1. A ‘Positive’ International Law and its Opponents¹

For centuries before 1820, those for whom social existence must needs be something other than the ruthless pursuit of power and fortune, had searched for a legal order above that of the selfish interests of rulers or communities. Their dream was of a system of obligation that would condition foreign relations by principles rather than by mere political expedience coupled with armed aggression. As modern states evolved from tribes, kingdoms and cities, this aspiration had found expression in the natural law tradition of Western Christendom, bred in part from Roman law example but more from medieval notions of governance by God’s anointed on earth. The Church’s scholars taught that resort to war required (p.256) divine sanction and princes might look for Papal approval of their intentions. That was unlikely to be withheld when it came to crusades against infidels.

The ultimate hope for international law has long been that it can help to avert war and other belligerence between nations.² But the idealistic view of St Augustine and St Thomas Aquinas that wars were legal only if justifiable in the eyes of the deity began to lose place in favour of more complex rationalizations which could take account of situations where each side proclaimed the justice of its cause and the outcome of battles was taken as the test of who was ultimately right. To achieve this Hugo Grotius had distinguished from natural law (ius naturale) a secondary law of nations (ius gentium). And so, as this law of nations drew increasingly into line with the political objectives of nation states, war was held to be instituted when one sovereign declared it against another, legal doctrine providing no supervailing measure of its rightness or wrongness. The most that international law could aim for was to regulate relations between the belligerents themselves and in relation to neutral states. Its principles would, for instance, cover declarations of war by sovereigns, bombardments and sieges of towns, blockades of ports, seizure of ships and their cargo, reprisals, impressments of soldiers and sailors, forced deployment of captured enemy and even the treatment of prisoners.

As Stephen Neff suggests, eighteenth-century assertions about the basis of international law drew inspiration from obverse intellectual traditions. Hobbesian theorists justified the need for sovereign power within a state as a protection against the destructive belligerence of humans so long as they were left in a raw state of nature. From this it followed that each sovereign power must decide for itself when and how war had to be waged. Social contractarians, in contrast, saw war as an honorific duel between competing states in which each agreed in advance to accept victory in battle as deciding the contention between them. During the course of hostilities there was taken to be agreement to observe the ius gentium.³ In the nineteenth century, as war or the threat of hostilities became a recurrent condition in international relations, expositions of international law would treat war and peace as primary distinctions. Much of the conduct of war operates at the most evidently political pole of what can be treated as ‘law’. Thus it has something of the character that constitutional conventions assume in the internal operations of a nation state. But whereas in a democracy these conventions operate under the ultimate power of the enfranchised voters to bring governments to heel through the electoral process, international relations in the (p.257) nineteenth century lacked any supervailing authority of an equivalent kind, save where common principles, such as those of the Europe-wide lex mercatoria, were accepted in national courts as the governing law of a state.⁴

For most, the answers drew upon positivistic tendencies already apparent in Continental treatises in the eighteenth century. In them the ius gentium had begun to shed its ‘naturalistic’ inheritance, since sovereign states by their very definition owed no pre-existing obligations over their conduct. Nevertheless those states could be expected to adhere to the requirements of international law by their consent, either expressed in their treaties, or implied from their membership of the European family of ‘gentlemanly states’. The Swiss, Emerich de Vattel, writing in the age of Blackstone, had placed novel emphasis both on the defining principle of liberty and on the actual practice of states as the source of obligation.⁵ The empiricist implications of his writing would be picked over by scholars across Europe.⁶ Mansfield and Blackstone were pointing in the same direction when they called for evidence that a rule of the ius gentium had entered English law—through Act of Parliament, judicial precedent, or some undeniable acceptance in British practice.⁷ If taken seriously, this was an approach with a double entrenchment of the declaratory theory of precedent. For how could there be initial recognition of any unprecedented rule of international law, save by explicit treaty? As we shall see, a century later the severest among the common law judges began to treat principles of international law in this vein.⁸

‘Positivism’ characterized the movement in political philosophy away from religious and other moral preconception in favour of proof by scientific observation of natural phenomena, including human behaviour. The term would gain currency in the nineteenth century from the writings of Auguste Comte, social philosopher of France in its post-Revolutionary phase. Comte developed a theory of human societies as evolving from an initial condition of blind subservience to theocratic dictates, through a ‘metaphysical’ stage when leading thinkers questioned the inherited assumptions of their people by reference to such ideals as the Rights of Man, to a third, ultimate condition in which government occurred through application of purely scientific method, a stage which he labelled(p.258) ‘positivist’. The quest for evidence of what should count as international law that had begun with de Vattel could claim to be an important step towards such positivist policy-making and became the matrix of much theorizing of the subject. It explained, and so justified, the government of an established state, together with its dependencies, by insisting that the foundation of its law lay in the existence of institutions conferring constitutional sovereignty. Equally, it could epitomize those elements in the relationships between independent states which by their mutual consent amounted to ‘law’.

