TWO REPRESENTATIVES OF THE GROTIAN SCHOOL The growth of international law, both in precision and in scope, has been one of the marked features of the general development of law in the nineteenth century. It is true that even at the present day the reproach is often cast upon international law that its content is unsettled, its authority vague, and its method unscientific. But one has only to compare the standard text-books of the present day with the treatises that were quoted as authorities in the beginning of the nineteenth century to realize the great progress which has been made towards the establishment of international law upon a truly scientific basis. It cannot fairly be expected that international law should have as yet attained, or shall in the near future attain, the precision and definiteness of municipal law. The last decade of the century did indeed witness the first sitting of an international legislative body in the form of a conference at The Hague, which enacted what may be called international statutory law. But apart from the fact that this body was composed of the representatives of independent, not of federal, states, and therefore its rulings could not be final, the subject-matter with which it dealt was in many cases not such as would admit of definition and analysis after the methods of municipal law. The states composing the family of nations present differences of physical, mental and moral characteristics far more marked than those exhibited by the individuals within a given state, and it is but natural therefore that it should be correspondingly difficult to codify in a precise and scientific manner the rules governing their mutual relations. But while the difficulties attending the codification of international law cannot be denied, there is reason to believe that the growth of international law during the twentieth century will proceed towards its appointed goal as steadily as it has done during the nineteenth century. Side by side with the increase of definiteness in the rules embodying the practice of nations, there went a development in the theories concerning the nature and character of the rules of international law. Gro tius had drawn the distinction in 1625 between the natural law of nations and the voluntary law of nations. This distinction formed the very basis of his system, and from its adoption by the majority of the writers of the seventeenth and eighteenth centuries arose what has been called the Grotian school of writers. The system inaugurated by Grotius recognized the moral authority of the natural law over the existing practices of nations, and was to that extent purely deductive in character; but at the same time it was ready to infer from the universality of certain accepted customs, a proof of their conformity with the natural law, and was to that extent inductive in character. In contrast with the Grotian school of writers, a school of which Pufendorf may be regarded as the leader laid chief stress upon the deductive elements of international law, regarding the law which results from the actual practice of nations as possessed of no authority whatever. On the other hand, another school, which has been given the name of the Positivist school, attached little or no weight to the natural law as a source of international law, but turned to the treaties and customs of nations as embodying the effective positive rules of international law. The Naturalist school of Pufendorf had, except for the publication of Lorimer's volumes on the Institutes of the Law of Nations in 18831884, practically ceased to assert itself during the nineteenth century, while the doctrines of the Positivist school came more and more into favor through the influence of such important works as those of Heffter, Phillimore and Hall. The Grotian school held its ground quite steadily, and while it had fewer adherents in Great Britain and Germany, it claimed the majority of the prominent French and Italian writers. In 1894 appeared two important French treatises which are fairly representative of that recent school of writers who, while seeking to be practical in their treatment of international relations, at the same time do not lose sight of the theoretical principles underlying the rules of international law. Both of these treatises have recently appeared in new editions,1 and although they differ somewhat in their estimate of 1 Manuel de Droit International Public, par Henry Bonfils, Sixième Édition, Revue et mise an courant par Paul Fauchille. Paris: Arthur Rosseau. 1912. pp. viii, 1121. Cours de Droit International Public, par Frantz Despagnet, Quatrième Édition, Complètement Revue, Augmentée et mise au courant par Ch. de Boeck. Paris: Larose et Tenin. 1910. pp. vi, 1430. TWO REPRESENTATIVES OF THE GROTIAN SCHOOL The growth of international law, both in precision and in scope, has been one of the marked features of the general development of law in the nineteenth century. It is true that even at the present day the reproach is often cast upon international law that its content is unsettled, its authority vague, and its method unscientific. But one has only to compare the standard text-books of the present day with the treatises that were quoted as authorities in the beginning of the nineteenth century to realize the great progress which has been made towards the establishment of international law upon a truly scientific basis. It cannot fairly be expected that international law should have as yet attained, or shall in the near future attain, the precision and definiteness of municipal law. The last decade of the century did indeed witness the first sitting of an international legislative body in the form of a conference at The Hague, which enacted what may be called international statutory law. But apart from the fact that this body was composed of the representatives of independent, not of federal, states, and therefore its rulings could