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DEFINITION, SOURCES, AND SUBJECTS OF INTERNATIONAL LAW.
DEFINITION AND SOURCES OF INTERNATIONAL LAW.
THERE is no legislative or judicial authority, recog- 1. Origin nized by all nations, which determines the law that regu- tional Law. lates the reciprocal 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 organized 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?
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.
§ 2. Na- The leading object of Grotius, and of his immediate defined. disciples and successors, in the science of which he was the founder, seems to have been, First, 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 rights of war and peace, (de jure belli ac pacis,) 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 labors 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 social 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." 1
1 "Jus naturale est dictatum rectæ rationis, indicans actui alicui, ex ejus convenientiâ aut disconvenientiâ cum ipsâ naturâ rationali, inesse moralem turpitudinem, aut necessitatem moralem, ac consequenter ab auctore naturæ, Deo, talem actum aut vetari aut præcipi.
"Actus de quibus tale extat dictatum, debiti sunt aut illiciti per se, atque ideo à Deo necessario præcepti aut vetiti intelliguntur." Grotius, de Jur. Bel. ac Pac. lib. i. cap. 1, § x. 1, 2.
The term Natural Law is here evidently used for those rules of justice which ought to govern the conduct tural Law of men, as moral and accountable beings, living in a with the law of God, social state, independently of positive human institu- or Divine tions, (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.
As independent communities acknowledge no com- Natural mon superior, they may be considered as living in a Law applied to the state of nature with respect to each other: and the intercourse obvious inference drawn by the disciples 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.
Grotius distinguished the law of nations from the §4. Law natural law by the different nature of its origin and obli- distinguishgation, which he attributed to the general consent of Natural nations. In the introduction to his great work, he says, Grotius. "I have used in favor of this law, 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." He had previously said, "As the laws of each 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."1
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 together 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
1 "Usus sum etiam ad juris hujus probationem testimoniis philosophorum, historicorum, poëtarum, postremò et oratorum; non quod illis indiscretè credendum sit; solent enim sectæ, argumento, causæ servire: sed quòd ubi multi diversis temporibus ac locis idem pro certo affirmant, id ad causam universalem referri debeat; quæ in nostris quæstionibus alia esse non potest quàm aut recta illatio ex naturæ principiis procedens, aut communis aliquis consensus. Illa jus naturæ indicat, hic jus gentium: quorum discrimen non quidem ex ipsis testimoniis, (passim enim scriptores voce juris naturæ, et gentium permiscent,) sed ex materiæ qualitate intelligendum est. Quod enim ex certis principiis certâ argumentatione deduci non potest, et tamen ubique observatum apparet, sequitur ut ex voluntate liberâ ortum habeat." * "Sed sicut cujusque civitatis jura utili
tatem suæ civitatis respiciunt, ita inter civitates aut omnes aut plerasque ex consensu jura quædam nasci potuerunt; et nata apparent, quæ utilitatem respicerent non cœtuum singulorum sed magnæ illius universitatis. Et hoc jus est quod gentium dicitur, quoties id nomen à jure naturali distinguimus." Grotius, de Jur. Bel. ac Pac. Prolegom. 40, 17.
endeavored 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, recognized 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,1 but clearly expressed and adopted by Cumberland,2 and admitted by almost all subsequent writers, as the test of international morality. 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 inquiry are observation and meditation; the one furnishing us with facts, the other enabling us to discover the connection of these facts as causes and effects, and to predict the results which will follow, whenever similar causes are again put into operation.1
1 Et jus quidem merum sive strictum nascitur ex principio servandæ pacis; æquitas sive caritas ad majus aliquid contendit, ut dum quisque alteri prodest quantum potest, felicitatem suam augeat in aliena; et ut verbo dicam, jus strictum miseriam vitat, jus superius ad felicitatem tendit, sed qualis in hanc mortalitatem cadit. Leibnitz, de Usu Actorum Publicorum, § 13.
2 Lex naturæ est propositio naturaliter cognita, actiones indicans effectrices communis boni. Cumberland, de Legibus Naturæ, cap. v. § 1.
3 Bentham's Principles of International Law. Works, Part VIII. p. 537. Edit. Bowring.
4 Senior, Edinburgh Review, No. 156, p. 310, 321.