hope that Dr. Phillipson may live to put forth another edition of this book which will exhibit the custom and ordinance of civilized nations at last clothed with fitting authority, and armed with power to assure the harmony of the world. LINCOLN'S INN, CHRISTMAS VACATION, 1915. F. POLLOCK. ELEMENTS OF INTERNATIONAL LAW. PART FIRST. DEFINITION, SOURCES, AND SUBJECTS OF CHAPTER I. DEFINITION AND SOURCES OF INTERNATIONAL LAW. International THERE is no legislative or judicial authority, recognised by all Origin of nations, which determines the law that regulates the reciprocal Law. relations of States. The origin of this law must be sought in the principles of justice, applicable to those relations. While in every civil society or State there is always a legislative power which establishes, by express declaration, the civil law of that State, and a judicial power which interprets that law, and applies it to individual cases, in the great society of nations there is no legislative power, and consequently there are no express laws, except those which result from the conventions which States may make with one another. As nations acknowledge no superior, as they have not organised any common paramount authority, for the purpose of establishing by an express declaration their international law, and as they have not constituted any sort of Amphictyonic magistracy to interpret and apply that law, it is impossible that there should be a code of international law illustrated by judicial interpretations. The inquiry must then be, what are the principles of justice which ought to regulate the mutual relations of nations, that is to say, from what authority is international law derived? Natural Law defined. Natural Law identical of God, or Divine Law. When the question is thus stated, every publicist will decide it according to his own views, and hence the fundamental differences which we remark in their writings. The leading object of Grotius, and of his immediate disciples and successors, in the science of which he was the principal founder (a), seems to have been, firstly, to lay down those rules of justice which would be binding on men living in a social state, independently of any positive laws of human institution; or, as is commonly expressed, living together in a state of nature"; and, secondly, to apply those rules under the name of Natural Law. to the mutual relations of separate communities living in a similar state with respect to each other. With a view to the first of these objects, Grotius sets out in his work, on the laws of war and peace (b), with refuting the doctrine of those ancient sophists who wholly denied the reality of moral distinctions, and that of some modern theologians, who asserted that these distinctions are created entirely by the arbitrary and revealed will of God, in the same manner as certain political writers (such as Hobbes) afterwards referred them to the positive institution of the civil magistrate. For this purpose, Grotius labours to show that there is a law audible in the voice of conscience, enjoining some actions, and forbidding others, according to their respective suitableness or repugnance to the reasonable and sociable nature of man. "Natural law," says he, "is the dictate of right reason pronouncing that there is in some actions a moral obligation, and in other actions 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” (c). The term Natural Law is here evidently used for those rules of with the law justice which ought to govern the conduct of men, as moral and accountable beings, living in a social state, independently of positivo human institutions, (or, as is commonly expressed, living in a state of nature,) and which may more properly be called the law of God, or the divine law, being the rule of conduct prescribed by Him to His rational creatures, and revealed by the light of reason, or the Sacred Scriptures. (a) On Grotius, see Article by Sir national (Paris, 1904), ed. A. Pillet. applied to the As independent communities acknowledge no common superior, Natural Law they may be considered as living in a state of nature with respect intercourse to each other: and the obvious inference drawn by the disciples of States. and successors of Grotius was, that the disputes arising among these independent communities must be determined by what they call the Law of Nature. This gave rise to a new and separate branch of the science, called the Law of Nations, Jus Gentium' (d). 66 Nations dis Grotius distinguished the law of nations from the natural law Law of by the different nature of its origin and obligation, which he tinguished attributed to the general consent of nations. In the introduction from Natural Law, by to his great work, he says, I have used in favour of this law, Grotius. the testimony of philosophers, historians, poets, and even of orators; not that they are indiscriminately to be relied on as impartial authority; since they often bend to the prejudices of their respective sects, the nature of their argument, or the interest of their cause; but because where many minds of different ages and countries concur in the same sentiment, it must be referred to some general cause. In the subject now in question, this cause must be either a just deduction from the principles of natural justice, or universal consent. The first discovers to us the natural law, the second the law of nations. In order to distinguish these two branches of the same science, we must consider, not merely the terms which authors have used to define them, (for they often confound the terms 'natural law' and 'law of nations,) but the nature of the subject in question. For 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" (e). He had previously said, "As the laws of cach particular State are designed to promote its advantage, the consent of all, or at least the greater number of States, may have produced certain laws between them. And, in fact, it appears that such laws have been established, tending to promote the utility, not of any particular State, but of the great body of these communities. This is what is termed the Law of Nations, when it is distinguished from Natural Law" (f). (d) With respect to the 'jus gentium' as understood by the Romans, see Maine, Ancient Law, ed. Sir F. Pollock (1905), pp. 44 seq.; International Law, Lects. i. and ii.; C. Phillipson, International Law and All the reasonings of Grotius rest on the distinction which he makes between the natural and the positive or voluntary Law of Nations. He derives the first element of the Law of Nations from a supposed condition of society, where men live togethor in what has been called a state of nature. That natural society has no other superior but God, no other code than the divine law engraved in the heart of man, and announced by the voice of conscience. Nations living together in such a state of mutual independence must necessarily be governed by this same law. Grotius, in demonstrating the accuracy of his somewhat obscure definition of Natural Law, has given proof of a vast erudition, as well as put us in possession of all the sources of his knowledge. He then bases the positive or voluntary Law of Nations on the consent of all nations, or of the greater part of them, to observe certain rules of conduct in their reciprocal relations. He has endeavoured to demonstrate the existence of these rules by invoking the same authorities, as in the case of his definition of Natural Law. We thus see on what fictions or hypotheses Grotius has founded the whole Law of Nations. But it is evident that his supposed state of nature has never existed. As to the general consent of nations of which he speaks, it can at most be considered a tacit consent, like the 'jus non scriptum quod consensus facit of the Roman jurisconsults. This consent can only be established by the disposition, more or less uniform, of nations to observe among themselves the rules of international justice, recognised by the publicists. Grotius would, undoubtedly, have done better had he sought the origin of the Natural Law of Nations in the principle of utility, vaguely indicated by Leibnitz (g), but clearly expressed and adopted by Cumberland (h), and admitted by almost all subsequent writers, as the test of international morality (i). But in the time that Grotius wrote, this principle which has so greatly contributed to dispel the mist with which the foundations of the science of International Law were obscured, was but very little understood. The principles and details of international morality, as distinguished from international law, are to be obtained not by applying to nations the rules which ought to govern the conduct of individuals, but by ascertaining what are the rules of international conduct which, on the whole, best promote the general happiness of mankind. The means of this (g) Leibnitz, De usu Actorum Publicorum, § 13. (h) Cumberland, Naturæ, cap. v. § 1. De Legibus () Bentham, Principles of International Law; Works, ed. Bowring, Part VIII. p. 537. |