Volume I Part 4 (1/2)

-- 34. I am decidedly not a blind and enthusiastic admirer of codification in general. It cannot be maintained that codification is everywhere, at all times, and under all circ.u.mstances opportune.

Codification certainly interferes with the so-called organic growth of the law through usage into custom. It is true that a law, once codified, cannot so easily adapt itself to the individual merits of particular cases which come under it. It is further a fact, which cannot be denied, that together with codification there frequently enters into courts of justice and into the area of juridical literature a hair-splitting tendency and an interpretation of the law which often clings more to the letter and the word of the law than to its spirit and its principles.

And it is not at all a fact that codification does away with controversies altogether. Codification certainly clears up many questions of law which have been hitherto debatable, but it creates at the same time new controversies. And, lastly, all jurists know very well that the art of legislation is still in its infancy and not at all highly developed. The hands of legislators are very often clumsy, and legislation often does more harm than good. Yet, on the other hand, the fact must be recognised that history has given its verdict in favour of codification. There is no civilised State in existence whose Munic.i.p.al Law is not to a greater or lesser extent codified. The growth of the law through custom goes on very slowly and gradually, very often too slowly to be able to meet the demands of the interests at stake. New interests and new inventions very often spring up with which customary law cannot deal. Circ.u.mstances and conditions frequently change so suddenly that the ends of justice are not met by the existing customary law of a State. Thus, legislation, which is, of course, always partial codification, becomes often a necessity in the face of which all hesitation and scruple must vanish. Whatever may be the disadvantages of codification, there comes a time in the development of every civilised State when it can no longer be avoided. And great are the advantages of codification, especially of a codification that embraces a large part of the law. Many controversies are done away with. The science of Law receives a fresh stimulus. A more uniform spirit enters into the law of the country. New conditions and circ.u.mstances of life become legally recognised. Mortifying principles and branches are cut off with one stroke. A great deal of fresh and healthy blood is brought into the arteries of the body of the law in its totality. If codification is carefully planned and prepared, if it is imbued with true and healthy conservatism, many disadvantages can be avoided. And interpretation on the part of good judges can deal with many a fault that codification has made. If the worst comes to the worst, there is always a Parliament or another law-giving authority of the land to mend through further legislation the faults of previous codification.

[Sidenote: Merits of Codification of International Law.]

-- 35. But do these arguments in favour of codification in general also apply to codification of the Law of Nations? I have no doubt that they do more or less. If some of these arguments have no force in view of the special circ.u.mstances of the existence of International Law and of the peculiarities of the Family of Nations, there are other arguments which take their place.

When opponents maintain that codification would never be practicable on account of differences of language and of technical juridical terms, I answer that this difficulty is only as great an obstacle in the way of codification as it is in the way of contracting international treaties.

The fact that such treaties are concluded every day shows that difficulties which arise out of differences of language and of technical juridical terms are not at all insuperable.

Of more weight than this is the next argument of opponents, that codification of the Law of Nations would cut off its organic growth and future development. It cannot be denied that codification always interferes with the growth of customary law, although the a.s.sertion is not justified that codification does _cut off_ such growth. But this disadvantage can be met by periodical revisions of the code and by its gradual increase and improvement through enactment of additional and amending rules according to the wants and needs of the days to come.

When opponents postulate an international court with power of executing its verdicts as an indispensable condition of codification, I answer that the non-existence of such a court is quite as much or as little an argument against codification as against the very existence of International Law. If there is a Law of Nations in existence in spite of the non-existence of an international court to guarantee its realisation, I cannot see why the non-existence of such a court should be an obstacle to codifying the very same Law of Nations. It may indeed be maintained that codification is all the more necessary as such an international court does not exist. For codification of the Law of Nations and the solemn recognition of a code by a universal law-making international treaty would give more precision, certainty, and weight to the rules of the Law of Nations than they have now in their unwritten condition. And a uniform interpretation of a code is now, since the first Hague Peace Conference has inst.i.tuted a Permanent Court of Arbitration, and since the second Peace Conference has resolved upon the establishment of an International Prize Court, much more realisable than in former times, although these courts will never have the power of executing their verdicts.

But is the Law of Nations ripe for codification? I readily admit that there are certain parts of that law which would offer the greatest difficulty, and which therefore had better remain untouched for the present. But there are other parts, and I think that they const.i.tute the greater portion of the Law of Nations, which are certainly ripe for codification. There can be no doubt that, whatever can be said against codification of the whole of the Law of Nations, partial codification is possible and comparatively easy. The work done by the Inst.i.tute of International Law, and published in the ”Annuaire de l'Inst.i.tut de Droit International,” gives evidence of it. And the number and importance of the law-making treaties produced by the Hague Peace Conferences and the Maritime Conference of London, 1908-9, should leave no doubt as to the feasibility of such partial codification.

