prescriptions should be the aim of all who would seek part in a world inheritance at once the support and the promise of enlightened happiness for mankind.

of such facts in such a way as to illustrate general principles lends a dignity to the subject which cannot help but have a stimulating influence.

"Hence international law instruction should be constantly illustrated from those sources which are recognized as ultimate authority, such as

(a) Cases, both of judicial and arbitral determination;

(b) Treaties, protocols, acts and declarations of epoch-making congresses. (Westphalia, 1648; Vienna, 1815-23; Paris, 1856; London, 1909.)

(c)

Diplomatic incidents ranking as precedents for action of international character;

(d) The great classics of international law."

In the case of the Zamora, decided by the Judicial Committee of the Privy Council, April 7, 1916 (2 A.C., p. 77), it was objected on the part of appellants that the provisions of Order in Council No. XXIX material to the present question violated the law of nations, and that the prize court should not act upon them. The court held that the Crown has no power by Order in Council, but prescribed an order to alter the law which the prize courts have to administer, even where that law is imperfectly ascertained and defined; but when an Order in Council mitigates the rights of the Crown in favor of enemies or neutrals, it is the duty of the prize court to act upon it. The part taken by courts of justice in the development of international law is comprehensively considered by the Hon. Simeon E. Baldwin, in the American Law Review for March-April, 1901; and the "Legal Nature of International Law” forms the subject of an exhaustive article by Dr. James Brown Scott in the AMERICAN JOURNAL OF INTERNATIONAL LAW for October, 1907.

"The Sources of International Law" forms the subject of a brief article by Sir Frederick Pollock in the Law Quarterly Review for October, 1902, p. 418; this article being subsequently expanded by the author in Vol. XII of the Cambridge Modern History.

INTERNATIONAL SOCIETY AND INTERNATIONAL LAW

BY JESSE S. REEVES

Professor of Political Science, University of Michigan

In a recent work entitled The Psychology of Nations1 we are told that "International Law must be made intelligible to very young minds, and now that we are to have an international seat of congresses and courts, the interest must be made in its existence to give reality to the idea of internationalism." This admonition by a psychologist is illustrative of a widespread attitude toward international law; that it is a matter readily understood, for which there need be no specialized training, everyone being competent to pass judgment upon any subject about which international law is supposed to be concerned.

At the opposite extreme are certain specialists in the subject of international law, one of whom has recently stated that it is no more possible to make the principles of international law intelligible to the untrained mind than to popularize for infants the binomial theorem, or the laws of optics, or the rule against perpetuities. We have from a combination of these examples the strange paradoxical phenomenon not infrequently observable: some of us are apt to regard matters outside of our own fields of specialization as easy to be understood, and have no difficulty in making generalizations with reference to them by which a specialist would not dare to hazard his reputation; and yet at the same time we are apt to consider our own fields as caviare to the general, even to the extent of assuming that one's own particular body of knowledge is esoteric. International law is, on the one hand, not a matter for the instruction of infants, nor, upon the other, should it be treated as an esoteric subject, for it has to do with the actualities of life.

That there has been since the outbreak of the World War a feeling on the part of many writers that there should be some restatement of the fundamental principles of international law in terms of international life, is apparent from many titles in the recent literature of the subject. "The New International Law," "The Renovation of International Law," "The Future of International Law,"-such are a few of these titles, showing the drift of thought. Hardly had the invasion of Belgium taken place in 1914 before a leading German scholar set forth an essay entitled "The New International Law," in which he insisted that it was necessary to rebuild that body of thought according to the methods of German science, "for 1 By George E. Partridge, 192. 2 R. R. Foulke, International Law, preface.

German science alone has been able to work in systematic fashion"; and looking into the future, he hoped that Germany would be so "vastly fortified by her victorious war that she could undertake the protection of international law just as, centuries ago, the Lombard, Dante, invoked the German Emperor as the protector of law and the shield of justice."

Others have insisted that international law has departed from its original foundations, that it is necessary to eliminate the influence of certain eighteenth century writers, especially Vattel, and, paraphrasing a familiar maxim, cry "Back to Grotius." Still others have felt that international law has developed too much along the positive side, and thereby has eliminated too much of its original ethical content. Still others again argue that international law is weak because vague, and vague because of its lack of complete expression in a codified form. Again, there are those who object that, to the extent that there has been a process akin to codification, those conventions and treaties that have been regarded as law-making were but unwholesome compromises and have therefore retarded rather than advanced the progress of legal ideas as applied to international society.

And, finally, there are those (perhaps they are the greatest in number) whose insistence is that international law has been weak because of the lack of force behind it, by which the vindication of its rights can be enforced and the performance of its duties compelled. In other words, the insistence is that international law must acquire a satisfactory sanction. And finally much of the argument in favor of international organization rests upon the assumed need for the codification of international law,an international legislative process and the machinery for its enforcement, not only judicial but executive, a need which fifty years ago James Lorimer set forth as the ultimate problem of international jurisprudence."

