+ 2(,1 1/,1(Citation: 1926 J. Soc'y Pub. Tchrs. L. 1 1926

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THE JOURNAL of the SOCIETYof PUBLIC TEACHERS of LAW+ + + 1926 + +

INTERNATIONAL LAW AS A SUBJECTOF EDUCATION'

HE teacher of International Law to-day has a task which isone of special difficulty, but also one of special opportunity.His subject has suddenly become one of popular interest,

and its past record and future possibilities are being canvassed outsideacademical and legal circles by many who are no longer content toregard it as the unexciting province of the specialist. There is abroada vague but insistent aspiration towards the substitution of law andorder for anarchy in international relations, and the internationallawyer is expected to have views as to how this aspiration may besatisfied in the future better than it has been in the past.

This public attention, though stimulating, is not without itsembarrassments, for it brings with it criticisms of the past which areoften unfair, and demands for the future which are often unrealisable.It is, for instance, as absurd to blame International Law for not havingrendered impossible the outbreak of war in 1914, as it would be toblame our national systems of law for the civil war in Ireland, or forthe half-dozen or so other civil wars that have taken place within thelast decade, and that are generally so strangely left out of account bythose who speak of war as if it were solely a phenomenon of inter-national relations. And again, if we are entitled to charge against thecredit of International Law the barbarities that were committed in thecourse of the Great War, this is only because it had attempted animpossibly idealistic task-a task which national laws have prudentlyrefrained from attempting-that of regulating and humanising warwhen it comes. If we judge International Law by its solid achieve-ments and not by the distance by which its success has fallen short ofits self-imposed aims, there is no cause for discouragement ; and if weare ever tempted to doubt the truth of that statement we should do wellto imagine for a moment what the state of our civilisation would beto-day if either there were no such thing as International Law, or if itsrules were not, as in fact they are, observed on the vast majority ofoccasions. As my friend M. Georges Kaeckenbeek has writtenrecently, " nous sommes beaucoup plus ais6ment frapp6s par l'absenced'une r~gle juridique desirable que par l'existence d'une r~gle juridiquendcessaire. Cette derni&re fait partie de notre conception rationnelledu monde ambiant, et les efforts, les luttes, les sacrifices qu'il a fallupour la rdaliser 6chappent gdndralement h notre conscience. C'estainsi que, profitant journellement de la poste internationale, voyageantSl'tranger, protdgds en tous lieux dans leur sant6 et leurs droits, bien

I A Presidential Address delivered to the Society of Public Teachers of Law at itsannual meeting, held at the London School of Economics on July to, 1925.

2 SOCIETY OF PUBLIC TEACHERS OF LAW

des hommes sont enclins a soutenir avec une parfaite bonne foi, etparfois mme avec 6rudition-car l'6rudition peut entrer partout, memedans les pires divagations-qu'il n'y a point et qu'il ne pourra jamaisy avoir de droit international." 1

It is easy then for the international lawyer to reply to the confessedcynic, and to justify his subject as a worthy object of study. But thereis as little justification for complacency as there is for discouragement.Lawyers as a class are instinctively and rightly conservative, deferentialto authority, reluctant to probe into fundamental questions ; wedemand certainty and we cling to it when we think we have got it.Our first task is to understand and to expound the law as it is, and onlysecondarily, and then not so much as lawyers but as citizens, tocriticise its shortcomings. But I venture to think that the internationallawyer to-day would be wise to resist this bias which he shares with hiscolleagues. It is, of course, as true that international lawyers do notmake or alter International Law, as that municipal lawyers do not makeor alter municipal law. None the less it seems to me that the twosubjects are so different, and in particular the stages of developmentwhich they have respectively reached are so unequal, that we ought notto assume without examination that the two must necessarily bepresented to the student by the same method. In particular I suggestthat the international lawyer ought not to disinterest himself in thefuture development of his subject, even to the extent to which hiscolleague who is concerned with municipal law may safely do so.Professor Roscoe Pound has invited us to think of Jurisprudence as" ascience of social engineering, having to do with that part of the-whole,field which may be achieved by the ordering of human relations throughthe action of politically organised society ; " he justifies the metaphorbecause " engineeering is thought of as a process, as an activity, notmerely as a body of knowledge or as a fixed order of construction " ;and he cites in illustration of this method of conceiving the jurists' task," the study of the actual social effects of legal institutions and legaldoctrines, study of the means of making legal rules effective, sociolo-gical study in preparation for law-making, study of judicial method,a sociological legal-history, and the importance of reasonable and justsolutions of individual cases, where the last generation was contentwith the abstract justice of abstract rules." 2 l am not here concernedto consider whether this is the right spirit in which to approach thestudy of law in general ; but I am profoundly convinced that it is theonly spirit in which, at any rate to-day, International Law can be pro-fitably studied. " A large and liberal discontent " with the presentachievements of his subject should lead the international lawyer toexamine its traditional assumptions, questioning everything and accept-ing nothing on the mere authority of a great name. Such a spirit isquite consistent with a becoming reverence for the past and with amodest sense of one's own capacities.

