armed with a definite sanction, are really laws. Those that are set merely by general opinion are not laws. Their authors are an indeterminate body; and though it is possible that those who disobey them will be made in some way to suffer in consequence of their disobedience, yet there is no clearly defined penalty denounced beforehand against the disobedient. This class of precepts comprises most of the customary rules observed among mankind. The laws of fashion, the rules of politeness, the generally observed conventions as to propriety of conduct, are obviously included within it. International Law does not at first sight seem to bear much resemblance to these. Yet, according to Austin, it is properly classed along with them; for it is set to governments and nations, not by any common superior armed with power to enforce obedience, but by the public opinion of civilized states; and in case of disobedience, no definite punishment is authoritatively denounced against the offender, though in all probability some other state or states will bring some evil to bear upon it in consequence of the offence. § 10. It never seems to have occurred to Austin that any defini Austin lays stress only in a complex conception. tion of law other than his own could be constructed with the slightest approach to scientific accuracy. But upon one element in truth, his results are obtained by seizing upon one element only in the ordinary conception of law, and elaborating it to the exclusion of all the rest. It is quite possible to take other elements in the same complex conception, and elaborate them with precision equal to that of the great analytical jurist. He gives prominence to the idea of force. A law is a precept which you can be compelled to obey. He who can bring evil upon you can set you a law. You are under a law when you are impelled by fear of evil to observe another's command. But it is clear that the idea of orderly and methodical procedure towards a given end is also part of the usual notion of law. When human conduct is controlled by no principles, when we discover no consistent rule of action, when restraining power is absent and all is irregular and chaotic, we at once describe such a life as lawless. Now we can surely make this notion of order and restraint the pivot of our definition of law, with just as much accuracy as Austin makes his definition turn upon the notion of superior force. For in truth, the idea of law contains so many elements, that no definition could include them all; and it is absolutely necessary to take a portion only of the conception and treat it for the purposes of definition as if it were the whole. A similar method has sometimes to be followed in other sciences. The economist, for instance, constructs a theory of exchanges based upon the tacit assumption that men are actuated by the desire of gain. But he knows that in practice other motives are at work. Habit, love of ease, the desire to do a neighbor a good turn, the wish to benefit persons of a particular way of thinking, a feeling in favor of social justice, and countless other considerations, act upon people even in their commercial transactions. But it would be absolutely impossible to calculate beforehand the force of all these motives. The student of the mechanism of exchange, therefore, seizes upon that which is the most prominent, and powerful, and universal of all that operate in matters of trade. He calculates as if it were the only one; and then proclaims that in practice allowance must be made for others, because their effect is to modify, in a greater or less degree, the results that would have occurred had the main motive been the only one. In the same way the jurist should understand that in constructing a definition of Law he must be content to take a few of the most prominent features in a very complex notion, and should admit that the classifications based upon his definition cannot represent with absolute accuracy the ordinary ideas of mankind. 1 Cf. Maine, Early Institutions. Lecture XII. It is possible to make a definition of Law turn upon the idea of order instead of the idea of force, and if this is done Interna in the strictest sense. § 11. But there is a peculiarity about the notion of Law which renders it almost impossible to define the thing so as to command universal assent. No one element in the notion is so prominent that all the others are small in comparison with it. At one time we seem instinctively to consider a law as the comtional Law is Law mand of a superior, at another as the regulator of conduct, at a third as that which compels the unwilling to comply in outward act at least with the rudimentary precepts of righteousness, at a fourth simply as the producer of uniformity, and at a fifth as a command proceeding from properly constituted authority. Now it is difficult to say which of these ideas should be worked into a definition of Law to the exclusion of the others; and yet it is clearly impossible to include them all if we would avoid inextricable confusion. The first two are certainly the most important, and writers on Jurisprudence generally take one or the other of them as the starting-point of their speculations. Austin has worked out in detail the conception of Law as the command of a superior, and has based upon it an important and accurate classification of the different kinds of rules observed among men. Others, of whom perhaps Richard Hooker, the great Elizabethan divine, may be taken as the best representative, have adopted as their fundamental idea with regard to law the notion that it is that which regulates conduct. Hooker, in the first book of his Ecclesiastical Polity, when speaking of those who had anticipated by more than two centuries the fundamental doctrine of Austin, says: "They apply the name of Law to that only rule of working which superior authority imposeth; whereas we, somewhat more enlarging the sense thereof, term any rule or canon, whereby actions are framed, a law." Hooker does not work out his fundamental conception with the scientific precision of Austin; but with a few alterations and improvements his classification of the various kinds of rules might be made as accurate as that of the later jurist. Each would be impregnable to criticism, if once its fundamental principle were granted. Both principles are involved in the complex conception of law. Both definitions of law are the results of abstraction. That is to say, they are obtained by withdrawing attention from all other portions of the notion and concentrating it upon the one portion which is deemed most important. The only question for argument is, Which of the two ideas is the key to the greatest number of distinctions between various kinds of rules, which can be made the basis of the classification most convenient for the purposes of daily life and most fruitful of results in the field of juristical research? Any attempt to answer this question would be foreign to our present purpose. It will be sufficient to point out here that Hooker's definition of Law as "any rule or canon whereby actions are framed "1 clearly included International Law, since that law is a collection of rules for the guidance of human conduct in one of its most important spheres of activity. Austin, as we have seen, denies the term Law to the rules which govern the mutual intercourse of states. International Law is, therefore, properly called Law if we take one definition, improperly so called if we take another definition. But since the common consent of writers upon the subject gives it the disputed title, we need not hesitate to adopt the name without making an attempt to solve the difficult question of its perfect accuracy. We shall use the phrase International Law as a clearly defined term with a technical meaning useful for our present purpose. In the preceding chapter we endeavored to draw out step by step its full signification. In this chapter we have tried to show that the word Law can be, and has been, so defined as to make its use in connection with the rules that purport to govern the intercourse of states perfectly legitimate. To go further would involve entering upon a long 1 Ecclesiastical Polity, I., III., i. controversy more fit for a work on Jurisprudence than for one on International Law. Usage is on our side, and there is no valid reason why we should disregard it. Indeed, we shall speak not only of International Law, but of International Morality also, meaning by the former phrase rules which states have expressly or tacitly consented to observe, and by the latter rules which in our view they ought to observe. Thus in passing judgment upon the conduct of a state on a given occasion, we shall be able to say it was both legal and moral, or it was legal but not moral, or it was moral but not legal, or it was neither moral nor legal. And, as if there was not in these statements a sufficient wealth of alternatives, the writings of publicists provide us with yet another. They speak of the Comity of Nations, meaning thereby those rules of courtesy which states sometimes accord to one another though not bound to do so by the accepted international code. We have to add, therefore, to International Law and International Morality, International Comity also. A state-act may be legal, moral, courteous, or any combination of these three. Importance of the historical method. $12. The next subject to be discussed is far more important. It matters very little whether we call International Law by that name, or by one somewhat different, as long as both names signify the same thing; but it matters a great deal whether we regard it as an a priori inquiry into what the rules of international intercourse ought to be, or an historical investigation of what they are. Our conception of the science as a whole, and our treatment of it, both in principle and in detail, must be determined by the views we hold upon this great question; and it will be well, therefore, if we make them as clear as possible. Confused notions upon this point have been, and 1 See the author's paper on the subject in his Essays on Some Disputed Questions in Modern International Law. |