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Political Science Review

Vol. XII

FEBRUARY, 1918

THE NATURE AND THE FUTURE OF
INTERNATIONAL LAW1

MUNROE SMITH

No. 1

Returning, in the early days of the war, from a belligerent Germany, through a mobilized Switzerland and a partly mobilized Italy, to an America that was still unperturbed and unprepared, I revisited the famous Museum of Naples. In one of the central corridors, I noticed an ancient mural inscription, which I had doubtless seen before without appreciating its significance an inscription of the time of Augustus: "To perpetual peace." Thus even in warlike Rome, and more than nineteen centuries ago, after a series of wars that had shaken the then civilized world from the Alps to the African deserts and from the Pillars of Hercules to the Nile, as after every great war that has since devastated Europe, men's minds were turning with inextinguishable hope to the vision of a warless future.

I

To keep the peace is the prime and perpetual problem of law. From prehistoric ages, when loosely aggregated tribes first sought to limit feuds between kinship groups and to substitute compensation for vengeance, to our own day, when we are still striving to check the unregenerate human reversion to violence

1 Presidential address, at the annual meeting of the American Political Science Association, Philadelphia, December 28, 1917.

in economic struggles, and to persuade or compel the adjustment of labor troubles through negotiation or arbitration, the fundamental command of the state has been the praetorian vim fieri veto. This is also the goal, yet unattained, of that body of law, ancient in its beginnings but still imperfectly developed, which we call the law of nations.

To describe a law that is construed and applied in the courts of every civilized state and in international courts of arbitration; a law whose rules are to be found not only in recorded precedents but also in resolutions of international congresses; a law that has been elucidated for three centuries by the labor of hundreds of trained jurists, until its sources and literature form a library far larger than that of many an existing system of national law— at least twenty times larger than the library used in compiling the law books of Justinian-to describe such a law as imperfectly developed seems paradoxical. Many writers, however, go much further, denying that the law of nations deserves the name of law. They call it international morality. Others deny that it merits even this name. Recognizing no world ethics, they assert that international law is nothing more than a body of usages, morally binding upon the single state only in so far as the state accepts them, supplemented by agreements which each state concludes of its own free will and cancels at its own sovereign pleasure.

All these writers, of course, admit that in so far as any state binds itself by international agreements, and so long as it adheres to these agreements, and in so far as the rules of international morals or international usage are recognized by the legislatures or courts of the single state and enforced through its own administrative or judicial processes, what we call international law is indeed law, but only because it is national law. When a controversy arises between states, treaty provisions that are repudiated by either of the parties and rules that are not binding upon both parties by their own domestic law are not law at all, because there exists no superior organized force to constrain obedience.

The assumption that underlies these assertions is that no rules

of social conduct can be regarded as legal rules unless they are supported by superior force, exercised by some generally recognized and relatively permanent superior authority. It is further maintained, by many writers, that law, properly so-called, not only must be enforced, but also must be established by such an authority. To this last contention, however, legal history lends no support. Little national law was originally established by organized political authority, unless recognition is to be regarded as establishment. Usages older than courts or legislatures were interpreted by the earliest courts and embodied in the earliest legislation. Even in the later stages of legal development changes of usage have been similarly recognized.

Among the writers who maintain that international law is really law, some insist, and with truth, that physical coercion is not the only means that a society employs to insure obedience to its laws, nor is it always the most effective means of coercion. Ridicule of unusual conduct and disapproval of anti-social conduct exercise a psychical pressure that is often more effective than fine or imprisonment. If social disapproval is sufficiently strong to entail ostracism, and if this begets a boycott, a society exercises the same economic pressure that a state employs when it supports its laws with pecuniary fines or with confiscation of property. Even in the modern state, the law that is made or recognized by political authority would be far less generally observed if the penalties that are imposed on anti-social conduct by the physical power of the state were not supplemented by the pressure of public opinion. These writers point out that international law has an effective sanction in the sentiments and opinions of civilized mankind, and that no state, however powerful, can without serious risk antagonize the civilized world.

Between those who assert that rules enforced by psychical pressure may be regarded as legal rules, and those who insist on the criterion of forcible coercion by a political superior, an intermediate position may be taken. It may be admitted that social imperatives can properly be regarded as legal only when they are supported in last instance by force, without admitting that this force must needs be exercised by an organized political authority.

If a society that has no political organization, or none that is efficient, exercises physical coercion, either through spontaneous general action or through extemporized organs, to punish acts that are regarded as anti-social, or if it recognizes the right of its individual members to exercise physical coercion against offenders and protects them against retaliation, it may well be maintained that social usages thus sanctioned are legal.

From this point of view it is possible to distinguish tribal law in its earliest stages of development from tribal manners and morals, and to find in early tribal usage a core at least of true law. From this point of view it may also be said that some at least of the rules that govern the relations between independent modern states are to be regarded as legal rules.

Not a few writers have compared international law in its present stage of development with national law in its infancy or adolescence. In the law of nations, as in all early law, the greater part of the recognized rules rest on precedent; they are customs. In either system, law may be supplemented or even changed by agreement, and agreement must in principle be general. Decision by a majority of voices was no more recognized in the Teutonic folkmoots or in the Polish Diet than in the international congresses of today. Agreements bound only those that agreed. In both the historic instances cited, however, the principle of general consent was modified by the greater influence of the more important members of the community. In the Teutonic folkmoot, a handful of common free men would hardly attempt to groan down a proposal supported by all the chiefs. In the Polish Diet an ordinary nobleman would hesitate to interpose his liberum veto against a resolution supported by all the magnates. Today the general agreement of the more important states sometimes suffices to establish a new international rule.

The most striking analogy between the society of nations and early tribal society is to be found in the fact that the early tribe was not primarily a society of individual human beings, but a society composed of more or less independent groups. The Teutonic tribe, for example, was a society of kinship groups.

The legal molecule was the Sippe, for which you will permit me to use the good old Saxon word "sib." The atoms in this social molecule were disregarded. As in the society of nations a wrong to an individual is a wrong to his state, so in the Teutonic tribe an injury inflicted on an individual was an injury inflicted on his sib. The absence or imperfect development of superior political authority inevitably leaves the redress of wrongs to self-help; and in the Teutonic tribe this was the affair of the sib, as in the society of nations it is the affair of the state. In the one case the ultimate means of redress was sib feud; in the other, it is war. To the Teutons, feud between sibs and war between tribes were essentially the same thing; the only difference was in the scale of operations.

As early as the fifth century, however, and probably earlier, the Teutonic tribe had taken a step forward which the society of nations is today endeavoring to take. It had suppressed feud in the case of minor injuries, compelling the injured sib to come into the popular court and demand penalty. It permitted feud only in cases of "blood and honor." And even here, if the injured sib was willing to waive vengeance and sue for penalty, the offending sib was forced to answer in court.

Again, in dealing with acts that clearly injured not only a sib but also the whole tribe, the Teutons had established in a prehistoric period the rule that such an act put the offender out of the peace of the tribe, and that any freeman might slay him with impunity. In such a case the slain man's sib was restrained from raising feud. The list of offenses recognized as crimes against the tribe was indeed a short one, but the list of offenses recognized today as crimes against the world is still shorter. Piracy is perhaps the only clear case. The attempt to assimilate the slave trade to piracy has not been fully successful.

A very important difference between modern international and early national law is found in the fact that early society was working out slowly and with infinite travail those notions of substantive right that are today familiar to every civilized human being. Courts were instituted to terminate controversy; justice has been a by-product. From this point of view,

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