Moreover, this attitude of independent and critical inquiry forwhich I am pleading seems to me to bejustified, and indeed necessitated,by the literally revolutionary changes in international organisationwhich the last few years have brought about. The mere existenceof the League of Nations drives us back on the fundamentals of

Rivista di Diritto Internazionale, x924.I interpretations of Legal History, p. 152.

INTERNATIONAL LAW-SUBJECT OF EDUCATION 3political science, forces us to reconsider accepted theories of the natureof the state, of the meaning of sovereignty, of the relations between thesmall powers and the great, and between the advanced and the back-ward races. Never before, at any rate since the Reformation, has it3een so impossible to deny the existence of an international society,and where there is society, we know that there will inevitably be law.Moreover, our country is being urged from many quarters to takefurther steps which for good or evil will be pregnant with change forInternational Law. There are, for instance, those who tell us thatone of the great needs of the world to-day is that means should bedevised for enforcing International Law ; or that a prerequisite of thatfeeling of international security, of which none can deny the urgency,is the adoption of universal compulsory arbitration. The student ofnational law will no doubt be a better man and even a better lawyer forhaving tried to think out for himself the philosophic basis of legalprinciples, for having studied the history of their growth, for havingattempted to gauge their value by the test of social utility and for havingconsidered as earnestly as he can how they may be improved ; but aninterest in philosophy, in history, and in the art of legislation, is hardlyan essential part of his professional equipment. On the other hand,without such interests the international lawyer cannot even begin toface the sort of problem to which I have referred ; for if he attemptsto dissociate his subject to-day from these connected studies he willmerely condemn himself to certain sterility.

I am myself not much interested in the discussion whether Interna-tional Law is entitled to be called law in the strict sense or not, exceptto protest against the suggestion sometimes implied in such a discussionthat the value of International Law as an object of study is affected oneway or the other by the answer that we give to that question ; strictlaw is not the only subject that deserves to be studied, and, on the whole,the matter seems to me to be merely one of convenience of terminology.But a truth which it is really important that we should appreciate, andwhich that hackneyed question obscures rather than elucidates, is theimmaturity of the principles which we generally find i't convenient togroup under the name of International Law, and the lack of differentia-tion between them and the principles of kindred sciences. Nationallegal systems to-day have generally reached a stage of maturity at whichit is necessary for practical reasons to treat them as the subjects ofspecialised study ; we find it at the least convenient to mark off ourstudy of a national system somewhat strictly from the study of otherbranches of social science, such as ethics and politics, with which, nonethe less, all law remains intimately connected. But International Lawis still at a stage of development where to make this rigid demarcationof its province would be to misrepresent its true character.

I have attempted to describe in bare outline the nature of the taskto which the international lawyer must, as I conceive it, address him-self to-day. It remains for me to consider how far a subject so un-differentiated from kindred studies, so inevitably lacking in precision,is suitable for inclusion in a legal curriculum. From that point of viewInternational Law has, I confess, certain obvious disadvantages.Iconoclasm, of which I have urged the possible need, is a dangerouspursuit to commend to the young ; and if there is any truth in mydiagnosis it is obvious, as Westlake said, that International Law is not

4 SOCIETY OF PUBLIC TEACHERS OF LAW

a study that can be recommended with the object of training the mind,but rather one which-demands a mind already to some extent trained.'Obviously again, as a subject of merely vocational education it is oflittle practical use ; nine-tenths of ourstudents will probably never becalled upon to advise professionally on a point of International Law.I take it, however, that few of us will attach much importance to acriticism which would at the same time banish from our curriculaRoman Law, Jurisprudence, and Legal History at least. There seemto me, nevertheless, to be two advantages in particular which the studyof International Law can give to our students which they can hardlyobtain in equal measure from any of the more specialised subjects ofa legal education.

