Page:The Green Bag (1889–1914), Volume 15.pdf/200

 The Place of International Law in American Jurisprudence. 6 c of law, although it may differ from the muni cipal law just as a treaty differs in formation from an ordinary act of Congress. The simple but forcible illustration of Abbe Galliani in maintaining a First Cause as against the doctrine of chance is clearly in point. There is—to paraphrase rather than to quote him literally—nothing strange in a man's throwing double sixes once; if he throws them two or three times in suc cession, the transaction becomes a trifle sus picious; but if he throws double sixes every time, the inevitable conclusion in the mind of every reasonable and thinking person is that the dice are loaded. Now if nations en force a given tenet of international law as law every time it comes into play, it must surely be because it is law and binding, and if the Austinian definition of law does not include this law of nations everywhere exist ent in modern civilized life, enforceable and enforced as law, something must be the mat ter with the Austinian conception. The fol lowing extracts will make clear the attitude of John Austin and his school which, it must be admitted, has profoundly influenced English speculation. It cannot be said, how ever, that master and pupil have fanned into flame "the gladsome light of jurisprudence"; they have rather smothered it so far as in ternational law is concerned. But to the words of the master. "Closely analogous to human laws of this second class [set by men not political superi ors, or not acting as such] are a set of ob jects frequently but improperly termed laws, being rules set and enforced merely by the opinion of an indeterminate body of men; f. £., where the word law is used in such expressions as 'the law of honor, the 'laws of fashion.' Rules of this species constitute much of what is usually termed 'interna tional law.'" "Positive morality, considered without re gard to its goodness or badness, might be the subject of a science closely analogous to

jurisprudence. I say 'might be,' since it is only in one of its branches (namely, the law of nations or international law), that positive morality, thus considered, has been treated by writers in a scientific or systematic man ner. For the science of positive morality considered without regard to its goodness or badness, current or established language will hardly afford us a name. But, since the science of jurisprudence is not unfrequently styled 'the science of positive law,' the sci ence in question might be styled analogically 'the science of positive morality.' The de partment of the science in question which re lates to international law, has actually been styled by Von Martens, a writer of celebrity, 'positives oder practischcs Volkerrecht' : that is to say, 'positive international law,' or 'practical international law.' Had he named that department of the science 'positive inter national morality,' the name would have hit its import with perfect precision.'' "Grotius, Puffendorf and the other writers on the so-called law of nations, have con founded positive international morality, or the rules which actually obtain among civil ized nations in their mutual intercourse, with their own vague conceptions of international morality as it ought to be, with that indeter minate something which they conceive it would be, if it conformed to that indetermin ate something which they call the law of na ture." "Society formed by the intercourse of in dependent political societies, is the province of international law, or of the law obtaining between nations. For (adopting a current expression) international law, or the law ob taining between nations, is conversant with the conduct of independent political societies considered as entire communities: circa negnfia ct caiisas gentium intcgrarnm. Speaking with greater precision, international law, or the law obtaining between nations, regards the conduct of sovereigns considered as re lated to one another.