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injury to the enemy so indirect, that the power of destroying neutral vessels before condemna tion ought 'not to be entrusted to the com manders of warships." INTERNATIONAL LAW (Nature of.
Jurisprudence)
THE Austinian doctrine that International law is more ethical than legal in its nature is refuted by James B. Scott in an article in the Columbia Law Review (V. 5, p. 124) entitled, "The Legal Nature of International Law." He submits that "the mere form of the sanction is immaterial, and that the nature of law cannot well depend upon the whim or ability of a sheriff or the mere success or failure of an army in the field. If the principle is binding at all—that is, if nations admit that a principle binds them, it is of no great moment whether the force is moral, ethical, or physical." "If nations enforce a given tenet of international law as law every time it comes into play, it must surely be because it is law and binding." He further contends, "that the sanction al though usually accompanying is not absolutely indispensable to the conception of law." He submits that it is possible that two systems of law, municipal and international, may co exist and that each may be enforced in a different way corresponding to the nature of one and the other. He admits that in inter national law when the right in litigation does not arise in the Municipal Court of one or other of the nations, but arises between two given nations acting in their representative capacity, no legal sanction of the kind required by Austin exists at present in the law of nations, but that obedience to a principle of international law results from international public opinion or finally from the most for midable sanction known to nations,—War. JURISPRUDENCE (Development of Law)
THE address of Prof. Joseph H. Beale, Jr., before the St. Louis Congress of Arts and Sciences on the "Development of Jurispru dence During the Past Century," is printed in the February Harvard Law Review (V. 18, p. 371). Of the changes in the "science of justice" as practiced in civilized nations he says:— "The spirit of the time molds and shapes its
law, as it molds and shapes its manner of thought and the whole current of its life. For law is the effort of a people to express its idea of right; and while right itself cannot change, man's conception of right changes from age to age, as his knowledge grows. The spirit of the age, therefore, affecting as it must man's conception of right, affects the growth both of the common and of the statute law. But the progress toward ideal right is not along a straight line. The storms of ignorance and passion blow strong, and the ship of progress must beat against the wind. Each successive tack brings us nearer the ideal, yet each seems a more or less abrupt departure from the pre ceding course. The radicals of one period be come the conservatives of the next, and are sure that the change is a retrogression; but the experience of the past assures us that it is progress. Two such changes have come in the last century. The eighteenth had been, on the whole, a self-sufficient century; the leaders of thought were usually content with the world as it was, and their ideal was a classical one. The prophets of individuality were few and little heeded. But at the end of the century, following the American and French revolutions, an abrupt change came over the prevailing current of thought throughout the civilized world; and, at the beginning of the period under discussion, the rights of man and of nations become subjects not merely of theoreti cal discussion but of political action. The age became one of daring speculation. Pre cedent received scant consideration." "Starting from this point the spirit of the time for more than a generation was humani tarian and individualistic." "It was rather a destructive than a constructive age and its thinkers were iconoclasts, but a change be ginning with the second third of the century was gradually accomplished." The applica tion of steam and electricity made association the rule in business and as it became more effectual there it became more readily accepted in social and political affairs until we have be come "more interested in the rights of men than in the rights of man; the whole has come to be regarded as of more value than the separate parts." As a result he finds that not merely English
