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THE LEAGUE OF NATIONS

AND THE

NEW INTERNATIONAL LAW

CHAPTER I

CONCEPTIONS OF INTERNATIONAL LAW

"By painful stage after stage," said President Wilson, "has that law [international law] been built up with meager enough results indeed after all was accomplished that could be accomplished, but always with a clear view at least of what the heart and conscience of mankind demanded." Some of those stages, which are referred to by the President, include the academic struggle which has been more or less in evidence since the time of Grotius, as to what conception of international law was correct, if, indeed, there was any law at all, which has by some writers been seriously questioned. The conceptions which have received any considerable following will be considered briefly.

The Grotian School. - Properly enough the conception of international law held by Grotius has been made the basis for the discussions of later writers and statesmen. This great Dutch jurist, who is well called the father of international law, set forth his views in 1625 in a work that has become a classic. Natural law," he believed, "is the dictate of right reason, pronouncing that there is in some actions a moral obligation, and in other actions 1 April 2, 1917.

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a moral deformity, arising from their respective suitableness or repugnance to the rational and social nature, and that consequently such actions are either forbidden or enjoined by God the author of nature. Actions which are the subject of this exertion of reason are in themselves lawful or unlawful, and are, therefore, as such necessarily commanded or prohibited by God.

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"In the subject now in question [that is, natural and international law] this cause [of concurring sentiment of writers, historians and philosophers] must be either a just deduction from the principle of natural justice, or universal consent. The first discovers to us the natural law, the second the law of nations. . . . If a certain maxim, which cannot be fairly inferred from admitted principles, is, nevertheless, found to be everywhere observed, there is reason to conclude that it derives its origin from positive institution." 2

Grotius saw clearly enough that the law of nature was of itself insufficient for governing the intercourse between nations, and he recognized that principles of international law arose by agreement of minds and by common consent found in custom and tacit compact (moribus et pacto tacito introductum).3 This class of law he called jus gentium voluntarium or jus constitutum. Here is seen a distinction between natural law and the law of nations which is created by positive institution: a distinction which gave rise to the two schools of international law called the naturalists and the positivists. The difference between natural law and international law, as conceived by Grotius, was that the former is a body of necessarily existing, fundamental principles determined by God, the author of nature, without

1 De Jure Belli ac Pacis, lib. I, cap. I, sect. X, 1, 2.
2 Ibid., Prolog. sect. XLI. Ibid., sect. XVII.

which nations as such cannot exist. The latter is a body of laws created by universal consent, positive institution, and agreement of the collective opinion of mankind.

The Hobbes' Conception. The philosopher Hobbes identified natural law and international law. Writing in 1647, about two decades after Grotius' great work appeared, he stated that "natural law may be divided into the natural law of men and the natural law of States, commonly called the law of nations. The precepts of both are the same; but since States, when they are once instituted, assume the personal qualities of individual men, that law, which when speaking of individual men, we call the law of nature, is called the law of nations when applied to whole States, nations, or peoples." 1 While Hobbes here identifies natural and international law, he does differentiate the subjects to which each applies. In his conception there is no place for positive or instituted law which was conceived by his predecessor, Grotius.

Pufendorf's Conception.

The German writer, Pufendorf, who while ambassador to Switzerland, was imprisoned in violation of international law, wrote a volume on international law while he was in prison. Doubtless he was inspired to his task by the breach of the age-long principle of inviolability of an ambassador's person and premises and by the further fact that he had ample time, while in his lonely prison cell, to set down his thoughts. "Natural law," he wrote, "is that which is so exactly fitted to suit with the rational and social nature of man that he cannot maintain peaceful fellowship without it. Positive law, on the other hand, is sometimes called voluntary, because no positive law has such an agreeableness with human nature as to be necessary in general for the preservation of man1 De Cive, cap. XIV, sect. 4 (1647).

kind, or as to be known or discovered without the help of express and peculiar promulgation." 1

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Elsewhere, he held that positive international law actually flows from natural law, besides which there is no other sort of law of nations, voluntary or positive, at least which has the force of law properly so called, binding upon nations as emanating from a superior." It is here seen that Pufendorf practically identifies natural law, and international law, which he believed had no force unless it were founded on natural law itself.

Phillimore's Conception. The eminent English authority, Sir Robert Phillimore, has expressed in very clear terms the relation between natural and positive law:

"The necessity of mutual intercourse is laid down in the nature of States, as it is of individuals, by God, who willed the State and created the individual. The intercourse of nations, therefore, gives rise to international rights and duties, and these require an international law for their regulation and enforcement. That law is not enacted by the will of any common superior upon earth, but it is enacted by the will of God; and it is expressed in the consent, tacit or declared, of independent nations. The law which governs the external affairs, equally with that which governs the internal affairs, of States receives accessions from custom and usage, binding the subjects of them as to things which, previous to the introduction of such custom and usage, might have been in their nature indifferent. Custom and usage, moreover, outwardly express the consent of nations to things which are naturally, that is, by the law of God, binding upon them. But it is to be remembered that, in this

1 Law of Nature and of Nations, Book I, ch. IV, sect. 18.

2 Ibid., Book II, ch. III, sect. 23.

latter case, usage is the effect and not the cause of the law." 1

The Austinian School. The English jurist, Austin, and others who have looked to him as the expounder of their views, denied that international law was law at all, in the true sense. He thought that there was no international law in the same sense that there is a municipal law, because there was no common political superior to enforce the former. His view is the more interesting when the sanctions established by the Covenant are kept in mind. He wrote thus in 1832:

"Laws are commands proceeding from a determinate rational being, or a determinate body of rational beings to which is annexed an eventual evil as the sanction. Such is the law of nature, more properly called the law of God, or the divine law; and such are political human laws prescribed by political superiors to persons in a state of subjection to their authority. But laws imposed by general opinion are styled laws by an analogical extension of the term. Such are the laws which regulate the conduct of independent political societies in their mutual relations, and which are called the law of nations or international law. The law obtaining between nations is not positive law; for every positive law is prescribed by a given superior or sovereign to a person or persons in a state of subjection to its author. The rule regarding the conduct of sovereign States, considered as related to each other, is termed law by its analogy to positive law, being imposed upon nations and sovereigns, not by the positive command of a superior authority, but by opinions generally current among nations. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of

1 International Law, I, Preface (1832); italics mine.

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