third head. The other two we must, with all respect, treat as inefficient for the guidance of large masses of men". In practical politics, we look, for the source of International Law, solely to the consent or comparatively unanimous conduct of nations: for its sanction, to the general avoidance and distrust which will certainly be incurred, and to particular acts of unfriendship or hostility which may possibly be incurred, by a breach of its rules. And in the actual, observed, effect of this sanction most practical men will continue to see a good reason for regarding these rules as law, and calling them by that name.

Austin on International Law. The rules generally called International Law are, according to Austin, not imperative, as not set by a determinate body; but are merely imposed by the general opinion of a society formed of various nations. Hence they are not law "properly so called,” and they are of course not "positive law" because not set by a given sovereign to a person or persons in a state of subjection to the author of the law39. The duties which these rules impose are enforced by moral sanctions; by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility and incurring its probable evils, in case they shall violate maxims generally received and respected. In laws set by general opinion it is merely likely that some party (undetermined) will visit the offender with some evil or another"; and although the analogy between such laws and laws proper is admitted"; yet the impression left upon the mind is that the law of nations is to be regarded as in the same category with the law of honour and the law of fashion13.

37 Above ch. 11. pp. 129-131.

38 Austin 5. p. 187.

41 Id. 5. p. 188.

39 Id. 6. p. 231.

42 Ib. pp. 189. 190.

40 Ib. p. 232.

43 Ib. p. 187. This passage is referred to and criticised by Manning,

Law of Nations ch. 1. pp. 4. 5.

Similar objections are brought against the term International Law, by a recent writer of much ability, in a form somewhat more practical and less dogmatic. "In three vital characteristics

1, a recognised organ of legislation;

2, a recognised court or tribunal;

3, a definite and recognised mode of enforcing the decision of that tribunal-public International Law is altogether deficient: so that to call it a law at all is rather a figure of speech than a correct use of technical language"".

These assertions are undoubtedly true: but I would submit that if International Law can operate, like other law, upon human conduct, without the vital characteristics named, we have scarcely a right to insist upon their vitality: while, if its rules may, with any reason, pass, as they do, by the name of law, there is, as I shall shortly shew, a distinct loss in refusing it to them.

Practical sanctions of International Law. I shall have to return briefly in my concluding chapter to the exceptions taken by Austin against laws of opinion in general. Here I confine myself to the bearing of those éxceptions upon the case of International Law. The actual operation of the rules known by this name would seem to be in itself a proof that sanctions have effect rather by their seriousness and certainty than by the determinateness of their character or of the quarter from which they are to come. The seriousness of "general hostility" can surely be scarcely exaggerated. Nor, as to many important parts of International Law, do I admit the indeterminateness of the individuals whose displeasure is to be apprehended.

Without taking into account treaties (which of course only affect the parties to them, under prescribed conditions),

* Paterson's Liberty of the Subject. Introduction ch. 2. p. 97.

I would advert to the fact that several perfectly definite rules, on matters of continual practical importance, have been expressly accepted by every civilised nation. Unless, therefore, we attribute to such nations an inconsistency scarcely likely even in individuals, we may confidently say that, in the case of these rules, the strong disapproval of a determinate aggregate of states is certain to visit infraction: which disapproval must diminish the cordiality of their relations with the offender if it does not interrupt them. To this serious negative evil should be added the strong probability that positive harm may be inflicted by some indeterminate state-some jealous neighbour watching his opportunity, and whom the other states will not, in such a case, interfere to prevent.

45

An Amphictionic league binding itself to punish infraction of its rules, such as was contemplated by St Pierre and Bentham 15, would of course at once meet Mr Paterson's objections, and place the rules agreed upon within Austin's definition of law proper. It may, however, be questioned whether the establishment of such a peculiarly constituted power would diminish or increase occasions of quarrel between nations. Nor is it impossible that the code of such a league, in which any reform would be a long and difficult operation, might lack the elasticity or rather the capacity for gradual improvement which the present law of opinion possesses.

Pending, however, the establishment of such a league (which is not much more probable now than it was in the time of Bentham), I maintain that the rules of International Conduct, as now actually administered by the general consent and action of civilised nations, constitute a practical law, to which it is absurd to deny the name, because it is not enacted or administered by a political superior.

45 See Woolsey § 206.

And their exclusion from the pale of law is (if I may diverge for a moment from the region of facts to a consideration of tendencies) rather more than a matter of mere logical perverseness.

The common benefit of settling some rules of conduct between nations, as a means of preventing wars, cannot be denied by any one who is not blind to history. The diminution of suffering, which has actually been effected by the settlement of rules for war itself, is equally obvious. To formulate both kinds of rules; to perceive and express the feeling of an age which renders their formulation feasible; to strengthen and educate that feeling by considerations of humanity and general utility, is the task of jurists: and to no class of thinkers does all mankind owe a deeper debt than to those who have written on International Law. But who does not know the damning effect of a popular nickname or epigram? The glibly repeated definition, that denies to International Law the name of law at all, must of necessity cast a certain slur upon the principles which still go by that name. In lowering their nominal authority it ends by weakening their practical effect. And an observed tendency to depreciate rules, which have influenced civilised mankind to their common benefit for two hundred years, is one result of the undue prominence given to certain specified "authors" and "sources" of law over the actual operation of law as an existing thing.

CHAPTER XVI.

DEFINITION OF LAW: CONCLUSION.

The general object of law. Taking law according to my definition to be a rule of human conduct sanctioned by human displeasure, I have considered it first as between the elements out of which a state is formed, secondly as between members of a fully formed state, and thirdly as between states. I have treated it rather as determined simply by its actual existence among certain classes of human beings, through whose displeasure its rules are enforced, than by the special object of the rules themselves. Of rules obtaining among other classes than those hitherto mentioned, I shall now speak very briefly; but must first say a few words as to the object of law.

We talk of law as regulating the conduct of those among whom it obtains. But we do not, of course, mean that it gives positive directions as to everything that man does or ought to do. Nor can its general aim be correctly asserted to have been, even in Christian times, a moral one, in the ordinary sense of that word'. This view of law, which is strongly taken by Savigny, seems to me to land us in that ever recurring confusion between what is and what in the opinion of the writer ought to be. Instead, therefore, of his prime moral end of law, I must substitute that which he considers secondary-the public weal.

1 See above p. 103.

2 Savigny, System 1. 1. § 15, especially pp. 53, 4.