第13章 ITS AUTHORITY AND SANCTION.(7)

In my first lecture I spoke of the criticisms on International Law conductedby John Austin in his 'Province of Jurisprudence Determinedas very interestingand quite innocuousbut the results are sometimes so stated as if they showedthat Austin had intended to diminishand had succeeded in diminishingthedignity or imperative force of International LawAn observation here mustbe made that one sense of law is just as good and dignified as anotherifit be only consistently usedIn philosophy the commonest sense of law isthat in which it is used by such writers as the author of the book called'The Reign of Law.No term can be more dignified or more valuable than 'law'as thus employedWhat we have to dois to keep this meaning of law separatein our minds from law in other sensesIt is very convenientwhen the mainsubject of thought is positive lawthat we should remember that InternationalLaw has but slender connection with itand that it has less analogy to thelaws which are the commands of sovereigns than to rules of conductwhich,whatever be their originare to a very great extent enforced by the disapprobationwhich attends their neglectWhat is most important to recollect are thepoints of collection which do exist between International Law and positivelaw.

Here one cannot but remark that a serious mistake as to human nature isbecoming common in our dayAustin resolved law into the command of a sovereignaddressed to a subjectand always enforced by a sanction or penalty whichcreated an imperative dutyThe most important ingredient brought out bythis analysis is the sanctionAustin has shownthough not without somestraining of languagethat the sanction is found everywhere in positivelawcivil and criminalThis isin factthe great feat which he performed,but some of his disciples seem to me to draw the inference from his languagethat men always obey rules from fear of punishmentAs a matter of fact thisis quite untruefor the largest number of rules which men obey are obeyedunconsciously from a mere habit of mindMen do sometimes obey rules forfear of the punishment which will be indicted if they are violatedbut,compared with the mass of men in each communitythis class is but small-probablyit is substantially confined to what are called the criminalclasses -and for one man who refrains from stealing or murdering becausehe fears the penalty there must be hundreds or thousands who refrain withouta thought on the subjectA vast variety of causes may have produced thishabit of mindEarly teaching certainly has a great deal to do with itreligiousopinion has a great deal to do with itand it is very possibleand indeedprobablethat in a vast number of cases it is an inherited sentiment springingfrom the enforcement of law by statesand the organs of statesduring longagesUnfortunately it has been shown in our day that the mental habitsofar as regards positive civil and criminal lawmay be easily destroyed byconnivance at violations of ruleand this is some evidence of its havinga long descent from penal law once sternly enforced.

What we have to notice isthat the founders of International Lawthoughthey did not create a sanctioncreated a law-abiding sentimentThey diffusedamong sovereignsand the literate classes in communitiesa strong repugnanceto the neglect or breach of certain rules regulating the relations and actionsof statesThey did thisnot by threatening punishmentsbut by the alternativeand older methodlong known in Europe and Asiaof creating a strong approvalof a certain body of rulesIt is quite true that some of the reasons givenby Grotius for International Law would not now commend themselves if theywere presented to the mind for the first timebut it does not do to looktoo far back into the origins of law for the reasons of its establishment.

Much of the beginnings of English Law is to be found in the Year Booksbutit would not be too harsh to say that some of the reasons given for rulesnow receivedwhich are to be found in the Year Booksare mixed with a greatdeal of sheer nonsenseThe original reasons for the International rulesare possibly to some extent nonsensethey often seem to us commonplace,they are often rhetoricalthey are often entangled with obsolete theoriesof morals or deductions from irrelevant precedentsand on the other handthey often assume a power of discerning what the Divine pleasure is on aparticular subject which the ideas of the present day would not admitAsto their expediencythat has to be decided by experienceand experiencehason the wholepronounced decisively in their favour.

There arehoweverat the same time some real defects in InternationalLaw which are traceable to the difference between that law and positive law,and the absence of mechanism by which positive law is developedInternationalLaw was not declared by a Legislatureand it still suffers from want ofa regular Legislature to improve and to develop itIt is still developedby the antiquated method of writer commenting on writerno security beingnowadays taken for the competence or authority of the writer except vagueopinionThere are really writers who through confusednessor through naturalprejudiceare open to the implied censure of DrWhewell that they haverather encouraged than diminished the risk and the evils of warInternationalLaw suffers also from the absence of any method of authoritatively declaringits tenor on some of its branchesand above all from the absence of anymethod of enforcing its rules short of war or fear of warAll these arereal and often formidable drawbacks on the usefulness of International Law,andno teacher of International Law can neglect themBefore the end of thiscoursethough not quite immediatelyI propose to examine themand to considerwhether the grooving experience of civilised mankind points to any new remediesor better means of enforcing old ones.