In the first place I think it is true to say that International Lawoffers for their examination an essentially customary system of lawactually in operation ; and this is a phenomenon which we can other-wise only investigate by laborious historical research into legal origins,if not into anthropology. Just as human anatomy can, I believe,be more easily learnt by examining organisms less complex and lessdifferentiated than the human body, so the essential nature of law canbest be learnt from the examination of rules of conduct which, whateverwe like to call them, are the protoplasm out of which the law as we knowit has developed. What is it that gives obligatory force to a rule oflaw? Is it merely constraint? Does consent play any part, or is thevery sense of obligation perhaps a delusion, a trick of our minds, theproduct of a merely evolutionary process ?

These are, problems of the -philosophy of law which can be evadedby the student of municipal law with comparative ease, since thepractical bearings of the answers to them are not very evident; but theinternational lawyer simply cannot refuse to face them. The municipallawyer too may easily forget that all the current coin of our legalcommerce to-day, notions such as those of legislation, of adjudication,of sanction, are in reality highly complex ideas, the products of a longhistory, which only receive definition in the maturity of a legal system.He may forget too the very complicated conditions of civilised lifewhich they require for their successful operation, because in the societywith which he has to deal those conditions are part of the order of thingswhich he is entitled to regard as normal. But the study of InternationalLaw forces us at least to try to understand what these conditions are.When, for instance, it is proposed, as it is on many hands to-day, toattempt to create a more effective sanction for International Law, theviews of one who has not even attempted to understand why it is thatthe sanctions of municipal law do in general work smoothly andregularly are not merely negligible but may even be dangerous, sinceit is never safe to assume that we can transplant an institution from thenational into the international sphere, unless we have first ascertainedthat the conditions upon which its success depends in the former arealso present in the latter. It is the same with all the other problemsof the better organisation of international relations which press them-selves so insistently on the attention of anyone who takes the" engineer-ing " view of the international lawyer's function. What are the possi-bilities of extending the rule of law into fields of international conductwhich it does not at present regulate ? _Have we yet reached the time

Collected Papers, p. 412.

INTERNATIONAL LAW-SUBJECT OF EDUCATION 5when we may fairly expect " sovereign " states to agree to submit theirdifferences to compulsory judicial settlement and to observe such anagreement if they should make it ? Would International Law beimproved by attempting to codify it, or on the other hand would this-nore probably sterilise its powers of development ? These are ques-

tions which cannot be answered intelligently unless we have tried toask ourselves what law really is, what is its function, and what are theconditions and the limitations of its usefulness.

Moreover, we cannot have any real understanding of what law ingeneral is, unless we have related it in our minds to other humaninstitutions ; and the very lack of differentiation in International Law,which from ono point of view is a disadvantage to the beginner, enablesthe teacher to point out affinities between law and other subjects, whichare less easy to detect, although they equally exist, in a more sophisti-cated system. So long as we limit our study to the latter, we mustperforce mark off law as such somewhat too rigidly from ethics andfrom politics, and it is easy to forget that its connection with thosesubjects is really something far more fundamental sub specie aeternitatisthan the difference between it and them ; that, in fact, the boundarylines which we draw around the subject of law only exist for the con-venience of our specialised study. To concentrate our attention onlyon the differences between these closely related things would be toform false notions of them all, to forget that in truth ethics, politics,jurisprudence, are only three branches of a single wider study, that ofhuman conduct in society, and that the ultimate foundation of themall is the same.

These are the considerations which lead me to think that for thephilosophic study of law there is no medium so valuable as InternationalLaw. It has from this point of view the same function in our curri-culum as jurisprudence, with the advantage that it is more easilypresented to the student in a palatable form.

But there is a second advantage which I suggest that InternationalLaw possesses over other subjects. It is one on which Westlake laidstress in the lecture from which I have already quoted. Every manwho desires to play a worthy part in the life of his country is bound toregard current politics as one of the two or three most importantinterests of his life ; and International Law is the only channel by whichsome training in political affairs can be introduced into the legalcurriculum. I cannot put my argument on this point better than byadopting Westlake's own words: " International Law is no more asubject for specialists than home politics are, nor can it be if the dutyof the citizen is concerned with international action. Arid while, asa subject for study at the university, it differs favourably from homepolitics in its being comparatively independent of party spirit, the veryfact that party motives do not bring it so continually under populardiscussion makes it the more necessary for the university to drawattention to it. We have here the men of whom a large part willbecome, and all ought to become, interested participators in theinternational career and tasks which lie before the United Kingdom.It would be matter for regret if a too exclusive attention to the generaltraining of their intellects permitted them to leave us without havingbeen invited to reflect on the principles which make that participationuseful."

J. L. BRIERLY.