About Authority and Saction of International Law, Historical

In the latter portion of the last lecture I endeavoured to establish three propositions, which I hold to be extremely important to the intelligent study of International Law. The first of them was that the process by which International Law obtained authority in a great part of Europe was a late st age of the process by which the Roman Law had also obtained authority over very much the saline part of the world. Next, I said that this process had little or no analogy to what is now understood by legislation, but consisted in the reception of a body of doctrine in a mass by specially constituted or trained minds. Lastly, I contended that this doctrine, so spread over Europe, consisted mainly of that part of the Roman Law which the Romans themselves had called Jus Gentium or Jus Naturae — Law of Nations, or Law of Nature; terms which had become practicably convertible.

The inquiry into the exact meaning of the phrase ‘Law of Nature’ belongs to a different department of juridical study, and I think it will be sufficient if I briefly summarise the views, themselves considerably condensed, which I published some years ago in a volume from which I quoted in the last lecture. Jus Gentium, or Law of Nations, had not, so I thought, much colour at first of the meaning which it afterwards acquired. It was probably, I said, half as a measure of police, and half in furtherance of commerce, that jurisdiction was first assumed in disputes in which either foreigners, or a native and a foreigner, were concerned. In order to obtain some principles upon which the questions to be adjudicated on could be settled, the Roman praetor peregrinus resorted to the expedient of selecting the rules of law common to Rome and to the different Italian communities in which the immigrants were born. In other words, he set himself to form a system answering to the primitive and literal meaning of Jus Gentium, that is law common to all nations. Jus Gentium was in fact the sum of the common ingredients in the customs of the old Italian tribes. It was accordingly a collection of rules and principles determined by observation to be common to the institutions which prevailed among the various Italian races. Now, it is to be remembered that every Roman of position who followed public life was in the course of his official career not only, so far as his powers went, a statesman, but specially a general and a judge. Speculation upon legal principles manifestly became common among the Roman aristocracy, and in course of time the question suggested itself what was the essential nature of this Jus Gentium which had at first very possibly been regarded as a mere market law. The answer was shaped by the Greek philosophy, which was a favourite subject of study among the class to which the Roman lawyers belonged. Seen in the light of Stoical doctrine the Law of Nations came to be identified with the Law of Nature; that is to say, with a number of supposed principles of conduct which man in society obeys simply because he is man. Thus the Law of Nature is simply the Law of Nations seen in the light of a peculiar theory. A passage in the Roman Institutes shows that the expressions were practically convertible. The greatest function of the Law of Nature was discharged in giving birth to modern International Law and the modern Law of War.

I ought to observe that in this account of the matter probably one correction has to be made. Some acute scholars have examined the authorities since I wrote, and they are inclined to think that very anciently there are some instances of the use of Jus Gentium in a wider and something like its modern sense; that is, Law binding on tribes and nations as such. Granting that this is so, still the impression that the Roman Law contained a system of what would now be called International Law, and that this system was identical with the Law of Nature, had undoubtedly much influence in causing the rules of what the Romans called Natural Law to be engrafted on, and identified with, the modern law of nations. When the older Roman sense of the words died out cannot be confidently ascertained, though of course in a world which was divided between two great rival sovereigns, the Roman Emperor and the King of Persia, there was little room for Law of Nations in the true sense of the words.

When, however, at what period, did this Jus Gentium or Jus Natural rise into the dignity which the Roman lawyers give to it? There is a strong probability that this exaltation was not very ancient, but that it took place during the period, roughly about three hundred years, covered by the so-called Roman Peace. That Peace extended from the time at which the Roman Empire was settled by the success of Augustus over all his enemies to the early years of the third century. The Roman Law transformed a large number of the ideas of a great portion of the world; but its own transformation from a technical to a plastic system was one of the results of the so-called Roman Peace. If we want to know what war is, we should study what peace is, and see what the human mind is when it is unaffected by war. We should study the Korean Peace, during which the existing legal conception of the relation of the sexes framed itself; during which the Christian Church was organised, and during which the old Law of Nations or Nature transformed itself into an ideal system specially distinguished by simplicity and symmetry, and became a standard for the legal institutions of all systems of jurisprudence.

The second proposition for which I argued is one of very considerable importance. It was that the Law of Nations, as framed by the jurists who were its authors, spread over the world not by legislation, but by a process of earlier date. On the appreciation of this position depends not only the view taken of the Law of Nature and of the application of International Law, but also certain practical consequences which nay be momentous; and at a quite recent date our country was in danger of adopting an opinion which would have separated it from the rest of the civilised world, and from which it could only be saved by correct ideas on this very point.

