CHAPTER III. THE ORIGIN OF THE PRINCIPLE OF STATE EQUALITY

I

DIVERGENT TENDENCIES AMONG THE SUCCESSORS OF GROTIUS

The

The modern law of nations was developed, in its formative period, chiefly by great teachers and publicists. body of accumulated custom was meager; the evidence of its existence frequently inaccessible. The state of internation

al relations was worse than unsatisfactory to all rightthinking men. So it came about, partly from the want of common usage, partly from the prevalence of certain theories, partly from the desire of the writers to ameliorate existing conditions, and partly, perhaps, from the type of mind that was most frequently devoted to the law of nations, that the primitive stages of the science were influenced largely by those theoretical conceptions which were included in the common heritage of learning from antiquity and the Middle Ages. Development of the theory of the law of nations particularly, and of no inconsiderable part of its substance, determined by the force of these ideas.

The successors of Grotius were by no means agreed, however, as to the precise application and significance of these theories.

Three tendencies appeared among the publicists, represented by the naturalists, the positivists, and

1

the eclectics respectively.

The writers are sometimes

divided into three schools corresponding to these tendencies.1

There is no objection to the division, provided it be remembered that it is an arbitrary one, and that it does not always offer an adequate explanation for the system of an individual writer. It must be applied, as might be expected, not only to publicists holding views that are widely divergent and hence easily classified, but also to representatives of many shades of opinion between the extremes. As might be expected also, modern authorities are not always agreed as to the school to which certain of the classical publicists should be accredited.

The divergent tendencies that found expression in these so-called schools had their inception in different conceptions of international society and the law of nations. The philosophical or pure law of nature school held that the law of nations was nothing more than the law of nature applied to separate states in a state of nature; they accordingly denied to the customary, conventional, or positive element any of the attributes of true law apart from the natural law. positivist or historical school contended that the principles underlying customs and treaties constituted a positive law of nations, distinct from the natural law and of superior

The

1 On the three schools, see remarks of Despagnet, Droit int. pab., secs. 31-33, pp, 32-34; Fenwick, în A.J.I.L. (1914), Vol. VIII, p. 38; Hely, Etude, p. 221; Hershey, Essentials, pp. 59-63; Phillipson, in Macdonell and Mansion, Great Jurists, p. 394.

practical importance.

The eclectics or Grotians, as they are

sometimes called, took an intermediate position, retaining Grotius' distinction between the natural and the voluntary law of nations, while treating the two as about equal in importance.

II

THE INFLUENCE OF THOMAS HOBBES

The translation of the theory of natural equality into the law of nations originated with and was first definitely stated by the naturalists, whose inspiration was found in the writings of Thomas Hobbes and whose leader in the seventeenth century was Samuel von Pufendorf. An illuminating chapter might be written on the contributions of Thomas Hobbes to the unreality of international law. His works on legal and political theory, particularly his Elementa Philosophica de Cive and Leviathan, had an influence upon the Subsequent development of the law of nations that is not generally appreciated. Although he wrote no treatise on

the law of nations, his influence on its theory was farreaching and significant. He revived, for the purposes of

2

Hobbes lived 1588-1679. liis Elementa philosophica de cive was first published in 1642, and again, for wider circulation, in 1647. References are to the Amsterdam edition of 1657, and the English edition in Vol. II of Hobbes' English Works, edited by William Molesworth. Leviathan first appeared in 1651. Page references are to A. R. Waller's edition in the Cambridge English Classics. There is a brief sketch of Hobbes' life and work by Montmorencey, in Macdonell and Manson, Great Jurists, pp. 195-219.