The charge has frequently been heard in the last few years that international law is in a state of suspended animation and paralytic desuetude. Those who have embraced the view that it is not law at all find in the experiences of the last three years what they consider unanswerable support. To the uninformed, these criticisms of international law as a system make a striking appeal. Yet, when exam­ined in the light of fact and history it will be discovered that the criticism, even in its widest application, can extend only to a very limited portion of the rules governing the conduct of war, and that the great body of the so-called law of nations is constantly enforced in international practice and in courts of law

Borchard, Edwin

English

Yale Law School Legal Scholarship Repository

LAW LIBRARY JOURNAL
Vol. X. July, 1917 No. 2
Published in conjunction with the Index to Legal Periodicals, Vol. X, No. 2, July, 1917
Published Quarterly by
The American Association of Law Libraries
OFFICERS OF THE ASSOCIATION:
President, EDWARD H. REDSTONE, Executive Committee-
Social Law Library. Boston.
ist Vice-President, EDWIN H. GHOLSON,
Cincinnati Law Library, Cincinnati Ohio ist Vice-President
-d Vice-President, MISS SUSAN A. iFLEMING, 2d Vice-President
Louisville Bar Library Louisville, Ky. Secretary
Secretary MISS ELIZABETH BEALE STEERE, Treasurer
University of Michigan Law Library, LUTHER E. HEWITT
Ann Arbor, Mich. L IN . POOLE
Treasurer, MRS. MAUDE B. COBB, FRANKLIN . POOLE
State Library, Atlanta, Georgia. C. WILL SHAFFER
Index to Legal Periodicals and Law Library Journal
Official Organ of* the Association
Editor, GERTRUDE ELSTNER WOODARD
University of Michigan, Ann Arbor, Mich.
Business Managers, THE H. W. WILSON CO.,
White Plains, N. Y.
RECENT DEVELOPMENTS IN INTERNATIONAL AND MUNICIPAL
LAW
By EDWIN M. BORCHARD, YALE UNIVERSITY.
The charge has frequently been heard in the last few years that international
law is in a state of suspended animation and paralytic desuetude. Those who have
embraced the view that it is not law at all find in the experiences of the last three
years what they consider unanswerable support. To the uninformed, these criti-
cisms of international law as a system make a striking appeal. Yet, when exam-
ined in the light of fact and history it will be discovered that the criticism, even in
its widest application, can extend only to a very limited portion of the rules govern-
ing the conduct of war, and that the great body of the so-called law of nations is
constantly enforced in international practice and in courts of law.
International law, in so far as it relates to the rules governing war, is under-
going today the same experience it has had many times in the last two hundred
years. Each of the great conflicts in the history of international relations has
threatened with destruction the most sacred institutions of the law of nations; yet,
nevertheless, the progress of civilization has witnessed the tissue of that law emerge
from each crisis tougher and firmer.
There are not a few striking resemblances between the development of private
law and of international law during the nineteenth century. These center par-
ticularly about the factors making for greater socialization in both fields of law,
and the most important of these is the economic factor.
LAW LIBRARY JOURNAL
The basis of modern life, national and international, is economic. The revela-
tions of science as applied to industry have worked a metamorphosis in economic
conditions since the end of the eighteenth century. These changes have brought
in their train social changes, which have been reflected in the law. The eighteenth
century philosophy and the individualism of the French Revolution, which found
legal expression in the French civil code and its widely diffused progeny in other
countries, began slowly to be replaced by the sociological philosophy of the later
nineteenth century. Large scale industry, the rapid increase and accumulation of
personal property, the growing complexity of business relationships arising out of
corporate organization and combination, the concentration of population in urban
communities and the ever greater facilities for communication, transportation, and
international commerce and intercourse have brought about remarkable changes
in social conditions, reflected in the law by transformations in private and public
law.
Early nineteenth century individualistic notions of liberty, liability, contract
and property have had to yield to new interpretations impelled by the new concep-
tion of social solidarity. Former theories of individual liberty have been modified
by a recognition of human life as a social asset and of the State's duty to protect
it as such, and metaphysical conceptions have almost vanished before the more
convincing teleological theory of law; liability has ceased to be altogether sub-
jective and in industrial enterprise and public services has become objective, as in
the doctrine of liability without fault; a private contract is no longer a formalistic
instrument, but embraces in its legal interpretation ever increasing elements of
social purpose; and property is no longer an unlimited subjective right of the
owner, but constitutes a public trust.
These changes in legal interpretation have been accompanied by an increasing
expansion in the functions of the State, to prevent a violation of what may be
called social justice. In our country, the line of demarcation between the police
power and the constitutional limitations of the fifth and fourteenth amendments
is being gradually moved in the direction dictated by the larger social interests of
the State. Whether this represents, particularly in the field of labor legislation, a
reaction against Sir Henry Maine's theory of evolution from status to contract or
merely a recognition of the necessity for greater protection of the social interests
of the State, it is beyond doubt that private property and private rights are now
affected with a trust founded on social duties in the public interest.
Again, the necessity for certainty in the law led to the movement for codifica-
tion, in which practically all the civil law countries of the world have taken part;
and the approximation in economic conditions, with the gradual tightening of the
bonds of international intercourse, has led to an increasing degree of assimilation
of the rules of private, particularly commercial, law and the establishment of rules
for the adjudication of conflicts of law among the civilized nations.
An analogous evolution may be traced in the sphere of international law.
The-vast expansion in foreign trade, the growth of commercial interpenetration
and the migration of peoples from overpopulated to undeveloped countries has
begun to bring about new conceptions of independence, sovereignty and territorial
jurisdiction. Each of these concepts, with their strongly individualistic flavor, has
had to be tempered by a recognition of limitations created by the interests of other
RECENT DEVELOPMENTS IN INTERNATIONAL LAW 23
states and peoples. The widening substitution of interdependence for independence
