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The Green Bag
There is an old and well-worn con troversy whether without some sanction behind it international law is law at all. It is not necessary to go into that ques tion, though I may say that it seems to me that the orthodox notions about "sanction" are somewhat archaic. The notion of an irresistible executive is one extreme, and high-sounding generalities about "natural justice," "laws of nature," etc., the other. International law is simply in the stage in which the ordinary law was before the evolution of the modern state had given it sanction as we now know it. "International law is merely the formal expression of the public opinion of the civil ized world respecting the rules of conduct which ought to govern the relations of inde pendent nations, and is, consequently, derived from the source from which all public opinion flows—the moral and intellectual convictions of mankind."19 "When, in the second place, we ask what are the sanctions of international law, it is plain from what has already been said that they can only be such as opinion has at its dis posal."" In the last analysis, abstractions aside, the sanction of international law, as of all law, is conformity to the general sense of justice. Though now, having formulated that statement, I am not sure whether I agree with myself. I ought, at least, to define what I mean by "justice." I don't mean "natural justice," known on the docket some times as "the law of God," and at other times and in other moods as the "law of nature," "custom," "usage," "utility," etc. I mean by "justice," in this connection, rather that sense of fair dealing and of give and take, that form of orderly procedure and accepted usage in our human rela tions, that system of morality, which we accept; in short, that sense of right con "Cairnes. Political Essays, 112. "Ibid, 114.
duct which appeals to our emotions and in due time gets itself written into our civilization and our law. The idea of justice comes slowly with a race or a people or even an individual. Wager of battle, so dear to the Norman con querors, did not actually disappear until the nineteenth century, and, indeed, in a measure still survives. "Four stages," says Professor Pound, — "may be observed in the development of the juristic idea of justice. . . . We say that the end of law is the administration of justice. What do we mean here by the term 'justice'? What is it that courts and jurists have sought to accomplish in the adjustment of human relations in public tribunals? The primitive idea was simply to keep the peace. Justice, juristically, was a device to keep the peace. Whatever served to avert private vengeance and prevent private war was an instrument of justice."10 Here is a prime difficulty confronting such a Court. Not only has it no law, but it has no accepted notion of justice upon which to draw. Justice among the nations is still halting. The argu ment from history and analogy is very tempting; but one can at least safely say in passing that, juristically speak ing, justice among nations does not connote or denote what it does among individuals, and that in international law today justice, as yet, has hardly even attained to the primitive idea of a device to keep the peace. The plan now is to find some sanction "sounding in justice" for international law, by putting behind it (1) an agree ment of the nations as to what the law is; or (2) to agree on a Supreme Court which shall say what the law is or shall be and to expound it; or (3) both. But as soon as one considers the ques tion of such an agreement, the academic character of current discussion as to "sanctions," and of most other juristic ""Liberty of Contract," 1909).
Yale Law Rev. (May,