[Sidenote: How Codification could be realised.]

-- 36. However, although possible, codification could hardly be realised at once. The difficulties, though not insuperable, are so great that it would take the work of perhaps a generation of able jurists to prepare draft codes for those parts of International Law which may be considered ripe for codification. The only way in which such draft codes could be prepared consists in the appointment on the part of the Powers of an international committee composed of a sufficient number of able jurists, whose task would be the preparation of the drafts. Public opinion of the whole civilised world would, I am sure, watch the work of these men with the greatest interest, and the Parliaments of the civilised States would gladly vote the comparatively small sums of money necessary for the costs of the work. But in proposing codification it is necessary to emphasise that it does not necessarily involve a reconstruction of the present international order and a recasting of the whole system of International Law as it at present stands. Naturally, a codification would in many points mean not only an addition to the rules at present recognised, but also the repeal, alteration, and reconstruction of some of these rules. Yet, however this may be, I do not believe that a codification ought to be or could be undertaken which would revolutionise the present international order and put the whole system of International Law on a new basis. The codification which I have in view is one that would embody the existing rules of International Law together with such modifications and additions as are necessitated by the conditions of the age and the very fact of codification being taken in hand. If International Law, as at present recognised, is once codified, nothing prevents reformers from making proposals which could be realised by successive codification.

CHAPTER II

DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS

I

DEVELOPMENT OF THE LAW OF NATIONS BEFORE GROTIUS

Lawrence, ---- 20-29--Manning, pp. 8-20--Halleck, I. pp.

1-11--Walker, History, I. pp. 30-137--Taylor, ---- 6-29--Ullmann, ---- 12-14--Holtzendorff in Holtzendorff, I, pp. 159-386--Nys, I. pp.

1-18--Martens, I. ---- 8-20--Fiore, I. Nos. 3-31--Calvo, I. pp.

1-32--Bonfils, Nos. 71-86--Despagnet, Nos. 1-19--Merignhac, I. pp.

38-43--Laurent, ”Histoire du Droit des Gens,” &c., 14 vols. (2nd ed. 1861-1868)--Ward, ”Enquiry into the Foundation and History of the Law of Nations,” 2 vols. (1795)--Osenbruggen, ”De Jure Belli ac Pacis Romanorum” (1876)--Muller-Jochmus, ”Geschichte des Volkerrechts im Alterthum” (1848)--Hosack, ”Rise and Growth of the Law of Nations” (1883), pp. 1-226--Nys, ”Le Droit de la Guerre et les Precurseurs de Grotius” (1882) and ”Les Origines du Droit International” (1894)--Hill, ”History of Diplomacy in the International Development of Europe,” vol. I. (1905) and vol. II.

(1906)--Cyb.i.+.c.howski, ”Das antike Volkerrecht” (1907)--Phillipson, ”The International Law and Custom of Ancient Greece and Rome,” 2 vols. (1910)--Strupp, ”Urkunden zur Geschichte des Volkerrechts,”

2 vols. (1911).

[Sidenote: No Law of Nations in antiquity.]

-- 37. International Law as a law between Sovereign and equal States based on the common consent of these States is a product of modern Christian civilisation, and may be said to be hardly four hundred years old. However, the roots of this law go very far back into history. Such roots are to be found in the rules and usages which were observed by the different nations of antiquity with regard to their external relations.

But it is well known that the conception of a Family of Nations did not arise in the mental horizon of the ancient world. Each nation had its own religion and G.o.ds, its own language, law, and morality.

International interests of sufficient vigour to wind a band around all the civilised States, bring them nearer to each other, and knit them together into a community of nations, did not spring up in antiquity. On the other hand, however, no nation could avoid coming into contact with other nations. War was waged and peace concluded. Treaties were agreed upon. Occasionally amba.s.sadors were sent and received. International trade sprang up. Political partisans whose cause was lost often fled their country and took refuge in another. And, just as in our days, criminals often fled their country for the purpose of escaping punishment.

Such more or less frequent and constant contact of different nations with one another could not exist without giving rise to certain fairly congruent rules and usages to be observed with regard to external relations. These rules and usages were considered under the protection of the G.o.ds; their violation called for religious expiation. It will be of interest to throw a glance at the respective rules and usages of the Jews, Greeks, and Romans.