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Section 5 of Jurisprudence. For more information or to volunteer, please visit LibriVox.org. Recording by Ian Stewart, Rosanna, Victoria, Australia. Jurisprudence by John Salmond. Other Kinds of Law, Part 2. Section 18 Conventional Law.

By conventional law is meant any rule or system of rules agreed upon by persons for the regulation of their conduct towards each other. Agreement is a law for the parties to it. Examples are the rules and regulations of a club or other society, and the laws of whist, cricket or any other game. What are the laws of whist, except the rules which the players expressly or tacitly agree to observe in their conduct of the game? In many cases conventional law is also civil law, for the rules which persons by mutual agreement lay down for themselves are often enforced by the state.

But whether or not these conventional rules thus receive recognition and enforcement as part of the law of the land, they constitute law in the wide sense of a rule of human action. The most important branch of conventional law is the law of nations, which, as we shall see later, consists essentially of the rules which have been agreed upon by states as governing their conduct and relations to each other. Section 19. Customary Law By customary law is here meant any rule of action which is actually observed by men, any rule which is the expression of some actual uniformity of voluntary action. Custom is a law for those who observe it, a law or rule which they have set for themselves

and to which they voluntarily conform their actions. It is true that custom is very often obligatory. That is to say, it is very often enforced by some form of imperative law, whether the civil law or the law of positive morality. But, irrespective of any such enforcement, and by reason solely of its de facto observance,

It is itself a law in that wide sense in which law means a rule of action. Some writers regard international law as a form of customary law. They define it as consisting of the rules actually observed by states in their conduct towards each other. We shall consider this opinion in a later section of the present chapter. Civil law, as we have defined it, is a form of customary law,

inasmuch as it consists of the rules actually observed by the State in the administration of justice. It is the custom of the judicature. The relation between popular custom and the civil law is an important matter which will be considered in a later chapter. It is sufficient here to make the following remarks with regard to it.

1. Popular custom has not in itself the nature of civil law, for the essence of civil law lies in its recognition by the state in the administration of justice. 2. Popular custom is one of the primitive substitutes for civil law, men being governed by custom before the state has been established or has undertaken the function of making and administering law.

3. Popular custom is one of the sources of the civil law, for that law, when it comes into existence, is largely modelled on the pre-existing customs of the community. Civil law, which is the custom of the state, is based to a large extent on that precedent customary law

which is merely the custom of the society. Section 20. Practical Law Yet another kind of law is that which consists of rules for the attainment of some practical end, and which, for want of a better name, we may term practical law.

These laws are the rules which guide us to the fulfilment of our purposes, which inform us as to what we ought to do or must do in order to attain a certain end. Examples of such are the laws of health, the laws of musical and poetical composition, the laws of style, the laws of architecture, the rules for the efficient conduct of any art or business. The laws of a game, such as whist, are of

two kinds. Some are conventional, being the rules agreed upon by the players. Others are practical, being the rules for the successful playing of the game. Section 21. International Law. International law, or the law of nations, consists of those rules which govern sovereign states in their relations and conduct towards each other. All men agree that such a body of law exists, and that states do in fact act in obedience

to it, but when we come to inquire what is the essential nature and source of this law, we find in the writings of those who deal with it a very curious absence of definiteness and unanimity. The opinion which we shall here adopt as correct is that the law of nations is essentially a species of conventional law, that it has its source in international agreement, that it consists of the rules which sovereign states have agreed to observe in their dealings with each other.

This law has been defined by Lord Russell of Killiwen as the aggregate of the rules to which nations have agreed to conform in their conduct towards one another. The law of nations, said Lord Chief Justice Coleridge, is that collection of usages which civilised states have agreed to observe

in their dealings with each other. The authorities seem to me, says Lord Esher, to make it clear that the consent of nations is requisite to make any proposition part of the law of nations. To be binding, says Lord Cockburn, the law must have received the assent of the nations who are to be bound by it.

This assent may be express as by treaty or the acknowledged concurrence of governments, or may be implied from established usage. The international agreement, which thus makes international law, is of two kinds, being either express or implied. Express agreement is contained in treaties and international conventions, such as the Declaration of Paris or the Convention of the Hague. Implied agreement is evidenced chiefly by the custom or practice of states. By observing certain rules of conduct in the past, states have impliedly agreed to abide by them in the future.

