The American Bar Association at its annual meeting in Washington in 1914 was charmed and instructed by the most interesting and illuminating address by Dr. Naon, the ambassador from the Argentine Republic, with its clear exposition of the idealistic principles so strongly influencing the constitutional life of the Argentine nation. We hope his address is but the beginning of such talks upon Pan American questions of law. We all must work together internationally, through the agencies above suggested. If we do, we lawyers may look with confidence into the future in our work of building up a great system of Pan American law to govern the peoples of the American continents in their international relations, conserving, however, at the same time all the values of national systems of substantive law or procedure.

The CHAIRMAN. This closes the meeting this morning, and it will stand adjourned until this afternoon.

Thereupon, at 12.20 o'clock, the session adjourned.

SESSION OF SUBSECTION 3 OF SECTION VI.

SHOREHAM HOTEL,

Tuesday afternoon, January 4, 1916.

Chairman, EUGENE WAMBAUGH.

The session was called to order at 2 o'clock by the chairman. The CHAIRMAN. The first paper on the program this afternoon is by Dr. John H. Wigmore, dean of the law faculty of Northwestern University, on the "International assimilation of law." The paper will be read by Mr. George H. Boke, owing to the absence of Dr. Wigmore.

THE INTERNATIONAL ASSIMILATION OF LAW-ITS NEEDS AND ITS POSSIBILITIES FROM AN AMERICAN STANDPOINT.

By JOHN H. WIGMORE,

Professor of Law in Northwestern University.

A notable feature of contemporary international life is the movement for the assimilation or unification of private law and procedure among nations. The present tremendous conflict of arms has only suspended temporarily this movement; for its causes and agencies are permanent, and will soon again resume their action.

This movement can be traced back definitely for more than two generations. It first became a conscious aspiration of eminent leaders at the time of the earliest international expositions, in the eighteen hundred and fifties, at London and at Paris. It now possesses a considerable history.'

The fields in which it first showed activity and progress were three; the maritime law of general average, the commercial law of bills of exchange, and the commercial law and administration of railway freights. It extended

soon to the law of copyright, trade-marks, and patents of invention, and to other parts of maritime law.

Another special field inviting its extension was that of conflict of laws (or, private international law); and several conferences during the last 25 years at The Hague and in Latin America advanced its progress materially in that department. Portions of civil procedure here came to feel its influence. Meantime, in the form of official unions for administrative purposes, another aspect was seen. Conventions for cooperation in postal service, in telegraphic

1 That history forms the subject of five chapters in part III of Vol. XI of the Continental Legal History Series, "The Progress of Continental Law in the Nineteenth Century," by various authors, published in 1916 under the auspices of the Association of American Law Schools and edited by the present writer.

603

service, in police measures, and in commercial measures, effected a virtual international assimilation of practice.1

Apart from the documents exhibiting these several measures of assimilation in specific parts of the law, the literature discussing the movement at large has now grown to some size. The scope of the subjects in which assimilation is potentially possible has been examined. The various methods of effecting it have been noted, and the varying success of the measures already adopted, as well as the causes for the movement and the need for its acceleration and extension.

At one extreme stand enthusiasts, like Leone Levi of England and Ivan Perich of Serbia, who believe in its unlimited possibilities and desirability; these are mostly of the earlier generation. At the other extreme are skeptics like Picard of Belgium, who do not believe in its intrinsic desirability as a general aim. In the middle stand some cautious practical observers like Nippold of Switzerland, Baldwin of the United States, and Ripert of France, who sympathize with the efforts made and making, but realize that such a movement must rest on a solid basis of harmonized custom; that it can not advance faster than the need for it, and that it involves practical difficulties which can be effectually surmounted only by elaborate detailed studies and by repeated conferences of experts and national representatives.

The time has now fairly come for us to realize that there is such a marked and general movement, progressing on a large scale, and that it must be studied as a whole. And yet no writer hitherto appears to have considered it, as a whole, in its possibilities and needs for the future, from an American standpoint. It is the purpose of the present paper to consider it from that standpoint.

The subject will be treated under three main heads:

What is in general the need or the utility of an international assimilation or unification of law?

What are the methods by which experience shows that it may be achieved? What is the part to be played in this movement by the United States of America?

Reflecting on the history of the movement for unification of law as it has grown during the last two generations and more, analyzing its revelations of success and of failure, and estimating its lessons in the light of the needs and the tendencies of the times, the following conclusions may be ventured:

1. International unification of law, as an end in itself, is not desirable. 2. International unification of law, or concert in modes of justice, is desirable, so far as it is a means for removing inconveniences and other obstacles actually experienced in commerce and general intercourse and due to divergencies of national law or to abuses not reachable without international concert.

3. The methods of unification and of concert must vary, according to what is most feasible in each separate part of the field.

4. The Federal organization of the United States is both useful and detrimental in this enterprise-useful, in that its internal operation presents valuable analogies for world legislation; and detrimental, in that its external operation renders this Nation as yet incapable of doing its just share to advance the good cause.

These conclusions will now be briefly explained.

