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Turkey. Execution des judgements étrangers en Turquie. Th. Papasian, J. du Dr. Int.,
Nov.-Dec. 1920. - Turkey's tangled problems. Cur. Hist., Mar. 1921. United States. The close of an epoch. William Roscoe Thayer. North Amer. R., Mar.
1921. - Control of foreign affairs. Quincy Wright. Am. Pol. Sc. R., Feb. 1921. - Does the Constitution make the President sole negotiator of treaties? William W. Dewhurst. Yale L. J., Mar. 1921.
Legislative compacts with foreign nations. Albert H. Washburn. Am. Law R., Jan.-Feb. 1921. - Power of Congress to establish peace. Charles S. Thomas. Am. L. R., Jan.. Feb. 1921.
- Constructive immigration policy. William H. Barr. Cur. Hist., Mar. 1921. - Immigration: W. Jett Lauck, Louis F. Post, Henry W. Jessup et al. Annals of Amer. Academy of Pol. and Soc. Sc., Jan. 1921.
The international whirlpool-The “Complete Reversal” for President Harding. Herbert Adams Gibbons. Century, Mar. 1921. War. Some legal aspects of war. Viscount Cave. Contemp. R., Jan. 1921. War Debts (British). A Serbonian bog of finance. H. J. Jennings. Fortn. R., Jan. 1921.
British floating debt. Fed. Reserve B., Feb. 1921.
The economic and financial position of France. Gaston Jaze. Q. J. of Economics, Feb. 1921. - French war finance. Fed. Reserve B., Feb. 1921.
- Retiring national war debts and foreign debtors. David F. Houston. Adv. of Peace, Jan. 1921. - World debts and paper currency continue to increase. 0. P. Austin. Adv.
of Peace, Jan. 1921. World War. New light on the origins of the World War, III. Sidney B. Fay. Am. Hist. R., Jan. 1921.
HOPE K. THOMPSON.
THE NATURE AND SOURCES OF INTERNATIONAL LAW
BY GORDON E. SHERMAN Lately Assistant Professor of Comparative and International Law,
Not the least among the many problems of reconstruction facing civilization at the present moment is the establishment upon a secure basis of the principles of international law as a system of world conduct and protection. Of actually restraining principles, indeed, the late war has exhibited few; nor have these, so far as successfully asserted, prevented violations of neutral rights upon a vast scale, together with a similar disregard of privileges heretofore universally conceded to occupied territory; while still more appalling has been the exploitation of diplomatic immunity in the interest of treacherous propaganda, and the wholesale assassination of noncombatants on the high seas. To such action, the words in which Germanicus is represented by Tacitus as addressing his licentious soldiery may well be applied : “Ye have violated even rights accorded to enemies, as also the sanctity of embassy and the consecrated obligations of usage between peoples.” 1
Does a system of justice in international action, then, really exist ? And has it enforceable sanctions? Again, though such existence be conceded, does the system not assert claims too lofty for successful maintenance against those not willing to recognize them? Or do the traits shown in the origin and development of this system warrant confidence in its future as a working-force once the world shall have regained a semblance of moral and political order? Difficult as such questions may be to answer at the moment, they must, nevertheless, be fairly met by all who would see international relations placed upon a basis assured both in fact and in law. The aim of the present article will be to ascertain the true origin of modes of juristic thought international in character, as contrasted with a national consciousness confined to its own welfare and conduct and indifferent to the claims of all foreign to its borders.
It would seem to be beyond contestation that the nature of the sources whence conceptions truly international may be found to have been derived will prove our best guide in endeavoring to estimate the claims of international law at the present moment and the hopes of its future usefulness to the world. International law can indeed point to an origin and history
1 Hostium quoque jus et sacra legationis et fas gentium rupisti. Annals, I, 42, 4.' whose features logically demand that the future shall follow the leading of the past; and this is well, for were it the world's task to now initiate a wholly new order of thought and action adequate to control the intercourse of nations, the burden would be heavy, indeed.
Happily, however, such is not the case. For it is not a new creation that is required, but rather the partial reshaping of an existing science in the light of its own imprescriptible standards. The course of history in this field is clear, and not to be mistaken. Nor is the attitude which the subject claims at our hands essentially divergent from that imposed upon himself by Grotius when, as an exile, he undertook, during the desolating conflicts of the Thirty Years' War, to coördinate a system of international regulation fitted not merely for a state of war but as a guide in time of peace as well. “Such a work,” says he, “is the more necessary since there are not now, nor have there been found wanting in the past, those who contemn this aspect of law and declare that it exists in name alone, nor is anything more familiar than the opposition of law and arms.” Citing many classical passages in illustration of this, Grotius singles out Tertullian as a Christian author who but reflects the tendencies of his time. “Tertullian himself would not hesitate to declare deceit, cruelty and injustice to be the appropriate affair of battles.” “But,” concludes Grotius, “since all discussion of law is of no avail, if there is, in fact, no law, our labors will be at once commended if we briefly repel so grave an error. There is, nevertheless, a common law between nations touching war and its conduct.” Nevertheless, Grotius now sees throughout the Christian world a license in war shameful to even barbarous peoples. “The sight of this excess,” says he, “has led many men to think that arms should be forbidden to the Christian, although such a course would prove quite as objectionable as would the terrors of combat.”
Hence the task is undertaken by him, and he proposes at the outset to distinguish (a) law expressly instituted from (b) the law of nature, this latter being ever the same, but the former being necessarily subject to change by human will. Finally, he tells us he intends to appeal touching natural law to the testimonies of philosophers, historians, poets and orators; among philosophers he accords the first place to Aristotle.?
