Page 11 - Law of Peace, Volume ,

Pam 27-161-1

yet been done, the principle that the nations of the world to the dictates of right reason, the voluntary law might be
constituted a community, based both upon natural rea- said to blend with the natural law and be the expression of
l son and upon social intercourse. 14 The Spanish Jesuit, it. Should there be a conflict between the two, the law of
Suarez, in a classic passage of his treatise published in nature was tq prevail as the fundamental law, the
161 2, insisted clearly that the states of the world, although authority of which could not be contravened by the prac-
independent in their national life, were nevertheless tice of nations. 20
members of the human race and as such subject to a law 1-4. Schools. a. Largely under the influence of the great
of conduct: a law based, he maintained, chiefly upon treatise of Grotius and stimulated by the growing inter-
natural reason, but also in part upon human custom. 15 course between nations and the need for more specific
The Italian jurist Gentili, professor of civil law at Oxford, rules of international conduct, the science of international
published in 1598 a treatise, De Jure belli libri tres, in law developed rapidly during the succeeding centuries.
which, without discarding natural reason and natural law, Three main tendencies (sometimes described as schools
he sought to frnd historical and legal precedents to regulate of thought) may be observed, which have led historians to
the conduct of nations. 16 The honor was reserved, classify the various writers into separate groups. The term
however, to Hugo van Groot, better known as Grotius, to "schools," however, suggests a greater unity than has ac-
publish in 1625 a more formal treatise, De jure belli et tually existed within any of the several traditions. Some
pacis, which was the fust to obtain a hearing outside the writers have sought to build up the theory of the law while
schools and which won for its author the accolade of others have laid chief stress upon the actual conduct of na-
"Father of International Law." 17 Grotius followed the tions. A great middle group has insisted that the most
classical tradition in making the natural law the basis of his practical approach to the law involved, of necessity, some
system. The "natural law," as he defined it, was "the dic- theory of international ethics, thereby following in the
tate of right reason which points out that a given act, footsteps of Grotius.
because of its opposition to or conformity with man's ra- b. The Naturalists. The peculiar conception of the law
tional nature, is either morally wrong or morally neces- of nature developed by the English philosopher Hobbes in
sary, and accordingly forbidden or commanded by God, his treatise on the Great Leviathan, published in 1651,
the author of nature." 18 Since nations formed a society had a far-reaching effect upon the science of international
similar in its nature to the community of citizens, they too law. Man is antisocial, not social as in the Stoic and Chris-
were bound by the dictates of the natural law. tian tradition. Living in a state of nature in which he is
b. In addition to the natural law, Grotius recognized a
"nasty and brutish," man is at war with every other man
"voluntary" law of nations based upon their free consent, until at last, driven by the instinct of self-preservation,
either explicitly expressed in treaties and conyentions or man is led to form a compact with other men and sur-
implicitly manifested by usages arid customs. To this law render his natural rights., The law of nature was thus
he gave, the name jus gentium. 19 In so far as it conformed divorced from theology. The divorce made it possible for
states to assert their sovereignty in more absolute form;
14. Francisco De Vitoria, De Indis Et De Iure Belli Relictiones (text
of 1696), in The Classics of International Law (J. Scott ed. 1917). For but at the same time it destroyed the conception of a high-
an appraisal of Vitoria's contribution, see J. Scon, The Spanish Origin of er law and made their conduct a matter to be determined
International Law, pt. I: Francisco de Vitoria and his Law of Nations by their own free agreement. While following in the tradi-
(1934); J. Scott, The Catholic Conception of International Law, chap. 1 tion of Hobbes in divorcing the natural law from theology,
(1934); H. Wright, Catholic Founders of Modern International Law Samuel Pufendorf, a university professor first at
(1933); Trelles, Francisco de Viloria et I'ecole moderne du droit inferm-
tional, 17 Recueil Des Cours 113-342 (1 927). Heidelberg and l'ater at Lund in Sweden, conceived a new
15. The passage is quoted, in Latin, by T. Walker, A History of The natural law of his own. In a work published in 1672, De
Law of Nations 155-56 (1 899); and in English by Eppstein, The Catholic jure naturae et gentium, Pufendorf conceived of a state of
Tradition of The Law of Nations 265 (1934). For a study of the in- nature whose fundamental law was the obligation of man
fluence of Suarez upon the development of international law, see C. to promote socialability with his fellow men; 21 whatever
Trelles, 43 RECUEIL DES COURS 389 (1933).
16. Gentili, De Juri Belli Libri Tres (1598), in Classics of Interna- acts had that effect were laws of nature. The standard of
tional Law (1933). Other predecessors of Grotius include Legnano, De international conduct was to be determined not by custom
Bello, De Represaliis Et De Duello, (circa 1390); Belli, De Re Militari Et and treaty but by the natural law evidenced by the applica-
Bello Tractatus, (1563); Ayala, De Jure Et Officiis Bellicis Et Disciplina tion of reason to international relations. Historians have
Militari (1582). For a recent critical study, see L. Erlich, The Develop- placed Pufendorf at the head of the Philosophic or Pure
ment of International Law as a Science, 1 Recueil Des Cours 177 (1 962).
17. A modern translation by F. Kelsey, The Law of War and Peace, Law of Nature School. However, others who have placed
appeared in the Classics of International Law series in 1925.
18. Id., chap. I, 5 X. For an analysis of the work, see T. Walker, 20. Id., Prolegomena, 5 9.
History of the Law of Nations 285 (1899). 21. S. Pyfendorf; De Jure Naturae Et Gentium (1672), in Classics
19. Id, 5 XIV.Vitoria appears to have used the tern in the same of International Law (J. Scott ed. 1934). An abridged edition of the
sense a century earlier. The new usage was destined to become the ac- larger work was prepared by Pufendorf himself under the title De Officio
cepted one, and in due time "law of nations" and "international law" Horninis Et Civis Jurta Legem Naturalem Libri Duo (1682), in Classics
came to be interchangeable. of Intermtional Law (J. Scott ed. 1927).