International Law. A Treatise Volume I Part 8

[Footnote 76: See Phillipson in _The Journal of the Society of Comparative Legislation_, New Series, IX. (1908), pp. 281-304.]

The distinction between the natural Law of Nations, chiefly treated by Grotius, and the customary or voluntary Law of Nations, chiefly treated by Zouche,[77] gave rise in the seventeenth and eighteenth centuries to three different schools[78] of writers on the Law of Nations--namely, the "Naturalists," the "Positivists," and the "Grotians."

[Footnote 77: It should be mentioned that already before Zouche, another Englishman, John Selden, in his "De jure naturali et gentium secundum disciplinam ebraeorum" (1640), recognised the importance of the positive Law of Nations. The successor of Zouche as a Judge of the Admiralty Court, Sir Leoline Jenkins (1625-1684), ought also to be mentioned. His opinions concerning questions of maritime law, and in especial prize law, were of the greatest importance for the development of maritime international law. See Wynne, "Life of Sir Leoline Jenkins," 2 vols.

(1740).]

[Footnote 78: These three schools of writers must not be confounded with the division of the present international jurists into the diplomatic and legal schools; see above, -- 51, No. 5.]

[Sidenote: The Naturalists.]

-- 55. "Naturalists," or "Deniers of the Law of Nations," is the appellation of those writers who deny that there is any positive Law of Nations whatever as the outcome of custom or treaties, and who maintain that all Law of Nations is only a part of the Law of Nature. The leader of the Naturalists is Samuel Pufendorf (1632-1694), who occupied the first chair which was founded for the Law of Nature and Nations at a University--namely, that at Heidelberg. Among the many books written by Pufendorf, three are of importance for the science of International Law:--(1) "Elementa jurisprudentiae universalis," 1666; (2) "De jure naturae et gentium," 1672; (3) "De officio hominis et civis juxta legem naturalem," 1673. Starting from the a.s.sertion of Hobbes, "De Cive," XIV.

4, that Natural Law is to be divided into Natural Law of individuals and of States, and that the latter is the Law of Nations, Pufendorf[79] adds that outside this Natural Law of Nations no voluntary or positive Law of Nations exists which has the force of real law (_quod quidem legis proprie dictae vim habeat, quae gentes tamquam a superiore profecta stringat_).

[Footnote 79: De jure naturae et gentium, II. c. 3, -- 22.]

The most celebrated follower of Pufendorf is the German philosopher, Christian Thomasius (1655-1728), who published in 1688 his "Inst.i.tutiones jurisprudentiae divinae," and in 1705 his "Fundamenta juris naturae et gentium." Of English Naturalists may be mentioned Francis Hutcheson ("System of Moral Philosophy," 1755) and Thomas Rutherford ("Inst.i.tutes of Natural Law; being the Substance of a Course of Lectures on Grotius read in St. John's College, Cambridge," 2 vols.

1754-1756). Jean Barbeyrac (1674-1744), the learned French translator and commentator of the works of Grotius, Pufendorf, and others, and, further, Jean Jacques Burlamaqui (1694-1748), a native of Geneva, who wrote the "Principes du droit de la nature et des gens," ought likewise to be mentioned.

[Sidenote: The Positivists.]

-- 56. The "Positivists" are the antipodes of the Naturalists. They include all those writers who, in contradistinction to Hobbes and Pufendorf, not only defend the existence of a positive Law of Nations as the outcome of custom or international treaties, but consider it more important than the natural Law of Nations, the very existence of which some of the Positivists deny, thus going beyond Zouche. The positive writers had not much influence in the seventeenth century, during which the Naturalists and the Grotians carried the day, but their time came in the eighteenth century.

Of seventeenth-century writers, the Germans Rachel and Textor must be mentioned. Rachel published in 1676 his two dissertations, "De jure naturae et gentium," in which he defines the Law of Nations as the law to which a plurality of free States are subjected, and which comes into existence through tacit or express consent of these States (_Jus plurium liberalium gentium pacto sive placito expressim aut tacite initum, quo utilitatis gratia sibi in vicem obligantur_). Textor published in 1680 his "Synopsis juris gentium."

In the eighteenth century the leading Positivists, Bynkershoek, Moser, and Martens, gained an enormous influence.

Cornelius van Bynkershoek[80] (1673-1743), a celebrated Dutch jurist, never wrote a treatise on the Law of Nations, but gained fame through three books dealing with different parts of this Law. He published in 1702 "De dominio maris," in 1721 "De foro legatorum," in 1737 "Quaestionum juris publici libri II." According to Bynkershoek the basis of the Law of Nations is the common consent of the nations which finds its expression either in international custom or in international treaties.

[Footnote 80: See Phillipson in _The Journal of the Society of Comparative Legislation_, New Series, IX. (1908), pp. 27-49.]

Johann Jakob Moser (1701-1785), a German Professor of Law, published many books concerning the Law of Nations, of which three must be mentioned: (1) "Grundsatze des jetzt ublichen Volkerrechts in Friedenszeiten," 1750; (2) "Grundsatze des jetzt ublichen Volkerrechts in Kriegszeiten," 1752; (3) "Versuch des neuesten europaischen Volkerrechts in Friedens- und Kriegszeiten," 1777-1780. Moser's books are magazines of an enormous number of facts which are of the greatest value for the positive Law of Nations. Moser never fights against the Naturalists, but he is totally indifferent towards the natural Law of Nations, since to him the Law of Nations is positive law only and based on international custom and treaties.

Georg Friedrich von Martens (1756-1821), Professor of Law in the University of Gottingen, also published many books concerning the Law of Nations. The most important is his "Precis du droit des gens moderne de l'Europe," published in 1789, of which William Cobbett published in 1795 at Philadelphia an English translation, and of which as late as 1864 appeared a new edition at Paris with notes by Charles Verge.

