BOOK II. OF THE SOURCES OF THE LAW OF NATIONS. * Divisions of the subject. 66 CHAPTER I. OF THE LAW OF NATURE.† THE obligations on which international law is based, have been variously classified by different writers. By some they have been divided into the "necessary" and the "voluntary;" by others, into the "absolute" and the arbitrary;" by others again, into the "primary" and the "secondary," and this "secondary" has been subdivided into the "customary" and the "conventional." Besides these, and other similar divisions, there is the classification which will here be employed, of the "natural" and the "positive" Law of Nations. All these divisions are founded on the same principle, of considering separately the national obligations which result from the divine law, and those which are of human institution, whether resulting from direct treaty, or arising from the tacit consent of nations. [* The word "source" (German Quelle) as applied to law has, at the least, two distinct meanings, which, however, are closely connected. One is that of the quarter to which recourse must be had in order to know what a rule of law is. The other is the immediate fact or group of facts which originally called a rule of law into existence. It is a peculiarity of the Law of Nations that, in reference to it, the two meanings are scarcely distinguishable.—ED.] [† For remarks on this expression, see note at the end of the chapter. -ED.] As men, before they become members of civil society, The law of are in a state of nature, so independent nations, acknow- nature. ledging no common superior, are in a state of nature with regard to each other. "But, though this be a state of liberty, yet it is not a state of license. The state of nature has a law of nature to govern it."(1) In the words of Hooker, "Law rational, which men commonly call the law of nature, meaning thereby the law which human nature knoweth itself in reason universally bound unto, which also for that cause may be termed most fitly the law of reason; this law, I say, comprehendeth all those things which men, by the light of their natural understanding, evidently know, or at leastwise may know, to be beseeming or unbeseeming, virtuous or vicious, good or evil for them to do.”(2) "Itaque," says Heineccius, "jus naturale est complexio legum, ab ipso Deo immortali generi humano per rectam rationem promulgatarum. Si vero illud tanquam scientiam considerare malis, jurisprudentia illa naturalis erit habitus practicus voluntatem supremi legislatoris ex rectâ ratione cognoscendi, adplicandique quibusvis speciebus obvenientibus. Quæ, quia in jure, a Deo immortali profecto, enarrando adplicandoque versatur, recte etiam jurisprudentia Divina dici potest.” (3) the will of The law of nature, by the obligations of which states Law of nature are bound, being identical with the will of God, it is identical with necessary to ascertain that will, which is done either by God. consulting direct revelation, where that is declaratory, or by the application of human reason where revelation is silent. Every thing around us proves that God designed the Utility. happiness of his creatures. It is the will of God that (1) Locke on Civil Government, book II. ch. II. s. 6. (2) Ecclesiastical Polity, I. 8, p. 83, ed. 1676. (3) Elementa juris Naturæ et Gentium, lib. I. c. I. s. 12. The principle not new, but its application new. mankind should be happy. To ascertain the will of God regarding any action, we have therefore to consider the tendency of that action to promote or diminish human happiness. The right application of this principle, commonly known as the principle of utility, is identical with the law of nature, the laws prescribed by human nature being obviously the laws tending to human happiness. The principle of utility is not a new one; it has been called "as old as philosophy;" it is only the application of this principle that is new. Vattel was directed by some vague sense of utility, when he said, that "the first general law that we discover in the very object of the society of nations, is, that each individual nation is bound to contribute every thing in her power to the happiness and perfection of all the others." (1) And Montesquieu, in his valuable attempt to teach politics by induction, directly states the principle of utility. "The law of nations is naturally founded on this principle, that different nations ought in times of peace to do one another all the good they can, and in time of war as little injury as possible, without prejudicing their real interests." (2) But although this principle was known, and may indeed be said to be self-evident, yet its application in moral discussions is of comparatively recent introduction. The bringing this principle into general circulation is due to the writings of Bentham, and constitutes his real claim to be regarded as an improver of the science of morals. Bentham's classifications may be regarded as unnecessary, and his works may, and probably will, fall into disuse; but the benefit he conferred on moral science should never be forgotten. He was the propagator of a doctrine of which he expressly disclaims being the originator; but it is (1) Prel. s. 13. (2) Esprit des Lois, liv. I. ch. 3. I am no great When a student to him that we owe the common use of the most correct, and readiest, test of moral action. admirer of Mr. Bentham's writings. first becomes acquainted with them, their perusal will generally be a most irksome task; their. method may even seem ludicrous, and their production at all, useless. I do not even think that Mr. Bentham always had a correct notion of the right application of his own theory, but, in his own quaint expression, "new instruments are seldom handled at first with perfect ease." It is in going back to the writings of the elder moralists that we perceive, in the full force of contrast, the value of the principle now in common use in moral discussions. Let the student observe how little was effected by the huge erudition of Suarez or of Selden; let him see how the union of the greatest learning and the highest motives failed to rescue Grotius from false conclusions; let him feel how cumbersome is the machinery of Pufendorf; and how even the advanced philosophy of Heineccius languishes under a defective method; and let him compare with these the application of the doctrine of utility, as enunciated by Paley, or in the recent work of Mr. Austin, and he will understand what obligation was conferred by Bentham in the introduction of utility as the habitual test of moral action. Had this principle been understood by Wolf, he would never have deemed it allowable in war to have recourse to the useless cruelty of poisoned weapons; nor could Grotius, had he been conversant with this principle, have admitted the right of slaughtering women and children. Both writers would have seen that war is an evil, recourse to which can only be justified by the avoidance of greater evils; that the infliction of no greater evil was justifiable than was imperatively called for by the circumstances of the case; and that any unnecessary cruelty whatever was a direct violation of the law of nature. The principle of utility improperly called dangerous. The principle of utility has often been called dangerous. This is not true with regard to the principle itself, but it is thus far true, that the misapplication of the principle is dangerous, and that the principle is rather liable to be misapplied. The besetting fallacy in arguments grounded on utility, is the error of mistaking the value of the rule as compared with the value of the exception. Paley has ably exposed this fallacy, and has insisted on the importance of general rules in the province of private morality. In treating of the morality of nations, some writers have been betrayed into the fallacy I mention. As an example of what is meant, may be cited the argument of Mr. Godwin, concerning “ Promises," in his Political Justice. Mr. Godwin says, that what is promised is either right, wrong, or indifferent; if right, the promise ought to be kept; “not because I promised, but because justice prescribes it." 66 * "A promise can make no alteration in the case. I ought to be guided by the intrinsic merit of the object, and not by any external or foreign consideration." (1) Now, this application of the doctrine of utility is incorrect, for this reason, that such a construction would destroy all confidence in human intercourse, the magnitude of which evil far outweighs the comparatively trivial importance of the individual inconvenience, sustainable from the general rule under which utility commands veracity. A similar fallacy, regarding the observance of treaties, has been committed by Pinheiro-Ferreira, in his note on De Martens, concerning the conventional law of nations. (2) According to his argument, treaties are not binding whenever they are not beneficial to one of the contracting powers; a position that would destroy the use of such engagements altogether, as what is thought mutually beneficial at any individual moment would be (1) Political Justice, I. p. 151, ed. 1793. (2) De Martens, Précis du droit des Gens, note 10, I. 370. |