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6 LAW THE WILL OF THE STATE.
to be accordant with those distinctions.1 The maintenance ot those distinctions being, therefore, the will of the state, those whom it appoints to carry out its will are bound, from their relations to the state, to accept and enforce those distinctions, as the criterion of the law of nature. Judicial tribunals constituted by the state, must, therefore, in interpreting the law, receive these distinctions as the exposition of the law of nature, and as the highest rule to which they can refer. The natural law is included in the law, in this ordinary sense, only so far as the law is the judgment of the state upon what shall constitute right or wrong action; and it is immaterial, for the judgment of the subordinate tribunals, whether the jurisprudence which they have to interpret is considered to admit, in theory, the existence of natural law, or to refer all rules of action to the authority of the state; since, supposing it to admit the pre-existence of natural law, as a rule of action, it assumes the interpretation of it, given by the state, to be the guide for legal decision.*
a rule prescribed by the sovereign power of a state to its citizens or subjects, declaring some right, enforcing some duty, or prohibiting some act."
1 This recognition of moral obligation in jurisprudence is entirely independent of the foundation of that obligation, as a question of Ethical Philosophy. It is immaterial in jurisprudence whether the law of nature is called "moral sense; common sense; understanding; rule of right; natural justice; natural equity or good order; truth; doctrine of election; repugnancy to nature," or any such term. Bentham, in quoting these various denominations of the law of nature, asserts the propriety of his own favorite term, "the law of utility," or ** greatest happiness principle:" which is equally vague, as the description of a rule of action, until some legislator is assumed to exist, who shall determine what is useful, or what is the greatest happiness. See Bentham's Morals and Legislation, ch. ii., 14, note. And compare Austin: Prov. Jurisp., p. 133; note, p. 174; Austin being of the same ethical school. Also, Reddle's Inquiries Elem. <tc, 2d ed., p. 54—72. Utility has, in fact, always been recognized in juridical action as an exponent of what the law ought to be. See the same, p. 73; and that there is herein no real inconsistency, see Mackintosh: Progress of Ethical Philosophy.
* 2 Dodson's Adm. Rep., The Le Louis, 247. Speaking of the slave-trade, Lord Stowell says: "I must remember that, in discussing this question, I must consider it, not according to any private moral apprehensions of my own, (if I entertained them ever so sincerely,) but as the law considers it." ... (p. 249): "An act must be legally criminal—I say legally criminal because neither this court nor any other can carry its private apprehensions, independent of law, into its public judgments on the quality of actions. It must conform to the judgment of the law upon that subject; and acting as a court in the administration of law, it cannot impute criminality to an act where the law imputes none. It must look to the legal standard of morality."
Hobbes: Leviath., c. 26—" Leges nature? et leges civiles in eadem civitate se mutuo continent." Masse Droit Commer., Tom. i., 42. Scaccia Tractat. de Commer. Qurest., VII., Par. ii., Ampl. Id, § 4, 19. Hegel, Grondlinien der Philosophic des Kechts, § 212: "Im positiven Rechte ist daher das was gesetzmassig ist, die Quelle derErkentniss dessen was Recht ist, oder eigentlich, was Rechtens ist: "—
NATIONAL LAW. 7
§ 8. Since the power of the state, or of society, is assumed by the state to be the result of natural law in the signification either of a necessary condition or of a rule, the only natural principles, which the law can recognize as such, are those which admit the existence of society, as natural; and no principles can form a part of it which are founded upon a supposed state of nature, anterior or opposed to society, or on the supposed law of such a state, as being the true law of nature.1
§ 9. The actual conditions of human existence have divided mankind into separate communities or states, each called sovereign, because each exercises, independently of the rest, those powers of society which are essential to the purposes of such separate existence.'
The rules of action prescribed by any single sovereignty or state are known to the individuals under its dominion as the law, in the ordinary sense (in contradistinction to ethics); or national law (commonly termed in English, municipal),' as
This proposition is almost untranslatable from the want of an English word corresponding with the German Recht, Latin Jut, French droit. Law being used not to designate that only but what is meant by the Gcr. Getezt, Lat. lex, Fr. loi. (Liebera PoL Eth., sect. 30, n ) The passage is equivalent to:—In law—the rule identified with the will of the state, that which is legal, or according to law, (lex, loi, Oetetz,) is the means of ascertaining that which is the rule of right—the jural rule, jus, droit, Recht:—and not trice vtrta.
The American Literature on the Slavery question affords numberless instances, in which the converse of this proposition is made the foundation of the argument.