not be final, the subject-matter with which it dealt was in many cases not such as would admit of definition and analysis after the methods of municipal law. The states composing the family of nations present differences of physical, mental and moral characteristics far more marked than those exhibited by the individuals within a given state, and it is but natural therefore that it should be correspondingly difficult to codify in a precise and scientific manner the rules governing their mutual relations. But while the difficulties attending the codification of international law cannot be denied, there is reason to believe that the growth of international law during the twentieth century will proceed towards its appointed goal as steadily as it has done during the nineteenth century. Side by side with the increase of definiteness in the rules embodying the practice of nations, there went a development in the theories concerning the nature and character of the rules of international law. Gro tius had drawn the distinction in 1625 between the natural law of nations and the voluntary law of nations. This distinction formed the very basis of his system, and from its adoption by the majority of the writers of the seventeenth and eighteenth centuries arose what has been called the Grotian school of writers. The system inaugurated by Grotius recognized the moral authority of the natural law over the existing practices of nations, and was to that extent purely deductive in character; but at the same time it was ready to infer from the universality of certain accepted customs, a proof of their conformity with the natural law, and was to that extent inductive in character. In contrast with the Grotian school of writers, a school of which Pufendorf may be regarded as the leader laid chief stress upon the deductive elements of international law, regarding the law which results from the actual practice of nations as possessed of no authority whatever. On the other hand, another school, which has been given the name of the Positivist school, attached little or no weight to the natural law as a source of international law, but turned to the treaties and customs of nations as embodying the effective positive rules of international law. The Naturalist school of Pufendorf had, except for the publication of Lorimer's volumes on the Institutes of the Law of Nations in 18831884, practically ceased to assert itself during the nineteenth century, while the doctrines of the Positivist school came more and more into favor through the influence of such important works as those of Heffter, Phillimore and Hall. The Grotian school held its ground quite steadily, and while it had fewer adherents in Great Britain and Germany, it claimed the majority of the prominent French and Italian writers. In 1894 appeared two important French treatises which are fairly representative of that recent school of writers who, while seeking to be practical in their treatment of international relations, at the same time do not lose sight of the theoretical principles underlying the rules of international law. Both of these treatises have recently appeared in new editions,1 and although they differ somewhat in their estimate of 1 Manuel de Droit International Public, par Henry Bonfils, Sixième Edition, Revue et mise an courant par Paul Fauchille. Paris: Arthur Rosseau. 1912. pp. viii, 1121. Cours de Droit International Public, par Frantz Despagnet, Quatrième Édition, Complètement Revue, Augmentée et mise au courant par Ch. de Boeck. Paris: Larose et Tenin. 1910. pp. vi, 1430. the nature of international law, their general method and scope are sufficiently the same to make it possible to examine them side by side after a parallel method of criticism. In order to determine what he calls the "basis of international law," Bonfils lays down the propositions that international law is rooted deeply and strongly in human nature itself, in the instinct and need which man has for progress and for the society of his fellows, and that the creative cause of international law is therefore to be found in the international community of organized states, while the occasional (accidental) cause is to be found in important historical facts, in the progressive development of civilization. After a discussion of the manner in which a sense of community of interests has grown up between states, Bonfils defines international law as "the law of a union desired and recognized by states, which maintain relations with other states in the interest of morality and justice, which consider these relations as indispensable to the needs of civilization, which recognize them as an integral part of a general order which the prosperity of humanity imposes upon them." 2 In conformity with this definition Bonfils asserts, with a reference to Holtzendorf, that the idea of international law supposes the concurrence of three elements: The coexistence of several autonomous states; the fact that these autonomous states maintain systematic and permanent relations with one another; and the agreement of these states to recognize one another as subjects of international law within the limits of their community.3 Having laid the basis of international law upon this a priori foundation, Bonfils accepts the definition of international law adopted by Grotius as being "at once the most simple, concise and exact." Theoretical or natural international law consists of certain fundamental principles which human reason deduces by a necessary and logical process from the existence of a community of independent states. These principles are entirely independent of custom, and the obligations which they impose are negative rather than positive in character, consisting chiefly in the duty of a state not to violate the liberty, independence and honor of other states. In contrast with theoretical or natural international law, there is posiIbid, 14. 2 Op. cit. 5. Ibid, 7. |