OUTLINE OF CHAPTER II NATURE OF INTERNATIONAL LAW 4. EARLY TERMINOLOGY. (a) Use of the term jus naturale. (b) Jus gentium defined. (c) Use of other terms. 5. HISTORICAL BASES. 6. ETHICAL BASES. 7. JURAL BASES. (a) Sanction of Roman law. (b) Ethical influence of canon law. (c) Practical influence of common law. (d) Equity and recognition of principles. (e) Admiralty law and maritime relations. 8. INTERNATIONAL LAW AND STATUTE LAW. 9. INTERNATIONAL LAW AND LAW IN GENERAL. CHAPTER II NATURE OF INTERNATIONAL 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 the conduct of man toward his fellows. Use of the term jus naturale. (a) Jus naturale is defined broadly by Ulpian1 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." 2 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." 3 The discussion of jus naturale has been carried on from an early period, 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 * "De Jure Belli," Bk. I, Ch. I, § 10. 1 "Institutes," I, 1, 1. "Political Ethics," 2d ed., I, p. 68. Maine, "Ancient Law," Ch. IV. all peoples uniformly regard." 1 Jus gentium defined. "Jus gentium is common to the whole human kind." 2 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.3 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 Use of other terms. particularly to the declaration of war and sanction of treaties. 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, until it has come into almost universal use in Englishspeaking countries. 5 The change in terminology shows in a measure the progress 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, direct investigation of what is has determined the character of the rules and principles. What is state practice in a given case can be determined only by reference to history. From the history of cases and practice, 1 "Institutes," I, 2, 1. 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.1 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 '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. (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 Equity and 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. |