Eighteenth-century England had contributed very little to the European search for a rationalization of the law of nations. As the country grew towards its industrial and commercial dominance during Victoria’s reign, however, it would impress upon conceptions of the law of nations, or the law between nations, a set of standards that were ever more determined by positivistic tenets.⁹ The first of these confined international law strictly to relations between sovereign states.¹⁰ The British were drawn to treat the growing pyramid of Empire as a structure to which international legal obligations could attach only at its summit.¹¹ So, while British contributions to international law thinking would become more significant, they would be primarily at a pragmatic level, finding sources in the results of diplomatic practice, the treaties that flowed from that activity, and to some extent the precedents set by litigation in national courts and arbitrations organized by the voluntary submission of states.¹² The work provided additions to the corpus of inherited doctrine in a century when ideas for legislative, executive, or judicial institutions operating at an international level were still largely a prospect for the future. Compared with today, there was much about this Victorian international law that gave it an air of sanguine experiment.

In his unending search for utilitarian solutions that improved social organization through legislation, Jeremy Bentham had proposed the re-titling of the ius gentium so as to characterize it as a foundation for relations between nations—ius inter gentes.¹³ It was largely left to his disciple, John Austin, to spell out the (p.259) consequences within a ‘command theory’ of the nature of law.¹⁴ With his analytic scruple, Austin distinguished the positive law of a sovereign state from, on the one hand, divine law, answerable at the seat of eternal judgment; and, on the other, the ‘positive morality’ that characterized the law between nations. That morality was positive in the sense that the states which acknowledged it regarded it as laid down (posited) in order to condition their dealings with each other.¹⁵ The absence of sanctions in a sense equivalent to those that gave legal backbone to the ‘municipal’ legal systems of states was nonetheless a stark reality. As Austin insisted, the will of states to become bound was not disciplined by any higher authority with power to compel adherence to its commands by calculable sanctions; and so, for the most part, it was a will that was not law ‘properly so called’ in the sense of rules by which courts or other tribunals would adjudicate contentions. It was not a body of doctrine that could be studied independently of its moral quality. At most, a state which failed to comply with its treaty obligations or to observe established customs might meet belligerence, or, short of that, some loss of economic advantage or of face. These sanctions, however, would be imposed by the state, or concert of states, when claiming that an international norm had been violated. Only after the debacle of the First World War, would that structural lacuna begin to be filled. It would come with the setting up of the League of Nations, the Permanent Court of Justice at The Hague and other supra-national bodies with authority to foster international law-making, to secure adherence to that law by executive action or to adjudicate upon its application.

Austin’s first expression of his views on international law, in The Province of Jurisprudence Determined (1832), appears to have attracted little interest for some 30 years.¹⁶ It was probably the re-publication of that volume in his posthumous Lectures on Jurisprudence (1861) that had real impact. By then there were sufficient audiences, in the universities and public life, for this application of legal positivism to be taken seriously. Even so, the concept of international law had too insistent a potential—in the business of diplomacy, in the striking of accords (p.260) between states and in the settlement of running disputes between states—for it simply to be discounted as something other than law. The ius gentium had been recognized in English courts by the statements of Mansfield, Blackstone, and others that it could form part of the common law;¹⁷ and it had long been treated as a direct source of law in the civilian courts of Admiralty and Prize at Doctors’ Commons, where the small band of advocates and judges held doctorates in civil law from the Universities of Oxford or Cambridge.¹⁸

The Victorian authors who took up the cause found their own parries to Austin’s argument. As English treatises and other scholarly writings on the subject emerged in the great age of Empire, most accepted at least some of the basic tenets of Bentham and Austin, whilst advocating ways of meeting Austin’s doubts over to the very idea of international law. Those who sought to dispel this scepticism about the root character of their subject relied upon the evidence of the consent of sovereign states to its principles as a sufficient basis for binding obligation. They accordingly denied claims, stemming in particular from Grotius and his successors, for a ius gentium compounded of the assertions of scholars, expressing universal truths deduced by human reason. The new empiricism—a search for actual precedents in international practice—could be accepted as part of the demystifying thrust of the positivist approach. In this sense it was early stamped on the major American treatise, that by the diplomat and Harvard professor, Henry Wheaton.¹⁹ Equally, it characterized the writings in England of the urbane Edward Hall, the acute but pedantic Erskine Holland, the practical and learned John Westlake, the formidable Lassa Oppenheim and even the Rev. Dr T. J. Lawrence.²⁰ Likewise, it was reflected in works by English men-of-affairs (p.261) who found it natural to underpin the foreign and colonial politics of their mighty country with accommodating notions of international legal obligation.²¹ Among these were the Crown’s advisers in international law matters—on the common law side, the Attorney-General and Solicitor-General; on the civilian, the Advocate-General. Some of these men, including Lord Chief Justice Cockburn, Lord Russell of Killowen and Lord Finlay, had considerable knowledge of the subject, and corresponding influence.²² To this tally should be added a number of judges—notably Lord Hannen and Sir Edward Fry.²³

