Beruflich Dokumente
Kultur Dokumente
1926
des hommes sont enclins a soutenir avec une parfaite bonne foi, et
parfois mme avec 6rudition-car l'6rudition peut entrer partout, meme
dans les pires divagations-qu'il n'y a point et qu'il ne pourra jamais
y avoir de droit international." 1
It is easy then for the international lawyer to reply to the confessed
cynic, and to justify his subject as a worthy object of study. But there
is as little justification for complacency as there is for discouragement.
Lawyers as a class are instinctively and rightly conservative, deferential
to authority, reluctant to probe into fundamental questions ; we
demand certainty and we cling to it when we think we have got it.
Our first task is to understand and to expound the law as it is, and only
secondarily, and then not so much as lawyers but as citizens, to
criticise its shortcomings. But I venture to think that the international
lawyer to-day would be wise to resist this bias which he shares with his
colleagues. It is, of course, as true that international lawyers do not
make or alter International Law, as that municipal lawyers do not make
or alter municipal law. None the less it seems to me that the two
subjects are so different, and in particular the stages of development
which they have respectively reached are so unequal, that we ought not
to assume without examination that the two must necessarily be
presented to the student by the same method. In particular I suggest
that the international lawyer ought not to disinterest himself in the
future development of his subject, even to the extent to which his
colleague who is concerned with municipal law may safely do so.
Professor Roscoe Pound has invited us to think of Jurisprudence as" a
science of social engineering, having to do with that part of the-whole,
field which may be achieved by the ordering of human relations through
the action of politically organised society ; " he justifies the metaphor
because " engineeering is thought of as a process, as an activity, not
merely as a body of knowledge or as a fixed order of construction " ;
and he cites in illustration of this method of conceiving the jurists' task,
" the study of the actual social effects of legal institutions and legal
doctrines, study of the means of making legal rules effective, sociological study in preparation for law-making, study of judicial method,
a sociological legal-history, and the importance of reasonable and just
solutions of individual cases, where the last generation was content
with the abstract justice of abstract rules." 2 l am not here concerned
to consider whether this is the right spirit in which to approach the
study of law in general ; but I am profoundly convinced that it is the
only spirit in which, at any rate to-day, International Law can be profitably studied. " A large and liberal discontent " with the present
achievements of his subject should lead the international lawyer to
examine its traditional assumptions, questioning everything and accepting nothing on the mere authority of a great name. Such a spirit is
quite consistent with a becoming reverence for the past and with a
modest sense of one's own capacities.
Moreover, this attitude of independent and critical inquiry for
which I am pleading seems to me to bejustified, and indeed necessitated,
by the literally revolutionary changes in international organisation
which the last few years have brought about. The mere existence
of the League of Nations drives us back on the fundamentals of
Rivista di Diritto Internazionale, x924.
Iinterpretationsof Legal History, p. 152.
a study that can be recommended with the object of training the mind,
but rather one which-demands a mind already to some extent trained.'
Obviously again, as a subject of merely vocational education it is of
little practical use ; nine-tenths of ourstudents will probably never be
called upon to advise professionally on a point of International Law.
I take it, however, that few of us will attach much importance to a
criticism which would at the same time banish from our curricula
Roman Law, Jurisprudence, and Legal History at least. There seem
to me, nevertheless, to be two advantages in particular which the study
of International Law can give to our students which they can hardly
obtain in equal measure from any of the more specialised subjects of
a legal education.
In the first place I think it is true to say that International Law
offers for their examination an essentially customary system of law
actually in operation ; and this is a phenomenon which we can otherwise only investigate by laborious historical research into legal origins,
if not into anthropology. Just as human anatomy can, I believe,
be more easily learnt by examining organisms less complex and less
differentiated than the human body, so the essential nature of law can
best be learnt from the examination of rules of conduct which, whatever
we like to call them, are the protoplasm out of which the law as we know
it has developed. What is it that gives obligatory force to a rule of
law? Is it merely constraint? Does consent play any part, or is the
very sense of obligation perhaps a delusion, a trick of our minds, the
product of a merely evolutionary process ?
