a rule or law as distinguished from the occasional nature of a particular order. "This has permanency, uniformity, "and universality, and therefore is properly a rule.” That is to say, a Rule, and so also a Law, is a Standing Order with uniform, universal application, and so combines the two ideas of operation on persons of a class, and obligation to actions of a class, a combination which does ordinarily appear to be implied in the terms Rule or Law. [Cf. Clark, Pract. Jur. p. 112.] Secondly, It is a rule of Civil conduct." "This distinguishes municipal law from the natural or revealed." By the Natural Law Blackstone understands such of the Laws of God as are ascertainable by Right Reason acting in conformity with the "one “paternal precept' that man should pursue his own true and substantial to Austin's "Positive Law." certain faculties. He has a Social Faculty or Desire after Society, and he has an Intellect or Reason, a "Judgment "to discern Things pleasant or hurtful, and those not only "happiness."" By the Revealed Law he means such Laws of God as have been directly made known to Man by his Creator through the agency of Revelation. and corThe term "Civil," therefore, with Blackstone supplies the function of responds Austin's "Positive"; it separates the Laws of God, or the Laws given by God to Man, from the Laws set by Man to Man, all these being Human Laws, or rules of Human Conduct. With each the desideratum was a term expressive of operation by determinate human sanctions. Unfortunately each of these appellations is exposed to the same objection which may be urged against the epithet Municipal; each and everyone is fruitful of ambiguity. For the term "Municipal" smacks in a certain degree of limitation to small communities, or to communities less than the State: around the term "Civil" group themselves a whole host of common interpretations, varying with the antithesis of the moment: and, grammatically, law set by God is as truly "Positive," as is law set by Man. Thirdly, It is a rule "prescribed." Austin and Blackstone are at one as to the cruelty and unfairness of Ex post facto law, and there seems but small room for animadversion upon the latter's account of the ground of the rule that " Ignorance of the Law is no excuse," in view of his statement that, when a rule "is in the usual manner notified, or prescribed, it is then the subject's business to be thoroughly acquainted therewith: for if ignorance of what he might know were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity." [Cf. Austin, 1. p. 498.] Fourthly, It is prescribed by the Supreme Power. Here Blackstone proceeds to enumerate a theory of Sovereignty, which, stripped of its garb of special pleading and tautological reasoning, is in essence identical with that of Austin. How," says he, "the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. It is not my business to enter into any of them. However they began, or by what right soever they subsist, there is, and must be, in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summa imperii, or the rights of sovereignty reside. And this authority is placed in those hands wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation), the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found." [Comm. 1. 48.] And "As the power of making law constitutes the supreme authority, so of the "present but future, and such as may prove to be so in "their natural consequences." That which is opposed to this Judgment is opposed to the Law of Nature, that is, of Human Nature'. The Law of Nature is rule of con- The origin duct arrived at by man pursuing his Social Desire under "Law of the guidance of his Right Reason, or well-tempered Nature." Judgment. "Natural Right is the Rule and Dictate of "Right-Reason, shewing the Moral Deformity, or Moral "Necessity, there is in any Act, by either its complying, "or disagreeing with Human Nature itself, and conse"quently that such an Act, is either forbid or commanded. "by God, the Author of Nature"." Law Natural is eternal, immutable, as instantly appreciable as that twice two is four. "The Law of Nature is "so unalterable that God Himself cannot change it. For "though the Power of God be Immense, yet may we say, "that there are some things unto which this infinite "Power does not extend. Indeed when we speak so, 'tis "only a manner of speaking that is so far from signifying "any thing, that it implies in it a manifest Contradiction. "For instance then, as twice two should not be four, God "Himself cannot effect; so neither can He, that what is 'intrinsically evil should not be evil"." wherever the supreme authority in any state resides, it is the right of that authority to make laws, that is...to prescribe the rule of civil action." Fifthly, It is a rule " wrong." Comm. 1. 51, 52. Supra p. 36. commanding what is right and prohibiting what is This phraseology may involve either of two things. (a) It may be merely an unnecessary addition declaratory or explanatory of the idea of rule. (b) It may be, and probably was, a lawyer's assertion of the rightful inseparability of Law and Justice, or of Law and Morality. Such a form of expression, however, as this last implies, confuses that which is with that which ought to be. Law, it may well be granted, ought to command the right and to prohibit the wrong. Every law, as being law, is legally right, and right, too, are its commands. But that Law and Equity may be leagues apart, the name of the Chancery Division is an abiding witness to testify. 1 De Jure Belli et Pacis, Proleg. 9. 2 Ibid. Book 1. Cap. 1. x. 1. Translation 1715. 3 Ibid. Book 1. cap. 1. x. 5. |