1. International unification of law, as an end in itself, is not desirable. For it flies in the face of that beneficent biological truth, the differentiation of

1 Minister Paul Reinsch's volume on 'Public International Unions" (1910), describes these fully.

It is cited in the chapters of the work first cited above.

species. It aims to suppress that variety of life which intrinsically must express itself in a rich and healthy variety of custom and law. Life without liberty is valueless, and liberty signifies individuality and originality, for nations as for men: The eloquent exposition of this truth by M. Picard, the eminent Belgian jurist,' leaves nothing to be added. A general unification of law " I could signify nothing more than artificiality, despotism, and fragility." The world is to-day witnessing & brutal, bloody, and needless struggle, due to the conceited ambition of one people to impose its own standards upon other peoples-a childish, crude conceit in the superiority of its own "culture," and a ruthless ambition to force others to conform. Each nation has and always will have its own conceit; there is a self-conceit of London, of Paris, of Madrid, of New York, and of the peoples of those countries. But hitherto that conceit has been satisfied by each country keeping to its own ways, in proud and harmless self-satisfaction. We are now witnessing for the first time the effects of an aggressive conceit, which reaches out to impose its own standards on others. And the world does not and will not endure this kind of conceit, nor this kind of unification. Live and iet live, is the beneficent law of life.

A true unification must come by abnegation, not by imposition. The history of the successful parts of this movement shows that harmony has been reached only when each nation gave up some part of its own cherished customs, as a contribution necessary to final harmony.

Such a sacrifice is required only for the sake of overcoming some common danger or menace to life. It is not demandable for the sake of unification alone-which is only an abstraction, profitable to no one. Thus, plainly, a unification, for the sake of unification in itself, can only be the repulsive one resulting from the coercive imposition of one nation's standards upon others. And the only sound and desirable unification is that which arises from the voluntary cooperation of nations, large and small, each sacrificing some valued customs of its own for the sake of avoiding some disadvantage and thus of enhancing the common welfare.

This brings me to the second proposition:

2. International unification of law, or concert in modes of justice, is desirable, so far as it provides a means for removing inconveniences and other obstacles, actually experienced in commerce and general intercourse and due to divergencies of national law or to abuses not reachable without international concert.

The history of all of the vigorous movements for uniformity illustrates this truth. In the international fields of commercial paper, of railway freight traffic, of postal service, of maritime freight contracts, of navigation, of trademarks, patents, and copyrights, the inconveniences and obstacles caused by divergent laws became intolerable and forced all parties to cooperate to avoid them. In sanitation, in the slave trade, in the opium trade, in bankruptcy, in extradition, the abuses feasible for individuals practicing dangerous or wrongful acts in the immunity of a foreign jurisdiction created intolerable conditions, which naturally called for a concert of repressive action.

Whenever, therefore, conditions of either sort exist, international unification of law or concert in modes of justice becomes desirable.

Are there any such conditions remaining in any fields of custom, law, or justice? Undoubtedly.

To catalogue them here would be needless. Many of them, indeed, are so obvious that they clamor unceasingly for attention. Our slowness in girding And I would not utter

up for action to remedy them should give us shame.

1 Op. cit., Ch. V, first essay.

a word to hold back such efforts. I would only have it understood that our true aim and guiding principle should be not to chase the ignis fatuus of unification in itself, but to toil assiduously for unification or concert as a necessary means to remove specific existing obstacles to convenience and safety in commerce and general intercourse.

And this brings me to my third proposition, which is the answer to the question, What are the available methods for securing this unification and concert?

3. The methods of unification and of concert must vary according to what is most feasible in each separate part of the field.

Here, emphatically, history becomes our best teacher.

The methods available are four in number:

(a) Uniform usage of individual parties or groups, by voluntary agreement; (b) uniform national law, by voluntary national legislation; (c) unified international law and administration; (d) uniform national rules for conflicts of laws.

(a) Uniform usage of individual parties or groups by voluntary agreement.—This method is the one most solid in its foundations; because all laws are based on interests, and represent the result of a rational struggle in which one Interest dominates for the time over another (as Bagehot and Ihering long ago pointed out); and if this struggle between interests can be brought to an equilibrium by direct concord of the representatives themselves of those interests, the adljustment is the more likely to be satisfactory and permanent.

On the other hand, such an adjustment lacks legislative sanction, and therefore the State's coercion of an obstinate minority is impossible; and this is likely to be fatal. But nowadays the organization of these interests themselves the trading, the manufacturing, and the professional associations— is growing so powerful that an economic coercion is often possible, and is then as effective as a State coercion.

The only real danger in this method arises when the organized interests themselves settle their uniform practice to the disregard and detriment of outside interests-i. e., of the public in general.

The feasibility of this method, and the extent to which it has actually come to be employed, would perhaps be surprising to those who have not studied the history of the facts. The most notable example of it is the York-Antwerp rules for maritime general average, which came into use by voluntary practice in the contracts of freighters, after a generation of fruitless attempts to agree upon an international treaty. To-day these rules are universally observed without apparently having the legislative support of a single nation.

This method of unification is the one most natural to the Anglo-American principle of individual liberty and self-control. It has almost unlimited possibilities now awaiting (and demanding) its employment. What is needed is simply more self-sacrifice among the interests concerned (i. e., more enlightened self-interest), and a few leaders to devote themselves to the cause.*

(b) Uniform national law, by voluntary national legislation.-Hitherto this has been the method most obvious and most thought of. Its successes have been great, as the history of the various fields exhibits. But its failures have also been notable.

A main reason for the failures seems to have been the intellectual gap between the international drafting bodies and the national legislative bodies.

1 Cohn, op. cit., Ch. I.

Individual effort has done more to spread the vogue of these rules than all the reports of official commissions to their various governments" (Bousquet, 1906, "Commentaire pratique des Règles d' York et d'Anvers," p. 25).