1Spinoza: Tractatus Politici, cap. ii, 15. Domat: Loix Civ. Tr, ch. ii., § 2. Cousin: Introd. Hist. I'hilo., p. 11 : "In the place of primitive society, where all things were in confusion, man created a new society upon the basis of one single idea, that of justice. Justice established constitutes the state. The use of the state is to cause justice to be respected by means of force. • • • Hence arises a new state of society, civil and political society, which is nothing less than justice acting by means of that legal order which the state represents."
Professor Foster's Introductory Lecture before the London University. Law Magazine, N. Y.,Feb. 1852. "If asked, therefore, to explain the expression employed at the outset—natural law,—the answer would be, that portion of moral obligation which is enforceable by public authority." Comte : Tr. de Legislation, Liv. i., oh. 6. Compare Calhoun, A Disquisition on Government; Works, vol. i, p. 58.
* A fact assumed in every system of jurisprudence. Comp. Lieber: Pol. Eth., B. ii., § 61. Bla. Com., vol. i., Introd., p. 42.
'This portion of the subject of jurisprudence is ordinarily denominated municipal law by English writers. Blackstone (Comm. I., Introd., p. 44) is most commonly cited as authority for its use: but it was employed by English lawyers long before his time, (see L Vaughan, R. 191, anno 17, Car. ii.,) to signify the law of any one state or nation; or, what is commonly called "the law of the land" According to the analogy of the languages of Continental Europe municipal law would imply the local law of some political body less than a state or nation—the law of a municipium, a town or city, or at most, of a province. For a justification of this use of the term national laic, compare Bentham's Morals and Legislation, ch. xviii., 26. Reddie's Inquiries Ac., pp. 93, 94, 236, and the same author's Historical View of the Law of Marit. Commerce, p. 1.
8 LAW FOB STATES.
proceeding from the authority of a single polity or state, and having effect only within the territorial limits of its dominion. These rules may or may not be consistent with the law of nature, or true principles of ethics, but in being prescribed by the highest power within the limits of such state, and constituting the judgment of such power on the principles and effect of natural law, they must be taken, within those limits, in all legal or judicial considerations, as the highest rule of action.
§ 10. Since the whole variety of human interests and action cannot, from their nature, be distinctly divided among and included under the limits of different states,1 the powers of society, in reference to such interests and action as are beyond the separate control of single states, can only be exercised among states recognizing no superior among themselves, by a united, or reciprocal reference to principles of antecedent authority and universal obligation. They must, therefore, refer to the conditions of man's existence (a law in the secondary sense), and to human reasoning in regard to those conditions, as giving the only law (independent of agreements which themselves rest on that law for their obligation) which can be recognized as a rule of action and one of natural origin—an origin distinct from their own juridical will. But because they recognize no superior among themselves in determining that law of nature, the only exposition of it which can have legal force—that is, a force like
With jurists who have used the Latin language, jus civile is employed as the equivalent of that which is here denominated national law, as by Grotius, B. et P. Proleg., § 1: "Jus civile, sive Romanum, sive quod caique patrium est" &c., and compare Hobbes* definition of jus civile (ante § 7, n.) The term has generaly the same force with the classical Roman jurists: but it was also sometimes used by them in other senses, as will be shown hereafter, (ch. iv.,) and compare Smith's Diet. Antiq., Jus. The name "civil law" cannot well be given to that which is here called nationalHw, since it is already used to indicate the Roman law, or the Roman law as generally received in Europe, in contradistinction with English common law, and is also employed to designate that portion of the law which does not include punitive, or the so-called "criminal" law.
1 Bowyer: Univ. Pub. Law, p. 139: "For it is impossible to confine the effects of municipal laws absolutely within the territories of each state; and, therefore, the laws of different countries have points of contact which arise from the general intercourse of mankind, and may be looked upon as a necessary part of the scheme of laws which regulate the world, divided as it is into independent nations and sovereignties.1'
INTERNATIONAL LAW. 8
that of the law, in the ordinary sense, as above defined—must be that which has been allowed by such states; each constituting an independent authority in ascertaining the true principles of that law.1
From this mutual acknowledgment of principles of natural law, and the agreement of sovereign states founded on them, arises that which is properly called international law, in respect to its objects and jurisdiction, but oftener, perhaps, the "law of nations:" a name usually taken to be more appropriate because the term may mean either a law of which nations are the authors, or one of which nations are the subjects. And, indeed, this law limits in some respects, and in others extends, the action or authority of separate nations and sovereignties; but while it derives its force and origin mainly from principles necessarily acknowledged among nations as having the character of a preexistent natural law, it still is made to have the effect or actual force of law by the action of those nations, since each claims an equal right to define or interpret the supposed natural law, equivalent to equal power of legislation.'