is recognized in the many devices and measures adopted, in the interests of con-
venience and order, for a joint regulation of the mutual interests of states. This
has taken place in various ways-by the adoption of uniform municipal laws, as
in the case of bills of exchange; by the observance of uniform customs, as in the
York-Antwerp rules of general average; and principally, by international agree-
ments governing the many spheres of mutual interest which modern economic and
social conditions have created. Public administrative unions, covering the post and
telegraph, railway transportation, navigation, patents, copyright and trademarks,
agriculture, insurance, sanitation, the regulation of sugar production, the opium
trade, the African slave trade and liquor traffic, police administration and many
other international phases of state activity, evidence the growing solidarity of
nations. Coordinate with these agreements are the several international confer-
ences which have achieved valuable results in the adjustment of the conflict of
laws in the adjudication of various classes of cases.
Commerce and economic interests are the forces which are bringing about the
socializafion of international law. The new industrial stage which opened with the
introduction of machinery and the improvement in land and water transportation
in the early nineteenth century brought a quick realization that war in any part of
the world was an economic disturbance for all countries, and efforts were made,
with increasing success, to confine its disastrous results to as small an area as
possible. Hence the widening range of the rules governing neutrality, to whose
development the United States has made notable contributions. Again, developing
from treaties between two states to international conferences of nearly universal
participation, from the Conference of Paris of 1856 to the Second Hague Con-
ference of 19o7 and the London Conference of 19o8-9, the rules of land and
maritime war have been, in part, codified and standardized. The rules governing
military occupation, the effect of war on private property and other private rights,
the exercise of the belligerent right of blockade and the rules governing contra-
band carriage have all been developed in the nineteenth and twentieth centuries in
the interests of a growing ec6nomic and social advantage in their definition. The
inevitable struggle between neutral and belligerent rights in time of war had,
until lately, largely by reason of British economic self-interest and support, been
practically won by the defenders of the neutrals, and belligerent rights restricted
to their narrowest limits.
In more peaceful activities, the policy of commercial penetration and exploita-
tion of undeveloped or backward countries has led to colonial expansion, to spheres
of influence, and to overseas investments and markets, by economically strong
countries. Here we find the source of the many cases of international friction
giving rise to the diplomatic protection of citizens abroad and pecuniary claims.
This is practically a phenomenon of the nineteenth century.
As commerce cannot long thrive in an atmosphere of belligerent disturbances,
efforts have been concentrated, with considerable success, upon the initiation of
methods for settling international disputes without recourse to arms. The nature
of many of the disputes arising out of economic relations lends itself to settlement
by conciliation and arbitration, which methods of adjusting international differences
have made remarkable progress during the last century. Only when these economic
LAW LIBRARY JOURNAL
conflicts become political in character, have pacific methods, up to the present time,
proved generally ineffective in preventing belligerent action. The dynastic ambi-
tion of rulers has been replaced by the economic interest of peoples as the moving
cause of international conflicts, and the primary reason for the present world con-
flagration is to be sought, not in the worship of any particular form of govern-
ment, democratic or autocratic, but in the clash of economic interests arising out
of commercial rivalry, jealousy and fear.
This brief indication of the recent development of municipal and international
law by socialization, codification and assimilation may warrant a concluding sug-
gestion as to the future development of law in international relations. The Thirty
Years' War, the Wars of Louis XIV, the many continental wars of the eighteenth
century, the Napoleonic struggles-have each been followed by an era of law-mak-
ing designed to establish a more orderly regulation of international relations. The
necessity for better organization and the strengthening of international law was
emphasized in the last few decades, when the remarkable development of commerce
and industry, with the realization of the interdependence of nations, led to several
international conferences, terminating with those of the Hague, whose activities
seemed to bring very near the day of the international legislature.
In troublous times like the present, it is not sufficiently recalled that although
international relations in times of peace have grown continually more complex, the
rules governing those relations are commonly observed and judicially enforced.
Moreover, the vast growth in arbitration during the last century is unmistakable
evidence of the toughening fibre of the law and its processes. Even the laws gov-
erning war are not without their sanction, as was shown in the Russo-Japanese
war. Only when a majority of the Great Powers, impelled by the exigencies of
the moment and their physical ability to depart from its recognized precepts, under-'
take to violate international law-fortunately only an infrequent occurrence-does
the weakness of the system afford justifiable ground for complaint and manifest
the necessity for improvement.
Its defects consist, therefore, not in the absence of commonly recognized rules
to govern the situations usually arising, nor even iiI their general non-observance;
but rather in the physical inability-under the present international organization-
to enforce its sanctions when the Great Powers simultaneously disregard its provi-
sions, and in the lack of a sufficiently strong legal organization of the nations of
the world to compel joint action if the rules are violated by any member of the
society of nations.
This end, therefore, to bring about the reign of law among nations and to
establish a legal organization among them, with agencies and instrumentalities
capable of enforcing the rules of law, is to be the aim of the future. In its realiza-
tion, the world's ablest statesmanship will be required. Let us hope that antiquated
notions of sovereignty and nationalistic ambitions for political hegemony will not
be permitted to impede the achievement of this noble object, which now more than
ever before is the universal need of mankind. "


Recent Developments in International and Municipal Law

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Recent Developments in International and Municipal Law

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