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emergence in the pages of Savigny. So long as the territoriality of law was assumed as a principle, so long as and wherever conflicts were resolved or attenuated by means of the device of a voluntary and arbitrary comity, there was evidently little room for this conception. It was only when Savigny and his successors had reached the idea of a wide coinmunity of law existing among civilized nations, that anything resembling a system of private international law became conceivable, or that the residuum of unsolved conflicts which attach themselves to the public policy of the several nations, began to stand out in its real importance. The two ideas are bound together, and it is those writers (says the author in the last lines of his first chapter) who have contended most insistently for the international character of private international law, who have also sought for a criterion whereby to define the conception of "public order.” These efforts, unremitting since the time of Savigny, to find an adequate and comprehensive definition, have ended consistently in failure. Others have sought rather to specify by enumeration the laws which fall under this heading. We meet utter confusion and uncertainty in what is pretty sure to be the first category, the laws relating to good morals. So absolute is the failure in this direction that certain authors have sought the remedy in a bold attempt to eliminate the conception of “public order” altogether. This may mean, in result, an abandonment of the conception of private international law, a return to the old idea of the comitas gentium — voluntary and arbitrary concession on the part of the national law; or again, it may be rather the name than the conception that disappears. And, finally, an overbold idealism may simplify conceptions by merely ignoring facts as they exist.
In none of these directions, then, is any true and satisfactory solution to be found, and we look to the author with considerable interest to discover what his own answer to the problem may be. The essential features of this answer, based largely upon the views and theories propounded by Jellinek, appear to be as follows:
The state does not, by the mere fact of its existence, possess anv juridical personality. This it acquires only by becoming subject to the rule of law imposed by a superior will, which is to be found in the joint will of the states, realizing itself in the creation of regulations that govern mutual intercourse. But it is in the recognition of a state by its sisters that the rule imposes itself, that the state from being a physical entity becomes a subject of law. This recognition, it must be noted, is a mutual and bilateral act, not by any means the assumption by an existing state or group of states of authority over the newcomer, but a mutual agreement by all concerned, implicit or expressed, to enter into a juridical relation.
Now this international recognition is accorded to the state as a state, in the fulness of its inherent functions and activities, subject only to the limitation that forbids trespass on the spheres of the other states. In a word, it is no series of rights and privileges that is recognized, but the simple right to be a state in relation with others. It is not the fundamental or essential rights of the state that demand to be defined, thu important thing from the point of view of international law, the element that gives rise to the problems of international law, is the limitation of these rights.
It is, therefore, an error to place in opposition the international order and the personality of the individual state as if they represented conflicting modes of thought; on the contrary, it is the international order that guarantees this individual personality and its free development. From the mutual recognition of the states as legal personalities, free to realize themselves within the limits imposed by coëxistence, we infer at once the rational system which impartially applies the national or the foreign law, and the sphere of the free will of the state which sets bounds to this system. The notion of public order, therefore, while still appearing as an exception to the rules ordinarily applicable, is nevertheless as truly as these rules themselves, a part of the general juridical order.
Finally, the sociological tendencies of the time are all in the direction of limiting and reducing the field of arbitrary freedom. This tendency may be expected to prevail in the domain of international law, and the sphere of the exceptions created on the ground of public order may be expected to diminish as time goes on; not, however, to the point of extinction, for the conception of individuality and personal freedom, for the state as for the man, is bound up with the constitution of the civilized world as we know it.
Such is the argument of Mr. Rapisardi-Mirabelli, as we understand it; and it must be said that it is not entirely convincing or satisfying. It would seem that he has hardly done himself full justice in the presentation of his views. In the historical part, interesting and valuable as it is, the thread of the thought is hard to follow as we pass from theory to theory, from subject to subject. If we have been at all successful in indicating the course of the author's thought, it will appear that his proposed reconciliation of the contending conceptions — the national or the
international law, public policy and national system — is rather verbal than real.
Of the highest interest, however, is the concluding chapter dealing with public order in treaty law, and particularly as it is affected by the several conventions that resulted from the Hague Conferences. In these conventions we find ample justification for the opinion expressed, that the field or conflict in private international law is likely to be reduced within comparatively narrow limits, at least so far as nations sharing a common inheritance of law are concerned, and we see some ground for hope that “public order” may in the course of time come to denote a very limited class of matters in which, by general agreement, the option if left with the individual state to apply the foreign law according to generally established international rules, or its own national law, as may best accord with public sentiment and the genius of its institutions.
