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DEFINITION AND GENERAL SCOPE
(a) Philosophical : what ought to be.
(6) Scientific: what is. 2. DIVISIONS.
(6) Private. 3. SCOPE.
§ 1. Definition International law may be considered from two points of view, viz. :
(a) From the philosophical point of view, as setting forth the rules and principles which ought to be observed in interstate relations.
(6) From the scientific point of view, as setting forth the rules and principles which are generally observed in interstate relations.
Wheaton, D., 23: “International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent.” See also I. Pradier-Fodéré,
pp. 8, 41.
Early writers treated especially of those principles which ought to be observed in interstate action, and the wealth of quotation and testimony introduced to establish the validity of principles now considered almost axiomatic, is overwhelming. In the days of Ayala, , Brunus, Gentilis, Grotius, and Pufendorf, all the argument possible was needed to bring states to submit to these principles. The conditions and relations of states have so changed that at the present time a body of fairly established rules and principles are observed in interstate action, and form the subject-matter of international law.1
§ 2. Divisions International law is usually divided into :
(a) Public international law, which treats of the rules and principles which are generally observed in interstate action, and
(6) Private international law, which treats of the rules and principles which are observed in cases of conflict of jurisdiction in regard to private rights. These cases are not properly international, and a better term for this branch of knowledge is that given by Judge Story, “ The Conflict of Laws.” 2
International law, in the true sense, deals only with state affairs.
§ 3. Scope International law is generally observed by civilized states; even some of those states not fully open to western civilization profess to observe its rules. The expansion of commerce and trade, the introduction of new and rapid means of communication, the diffusion of knowledge through books and travel, the establishment of permanent embassies, the making of many treaties containing the same general provisions, and the whole movement of modern civilization toward unifying the interests of states, has rapidly enlarged the range
1 Hall, Introductory chapter.
2 Dicey, “Conflict of Laws,” English, with notes of American cases, by J. B. Moore.
of international action and the scope of international law. Civilized states, so far as possible, observe the rules of international law in their dealings with uncivilized communities which have not yet attained to statehood. International law covers all the relations into which civilized states may come, both peaceful and hostile. In general, it should not extend its scope so as to interfere with domestic affairs or to limit domestic jurisdiction, though it does often limit the economic and commercial action of a given state, and determine to some extent its policy.
1 Wheaton's "International Law,” translated and made a textbook for Chinese officials in 1864.
4. EARLY TERMINOLOGY.
(a) Jus naturale.
5. HISTORICAL BASES.
6. ETHICAL BASES.
7. JURAL BASES.
(a) Roman law.
(e) Admiralty law. 8. INTERNATIONAL LAW AND STATUTE LAW. 9. HOW FAR IS INTERNATIONAL LAW ENTITLED TO BE CALLED
§ 4. Early Terminology The conception of those rules and principles of which international law treats has varied greatly with periods, with conditions, and with writers.
The early terminology indicates the vagueness of the conceptions of the principles governing conduct of man toward his fellows.
(a) Jus naturale is defined broadly by Ulpian as 6 the law which nature has taught all living creatures,
1“ Inst.," I., 1, 1.