By claiming the observance of such customs from other states, they have impliedly agreed to be bound by them themselves. International law derived from express agreement is called in a narrow sense the conventional law of nations, although in a wider sense the whole of that law is conventional. That part which is based on implied agreement is called the customary law of nations. The tendency of historical development is for the whole body of the law to be reduced to the first of these two forms,

to be codified and expressed in the form of an international convention, Convention, to which all civilised states have given their express consent. Just as customary civil law tends to be absorbed in enacted law, so customary international law tends to be merged in treaty law. International law is further divisible into two kinds, which may be distinguished as the common law of nations and the particular law of nations. The common law is that which

prevails universally, or at least generally, among all civilised states, being based on their unanimous or general agreement express or implied. The particular law is that which is enforced solely between two or more states, by virtue of an agreement made between them alone, and derogating from the common law. International law exists only between those states which have expressly or impliedly agreed to observe it. Those states, which now include all civilised

communities, and some which are as yet only imperfectly civilised, are said to constitute the family or society of nations, an international society governed by the law of nations, just as each national society is governed by its own civil law. New states are received into this society by mutual agreement, and thereby obtain the rights and become subject to the duties created and imposed by international law.

Writers are, however, as we have already indicated, far from being unanimous in their analysis of the essential nature of the law of nations, and the various competing theories may be classified as follows. 1. That the law of nations is, or at least includes, a branch of natural law, namely, the rules of natural justice as applicable to the relations of states inter-say.

2. That it is a kind of customary law, namely the rules actually observed by states in their relations to each other. 3. That it is a kind of imperative law, namely the rules enforced upon states by international opinion or by the threat or fear of war 4. That it is a kind of conventional law, as already explained Having accepted the last of these theories as correct, let us shortly consider the nature and claims of the three others

Section 22. The Law of Nations as Natural Law All writers on international law may be divided into three classes by reference to their opinions as to the relation between this law and the principles of natural justice. The first class consists of those who hold that the law of nations is wholly included within the law of nature, that it consists merely of the principles of natural justice so far as applicable to sovereign states in their relations and conduct towards each other. that the study of international law is simply a branch of moral philosophy

and that there is no such thing as a positive law of nations consisting of a body of artificial rules established by states themselves. Thus Hobbes says, As for the law of nations, it is the same with the law of nature. For that which is the law of nature between man and man

before the constitution of commonwealth is the law of nations between sovereign and sovereign after. The same opinion is expressed by Christian, Tomasius, Puffendorf, Bola Maki and others, but is now generally discredited, though it is not destitute of support even yet. A second opinion is that international law is both natural and positive, that it is divisible into two parts, distinguished as the natural law of nations, which consists of the rules of natural justice as between states, and the positive law of nations, consisting of rules established by states by agreement, custom, or in some other manner for the government of their conduct towards each other. The natural law of nations is supplementary or subsidiary to the positive law, being applicable only when no positive rule has been established on the point.

Representatives of this opinion are Grotius, Wolfe, Vattel, Blackstone, Halleck, Wheaton, Fillimore, Fiore, Twiss and others. The third opinion is that international law is wholly positive, that it consists exclusively of a set of rules actually established in some way by the action of sovereign states themselves and that the rules of natural justice are not in themselves rules of international law at all but pertain to that law only if and only so far as they have been actually incorporated into the established system of positive law.

This is now the prevalent opinion and we have here accepted it as the correct one. By those who maintain it, the rules of natural justice as between states are called international morality, and are distinguished by this name from international law. These two bodies of rules are partly coincident and partly discordant. The conduct of a state may be a breach of international morality, but not of international law, or a breach of law though in accordance with morality, or it may be both immoral and illegal. The question whether rules of natural justice are to be included as a part of international law is

indeed in one aspect a mere question of words for these rules exist and states are in honour bound by them and the question is merely as to the name to be given to them Nevertheless questions of words are often questions of practical importance and it is of undoubted importance to emphasise by a difference of nomenclature

the difference between rules of international morality by which, indeed, states are bound whether they have agreed to them or not, but which are uncertain and subject to endless dispute, and those rules of international law which, by means of international agreement, have been defined and established and removed from the sphere of the discussions

and insoluble doubts of moral casuistry. Section 23 The law of nations as customary law. Even those writers who agree in the opinion that international law is, or at least includes, a system of positive law, differ among themselves as to the essential nature and source of these rules,

and we proceed to consider the various answers that have been given to this question. Some writers consider that international law has its source and international custom, that it consists essentially and exclusively of the rules which are actually observed by sovereign states in their dealings with one another. This view, however, is not prevalent, and is, it is believed, unsound. International custom is not in itself international law.