Martens began the celebrated collection of treaties which goes under the t.i.tle "Martens, Recueil des Traites," and is continued to our days.[81]

The influence of Martens was great, and even at the present time is considerable. He is not an exclusive Positivist, since he does not deny the existence of natural Law of Nations, and since he sometimes refers to the latter in case he finds a gap in the positive Law of Nations. But his interest is in the positive Law of Nations, which he builds up historically on international custom and treaties.

[Footnote 81: Georg Friedrich von Martens is not to be confounded with his nephew Charles de Martens, the author of the "Causes celebres de droit des gens" and of the "Guide diplomatique."]

[Sidenote: The Grotians.]

-- 57. The "Grotians" stand midway between the Naturalists and the Positivists. They keep up the distinction of Grotius between the natural and the voluntary Law of Nations, but, in contradistinction to Grotius, they consider the positive or voluntary of equal importance to the natural, and they devote, therefore, their interest to both alike.

Grotius's influence was so enormous that the majority of the authors of the seventeenth and eighteenth centuries were Grotians, but only two of them have acquired a European reputation--namely, Wolff and Vattel.

Christian Wolff (1679-1754), a German philosopher who was first Professor of Mathematics and Philosophy in the Universities of Halle and Marburg and afterwards returned to Halle as Professor of the Law of Nature and Nations, was seventy years of age when, in 1749, he published his "Jus gentium methodo scientifica pertractatum." In 1750 followed his "Inst.i.tutiones juris naturae et gentium." Wolff's conception of the Law of Nations is influenced by his conception of the _civitas gentium maxima_. The fact that there is a Family of Nations in existence is strained by Wolff into the doctrine that the totality of the States forms a world-State above the component member States, the so-called _civitas gentium maxima_. He distinguishes four different kinds of Law of Nations--namely, the natural, the voluntary, the customary, and that which is expressly created by treaties. The latter two kinds are alterable, and have force only between those single States between which custom and treaties have created them. But the natural and the voluntary Law of Nations are both eternal, unchangeable, and universally binding upon all the States. In contradistinction to Grotius, who calls the customary Law of Nations "voluntary," Wolff names "voluntary" those rules of the Law of Nations which are, according to his opinion, tacitly imposed by the _civitas gentium maxima_, the world-State, upon the member States.

Emerich de Vattel[82] (1714-1767), a Swiss from Neuchatel, who entered into the service of Saxony and became her Minister at Berne, did not in the main intend any original work, but undertook the task of introducing Wolff's teachings concerning the Law of Nations into the courts of Europe and to the diplomatists. He published in 1758 his book, "Le droit des gens, ou principes de la loi naturelle appliques a la conduite et aux affaires des Nations et des Souverains." But it must be specially mentioned that Vattel expressly rejects Wolff's conception of the _civitas gentium maxima_ in the preface to his book. Numerous editions of Vattel's book have appeared, and as late as 1863 Pradier-Fodere re-edited it at Paris. An English translation by Chitty appeared in 1834 and went through several editions. His influence was very great, and in diplomatic circles his book still enjoys an unshaken authority.

[Footnote 82: See Montmorency in _The Journal of the Society of Comparative Legislation_, New Series, X. (1909), pp. 17-39.]

[Sidenote: Treatises of the Nineteenth and Twentieth Centuries.]

-- 58. Some details concerning the three schools of the Naturalists, Positivists, and Grotians were necessary, because these schools are still in existence. I do not, however, intend to give a list of writers on special subjects, and the following list of treatises comprises the more important ones only.

(1) BRITISH TREATISES

_William Oke Manning_: Commentaries on the Law of Nations, 1839; new ed. by Sheldon Amos, 1875.

_Archer Polson_: Principles of the Law of Nations, 1848; 2nd ed.

1853.

_Richard Wildman_: Inst.i.tutes of International Law, 2 vols.

1849-1850.

_Sir Robert Phillimore_: Commentaries upon International Law, 4 vols. 1854-1861; 3rd ed. 1879-1888.

_Sir Travers Twiss_: The Law of Nations, etc., 2 vols. 1861-1863; 2nd ed., vol. I. (Peace) 1884, vol. II. (War) 1875; French translation, 1887-1889.

_Sheldon Amos_: Lectures on International Law, 1874.

_Sir Edward Shepherd Creasy_: First Platform of International Law, 1876.

_William Edward Hall_: Treatise on International Law, 1880; 6th ed. 1909 (by Atlay).

_Sir Henry Sumner Maine_: International Law, 1883; 2nd ed. 1894 (Whewell Lectures, not a treatise).

_James Lorimer_: The Inst.i.tutes of International Law, 2 vols.

1883-1884; French translation by Nys, 1885.

_Leone Levi_: International Law, 1888.

_T. J. Lawrence_: The Principles of International Law, 1895; 4th ed. 1910.

_Thomas Alfred Walker_: A Manual of Public International Law, 1895.

_Sir Sherston Baker_: First Steps in International Law, 1899.

_F. E. Smith_: International Law, 1900; 4th ed. 1911 (by Wylie).

_John Westlake_: International Law, vol. I. (Peace) 1904, vol. II.

(War) 1907; 2nd ed. vol. I. 1910.

(2) NORTH AMERICAN TREATISES

_James Kent_: Commentary on International Law, 1826; English edition by Abdy, Cambridge, 1888.

_Henry Wheaton_: Elements of International Law, 1836; 8th American ed. by Dana, 1866; 3rd English ed. by Boyd, 1889; 4th English ed.

by Atlay, 1904.

_Theodore D. Woolsey_: Introduction to the Study of International Law, 1860; 6th ed. by Th. S. Woolsey, 1891.