If the measure of a rule was its acceptance by states, then, at least in all circumstances short of express treaty, the rule would exist only to the extent that it was followed. International law was in danger of losing any normative quality, becoming instead a set of descriptive hypotheses that would be valid only so far as states continued to accept them. Indeed, there were discussions of how close this brought international law to the less exact natural sciences such as botany, with its classificatory descriptions.²⁴ For those who found it crucial to preserve the distinctive quality of ‘oughtness’ in this sphere, arguments tended to revolve around the theoretical place of the sanction-like consequences of failing to abide by an accepted international rule, which could include gunboat diplomacy, trade barriers, seizures of ships and goods, armed forays to teach lessons or impose a measure of self-defence, and ultimately war.²⁵ This strand of theory would culminate in the work of Hans Kelsen. He insisted that the quality of law (p.262) was in essence normative (a prescription of what ought to happen) rather than descriptive (an explanation of what does happen). As a correlative, propositions of law are to be found in legal sources, recognized within their own heirarchy of norms. Appreciation and criticism of his profound work, however, did not make headway in England until the inter-war years.²⁶

In any case, counter-currents played a very distinct part in the first writings in Britain on the subject, and this was largely thanks to the role of the English civilians. During the crucial battles for maritime control during the Napoleonic wars, the Prize Court had regular and wide-ranging recourse to the principles of the ius gentium.²⁷ The Admiralty judge, Sir William Scott (Lord Stowell), demonstrated an exceptional mastery of international law, representing it much as it had stood before the innovative thinking of de Vattel and his followers.²⁸ In mid-nineteenth century, Sir Robert Phillimore published a three-volume set of Commentaries on International Law (1849–54) which retained the old, and in his case heavily Christian, universalism;²⁹ as did another learned civilian, Sir Travers Twiss.³⁰ The latter, for instance, argued that a war had to be just in order to be legal—an idea that had been central to the foundational writings of Vitoria and Grotius, but had lost a good deal of its centrality by the nineteenth century.³¹ Later still the Edinburgh professor, James Lorimer, also maintained the natural law basis of the subject. His writing bore the stamp of Hegel’s ennoblement of the nation state as the means of fulfilling the capacities of individual subjects, and had affinities to the work of the fervent Italian scholar, Mancini. Between them, they brought a strain of historical romanticism to international law scholarship, which nonetheless could conjure dark ideas of racial superiority.³² In England, however, this (p.263) ‘naturalistic’ tradition faded in the years when the courts of the civilians were being eclipsed by those of common law and equity. Institutional and theoretical shifts worked cautiously but unremittingly in tandem.³³

Those jurists who refused to accept sovereign command as the prime characteristic of law were readier to find analogies between the internal law of communities and the principles binding states. In England, Sir Henry Maine adhered to a utilitarian view of the function of law in any society; but historical relativism led him to treat as law the communal traditions and accepted relationships in primitive societies that had no written edicts and very little by way of overt sanction for non-conformity.³⁴ For James, Lord Bryce, international law was one illustration of the undue narrowness of the whole Austinian characterization of law.³⁵ Sir Frederick Pollock, normally the ally of Maine and Bryce against undue positivism, was more hesitant.³⁶ It was no surprise, all in all, that the Marquess of Salisbury, as Prime Minister, could dismiss international law as depending ‘generally on the prejudices of the writers of text-books’.³⁷

It is fair to say that the nuances that British writers brought to the precise characterization of international law were of less moment than their arguments over the ‘positive’ rules and principles to which states committed themselves through treaty and practice. Soon enough, the attitudes that were common to their writings were being disparaged by Continental idealists as an école historico-pratique.³⁸ A disdain for the pragmatism and urbane expediency of the common law in general was shown often enough by lofty civilian scholars from many branches of legal expertise. In relation to international law, it could be compounded because the British rarely lost sight of the commanding ambitions of their Empire, which seemed particularly to condition their attitudes to any international juristic order.³⁹

(p.264) 2. International Law and Sovereign States

3. Advances in International Law: English Perspectives