It is nothing more than one kind of evidence of the international agreement in which all such law has its source. There are many customs which, because they are based on no such underlying agreement, have not the force of law, states being at liberty to depart from them when they please. Conversely, there is much law which is not based on custom at all but on express international conventions

These conventions, if observed, will of course create a custom in conformity with the law but they constitute law themselves from the time of their first making and do not wait to become law until they have been embodied in actual practice New rules of warfare established by convention in time of peace are law already in time of peace

Section 24 The Law of Nations as Imperative Law By some writers, international law is regarded as a form of imperative law. It consists, they say, of rules enforced upon states by the general opinion of the society of states, and also in extreme cases by war waged against the offender by the state injured or by its allies. Thus, Austen says,

laws or rules of this species which are imposed upon nations or sovereigns by opinions current among nations are usually styled the law of nations or international law. In considering this view it is to be admitted

that in many cases the rules of the law of nations are thus sanctioned and enforced by international opinion and force. But the question to be answered is whether this sanction is of the essence of the matter because, if it is so, all rules so sanctioned must be, and no others can be, rules of international law.

It is clear, however, that the sanction of war cannot be the essential test, for in the first place this sanction is but seldom applied, even to undoubted violations of international law, and in the second place it is at least as often resorted to when there is no violation of such law at all. What then shall be said of the alternative sanction of international opinion? Is this the test and essence of a rule of international law?

For the following reasons it is submitted that it is not. 1. Many forms of state action are censured by public opinion, which are admittedly no violation of the law of nations. A state may act within its legal rights, and yet so oppressively or unjustly as to excite the adverse opinion of other nations.

2. There may be violations of international law which are in the particular circumstances regarded as excusable and approved by international opinion 3. Public opinion is variable from day to day, dependent on the special circumstances of the individual case not uniform as we pass from state to state, not uniform even throughout the population of the same state International law, on the other hand, is a permanent, uniform system of settled rules independent of the fickle breath of public approbation or censure

made and unmade by the express or implied agreements of sovereign governments and not by the mere opinions and prejudices which for the moment are in public favour. International law is one thing international positive morality is another thing but the doctrine here criticised identifies and confounds them as one.

International law is made, as has been said, by the acts and contracts of governments. International opinion is made chiefly by journalists and the writers of books. Opinion, if sufficiently uniform and sufficiently permanent, will doubtless in time constrain the law into conformity with it. But it is not the same thing.

4. Public opinion cannot be made the basis of any rational or scientific body of rules or legal doctrines. For such opinion is simply the belief of the public that certain forms of conduct are in conformity with natural justice. So far as this belief is well founded, the law based upon it is simply the law of nature. So far as it is erroneous, the law based on it is simply a mistake which disappears ipso facto on being recognised as such. It is impossible to recognise as a subject of scientific interpretation and investigation any international law based on erroneous public opinion, and if based on true opinion, it is nothing save the principles of natural justice.

Certain writers seek to avoid the first of these objections by so defining international law as to include only one portion of the body of rules approved and sanctioned by international opinion, the remaining portion constituting international positive morality. According to this opinion, international law consists of those rules

which international opinion not merely approves, but also regards as rightly enforceable by way of war. International positive morality, on the other hand, consists of those rules of which opinion approves but of the enforcement of which, by way of war, it would not approve That is to say, international law is distinguished from international morality

by an application of the distinction familiar to the older moralists between duties of perfect and duties of imperfect obligation This view would seem to be exposed to all the objections already made to the cruder theory which we have just considered, with the exception of the first, and it is also exposed to this further criticism,

that it is impossible thus to divide public opinion sharply into two parts by reference to the justification of war or any other kind of forcible compulsion. Whether such compulsion is right is a matter to be determined not by the application of any fixed or predetermined rules, but by a consideration of all the circumstances of the individual instance,

and even then opinion will in most cases be hopelessly discordant. Moreover, there are forms of state action which are not the violation of any established rule of international law and which nevertheless are so contrary to the rightful interests of another state that they would be held to be rightly prevented or addressed by way of war. Conversely, there are rules of undoubted law which are of such minor importance

that a war for the vindication of them would be viewed by international opinion as a folly and a crime.