CHAPTER II

NATURE

4. +Early Terminology.+ (_a_) _Jus naturale._ (_b_) _Jus gentium._ (_c_) Other terms.

5. +Historical Bases.+

6. +Ethical Bases.+

7. +Jural Bases.+

(_a_) Roman law. (_b_) Canon law. (_c_) Common law. (_d_) Equity. (_e_) Admiralty law.

8. +International Law and Statute Law.+

9. +How far is International Law entitled to be called Law?+

§ 4. Early Terminology

The conception of those rules and principles of which international law treats has varied greatly with periods, with conditions, and with writers.

The early terminology indicates the vagueness of the conceptions of the principles governing conduct of man toward his fellows.

(_a_) =Jus naturale= is defined broadly by Ulpian[4] as "the law which nature has taught all living creatures, so as to be common to men and beasts." Grotius also uses this term, defining it as "the dictate of right reason, indicating that any act from its agreement or disagreement with rational nature has in it moral turpitude or moral necessity, and consequently such act is either forbidden or enjoined by God, the author of nature."[5] Lieber says, "The law of nature, or natural law ... is the law, the body of rights, which we deduce from the essential nature of man."[6] The discussion of _jus naturale_ has been carried on from an early period,[7] covering many portions of the field of modern international law, and making possible the broadening and strengthening of its foundation.

(_b_) =Jus gentium=, according to Justinian, is "that which natural reason has established among all men, that which all peoples uniformly regard."[8] "_Jus gentium_ is common to the whole human kind."[9] This idea of a body of law common to all men assumed a different meaning when states multiplied and writer after writer redefined and qualified its meaning. _Jus gentium_ became the subject of many controversies.[10] Among the qualifying terms were "internal," "necessary," "natural," "positive."

(_c_) =Other terms= were used to name the field or portions of the field of modern international law. _Jus fetiale_ applied particularly to the declaration of war and sanction of treaties.[11] _Jus inter gentes_ was used by Zouch in 1650 to name the real field of international law. _Law of nations_ was the term commonly used in England till the days of Bentham; since that time the term _international law_, which he adopted, has steadily grown in favor, till almost universal in the English language.[12]

The change in terminology shows in a measure the growth in demarking the field of international law.

§ 5. Historical Bases

International law in its beginning may have been largely determined by abstract reasoning upon what _ought to be_ the principles and rules governing interstate relations; but in its later development, as it has become more and more recognized as a safe guide for the conduct of states in their relations with other states, not abstract reasoning as to what _ought to be_, but direct investigation of what _is_, has determined the character of the rules and principles. What _is_ state practice in a given case can only be determined by reference to history. From the history of cases and practice, the general rule and principle is derived, and modern international law thus comes to rest largely upon historical bases.

§ 6. Ethical Bases

While international law now looks to history as one of its most important bases, it must nevertheless accord somewhat closely with the ethical standards of the time, and will tend to approximate to them. The growth of the body of law upon slavery has rested on both ethical and historical bases. International law is principally an output of civilized nations having certain ethical standards. Such ancient practices as the giving of hostages for the fulfillment of treaty stipulations have disappeared, and ethical bases are generally recognized in determining practice.[13] While these ethical bases should be recognized, international law cannot be deduced from the subtle reasoning upon the abstract ideas of what it _ought to be_. Modern international law treats mainly of what _is_, but what _is_ in international relations is always conditioned by a recognition of what _ought to be_.

§ 7. Jural Bases

The nature of modern international law is in part due to the jural bases upon which it rests.

(_a_) =The Roman law= was the most potent influence in determining the early development, particularly in respect to dominion and acquisition of territory. International law gained a certain dignity and weight from its relation to the Roman law, the most potent legal institution in history.

(_b_) =The canon law=, as the law of the ecclesiastics who were supposed to recognize the broadest principles of human unity, gave an ethical element to early international law. Gregory IX. (1227-1241), the Justinian of the Church, reduced canon law to a code. The abstract reasoning upon its principles among the clergy and counsellors of kings, made it a part of the mental stock of the early text writers, while it strongly influenced state practice. The canon law gave a quasi-religious sanction to its observance, and in so far as international law embodied its principles, gave the same sanction to the observance of international equity. This may be seen in the religious formula in treaties, even to a late date.

(_c_) =The common law=, itself international as derived from three systems, according to tradition, by Edward the Confessor, and subsequently modified by custom, furnished a practical element in determining the nature of international law.

(_d_) =Equity= promoted the development of the recognition of principles in international law. In the early days of England cases arose which were not within the cognizance of the common law judges. The petitioner having applied to the king in Parliament or in council for justice, his petition was referred to the chancellor, the keeper of the king's conscience, who, after a hearing, required that what was equitable should be done. Thus the simpler matters came before the common law court, the more difficult before the equity court. Even now a jury largely deals with questions relating to the recovery of money, and their decision is a _verdict_, which is followed by a judgment. In an equity court, the more difficult problems of business and commerce are considered; and the decision of the judge is a _decree_.

(_e_) =Admiralty law= may be defined as in one sense the law of the sea. Anterior to and during the Middle Ages, the maritime relations of states gave rise to sea laws, many of which are to-day well-recognized principles of international law.

§ 8. International and Statute Law

Statute law proceeds from legislative enactment, and is enforced by the power of the enacting state within its jurisdiction.

International law, on the other hand, is not formally enacted, and has no tribunal for its enforcement. Resort may be had to war in case of infraction of its rules, but the issue may rather depend upon the relative powers of the two states and not upon the justice of the cause.

§ 9. How far is International Law entitled to be called Law?

If law is defined, as by Austin, "A rule laid down for the guidance of an intelligent being by an intelligent being having power over him,"[14] it would not be possible to include under it international law without undue liberality in the interpretation of the language.

In form, however, law is a body of rules and principles in accord with which phenomena take place. If these rules are not followed as enunciated by the state in case of statute law, certain penalties are inflicted. The nature of the penalty must to a great extent depend on the source. International law is the body of rules and principles, in accord with which, interstate phenomena take place. Violations of international law do not meet the same penalties as those of statute law, as they do not have the same source nor an established tribunal for their enforcement. International law is, however, in form law and in practice so regarded.[15]