502
The Green Bag
cipal law as such; they look only at the concrete case, not the abstract rule. And it is precisely when public passions blaze so fiercely over a concrete case that abstractions will not be thought of that we have war today. Socrates thought that virtue consisted in knowledge; that if men knew what was right, they would do right; that the source of wrongdoing was ignorance.24 But if philosophers had not long ago abandoned this idea, American experi ence in legislative law-making—in point ing out the will of all as to the conduct of each so clearly that none can doubt, and yet seeing each go on in his accus tomed course of action—would require us to reject it as a doctrine of politics. c It is idle too to expect a "Court such as the Supreme Court of the United States" to be set up as a Court of the world. The success of our own great tribunal has made the idea attractive, especially to Americans, but there is in reality no analogy between the two. A sine qua non of such a Court is a bar with unity of legal ideas, traditions of legal thought, an established juris prudence, or at least an agreement on juristic premises. There is no such inter national bar. It can scarcely be said, even, that there are practitioners of international law. That elusive science is still in a state of turmoil and uncer tainty from which it is not likely to emerge until it gets out of the hands of theorists and professorial jurisconsults. South Americans say there is an Ameri can international law.2d Lord Russell objects to the methods of the French international law writers.26 Sir Henry Maine says American and English jurists
- See Zeller, Socrates and the Socratic Schools,
chapter III b. ••Alvarez, Latin America and International Law, 3 Am. Jour. Int. Law, 269. ™Am. Bar. Asso., 1896, page 268.
differ. English courts insist that the doctrines of authoritative text-writers cannot be admitted, and call for treaties, conventions or decisions.27 This, however, is not the Continental doctrine. But there, too, is discord. French jurists object to the premises of Italian writers on international law,28 and German jurists go on in their own purely doctrinal method. In the United States we are still debating all sorts of questions. Dr. Scott asserts that inter national law constitutes an integral part of the municipal law of Great Britain and the United States and that it operates ex propria vigore to extend the jurisdiction of the municipal courts; and he cites decisions of the courts of both nations which say so. Prof. Willoughby in reply disputes this proposition utterly, and he seems to have the best of the argument.29 Such a condition is, of course, widely different from that under which courts have been constituted to try private litigations; and if it be said, as it has been said, that such a Court will be valuable and successful because it estab lishes the law and gives us unity, it can be said with quite as much likelihood of proving true that it will be reactionary and a failure because it will give us discord. To reproduce the feeble be ginnings of archaic law in the modern world is to make a mock of law. Prof. Clark insisted we must say "international law," lest we weaken the hold of the system on men's imagination.30 How much more would the system be weak ened by the spectacle of hopeless disnSee Lord Alverstone in West Rand Central Gold Mining Company v. The King (1905) 2 K. B., 391. "For writers on international law, however valuable their labors may be in elucidating and ascertaining the principles and rules, cannot make the law." (Cockburn, C. J., in Queen v. Key, 1876 L. R., 2 Ex. Div. 63.) wAntoine's Preface to Fiore, Nouveau Droit International Public, vol. 1, page ii. "Am. Jour. Int. Law, II, 357. ^Practical Jurisprudence, 187.