A Handbook of Public International Law. By T. J. Lawrence, M. A.,
LL. D., 7th ed. London: McMillan & Co., Limited, 1909. pp. xvi, 189,
Dr. Lawrence's Handbook of Public International Law has more than justified its preparation, for it is already in the seventh edition. It is therefore so well-known as not to need extended comment, for it was and
the best brief digest of the subject. The book is, as Dr. Lawrence says, practically rewritten and is fully abreast of the latest developments. The great changes in international law brought about by the Hague Conferences and the Naval Conferences of 1908 and 1909 have been noted, and each section is supplied with carefully selected references which will enable the student to round out his knowledge of the subjects treated.
The sections on the Definition and Nature of International Law (Chapter I), the History of International Law (Chapter II), the Subjects of International Law (Chapter III), and the Sources and Divisions of International Law (Chapter IV) form an admirable introduction to the subject.
Brief as this book is, it is believed that its mastery would give the average reader a fair and clear conception not only of international law as a system, but considerable insight of the steps by which international law has grown to be what it is. The value of the work is enhanced by an index placing its contents at the disposal of the reader.
JAMES BROWN SCOTT.
International Incidents for Discussion in Conversation Classes. L. Op
penheim, M. A. LL. D. Cambridge: University Press.
In the introductory paragraphs of the preface to his modest collection, Professor Oppenheim states the origin, purpose and limitation of this interesting little work:
For many years, he says, I have pursued the practice of holding conversation classes following my lectures on international law. The chief characteristic of these classes is the discussion of international incidents as they occur in every. day life. I did not formerly possess any collection, but brought before the class such incidents as had occurred during the preceding week. Of late I have found it more useful to preserve a record of some of these incidents and to add to this nucleus a small number of typical cases from the past as well as some problem cases, which were invented for the purpose of drawing the attention of the class to certain salient points of international law.
As I was often asked by my students and others to bring out a collection of incidents suitable for discussion, and as the printing of such a little book frees me from the necessity of dictating the cases to my students, I have, although somewhat reluctantly, made up my mind to publish the present collection.
The present reviewer has followed a somewhat similar method in the class-room and has spent a few minutes in each hour in informal discussion of various incidents taken from the current press. He has therefore read Professor Oppenheim's collection with the greatest of interest, and while a few of the incidents are old friends somewhat disguised, most of the cases are new, in the sense that they have occurred within the past few years, and actual, in the sense that they have been the subject of discussion in the press, while others would seem to be modelled upon actual incidents. Whatever their origin, they are all interesting and valuable, and there can be no doubt that the collection will serve a very useful purpose in the class-room, especially if international law is taught by the lecture or text-book system.
Professor Oppenheim has printed the text on writing paper and on one side of the page, so that ample space is left either for additional cases or for the annotation of the student. Some of the incidents are difficult and for their solution require no inconsiderable knowledge of international law, which in itself is a recommendation. Professor Oppenheim has wisely refrained from notes, annotations, or suggestions, so that the student is forced to rely upon his own knowledge and ingenuity. The collection, consisting of 100 incidents, is as useful as it is unpretentious and deserving of praise.
JAMES BROWN SCOTT.
The Great Design of Henry IV. Edited by Edwin D. Mead. Boston: Ginn and ('ompany. 1909. xxi+91 pages. List price, 50 cents net, mailing price, 55 cents.
Whether or not The Great Design of Henry IV was in reality his work or the project of the Duke of Sully, from whose memoirs it is known, is a matter of controversy; but, whatever its origin and authorship, the Great Design has influenced thought and marks a date in the history and evolution of federation. Mr. Mead was therefore well-advised to undertake its publication in popular form and to make it the beginning of a series of monographs dealing with the subjects of federation, arbitration, and pacifism. It is well-known that William Penn refers to the Great Design in his plan for the perpetual peace of Europe as showing the feasibility of his own project, and it is common knowledge that Saint-Pierre's project of perpetual peace and Rousseau's famous essay are based upon the Great Design of Henry or his minister.
The appearance, therefore, of Mr. Mead's edition with its interesting introduction and Dr. Hale's paper on the United States of Europe, is of interest to the general reader for whom it is primarily intended, and the announcement that the Great Design is the first of a series of several volumes “ devoted to the classics of the peace movement” such as the Nouveau Cynée and Kant's Eternal Peace, will be welcome to the large circle of intelligent readers and thinkers interested in the peace movement.
The book is properly kept within very small limits, the introduction is but 14 pages, the Design itself 51 pages, the related documents taken from Sully's Memoirs 23 pages (pages 54–76) and the United States of Europe by Dr. Hale 14 pages (pages 77–91), only a little over 100 pages.
It is suggested in no captious spirit that Dr. Hale's contribution does not add to the value of the publication, and it would seem that an introduction by the learned editor to the various volumes selected for publication would be sufficient to meet the need of the general reader, and that the views of commentators as to the value and importance of the texts selected would find a more appropriate place in the editor': introduction.
JAMES BROWN SCOTT.