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still are, at the bottom of countless obscurities in the writings of publicists, and countless controversies among statesmen and jurists.

§ 13.

Ethical considera


International Law.

First, however, let us observe that whether we approach our science from the ethical or the historical side it will be impossible to exclude from our treatment of it all considerations derived from the opposite excluded from point of view. If we hold that our object is to discover the principles and precepts of international intercourse that are most conformable to justice and humanity, we shall still be obliged to take into consideration, from time to time, the actual practice of states, and inquire into the rules which they do in fact observe. Neither in national nor in individual affairs is it possible to decide upon what ought to be without some knowledge of what is. Just as moralists, in discussing the rules of right applicable to private life, constantly allude to the current habits and observances of mankind in such matters as contracts, marriages, sales, and the like, so those jurists who adopt in the main the view of International Law we are now discussing are obliged to refer to the practice of states in their mutual dealings, and the rules they actually obey. On the other hand, those who believe that the method of historical research is the correct one, find themselves unable to suppress moral judgments upon the facts they discover. It is necessary for them to inquire what the principles that guide states in their mutual intercourse ought to be, if their approval or disapproval is to be intelligent, and if they are to have the slightest hope of influencing opinion in the direction of their own wishes. Those comparatively few writers who have regarded International Law as an historical rather than an ethical inquiry, have not been behind their fellows in criticisms and suggestions for its improvement. Thus we see that the adoption of either view does not mean the complete exclusion of considerations drawn


from the other. We can neither theorize about the ideal without some reference to the real, nor describe the real without sometimes dwelling upon the ideal.

§ 14.

confuse the ethical and the historical method in their

Before we proceed to the discussion of the merits or demerits of the two methods, it is necessary to remark that the Many publicists great writers who founded modern International

Law did not draw any clear line of demarcation writings. between them, and many modern publicists have imitated their intellectual forefathers in this respect. Books upon International Law generally proceed upon the assumption that it is possible by reasoning from certain general principles, which are far more often assumed than proved, to discover a number of absolute rights possessed by states in virtue of their independent existence. These rights, it is asserted, are antecedent to all law, or, at any rate, to all law of human imposition. International Law recognizes them, but does not create them. But when the writers who reason thus come to work out their subject, they fill up all the details of their systems by referring to the conduct of states under circumstances that have actually occurred. Unless, therefore, we are prepared to believe that in this particular department of human conduct what is and what ought to be coincide far more happily than in any other, we must hold that the writers in question confuse fact and theory, and only save themselves from the reproach of spinning a web out of their own brains by practically discarding, through the greater part of their works, the principles elaborately set forth at the commencement. In the chapter upon the History of International Law an effort will be made to explain how this confusion arose; and we shall find good ground for believing that the mixed mode of thought to which it owes its origin was highly beneficial in the infancy of our science, though it has long ago ceased to be anything better than a clog upon progress. For the present it will be sufficient to point out that writers who treat the subject in the manner under consideration cannot be expected to distinguish clearly between the ethical and the historical method. They mingle the two in their works, going unconsciously backwards and forwards from one point of view to the other, and too often producing in their readers a mode of thought as confused and confusing as their own. Till each conception has been clearly enunciated and sharply distinguished from the other it is impossible to give an intelligent assent to either.

1 e.g. Hautefeuille, Droits des Nations Neutres, Discours Preliminaire, VI.-XVIII.


§ 15.

We have already gone through the preliminary stages of defining and contrasting the rival conceptions; and it remains for us now to decide which is the cor

States appeal in rect one.

If states had a common superior, their controversies the question would be easily settled. His com- precedent. mands would be International Law, just as within each state the commands of the individual or body of individuals possessing sovereign power make up the municipal law which each member of the community has to obey, whether he approves of it or not. But there is no central authority supreme over all states, and capable of inflicting punishment on those who disobey its precepts. The era of universal dominion is over, and independent states now recognize no earthly superior. Do they then appeal in their controversies to innate ideas of justice implanted in the mind of the human race by its Creator, or to principles acknowledged by the general opinion of statesmen and jurists ? — to precepts deduced from the consideration of absolute rights existing antecedent to custom and law, or to rules which can be shown to have been adopted by all or most states ? A very slight acquaintance with the history of international affairs

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will teach us that the latter alternative is the one adopted with something approaching to unanimity. Statesmen uphold the cause for which they are contending, by reference to acknowledged rules deduced from the general practice of states. They quote the words of treaties and of authors who are universally regarded as authorities. If there are no precedents exactly applicable to the matter in hand, they endeavor to show that admitted principles, logically developed, lead to the conclusions they wish to establish. Very seldom do we find appeals to natural right or innate principles of justice and humanity. Sometimes such considerations are used to bolster up a case for which little support can be found in acknowledged principles or accepted rules. Their presence in a state paper is a pretty sure sign that International Law is hopelessly against the contentions of its authors. Speaking generally on a matter of fact which is, and must be, unaffected by any theory about International Law, we may assert that states appeal in their controversies with other states to usage, and, if usage is doubtful, to principles that have been adopted by all or most civilized nations.

§ 16.

show that the historical method is the correct one.

Now we may fairly argue that this fact is decisive as to both the nature and the method of International Law. If

those who have to conduct the external affairs These appeals

of states appeal in controversies with other

states, not to such ideas of justice as most commend themselves at the time to the parties concerned, but to a previously determined body of rules, we may feel sure that the mutual intercourse of states is governed by these rules, and that they are the subject matter of International Law. It is, therefore, an inquiry into what is, not into what ought to be. And its method must of necessity be historical, since statesmen discover what rules to apply to particular cases by an inquiry into the history of previous That these truths have not been more generally recognized is probably due to the circumstance that the writers of books on International Law have very seldom been statesmen or diplomatists. There are of course exceptions. The names of Hugo Grotius, Henry Wheaton, and Carlos Calvo will at once occur as those of men who have been distinguished both as statesmen and as publicists; but, as a general rule, one set of men administer International Law, and another set of men write about it, whereas the writers on other branches of law are almost invariably men engaged in the practical application of the rules they lay down. But, though this peculiarity has no doubt tended to keep up the confusion between speculation and fact, it has also had a good effect. But for it there would probably have been far less of scientific method in the study than there is. Statesmen and diplomatists are so occupied with the questions of the moment that they lose the power of looking at rules, not as isolated units, but as parts of one great system. Now, a writer on International Law not only has to discover and express with precision the rules which states observe in their mutual intercourse, but he has also to classify these rules under various heads, to show that they are deduced from acknowledged principles, and to point out how these principles sometimes qualify one another. It is hardly too much to say that the habits of mind of an ordinary statesman disqualify him for performing the latter of these two functions as much as they fit him for performing the former. Exactly the converse is true of ordinary publicists. They have systematized details, but have too often evolved rules and principles from the recesses of their own consciousness. The modern writer on International Law should thankfully acknowledge his obligations to his predecessors in point of systematic arrangement, while he endeavors to make clear what is obscure in their views of the nature and method of the science.


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