In order that you may convince yourselves what might be the consequences of demanding a legislative sanction, or a sanction derived from an authority on a level with that of a modern legislature, for the rules of International Law, I recommend you to compare the view of it taken by the statesmen and jurists of the United States of America with that to which this country might have committed itself; and from which it was delivered by the direct intervention of Parliament. The United States are particularly worth examining in regard to the point before us, because they were an instance of a new nation deliberately setting itself to consider that new obligations it had incurred by determining to take rank as a state. Italy is another and a later example, and there have been some others in South America, but all these societies, made up from smaller pre-existing territorial materials, were greatly influenced by the example of the American Federal Union. The doctrines which the United States adopted may be gathered from some very valuable volumes which the American Government has quite recently caused to be published, and to which I will presently call your attention. The systematic American writers on International Law are less instructive on the points which I am going to place before you than these books, because they usually follow the order of topics taken up by older European writers. But I will quote a passage from one of the most careful and sober of writers, Chancellor Kent, and also from a writer who unhappily died the other day, and whose productions were much valued in the United States — Mr. Pomeroy. You will have to recollect that the question at issue between the English and Americans lawyers was less what is the nature of International Law, and how it arose, than the question how, and to what extent, have its rules become binding on independent states. These questions are often confounded together, or found to be indissoluble, as will be plain from the extracts which I am about to read.

There has been a difference of opinion among, writers concerning the foundation of the Law of Nations. It has been considered by some as a mere system of positive institutions, founded upon consent and usage; While others have insisted that it was essentially the same as the Law of Nature, applied to the conduct of nations, in the character of moral persons, susceptible of obligations and laws. We are not to adopt either of these theories as exclusively true. The most useful and practical part of the Law of Nations is, no doubt, instituted or positive law, founded on usage, consent, and agreement. But it would be improper to separate this law entirely from natural jurisprudence, and not to consider it as deriving much of its force and dignity from the same principles of right reason, the same views of the nature and constitution of man, and the same sanction of Divine revelation, as those from which the science of morality is deduced. There is a natural and a positive Law of Nations. By the former, every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the Law of Nature has been called by Vattel the necessary Law of Nations, because nations are bound by the Law of Nature to observe it; and it is termed by others the internal Law of Nations, because it is obligatory upon them in point of conscience. We ought not, therefore, to separate the science of public law from that of ethics, nor encourage the dangerous suggestion that governments are not so strictly bound by the obligations of truth, justice, and humanity, in relation to other powers, as they are in the management of their own local concerns.

States, or bodies politic, are to be considered as moral persons, having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life. The Law of Nations is a complex system, composed of various ingredients. It consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality, and to the relations and conduct of nations; of a collection of usages, customs, and opinions, the growth of civilization and commerce; and of a code of positive law.

In the absence of these latter regulations, the intercourse and conduct of nations are to be governed her principles fairly to deduced from the rights and duties of nations, and the nature of moral obligation; and we have the authority of the lawyers of antiquity, and of some of the first masters in the modern school of public law, for placing the moral obligation of nations and of individuals on similar grounds, and for considering individual and national morality as parts of one and the same science. The Law of Nations, so far as it is founded on the principles of Natural Law, is equally binding in every age and upon all mankind. But the Christian nations of Europe, and their descendants on this side of the Atlantic, by the vast superiority of their attainments in arts, and science, and commerce, as well as in policy and government; and. above all, by the brighter light, the more certain truths, and the more definite sanction which Christianity has communicated to the ethical jurisprudence of the ancients, have established a Law of Nations peculiar to themselves. They form together a community of nations united by religion, manners, morals, humanity, and science, and united also by the mutual advantages of commercial intercourse, by the habit of forming alliances and Treaties with each other, of interchanging ambassadors, and of studying and recognising the same writers and systems of public law.

From Henry Maine, “Its Authority and Sanction”, International Law

• About Authority and Saction of International Law, Historical 2
• About Authority and Saction of International Law, Historical 3
• About the Origins and Sources of International Law, Historical
• Mandatory or Binding vs. Persuasive Authority
• Primary vs. Secondary Authority
• About the Declaration of Paris, Historical

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Mentioned in these Entries

About Authority and Saction of International Law, Historical 2, About Authority and Saction of International Law, Historical 3, About the Declaration of Paris, Historical, About the Origins and Sources of International Law, Historical, Law binding, Mandatory or Binding vs. Persuasive Authority, Primary vs. Secondary Authority, Rights and the Law Classification, Historical, Treaties, country.