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The Sanction of International Law

Published online by Cambridge University Press:  04 May 2017

Ronald F. Roxburgh
Ronald F. Roxburgh*
Affiliation:
Of the Middle Temple, England, Barrister at Law
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Extract

Every satisfactory definition of law implies a sanction. Some penalty must be imposed upon a law-breaker, to be exacted, in the last resort, by external power. Force, therefore, is vital to law as it is to war, though normally it plays a less obvious part. A felon who is brought up for trial, condemned, and sent to prison, is induced by force, or by the fear of force, to submit to the court and to punishment. The policeman and the warder are the instruments of external power by which he is constrained to obey.

Force also supplies the most important incentive for securing obedience to law. It is true, as Maine pointed out, that for every man who keeps the law through conscious fear of punishment, there may be hundreds who do so as it were instinctively, and without a thought on the subject. But while this law-abiding spirit, which is characteristic of large sections of a modern community, owes its origin to a number of causes, perhaps the most potent of all has been the enforcement of law through long ages in the past.

Type
Research Article
Information
American Journal of International Law , Volume 14 , Issue 1-2 , January 1920 , pp. 26 - 37
Copyright
Copyright © American Society of International Law 1920

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References

1 Für das Feuer ist das Brennen nicht wesentlicher als für das Recht die Erzwingung seiner Befolgung. Jhering, Zweck, I, 321, quoted by Holland, Jurisprudence, 11th ed., p. 42.

2 Legum eas partes quibus poenas constituimus adversus eos qui contra leges fecerint sanctiones vocamus. Justinian, Inst., II, i, 10.

3 “Those persons against whom the state administers justice are commonly so completely within its power that they have no choice save voluntary submission and obedience. It is enough that the state possesses irresistible force and threatens to use it; its actual use is seldom called for.” Salmond, Jurisprudence, 3rd ed., p. 97.

4 International Law, p. 50.

5 Maine, Ancient Law, 10th ed., p. 7.

6 Ibid., Note by Sir F. Pollock at p. 23.

7 “Public opinion, which is the ultimate sanction of all law.” Hall, International Law, 6th ed., p. 15. Cf. also Oppenheim, International Law, I, p. 16.

8 The fact that international law is not always enforced cannot affect its claim to be regarded as law. “A weak law is nevertheless still law.” Oppenheim, International Law, Vol. I, p. 14.

9 International Law, p. 51.

10 Cf. Oppenheim, op. cit., Vol. I, p. 17.

11 Cf. Emerson, Essay on Polities. “The gladiators in the lists of power feel, through all their frocks of force and simulation, the presence of worth.”

12 Neither the machinery devised at The Hague Conferences nor that contemplated by the Covenant of the League of Nations can be properly regarded as first experiments in international government.

13 See Oppenheim, op. cit., Vol. II, p. 48; Hall, International Law, 6th ed., p. 364.

14 “There is a genius of a nation, which is not to be found in the numerical citizens, but which characterizes the society.” Emerson, Essay on Nominalist and Realist.

15 Cf. Oppenheim, op. cit., Vol. I, p. 15.

16 It is impossible to agree with Bonfils (Manuel de droit International Public, 6th ed., p. 12) that war cannot be the sanction of international law in the sense in which the word is used in jurisprudence. It would seem that it can be if the external force is being applied by the general consent of the community and for the purpose of vindicating the law.

17 Immunity of Private Property from Capture at Sea, p. 24.

18 Oppenheim, op. cit., Vol. I, p. 13.

19 For the limits within which self-help is permitted in English law, see Odgers, The Common Law of England, Vol. II, p. 953.

20 See Oppenheim, op. cit., Vol. I, p. 565.

21 The Covenant also provides for the submission of a dispute to the Assembly, and for a report by the Assembly upon it.

22 Article 16.