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. While these ethical bases should be recognized, international law cannot be deduced from 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. Sanction of (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 1 Last hostages given in Europe 1748, by England to France. Ethical influence of canon law. 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. Practical influence of common law. (c) The common law, itself international as according to tradition, derived by Edward the Confessor from three systems, and subsequently modified by custom, furnished a practical element in determining the nature of international law. Equity and (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 recognition of cognizance of the common law judges. The principles. 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. Admiralty law and maritime relations. (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 wellrecognized principles of international law. 8. International Law 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. In case of infraction of its rules nations may resort to war, when the issue may rather depend upon the relative strength of the two states than upon the justice of the cause, or the states may agree to refer their differences to some form of arbitral adjudication. 9. Relation of International Law to 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," 1 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.2 1 "Lectures on Jurisprudence," I. "Walker, "Science of International Law," Chs. I and II, fully discusses Austin's definition. For decisions of the highest courts see West Rand Gold Mining Co. v. The King, L. R. 2 K. B. (1905) 391; The Paquete Habana (1900), 175 U. S., 677. OUTLINE OF CHAPTER III HISTORICAL DEVELOPMENT 10. EARLY PERIOD. (a) Recognition by Greece of international obligations. 11. MIDDLE PERIOD. (a) Supremacy of Roman Empire. (b) Unifying influence of the Church. (c) Feudalism and the territorial basis of sovereignty. (d) Crusades and a broader basis of comity. (e) Chivalry and a basis of equitable dealing. (f) Expansion of commerce and the development of maritime codes. (g) Consuls and the development of maritime law. (h) Discovery of America. (i) Contributions of the Middle Period. 12. MODERN PERIOD FROM 1648. (a) 1648-1713: Development of principles. (b) 1713-1815: Testing of principles. (c) 1815-1898: Practical application of principles. (d) 1898 to date: Progress toward international peace. (2) Results of the First Peace Conference. (3) The Second Peace Conference at The Hague and its conventions. (4) The International Naval Conference of 1908-1909, and Declaration of London. (5) Contributions in this period to international law. 13. INFLUENCE OF THE UNITED STATES. (a) The regulations of 1793 in regard to neutrality. (c) Open-door policy in the Far East. (d) Protection of citizens in their legitimate rights. (e) Contributions to establishment of laws of war. (f) Advocacy of peaceful settlement of international disputes. 14. WRITERS. (a) Life and work of Hugo Grotius (1583-1645). CHAPTER III HISTORICAL DEVELOPMENT 10. Early Period The history of the development of those rules and principles now considered in international law naturally falls into three periods, early, middle and modern.1 The early period dates from the development of early European civilization, and extends to the beginning of the Christian Era. During this period the germs of the present system appear.2 (a) The dispersion of the Greeks in many colonies which became practically independent communities gave rise to systems of intercourse involving the recognition Recognition by Greece of inter- of general obligations.3 The maritime law of Rhodes is an instance of the general acceptance national obli gations. of common principles. The main body of this law has not survived, yet the fragment appearing in the Digest, De Lege Rhodia de Jactu, is, after more than two thousand years, the basis of the present doctrine of jettison. 'Bluntschli, "Völkerrecht," Introduction; Lawrence, § 20. "Walker, "Science of International Law," Ch. III, p. 58. "But when, beside the vague and fleeting World Law, the law of all humanity, was recognized a law special to certain peoples, when the distinction was drawn between the progressive and the stationary, between civilization and barbarity, when the Greek noted τὰ νόμιμα τῶν Ἑλλήνων, and the Roman felt the ties of a particular Jus Fetiale and a particular Jus Belli, International Law cast off its swaddling bands, and began its walk on earth." Cicero, "Pro Lege Manilia," Ch. XIII. Justinian Digest, 14. 2, "If goods are thrown overboard to lighten the ship, as this is done for the sake of all, the loss shall be made good by a contribution of all." |