About Authority and Saction of International Law, Historical 3

About Authority and Saction of International Law, Historical 3 in Europe

It would appear, therefore, from the authorities which I have cited that in the two great English-speaking people of the world, one descended from the other, there prevail two, and possibly three, opinions as to the obligatory force of International Law on individual states. The lawyers and statesmen of the United States of America regard the acknowledgment of and submission to the international system as duties which devolve on every independent sovereignty through the fact of its being admitted into the circle of civilized Governments. Among the English judges, Lord Coleridge considers that the assent of a nation is necessary to subject it to International Law, but that in the case of Great Britain and all the other civilised European Powers this assent has been given either by express action or declaration, or at all events by non-dissent. Lastly, Lord Chief Justice Cockburn, while accepting the view that International Law became binding on states by their assent to it, manifestly thought that this assent must somehow be conveyed by the acquiescing state in its sovereign character, through some public action which its Constitution recognizes as legally qualified to adopt a new law or a new legal doctrine; that is, in Great Britain by Act of Parliament or by the formal declaration of a Court of Justice. The two opinions which I first mentioned, that over and over again propounded in the American Digest and that of Lord Coleridge, though the language used is somewhat inexact and in one case too metaphorical, seem to me to express the doctrine of the whole civilised world outside Great Britain, and to conform to the historical explanation which I will presently place before you. On the other hand, the opinion of Lord Chief Justice Cockburn, which is one to which English judges, always busily occupied in interpreting and applying the laws of this country, are naturally liable, would have caused the greatest inconvenience if it had been declared to be part of the law of England. It practically is that the international rules could only have been imported into our system by one of the modern processes by which our institutions are changed. In that case each separate alleged rule of International Law would have had to be shown to have been engrafted on our legal system by the legislation of Parliament, by the alternative legislation, within certain limits, of the English Courts, or by the conformity of the rule with some provable usage. For a simple rule a most complicated rule would have been substituted.

The point immediately before the English Court of Criminal Appeal can never arise again since the passing of the Territorial Waters Act; but it is conceivable, if not likely, that we have not heard the last of the more general question of principle. I may say that it seems to me that the solution of the difficulty can only be supplied by the historical method. As I have asserted many times, these systems of law have not always been extended over the countries in which they are found prevailing by what we call legislation. In more ancient times, and to a great extent even at this day, in that Eastern portion of the world in which so much of the usages of earlier mankind still survive, systems of religion and systems of morals, generally drawing with them some system of laws, gain currency by their own moral influence; certain minds being naturally predisposed to recede them acquiesce in them even with enthusiasm. Mr. Justice Stephen, in the controversial work which he calls ‘Liberty, Equality, and Fraternity,’ has an eloquent passage on the subject. ‘The sources of religion lie hid from us. All that we know is, that now and again in the course of ages some one sets to music the tune which is haunting millions of ears. It is caught up here and there, and repeated till the chorus is thundered out by a body of singers able to drown all discords and to force the vast unmusical mass to listen to them. Such results as these come not by observation, but when they do come they carry away as with a flood and hurry in their own direction all the laws and customs of those whom they affect.’ What is here said of religion, is true to a certain extent of morality. In the East a body of new moral ideas is sure in time to produce a string of legal rules; and it is said by those who know India and its natives well that the production of what for want of a better name we must call a Code is a favourite occupation with learned and active minds, though of course in a country which nowadays follows to a great extent the morality (though not the faith) of Christian Europe, and receives new laws from a regularly constituted Legislature, the enthusiasm for new moral doctrines is ever growing feebler and the demand for legal rules accommodated to them is becoming less. Now, International Law was a Code in the same sense in which many Eastern collections of rules were Codes. It was founded on a new morality, that which had been discovered in the supposed Law of Nature, and in some minds it excited unbounded enthusiasm.

The same process had previously been followed in Europe as regards Roman Civil Law. We may not quite understand the admiration which the technical part of the Roman Law inspired, but of the fact there is no doubt. This process by which laws extended themselves had not quite died out when the international jurists appeared, and in point of fact their system of rules was received by the world very much as a system of law founded on morals is received to this day in the East. No doubt it fell on soil prepared for it. The literate classes, the scholars, great parts of the clergy, and the sovereigns and statesmen of Europe accepted it, and the result was an instant decay of the worst atrocities of war. Indeed, it is only necessary to look at the earliest authorities on International Law, in the ‘De Jure Belli et Pacis’ of Grotius for example, to see that the Law of Nations is essentially a moral and, to some extent a religious, system. The appeal of Grotius is almost as frequent to morals and religion as to precedent, and no doubt it is these portions of the book, which to us have become almost commonplace or which seem irrelevant, which gained for it much of the authority which it ultimately obtained.

The bulk of these lectures will consist of an account, as summary as I can make it, of such portions of the International system as appear to me to be reasonably settled; but before I proceed to this portion of my course, I think I ought to say something on some modern criticisms of the basis of International Law which have made their appearance quite recently, and which I think have a tendency to multiply. The criticisms to which I refer appear to me to be a singular proof of the great authority which in our day has been obtained by the treatise of John Austin on the Province of Jurisprudence. They are in fact to a considerable extent a re-statement of his positions. The scope of Austin’s undertaking in this classical work is often nowadays exaggerated. He attempted, by analysis of the various conceptions which law in its various senses includes, to select one sense of law in which legal generalizations were possible. His ultimate object appears to have been to effect a scientific rearrangement of law as a Code. Little unfortunately has been done at present, save perhaps in the German Empire and in India, to carry out this object; but no doubt Austin did do something towards the ultimate codification of positive law by confining his investigation to the various subordinate conceptions which make up law as so understood. As probably many of you know, his fundamental assertion is that in every country there is some portion of the community which can force the rest to do exactly what it pleases. This is called by him the ‘Sovereign,’ a word on which it is necessary as soon as possible to observe that it is here taken in a different sense from that in which it is employed by the classical writers on International Law. From Austin’s point of view International Law resembled morality more than law; it was chiefly enforced by disapprobation of acts committed in violation of it; it could not be resolved into the command of any sovereign.

