"There is a curious and interesting interdependence between reasonableness and sanity in the conduct of domestic politics on the one hand and kindly feeling and generous sympathy in our attitude towards foreign relations on the other. . . . Political progress, whether national or international, must depend upon trust in the better instincts of the people, and cannot rest upon their appetites and their passions, their envies and their animosities." The picture drawn by President Masaryk has this much of truth in it, that it emphasises the impossibility of real progress in the realisation of the international society, and the development of its law while the peoples of the world remain a prey to " their appetites and their passions, their envies and their animosities." But the picture is a very partial representation of the facts of to-day, and even if it should be accepted as wholly true, what was the state of Europe when Grotius lived and wrote? There is no need to give a detailed answer to this question, it was the age of the "Thirty Years' War." Grotius was in his day a Vox Clamantis, and the success which has attended his work must not blind us to the fact that his appeals to the highest standards for International Law are still far short of fulfilment. Law and morality are inseparably interwoven, and the law reformer inevitably starts with higher ideals than those of the masses of his time. To effect any result he is invariably compelled to compromise, to reason with men. to obtain the Good while still holding before them the Best. All improvements in law to be effective and such as will not bring law into evil repute by their non-observance invariably fall below the highest ethical standards. Progress in the elevation of human conduct is obtained by the gradual recognition

1 N. Murray Butler, The International Mind (1913), p. III. Cf. also Ch. Dupuis, Le droit des gens et les rapports des Grandes Puissances, avec les autres Etats (1921), p. 529.

that only by subordination of self-interest within certain limits can there be an advance to the general good. One of the important functions of all law is that of a schoolmaster, and this is true of International Law. Its very defects when realised constitute a stage in the progress of the education and illimination of states.

III.

"A lawyer must be orthodox, else he is no lawyer," says Maitland, and this is true of international as of other lawyers. His prime duty is to know the law, and if he be a teacher or writer to expound it as he finds it. Grotius did this when he laid down the positive rules of the Law of Nations prevailing in his day evidenced by numerous precedents, drawn, it is true, from far distant times, and supported by authorities as ancient as Moses. The modern international lawyer has a similar task to perform in dealing with the existing rules of International Law, and for him the evidences of the positive rules of law whose basis is the consent of states will be precedents showing their application (custom) and agreements which states have entered into between themselves (treaties). In dealing with specific rules relating to international intercourse he is bound to take cognisance of the general jurisprudential ideas underlying the system. Juristic speculation lies behind the great mass of the rules of International Law, and many of these have passed into realities on which the present rules have been based.1 The orthodox international lawyer will have, therefore, to expound certain fundamental principles on which the science rests. He will speak of the notion of states, and of the meaning of law in their mutual

1 Roscoe Pound, Philosophical Theory and International Law, Bibliotheca Visseriana, p. 88.

relations, he will be met with claims based on states' sovereignty, independence and equality. But the international lawyer of to-day will also, in stating the positive rules which obtain, be led to examine many of the traditional commonplaces of the text-books and the shibboleths of the politicians to see how far they conform to the standards of his time. With some of the views which to-day are current under the name of political or social philosophy and jurisprudence, I am unable to agree, because I am unable to understand them. This is particularly the case with some of the modern expositions of the idea of the state. Without accepting all that the new social philosophy and the new sociological jurisprudence may have to say in relation to International Law, but realising the truth of the view that the measure and test of law is not to be found in the shifting sands of philosophical fancies which are subject to the inroads of each recurring tide, even the orthodox lawyer will have to face the position that the facts of everyday international intercourse do not warrant the full deduction from some of the fundamental principles which were made by the writers of an older generation. It is as true of International Law as of the Common Law that "the life of the law has not been logic; it has been experience," and by this experience the jurist will test the alleged philosophic or jurisprudential bases. He will find that doctrines of sovereignty taught by many jurists and enunciated by statesmen are in need of revision, and that independence is often too strongly emphasised to the loss of the growing sense of interdependence.3

1 J. B. Moore, International Law and some Current Illusions, p. xiv. 2 O. W. Holmes, The Common Law, p. 1.

3 "In the present state of the development of International Law and international relations it cannot be admitted that states are bound by their own wills when their conduct affects other states or their nationals." J. W. Garner in American Political Science Review. Feb., 1925, P. I.

I have elsewhere drawn attention to the fact that the danger spots in the world lie with the backward nations. Rights and duties are correlative terms in law, and in general, the emphasis of all writers is on state rights. The demand for the recognition of rights by individuals and groups within states to-day and the disregard of their duties is symptomatic of the condition of society portrayed in the extract from President Masaryk's article just quoted. In international relations a similar condition may be observed. A recent writer has very wisely emphasised the need that jurists in dealing with International Law should lay more stress on the duties of states. He points out that good government within a state is essential to progress, and for this to be obtained every department of the administration must reach a high level of efficiency. I am in hearty accord with his statement that "International lawyers can help materially in the progress of the world if they will inculcate the doctrine that the extent to which a state can expect to achieve recognition of its rights depends on the extent to which, and the success with which, it fulfils the purposes for which states exist."

The undue emphasis placed by most international lawyers on a doctrine of the equality of states ignores this point of view, and Lorimer was right when he pointed out that while all states are entitled to be recognised as such, they are not all entitled to be recognised as equal, simply because they are not.2

But the international lawyer besides stating the present rules of law and examining their bases, has

1 British Year Book of International Law, 1925, p. 234.

2 "No principle has been repeated more frequently or authoritatively than the equality of states and their absolute independence, except perhaps their counterparts, the balance of powers, and the status quo; and all of them may now, I think, be safely said to have been repudiated by history, as they always were by reason." J. Lorimer, Institutes of the Law of Nations, I., p. 44. For an examination of the doctrine of state equality, see P. J. Baker, Brit. Year Book of Inter. Law, 1923, p. 1, and E. D. Dickinson, The Equality of States in International Law (1920).

"

work before him also of the kind which Grotius undertook. He will find that on many points there are divergent practices and views, and also that there are large areas of international activity for which there are no rules of International Law. The harmonising of divergent usages and the making of new rules can only be done by states themselves, but the lawyer can and should put forward proposals for those ends, and in so doing he will have to bear in mind the extremely complex conditions of modern societies and the existence of the new organs for international co-operation. International lawyers can never rest satisfied with their subject until in every department of state life, economical and political, there are rules accepted whereby states can obtain justice within the law.1 Just as when in examining the existing rules he will from time to time step aside to point out wherein they subserve and wherein they conflict with the objective solidarity of the interests of the international community, so in formulating proposals to meet new cases he will be guided by similar principles. So far as the appeals of Grotius succeeded, they did so because he based them on standards of morality of general acceptance, his appeal to the Law of Nature was an appeal to the educated reason of mankind of his time. This appeal is necessary to-day as regards both the expository and constructive work of the international lawyer, but it is not an easy task to undertake. Lawyers, English and American, trained in the school of the English Common Law, have an outlook on many important branches of jurisprudence which differs in fundamentals from that of their continental brethren, and under this designation we have to include the growing number of jurists of the South and Central American Continents, whose material

1 I have more fully dealt with these matters in International Law and Moral Ideals, "Contemporary Review," March, 1925.