stead of Grotian. While there has undoubtedly been great improvement in standards of diplomatic conduct, especially since the close of the Napoleonic wars, the fact has not been sufficiently recognized, at least by publicists, that beyond the wellcultivated field of International Law there still lie vast and but partially unexplored regions of policy where motives of interest and expediency prevail rather than ideals of law and justice. The aims and methods which govern international relations in these fields of policy or diplomacy may and should be in harmony with established laws and customs, but are often independent of, and sometimes even antagonistic to, recognized rules and principles. At any rate, statesmen exercise a wider discretion and feel less bound by legal checks and moral standards in the realm of International Policy or Diplomacy than within the narrower field bounded by definite rules of positive International Law. The abuse of this freedom frequently leads to intervention and war.8

7. International Private Law or Conflict of Laws. International Private Law or Conflict of Laws is that body of rules or principles which decide between two conflicting systems of law in the decision of cases affecting private rights. It is not a part of International Law proper, and appears to owe its origin to a feeling of comity 10 rather than to a sense of justice, although it now rests upon a more positive basis. "It derives its force from the sovereignty of the States administering it; it affects only the relations of individuals as such; and it consists in the rules by which courts determine within what national jurisdiction a case equitably falls, or by what national force it is just that it shall be decided." " It relates especially to such mat

8 Nys (Le droit int., I, p. 204) quotes von Holtzendorff as saying that "international politics is the use of an international force acting in the interest of the community." He (Holtzendorff) cites the following discriminating words of Bulmerincq: "Law leaves no choice; policy keeps open various means to an end and permits a free choice in respect to these." (See Bulmerincq, in Marquardsen's Handbuch, I, § 3.) For a discussion of this subject from an ideal standpoint, see Novicow, La politique int. (1886).

9 The term International Private Law seems more exact than Private International Law the phrase usually employed. Conflict of Laws is perhaps preferable

to either.

10 See Hilton v. Guyot, 159 U.S. 113, 164-165; and Story, Conflict of Laws, Nos 28, 33-38. 11 Hall (6th ed.), p. 51.

ters as limits of national jurisdiction; validity of foreign marriages, wills, and contracts; and questions of residence, domicile, and nationality. It is a part of the municipal law in each State and of the common law in England and the United States.12

8. International Administrative Law. International Administrative Law-a branch of international jurisprudence which is still in its infancy-has been tentatively defined as "that body of laws and regulations created by the action of International Conferences or Commissions which regulate the relations and activities of national and international agencies with respect to these material and intellectual interests which have received an authoritative universal organization." 18 It relates to such matters as international communication by means of postal correspondence and telegraphy, international transportation, copyright, crime (e.g. the white slave traffic), sanitation, etc. It is created by International Congresses or Conferences, and Commissions, and is administered by International Commissions and Bureaus as well as by national agencies.

9. Is International Law a Branch of True Law?- The claim of International Law to be considered a branch of true law or jurisprudence proper has been often denied, more especially by that English school of analytic and positive jurisprudence founded by Bentham and Austin. The Austinian or imperative view of law, which has also found some support on the Continent, seems to-day to be rejected by an overwhelming weight of authority, except possibly in England and the United States.14

The objections to considering International Law as a branch of true law fall under three main heads. It is maintained that the Law of Nations lacks: (1) The quality of positive authority or command. It does not conform to Austin's definition of law as "a rule laid down for the guidance of an intelligent being

12 Wharton, Conflict of Laws, I, § 1. Minor (Conflict of Laws, § 2) thus distinguishes International Private Law from International Public Law: (1) as to persons on whom it operates, i.e. on private persons; (2) as to transactions to which it relates, i.e. to private interests; (3) as to remedies applied, i.e. these are applied by courts or tribunals. In the United States, the States are regarded as sovereign from the standpoint of Conflict of Laws.

13 Reinsch, in 3 A. J. (1909), 5.

"For lists of authorities for and against the Austinian or imperative view of law, see bibliography at the end of this chapter.

by an intelligent being having power over him." 15 In other words, it is not the general command of a determinate legislator or legislative body with power to enforce its decisions. (2) There is no legal duty or obligation of obedience on the part of those to whom it is addressed, for there are no courts or judicial tribunals to interpret and enforce this so-called law. (3) There is no penalty prescribed for disobedience. Consequently, it lacks sanction or physical power to enforce obedience. The so-called Law of Nations is, it is claimed, a branch of ethics rather than of jurisprudence.16

It is now generally agreed that the Austinian view of law is formal, narrow, arbitrary, unhistorical, and unphilological." While it may still have some value for those who practice and administer law in the courts, it does not even furnish a complete definition of municipal law, as many laws are permissive rather than mandatory in their character. It leaves out of account that large and important part of constitutional law which is based upon usage or convention and is not directly administered by judicial tribunals.

The researches inaugurated by Sir Henry Maine and Savigny, the founders of the modern school of historical jurisprudence, have shown that custom is anterior to enacted law, of which indeed it remains the essence even after it has become incorporated into codes and statutes and interpreted by the courts. Even Holland admits that judges do not transform custom into law, for they apply it "retrospectively " as well as "prospectively." They merely place upon it "the stamp of judicial authentication." 18

Leading authorities even maintain that physical sanction or the threat of physical force is a mere accident and is not an essential characteristic of law. It is but a means to an enda part of the machinery of society for the enforcement of law. 15 Cf. Holland's definition of law as a general rule of external human action enforced by a sovereign political authority," in Jurisprudence (10th ed.), 40. 16 In this paragraph I have sought rather to summarize the objections generally made to the legal nature of International Law than to state the specific objections of Austin.