These are, problems of the -philosophy of law which can be evaded
by the student of municipal law with comparative ease, since the
practical bearings of the answers to them are not very evident; but the
international lawyer simply cannot refuse to face them. The municipal
lawyer too may easily forget that all the current coin of our legal
commerce to-day, notions such as those of legislation, of adjudication,
of sanction, are in reality highly complex ideas, the products of a long
history, which only receive definition in the maturity of a legal system.
He may forget too the very complicated conditions of civilised life
which they require for their successful operation, because in the society
with which he has to deal those conditions are part of the order of things
which he is entitled to regard as normal. But the study of International
Law forces us at least to try to understand what these conditions are.
When, for instance, it is proposed, as it is on many hands to-day, to
attempt to create a more effective sanction for International Law, the
views of one who has not even attempted to understand why it is that
the sanctions of municipal law do in general work smoothly and
regularly are not merely negligible but may even be dangerous, since
it is never safe to assume that we can transplant an institution from the
national into the international sphere, unless we have first ascertained
that the conditions upon which its success depends in the former are
also present in the latter. It is the same with all the other problems
of the better organisation of international relations which press themselves so insistently on the attention of anyone who takes the" engineering " view of the international lawyer's function. What are the possibilities of extending the rule of law into fields of international conduct
which it does not at present regulate ? _Have we yet reached the time
Collected Papers, p. 412.
when we may fairly expect " sovereign " states to agree to submit their
differences to compulsory judicial settlement and to observe such an
agreement if they should make it ? Would International Law be
improved by attempting to codify it, or on the other hand would this
-nore probably sterilise its powers of development ? These are questions which cannot be answered intelligently unless we have tried to
ask ourselves what law really is, what is its function, and what are the
conditions and the limitations of its usefulness.
Moreover, we cannot have any real understanding of what law in
general is, unless we have related it in our minds to other human
institutions ; and the very lack of differentiation in International Law,
which from ono point of view is a disadvantage to the beginner, enables
the teacher to point out affinities between law and other subjects, which
are less easy to detect, although they equally exist, in a more sophisticated system. So long as we limit our study to the latter, we must
perforce mark off law as such somewhat too rigidly from ethics and
from politics, and it is easy to forget that its connection with those
subjects is really something far more fundamental sub specie aeternitatis
than the difference between it and them ; that, in fact, the boundary
lines which we draw around the subject of law only exist for the convenience of our specialised study. To concentrate our attention only
on the differences between these closely related things would be to
form false notions of them all, to forget that in truth ethics, politics,
jurisprudence, are only three branches of a single wider study, that of
human conduct in society, and that the ultimate foundation of them
all is the same.
These are the considerations which lead me to think that for the
philosophic study of law there is no medium so valuable as International
Law. It has from this point of view the same function in our curriculum as jurisprudence, with the advantage that it is more easily
presented to the student in a palatable form.
But there is a second advantage which I suggest that International
Law possesses over other subjects. It is one on which Westlake laid
stress in the lecture from which I have already quoted. Every man
who desires to play a worthy part in the life of his country is bound to
regard current politics as one of the two or three most important
interests of his life ; and International Law is the only channel by which
some training in political affairs can be introduced into the legal
curriculum. I cannot put my argument on this point better than by
adopting Westlake's own words: " International Law is no more a
subject for specialists than home politics are, nor can it be if the duty
of the citizen is concerned with international action. Arid while, as
a subject for study at the university, it differs favourably from home
politics in its being comparatively independent of party spirit, the very
fact that party motives do not bring it so continually under popular
discussion makes it the more necessary for the university to draw
attention to it. We have here the men of whom a large part will
become, and all ought to become, interested participators in the
international career and tasks which lie before the United Kingdom.
It would be matter for regret if a too exclusive attention to the general
training of their intellects permitted them to leave us without having
been invited to reflect on the principles which make that participation
useful."
J. L. BRIERLY.