Following the paths indicated by Grotius, the inquirer of to-day will turn in the first instance to the classical authors of Greece and Rome. Here law as defined by Aristotle 3 falls into two chief classes : (a) the law of a particular state, that is to say, law ordered or acknowledged by the state and which would comprise statute law and law customary or unwritten; and (b) law general in its application, or the law of the natural order of things. Again, Aristotle divides political justice into natural and legal, the former being the law of nature, the demand of natural
2 De Jure Belli ac Pacis, I, IX, 2, and Prolegomena, 3, 4, 5, 28, 29.
reason and unalterable, whereas the latter is instituted by man. And he concludes that every principle in law and custom stands in the relation of a universal to a particular,— the things done are many, but the principle is singular and universal."4
The conception of natural law as the law of the eternal order meets us in Hesiod where it is “the law ordered for men by the son of Kronos”; 5 again, it is the law by which immortals and mortals are alike guided,—“the sacred spirit of Justice placed among the stars." It is the Divine Will with which Socrates tells Hippias all earthly regulation must harmonize.?
These conceptions evidence a course of thought which, when in time transplanted to Rome through study of the Stoic philosophy, was destined to impress upon the practical Roman mind influences far-reaching in their results. The universal element in law becomes combined with a sense of equity in the private relations of life innate in the Roman mind, and also of public faith as witnessed in formal aspects of the initiation, the conduct, or cessation, of hostilities and the negotiation and maintenance of treaties. And there is thus reached a mode of thought from which the concept of a law not merely general and world-wide, but international, may be said to have sprung. Such a concept may well be deemed the efficient agent moulding an apprehension of universal world-relationship into an element of political cognition, and at the same time making it the foundation stone of a legal system fitted to exhibit coördinated rules controlling the mutual relations of states. This is Rome's best legacy to the modern world, and attests a beginning of public thought truly international.
To ascertain the sources of a system of legal institutions it becomes essential to grasp not merely the guiding principles whence these institutions may have sprung, but we must also picture the phases or moods shown in successive transformations whose results will thus exhibit an organic group logically evolved from the past. With these ends in view, we proceed to glance briefly at certain characteristics of the law of early Rome.
Law (jus civile) is primarily ancient Roman custom crystallized upon the bronze of the XII Tables and whose foundation is consuetudo or mos, i.e., the usages of gentes whose clan-members form the city-state: consuetudine autem ius esse putatur id, quod voluntate omnium sine lege vetustas comprobarit.8 Supplementing the XII Tables is lex, which designates provisions approved by the citizens in assembly (lex curiata, lex centuriata later plebiscita) on a magistrate's proposal (rogatio). None but the citizen, however, might claim the law's protection, save under treaty. provisions, although the alien is amenable to the sanctions of penal juris
* Ethics, 5, 7, 1, 1134b, 19, and 1135a. 6 Orphic Hymn, No. 63, 1. 5 Works and Days, 276.
7 Xenophon, Memorabilia, 4, 4, 19. 8 Cicero, De Inventione, 2, 22.
prudence. The peregrinus is an alien friend enjoying protection in virtue of a treaty (fædus), and so within the guardianship of Roman pax.
In addition to consuetudo and lex, there exist as definite law-sources interpretatio, that is to say, construction and comment on the part of jurisprudentes, and the edicta of the magistrate (prætor, ædile). For while the ancient code offers a presentation of law apparently immovable, it is nevertheless not in the mind of the people that its law shall maintain absolute rigidity. A code necessarily exhibits law as it is in the present and with possible suggestions of its historical evolution. But law must respond to the changing needs of a people, and in recognition of this principle it is to jurists and magistrates that at Rome the slow remoulding of substantive and procedural law is of necessity chiefly committed, in spite of the competence of the people in assembly to exercise their power of law-making-a power seldom, in fact, at Rome, brought into action. Hence the importance of the jurisconsult's labors accorded him a place scarcely inferior to that of the magistrate, though the latter is invested with jurisdictio and imperium. Cicero terms the jurisconsult “totius oraculum civitatis." 10
In the early centuries of Roman history both knowledge and exposition of law is in the hands of the pontifices, and these alone are familiar with the practical rules governing suits. According to the tradition preserved by Livy (IX, 46), Cn. Flavius succeeded in forcibly transferring the records of the city's law from the priestly caste and laying the entire system open to the light of day in order that all might become familiar with it: civile jus, repositum in penetralibus pontificum, evulgavit fastosque circa forum in albo proposuit, ut, quando lege agi posset, sciretur. The chief accomplishment of Flavius was in stripping mystery from those forms of action which constituted the most striking and difficult portion of the ancient Roman system, for it was the theory of the ancient law that the magistrate presided only at the outset and did not carry to a conclusion the actual proceedings in suits; these latter were supposed to be rigidly bound within prescribed forms (Legis Actiones), and if the responsibility attending their employment were relegated to the suitors, these would suffer the
9 "The treaty of friendship concluded between two city-states (pax, from pango) provides, in the first place, for a durable peace (pia et æterna par-Cicero, Pro Balbo, 15, 35), and reciprocal recognition of the liberty and property of their citizens ... and a declaration of the legal equality of the contracting cities. Such a treaty would provide for exchange of ambassadors lodged and paid by the city to whom they were sent. More important, however, in the Roman view, than the city's external relations was the regulation of inter-state rights of citizenship, for the non-citizen had no claim upon Roman law save under treaty. The term hostis, later peregrinus, signifies one protected by treaty: Tum eo verbo dicebant peregrinum qui suis legibus uteretur.” (Mommsen, Droit Public Romain, French translation, VI,2 214, 215; Römisches Staatsrecht, 31, p. 598.) The Romans never knew international law (VI. 216. Mommsen).
10 De Oratore, I, 45.