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17 This last point has been elaborated by Clark, in his Practical Jurisprudence, Pt. I, chs. 2-7. For a summary of the philological argument, see Walker, Science of International Law, 21 ff.

18 Holland, op. cit., p. 58.

Far more important than the infliction of punishment is the creation of a law-abiding sentiment among the people.19 Besides, the laws to which the severest penalties are attached are not always those most generally or scrupulously obeyed.20

Law in jurisprudence is essentially a body of customs, principles, or rules for the regulation of the external conduct of human beings in their relations with one another as members of a political community.21 In order fully to answer the description of law, these rules must be generally recognized as binding and enforceable by external power or appropriate sanction, but they are not necessarily accompanied by the threat or use of physical force in case of their violation. The guarantees or sanctions securing their observance need not be based upon the assertion of force or the danger of speedy and definite punishment. The guarantees for International Law, and still more for the customs and conventions of constitutional law, are mainly of a moral nature; and these rest upon public opinion and law-abiding habits on the part of the people for their observance.22 Besides, we cannot admit that International Law lacks altogether a determinate lawgiver and sovereign authority.

European Con

19 This is a summary of Walker's argument. See op. cit., pp. 29 ff.

From the point of view of general recognition and habitual obedience, International Law certainly compares favorably with municipal or State law. For example, treaties are, as a rule, faithfully executed, and arbitral decisions are nearly always carried out. The rules of warfare have been generally observed during recent wars between civilized States. Even in violating the Law of Nations, modern governments usually render to it the homage of pretended obedience.

Cf. the definitions of Oppenheim, I, § 5, and Clark, p. 134. For numerous definitions of law, see Clark, chs. 4-14, and Holland (10th ed.), pp. 41-43.

Pollock (First Book, etc., p. 28) justly observes that "the only essential conditions for the existence of law and legal institutions are existence of a political community and the recognition by its members of settled rules binding upon them in that capacity." But he had previously observed (p. 22) that "the appointed consequences of disobedience, the sanctions of law as they are commonly called, seem to be not only a normal element of civilized law, but a necessary constituent."

On this point, see especially the profound observations of the eminent German publicist Jellinek, in his Recht des modernen Staats (2d ed., 1905), 325 ff., and his Staatenverträge, 37 ff.

23

Creasy (First Steps, etc., p. 70) observes on this head: Although Sovereign States acknowledge no common Superior Lawgiver from which they collectively receive imperative Law, yet they can and do make up a community capable of establishing Laws which shall be binding on each member of the community. In this sense the community at large is a sovereign Lawgiver to each member of the community." So far he seems sound, subject to the reservation that each member

gresses, like those of Paris in 1856 and the recent Hague Conferences, exercised virtual legislative powers and issued commands which have been recognized as binding and are generally obeyed. The thirteen Conventions of the Second Hague Peace Conference of 1907 (compared with the three Conventions of the Conference of 1899) bear witness to the increasing activity and importance of international legislation. True it is that these Conventions bear the form of treaties which each State may refuse to sign and ratify, but they are none the less in essence acts of international legislation.24

Nor is International Law wholly without judicial sanction. It is frequently administered and interpreted by judicial tribunals, more particularly by courts of arbitration and national prize courts. The Hague Conference of 1907 even provided for the creation of an International Prize Court which, in the absence of conventions or national legislation, shall apply the rules of International Law.25

If physical sanction or the threat or guarantee of physical force is an essential characteristic of law, then it must indeed be admitted that International Law is a law of imperfect obligation. But it has been shown that such is by no means the case. It is impossible to agree with those authorities 26 who hold that war of the community can withhold its assent to these laws. But when he makes sanction for this law consist in war or physical force in prospective, we decline to follow him.

24 This is not merely the author's opinion; it is that of eminent jurists like Jellinek, who says: "Such agreements (Vereinbarungen) are not in essence treaties. They create no jus intra partes, but a jus supra partes, i.e. they give expression to a common juristic conviction; they are not two-sided legal creations, but common irrevocable declarations" (Öffentliches Recht, 299).

25 Title I, Art. 7, of the “Convention for the Establishment of an International Prize Court." It was further provided: "If generally recognized rules do not exist, the Court shall decide in accordance with the general principles of justice and equity." The Court is thus expressly authorized to create International Law in such a contingency.

26 For example, Bluntschli, Introduction, p. 8; Creasy, § 78; Holland, Jurisprudence, (10th ed.) 391-393; Salmond, Jurisprudence, 14; 1 Twiss, pp. vii-ix.

Among those who deny that war is a legal sanction, are: Amos, Remedies for War, 137; Bonfils (Fauchille),No. 29; Chauveau, note on p. 14; Chrétien, No. 7; Funck-Brentano et Sorel, 7; Nippold, Die Fortbildung des Verfahrens, 86; and I Pradier-Fodéré, No. 23. See also Dumas, Sanctions de l'arbitrage (1905), passim; Moulin, La doctrine de Drago, 121-129; Preuss, Das Völkerrecht im Dienst des Wirtschaftlebens, 17 ff. and note on p. 58; Lagorgette, Le rôle de la guerre, 318 ff.; and Lueder, in 4 Holtzendorff's Handbuch, § 49.