In my next lecture, I shall contrast this word ‘Sovereignty’ as used by Austin and the so-called school of analytical jurists with its use in International Law, and specially consider the rights over land and water which are asserted by international lawyers to arise logically from the conception of Sovereignty.

In my first lecture I spoke of the criticisms on International Law conducted by John Austin in his ‘Province of Jurisprudence Determined’ as very interesting and quite innocuous; but the results are sometimes so stated as if they showed that Austin had intended to diminish, and had succeeded in diminishing, the dignity or imperative force of International Law. An observation here must be made that one sense of law is just as good and dignified as another, if it be only consistently used. In philosophy the commonest sense of law is that in which it is used by such writers as the author of the book called ‘The Reign of Law.’ No term can be more dignified or more valuable than ‘law’ as thus employed. What we have to do, is to keep this meaning of law separate in our minds from law in other senses. It is very convenient, when the main subject of thought is positive law, that we should remember that International Law has but slender connection with it, and that it has less analogy to the laws which are the commands of sovereigns than to rules of conduct, which, whatever be their origin, are to a very great extent enforced by the disapprobation which attends their neglect. What is most important to recollect are the points of collection which do exist between International Law and positive law.

Here one cannot but remark that a serious mistake as to human nature is becoming common in our day. Austin resolved law into the command of a sovereign addressed to a subject, and always enforced by a sanction or penalty which created an imperative duty. The most important ingredient brought out by this analysis is the sanction. Austin has shown, though not without some straining of language, that the sanction is found everywhere in positive law, civil and criminal. This is, in fact, the great feat which he performed, but some of his disciples seem to me to draw the inference from his language that men always obey rules from fear of punishment. As a matter of fact this is quite untrue, for the largest number of rules which men obey are obeyed unconsciously from a mere habit of mind. Men do sometimes obey rules for fear of the punishment which will be indicted if they are violated, but, compared with the mass of men in each community, this class is but small — probably, it is substantially confined to what are called the criminal classes — and for one man who refrains from stealing or murdering because he fears the penalty there must be hundreds or thousands who refrain without a thought on the subject. A vast variety of causes may have produced this habit of mind. Early teaching certainly has a great deal to do with it; religious opinion has a great deal to do with it; and it is very possible, and indeed probable, that in a vast number of cases it is an inherited sentiment springing from the enforcement of law by states, and the organs of states, during long ages. Unfortunately it has been shown in our day that the mental habit, so far as regards positive civil and criminal law, may be easily destroyed by connivance at violations of rule; and this is some evidence of its having a long descent from penal law once sternly enforced.

What we have to notice is, that the founders of International Law, though they did not create a sanction, created a law-abiding sentiment. They diffused among sovereigns, and the literate classes in communities, a strong repugnance to the neglect or breach of certain rules regulating the relations and actions of states. They did this, not by threatening punishments, but by the alternative and older method, long known in Europe and Asia, of creating a strong approval of a certain body of rules. It is quite true that some of the reasons given by Grotius for International Law would not now commend themselves if they were presented to the mind for the first time; but it does not do to look too far back into the origins of law for the reasons of its establishment. Much of the beginnings of English Law is to be found in the Year Books; but it would not be too harsh to say that some of the reasons given for rules now received, which are to be found in the Year Books, are mixed with a great deal of sheer nonsense. The original reasons for the International rules are possibly to some extent nonsense: they often seem to us commonplace, they are often rhetorical, they are often entangled with obsolete theories of morals or deductions from irrelevant precedents, and on the other hand they often assume a power of discerning what the Divine pleasure is on a particular subject which the ideas of the present day would not admit. As to their expediency, that has to be decided by experience, and experience has, on the whole, pronounced decisively in their favour.

There are, however, at the same time some real defects in International Law which are traceable to the difference between that law and positive law, and the absence of mechanism by which positive law is developed. International Law was not declared by a Legislature, and it still suffers from want of a regular Legislature to improve and to develop it. It is still developed by the antiquated method of writer commenting on writer, no security being nowadays taken for the competence or authority of the writer except vague opinion. There are really writers who through confusedness, or through natural prejudice, are open to the implied censure of Dr. Whewell that they have rather encouraged than diminished the risk and the evils of war. International Law suffers also from the absence of any method of authoritatively declaring its tenor on some of its branches, and above all from the absence of any method of enforcing its rules short of war or fear of war. All these are real and often formidable drawbacks on the usefulness of International Law,and no teacher of International Law can neglect them. Before the end of this course, though not quite immediately, I propose to examine them, and to consider whether the grooving experience of civilised mankind points to any new remedies or better means of enforcing old ones.

From Henry Maine, “Its Authority and Sanction”, International Law

See Also

  • About Authority and Saction of International Law, Historical
  • About Authority and Saction of International Law, Historical 2
  • About the Origins and Sources of International Law, Historical
  • Mandatory or Binding vs. Persuasive Authority
  • Primary vs. Secondary Authority
  • About the Declaration of Paris, Historical



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