THE PROPOSED CODIFICATION OF INTERNATIONAL LAW AND THE RELATION OF CODIFICATION TO THE PROPOSED ESTABLISHMENT OF A SUPREME INTERNATIONAL COURT OF ARBITRAL JUSTICE

THE PROPOSED CODIFICATION OF INTERNATIONAL LAW AND THE RELATION OF CODIFICATION TO THE PROPOSED ESTABLISHMENT OF A SUPREME INTERNATIONAL COURT OF ARBITRAL JUSTICE

Address delivered at the Annual Meeting of the American Society of International Law, held at Washington, April 27-29, 1911. Reprinted from the proceedings of the Society for the year 1911.

HE proposal to establish a supreme international court of arbitral justice, and the accompanying

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proposal to codify international law, bring up, as a preliminary consideration, the question whether international law, so-called, is true law, in the sense in which the word "law" is used in the science, of jurisprudence; and if so, what is its nature and scope and its relation to other law. A court of justice implies the existence of law. Codification involves a scientific arrangement of principles which have been formulated in precise language and which have been established as laws. When we use the word "court" and "codification" we are using terms of jurisprudence. We cannot establish an international court or codify international law unless we can first establish the proposition that international law, so-called, is true law. It becomes necessary therefore to consider the requirements which are necessary in order that a body of rules may be law, in the sense of the science of jurisprudence. Professor Holland says, in his book on Jurisprudence

(11th ed., pp. 88, 89. The first sentence of the quotation is transposed, but the meaning is not changed):

Law is formulated and armed public opinion, or the opinion of the ruling body. . The real meaning of all law is that, unless acts conform to the course prescribed by it the State will not only ignore and render no aid to them, but will also, either of its own accord or if called upon, intervene to cancel their effects. The intervention of the State is what is called the "sanction" of law. . . . [Law] defines the rights which it will aid, and specifies the way in which it will aid them. So far as it defines, thereby creating, it is "substantive law." So far as it provides a method of aiding and protecting, it is "adjective law" or procedure."

Also he says (page 80):

Law is something more than police. Its ultimate object is no doubt nothing less than the highest well-being of society, and the State, from which law derives all its force, is something more than a "Rechtsversicherungsanstalt" or "Institution for the protection of rights" as it has not inaptly been described.

A law-that is, a particular law, as distinguished from the whole body of law of a political societyProfessor Holland defines (page 42) as "a general rule of external human action enforced by a sovereign political authority."

Rules of human action "enforced by indeterminate authority," that is, enforced by the censure of general public opinion, or by the censure of the opinion of a given political society, fall, according to Professor Holland (page 28), within the domain of the science of nomology, but not within that of the science of jurisprudence. "Rules set by [a sovereign political au

thority]," he says (page 41), "are alone properly called 'laws.'"

The process of formulating law proceeds in two general ways, according as the given political society holds one notion or another of its relations with the past. A political society may abide by custom, and set up as its government a judicial body-not necessarily representative of territorial districts-which will investigate and ascertain usage, will determine when usage has grown into custom, will adjudicate whether the custom is "reasonable" or not, will formulate reasonable custom in terms of law, and will place the stamp of authority upon such formation and make it law. On the other hand, a political society may disregard customary modes of action and relationship, and set up a legislative body- usually representative of territorial districts which will formulate new rules-statutes -by deliberative methods. Political societies in fact exist generally under law which is in part customary and in part statutory, customary law being superseded by statutory law in case of conflict between them. As Professor Holland says (pages 60, 62):

The State, through its delegates the judges, undoubtedly grants recognition as law to such customs as come up to a certain standard of general reception and usefulness. To these the Courts give operation, not merely prospectively from that date of such recognition, but also retrospectively; so far implying that the custom was law before it received the stamp of judicial authentication. The legal

character of reasonable ancient customs is to be ascribed, not to the mere fact of their being reasonable ancient customs, but to the existence of an express or tacit law of the State giving to such customs the effect of law. . . . [The State] sometimes in express terms denies [customs the force of law], and sometimes limits the force which has hitherto