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The Green Bag

cannot be devised by which such dis putes can be properly adjusted? On this question there is a difference of opinion. Many of the leading pacifists, Zorn and Wehberg for example, are agreed that the submission of all ques tions affecting the vital interests of states to an arbitral court cannot in the present state of affairs be made com pulsory. Other jurists maintain that all causes of dispute may be so submitted. The latter view seems to be approxi mately that of Professor Reinsch : — If we are to deprive war more completely of its raison d'itre, it will be necessary that there be found methods of developing international law so as to make it correspond to the vital needs of mankind and to render recurrence to violent means of vindicating rights less and less excus able. The great international conferences are the beginning of a legislative body, but as yet they are much hampered by diplomatic con siderations. A world-legislation decreeing laws by majority of votes is still in the distant future and would involve a total departure from our present system of autonomous nations. Is there an agency by which international law could be developed gradually but on the basis of prin ciples that would in themselves make possible, and in fact import, recognition also by a world conference with legislative attributes? We be lieve that for the time being definiteness in inter national law principles could be achieved best, if they were hammered out in such important liti gation as would come before high courts of international judicature. Growing from prece dent to precedent, adapting itself alw'ays more perfectly to the needs of the world, resting on principles of human reason tested in action, inter national law could grow strong in importance and authority. For by judicial interpretation con flicting points of view are dissolved, the better reason is gradually allowed to establish itself, new implications are seen in older and accepted principles, which in turn will be a guidance in the just settlement of controversies as they arise. Thus the law is conceived of as a growing, living organism not subject to artificial construction by wrong-headed caprice no matter how strongly endowed with temporary power.2 ■ "American Love of Peace and European Skep ticism," International Conciliation Publications, no. 68.

So far as Professor Reinsch implies that every new and complicated ques tion of international policy may be settled by legal arbitration, we are un able to accept his position. The forces of precedent tend to crystalize any sys tem of law and to prevent its twisting to meet novel situations, and even though the international court takes to itself, more and more, the functions of a court of equity it must be governed to a large extent by fixed principles of inter national law and equity. It does not follow, however, that another arbitral agency is not available for the deter mination of disputes affecting vital inter ests, without need of resorting to diplomatic mediation. We have previ ously urged that a complete system of arbitration calls for the establishment of two tribunals, one of mandatory juris diction, for the settlement of purely legal controversies, composed of professionals, the other of voluntary jurisdiction, deal ing with semi-political controversies, partly including non-professional states men among the arbitrators.3 The latter tribunal would thus be in a position, where the parties consented to its juris diction, to dispose of controversies in volving the application of some new principle of justice not found among settled rules, yet such a court would be of such competence in international law that its decision would not be extra legal, but would constitute as authorita tive a precedent as the decision of a court of purely legal jurisdiction. In this way international law would freely ex pand by the creation of new principles, and an organ of judicial legislation would be provided answering to the requisites of a purely legislative body. In this way Professor Reinsch's ideal of a growing organism of judicial precedent would the '25 Green Bag 177.