us to determine whether the constitutional concept can be applied in the science of international law.

Although accepted as a working principle in international law, the division of the world's lands into what are called independent territorial units does not carry with it the predicate that each of these areas is subject to the absolute and exclusive control of a given government. For, as has already been said, each government is held responsible by other governments for what goes on within the limits conceded to it by them; and the extent of this responsibility measures the degree to which its jurisdiction is neither exclusive nor absolute. With regard not only to aliens within its borders, but even, in certain respects, with regard to its own citizens, a state may be held accountable for its acts by other states. Every state claims, and, when necessary, exercises the right to see to it that its own citizens while abroad are reasonably and fairly protected in life, liberty and property by the government of the place where they are; and international law writers agree that there are various grounds which justify the intervention by states to correct what they conceive to be abuses of authority by other states, even with regard to their own subjects. A very wise policy dictates, however, that only in extreme cases should intervention in this latter class of cases be resorted to.

Though internationally the jurisdiction of a state over its own territory is not absolute or exclusive, it is absolute and exclusive when constitutionally viewed. Though, as we have seen, constitutional theory places no limits to the exercise of the state's sovereignty, it does declare that within the territory which is claimed as peculiarly its own, its authority is both absolute and exclusive. This means, of course, that no officer or organ of another power, may, without its consent, exercise legal authority within its borders. And, while in its international relations it recognizes that other states may, in certain cases, take cognizance of the manner in which it exercises its sovereign power, intervention, when it comes, is one of force and not of law.

As regards their origin, the laws of international life do not find their birth in the mandatory utterances of supreme wills declaring

to inferior persons what for them shall be deemed legally right and legally wrong. Instead, law appears as stating rules of action which derive their force from the fact that they have been accepted by those political persons-the states-whose actions they are to regulate. This acceptance may, indeed, be one which, for the most part, the states may not find it practicable to avoid, even should they so desire; and thus, in fact, the rules of international intercourse may, arguendo, be admitted to be as definite, and, in general, as uniformly conformed to, as are the provisions of the municipal law of the most orderly state. This, however, does not change the essential character of these international laws as rules which obtain between equals rather than as commands addressed by a superior legislative will to persons who are conceived of as subject to its control.ja

Even when, by formal treaties, independent states have established rules by which, with reference to the matters specified, their future dealings with one another are to be regulated, there has been no creation of law in a positive or Austinian sense, for, as to those matters, the contracting parties remain subject only to their own wills and not to that of an outside or foreign power. As Jellinek briefly puts it: "Der Staatenvertrag bindet, aber er unterwerft nicht."

Bearing in mind what has gone before, we may now ask: In what sense, if any, may we carry over into the international field the juristic conceptions of the state and of law which we have found to be fundamental in constitutional jurisprudence? The answer must be that these concepts cannot be so transferred.

It would plainly appear that the idea of sovereignty as it is found in constitutional law can find no proper place among international conceptions. The word, is, indeed, generally used in the literature of international jurisprudence, but, when thus employed, it has a meaning which is so different from that which it has in the constitutional field that it is most unfortunate that it should ever have obtained this currency. It would have been far better if some such term as "independency" had been employed. This word far better than "sovereignty" would indi'Gesetz und Verordnung, p. 205.

cate the fact that, regarded from the point of view of positive law, complete individualism prevails in the international field. Socially, economically and morally they may be a family of nations, but, looked at with the eyes of the law as defined by the constitutional jurist, international life is atomistic, noncivic, individualistic. From this point of view nations are, as individuals, in that "state of nature" in which Hobbes and Rousseau, and the other natural law writers placed primitive man. This being so, in order to build up a science of international relations, it is necessary to begin with a conception of the state that will correspond to the conditions to which it is to be applied.

From the nature of the case this conception must be something different from that of the constitutional state. Like the constitional state it must be viewed as a political person or entity possessing and expressing a will of its own and operating through an instrumentality termed a "government." But this will cannot be conceived of as a legal will, nor as a will supreme over the other state-persons to whom it is addressed. And, of course, the expressions of its will, whatever actual force they may have behind them, cannot be regarded as laws in a strictly juristic sense. So different, then, are these two fields of constitutional and international law, that nothing but confusion can result from an attempt to employ concepts in the one field appropriate only in the other. Especially does it seem desirable that the strictly legal concept of "sovereignty," which constitutes the fundamental idea in constitutional jurisprudence, should not find a permanent lodgment in international terminology. Its inappropriateness is shown, if in no other way, by the necessity which those who thus employ it find themselves under to make use of such obviously self-contradictory terms as half- or semi-sovereignty, and part-sovereignty.

DISCUSSION

ROBERT T. CRANE

University of Michigan

In his admirable analysis of the juristic theory of the state, Dr. Willoughby has said that "analytical political philosophy" views the state "simply as an instrumentality for the creation and enforcement of law." The point of view from which this philosophy proceeds is thus fixed. It is professedly the legal point of view.

It is, however, precisely by peculiar and distinctive points of view from which phenomena are observed, that sciences or philosophies are differentiated one from another. Two philosophies cannot occupy the same standpoint. If there is to be discussion of a philosophy of politics which asserts its viewpoint to be that of a philosophy of law, then it is necessary to define very clearly the relationship between politics and law.

As these concepts have been defined by the analytical school, it is obvious that they are intimately connected. By the opponents of this school it may be objected that, when correctly conceived, politics and law are perfectly distinct. It may perhaps be held that what is known as law in modern society is not essentially political at all; but that it has merely happened as an accident of modern political development that a part of the law has received the additional and nonessential sanction of political authority.

The latter may be the proper conception of law. If so, the analytical jurists are dealing with only a part of the rules of human intercourse with which their opponents are concerned. And they are dealing with that part from a different point of view. But at least they are dealing with a distinct part. Its distinguishing aspect is the political sanction. And by this aspect, discernible from but a single point of view, there is given

to particular rules the unity of a system. That point of view may or may not properly be termed legal. That is a matter of terminology. At all events it is a definite point of view. And since it is from this vantage point that the analytical theory is evolved, it must be accepted as the basis of this discussion. Consideration of any other conception of law is irrelevant.

Although the analytical concepts of politics and law are thus closely connected, it does not necessarily follow that they must be identical. One may be more comprehensive than the other. There can be no question but that some of the analytical school have made politics and law practically synonymous. Lawmaking has been treated as not only the characteristic function of the state but as if it were its sole primary function. All other activities have been treated as subsidiary, as themselves pure products of legislation. The executive, administrative and judicial functions, the welfare activities of the state, the conduct of foreign relations have been treated as mere emanations of the lawmaking faculty. Legislation has engulfed all other powers. The analytical conception of law has been thought to determine the nature of all other political concepts. The analytical explanation of law has been deemed in itself a full and perfect explanation of the whole of politics.

The juristic theory of the state need not, however, be considered in this extreme form. As interpreted by Dr. Willoughby, it makes no claim to offer a complete philosophy of politics. Indeed it is expressly denied by him that its point of view embraces the origin, end, scope, justification, or nature of political authority. Since all these aspects fall within the scope of political philosophy, the viewpoints of law and politics cannot in fact be identical.

It

It is apparent, then, that the analytical theory as stated in its more moderate form by Dr. Willoughby assumes the legal viewpoint to be a section of the broader political point of view. The standpoint is the same, but law has a narrower outlook. views but a portion of political phenomena. As thus stated, the juristic philosophy does not seek to reduce to one comprehensive system the entire range of political phenomena. It sets itself