Before considering the character of the new international law, it is obviously desirable to weigh the objections to the old, the fundamental principles having to do with the essential qualities of international rights and duties. If we go back to Grotius, we shall see, as has been so frequently recognized, that his system is based upon two juristic concepts: one, that of the law of nature; the other, that of custom and precedent evolving general rules (jus gentium). The former conception had been developed from the Greek Stoics and the Roman civilians through the Middle Ages, so that Grotius, while adopting the law of nature as a source of international law, was using an idea familiar to all who had been thinking in legal terms. The law of nature furnished an idealistic and ethical content which could be put in strong contrast with the unethical and violent attitude of state toward state. No one was free from the obligations of the law of nature, discoverable by man through the exercise of right 3 Kohler, Das neue Völkerrecht, Zeitschrift für Völkerrecht, Sept., 1915.

4 C. von Vollenhoven, The Three Stages in the Evolution of the Law of Nations, 1917. 5 Lorimer, Institutes of the Law of Nations, Book V.

reason. Bodin had set forth the doctrine of absolute sovereignty, the Roman conception of imperium applied to a sixteenth century territorial state. The territorial state coming to be the type of European political organization, the doctrine of Bodin had application to other kingdoms and commonwealths than that of France, which he had particularly in mind in propounding the theory. It is true that the theory of sovereignty which Grotius developed differs in some degree from Bodin's. Back of Bodin was the French monarchy; back of Grotius was Dutch federalism and a distinct body of constitutional principles. But Grotius's theory of sovereignty is not essential to his conception of international law. The point is that, whatever the doctrine of sovereignty, whatever the nature of states, each was subject to the universal, immutable principles of the law of nature.

6

Not as antagonistic to this, but rather as complementary to it, was the other factor in Grotius's theory, one equally familiar to civilians and jurists, the idea of a body of rights and duties growing out of universal practice, custom, and precedent. With Grotius the two factors, jus naturæ et jus gentium, form an integrated whole. This phrase comes later to connote international law in the modern sense. It remained for his successors to separate the law of nature from the positive law of nations and frequently to exalt the former to the exclusion of the latter. Thus Pufendorf practically eliminates the binding force, as between nations, of custom and precedent. He erects the law of nature into a general scheme of legal philosophy, or of justice, dominating the relations of external action, both of individuals and of states.

On the other hand, beginning practically with Leibnitz (fitting thus into a philosophy of experience), the legal relationships of states are founded upon what were conceived to be the actualities of international life as these were evidenced in treaties and conventions. The great difficulty with the law of nature, as set forth by Pufendorf and his successors, was that, being a body of universal, immutable principles, it was in a way at once idealistic and self-limited. The rights of states, according to the law of nature, were essential attributes or categories of states. They were qualitative factors entering into the very nature of states themselves. The conception of duties was limited largely to the recognition merely of rights which the law of nature posits to states as their essential attributes. Thus, under a theory of the law of nature, states become as individuals in the so-called state of nature, each having absolute or natural rights, as against the others, which under the law of nature they were bound to recognize, but which could only be vindicated under a system of self-help, for in such a state of nature, as Locke showed, each was the sole executor of the law of nature and the sole maintainer of rights.

6 Cf. Shakespeare's amazing anticipation of this phrase: "By gift of heaven, by law of nature and of nations," Henry V, II, 4, line 80, "These moral laws of nature, and of nations speak aloud," Troilus and Cressida, II, 2, line 184.

From this conception of the legal attributes, or qualities, of states, proceeded the doctrines of state equality and of the other fundamental rights of states. Aside from all of the historical and philosophical difficulties in such a conception of law as is embodied in the theory of the law of nature, it is apparent that such a theory does not take account of the factors of change in international life, some of which we associate with the idea of progress. Indeed, the theory of the law of nature, as it was accepted in the seventeenth and eighteenth centuries, preceded all theories of national progress. Montesquieu, who faintly suggests such an idea, was not in sympathy with the prevalent system of the law of nature. But his ideas and those of the other eighteenth century writers were radically different from the later conceptions of national progress developed under the influence of the theory of biological evolution. The theory of the law of nature is not only opposed to progress, but it is antagonistic to all plans for international organization which go farther than the binding of states by means of formal agreements. To paraphrase a remark of Professor Frankfurter, international relations were conceived to be not a way of ordering life, but jural categories encysted in phrases applicable semper ubique et omnibus.8

It was therefore a normal development in juristic thought which Wolf set forth. Dissatisfied with the inelastic and logically anti-social character of the law of nature as set forth by Pufendorf, but not wholly rejecting that system, he developed a conception of international organization, a civitas maxima, which is, if pushed to its logical conclusion, a negation of some of the vital elements of a law of nations.

The two currents flowing from Grotius are in a sense united in the writings of Vattel, who sought to retain the ethical content without relinquishing the firm foundation of positive custom and precedent. Wolf had spoken of the civitas maxima as the great commonwealth of nations having a necessary and natural basis upon which are built the rights and duties of the members to each other. Vattel proceeds from the idea of society, not in the sense of a civitas (a juristic entity) but as the society established by nature between all mankind. He said:

The universal society of the human race, being an institution of nature herself, . . . all men are bound to cultivate it and to discharge its duties.

. And since nations, considered as so many free persons living together in a state of nature, are bound to cultivate the human society of each other, the object of the great society, established by nature between all nations, is also the interchange of mutual assistance for their own improvement and that of their condition."

7 Bury, The Idea of Progress, passim.

9

8 New Republic, April 13, 1921.

9 Vattel, Prelim., Sec. 11. Von Vollenhoven's indictment of Vattel is logically a denunciation of neutrality, and a reversion to the conception of just and unjust wars, elaborated by Grotius. Op. cit.