§ 11. When this international law or law of nations is viewed as a rule of conduct between nations or states as the subjects of
1 7 Cranch, 136-7. Marshall, J. Bentham (Morals and LegisL, c. 19, § 2) proposed to use international law in this sense, following D'Aguesseau, (CEuv., T. i., p. 445,) writing, 1757 and Dr. Zouch, 1650, who distinguished jut inter genlet from jut gentium; see Reddie: Elem. International Law; Wheaton's I. L.; Wildman's Institutes of do.; Foalix, Droit International Prive, § 1.
Bl. Com., B. I.: Intro., p. 43, B. iv., 67. Suarez: DeLegibus, etc., Lib. ii., c. 2, 9. "Nnnqnam enini civitates snnt sibi tarn snfiicientes qunrn indigeant mutuo juvamineet •ocietate, interdum ad majorem ntilitatem, interdnm ob necessitatem moralem. Hao igitnr ratione indigent aliquo jure quo dirigantur et recti; ordinentur in hoc genere societatis. Et quamris magna ex parte hoc fiat per rationem naturalem non tamen sufficienter et immediate quoad omnia, ideoque specialia jura poterant usu earundem gentium introduci." Whewell: El. of Moral. Ac., B. II., ch. vi., § 214. "But the general rules and analogies of natural Jut lead to determinations of the rights and obligations of nations which form a body of acknowledged law. This body of law is Jus inter gentet, and may be termed—International Jul."
7 Pufendorf: Droit de la Nat et des Gens., 1. 2, c. iii., § 7. Grotius: B. et P. Proleg., § 17. "Et hoc jus est quod gentium dicitur, quoties id nomen a jure naturali distinguimus." Grotius here refers to international law, the law of which nations are the subjects, and arises from their consent—" ita inter civitates, aut omnes aut plerasque, ex consensu jura quscdam nascipotuerunt"—in the same section, defining this jutgentium. In other places, Grotius speaks of the term jut gentium as being used for what he calls jut naturale, as ch. i., § 14—"jus naturale, quod ipsnm quoque gentium dici solet; " in same chapter, § 11, 1, he notices the distinction made in the Roman law between jut naturale and jut gentium, considering it as out of use, " nsum vix nllum habet" The necessity of preserving each of these significations of jus gentium will be shown hereinafter in this chapter and in the second.
10 AUTHOBITY OF INTEBNATIONAL LAW.
that law, and is compared with the municipal law of any one of those states in reference to the relation of superior and inferior, which is a pre-existent condition of law in the sense of a rule of action: or, in other words, when its authority is compared with that of the municipal (national) law of any one state as the rule of action within its own dominion or national limits, it is at once seen that the international law, in this point of view, is not strictly a law; since the mutual independence of nations precludes the idea of that relative superiority and inferiority.1 It is only a rule of moral obligation for nations or states in their political existence.' But so far as this international law affects the actions of individuals, and is enforced by the authority of some state, it becomes a law in the strict sense, and at the same time becomes identified with municipal law, in becoming a part of the law enforced by a state within its own domain or national jurisdiction.
§ 12. It is only, therefore, as a law between states, as its subjects, that international law has a separate existence from municipal law: and in this application of the international law it receives the name of a law only by way of analogy: that is, it is only analogous to a law in the proper sense. When international law is enforced by some state within its own national limits, as a law in the strict sense, it is then distinguished from the municipal law only by its having a different application and effect. Its legal authority, whenever it acts as a law in the proper sense, is identified with that of some municipal (national) law, or the law prevailing, territorially, under the exclusive dominion of some nation.'
§ 13. The distinction thus made in the law, of being international and municipal, indicates, at the same time, the various nature of its jurisdiction, or the variety in the objects and interests which it affects, and the difference in the nature of its origin, as either in the associated or separate authority of nations or states. And, though this distinction is not founded upon a
1 Rayncval: Instit. du droit de la nature et des gens, note 10, du 1 Liv., p. viii. Wheaton: Internet. Law, p. 17. D'Aguesseau : CEuvrea, Tom. I., p. 445.
3 Reddie: Histor. View L. of Marit Com., p. 24. Hence called by Austin: Prov. Jurisp., p. 207, a law of "positive morality."
'Reddie's Inquiries in International Law, 2d ed., p. 412, 466.