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The Understandings of International Law

Published online by Cambridge University Press:  04 May 2017

Quincy Wright
Quincy Wright*
Affiliation:
University of Minnesota
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Extract

“The preamble of a statute,” says Justice Story, “is a key to open the mind of the makers as to the mischiefs which are to be remedied, and the objects which are to be accomplished by the provisions of the statute.”

Type
Research Article
Information
American Journal of International Law , Volume 14 , Issue 4 , October 1920 , pp. 565 - 580
Copyright
Copyright © American Society of International Law 1920

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References

1 Story, Commentaries on the Constitution, sec. 459.

2 “We, the People of the United States.” See Marshall, C. J., in McCulloch v.Maryland,4 Wheat. 403; Story, J., in Martin V. Hunter’s Lessee, 1 Wheat. 304; Webster in debat with Hayne, Jan. 26–27, 1830, Cong. Debates, 21st Cong., 1st sess., VI, Part. I, pp. 58 et seq.; and general discussion, Corwin, The Doctrine of Judicial Review, 1914, p. 81; Willoughby, Constitutional Law, sec.20; Watson, The Constitution of the United States, 1910, pp. 93 et seq.

3 “One is curious to know,” says Professor Philip Marshall Brown, “what lay behind thethought of the draftsman who penned the phrase ‘understandings of international law.’ Did he have any conception of a definite system of law—imperfect to be sure—but in the process of orderly development? Or did he conceive of international law merely as a gentleman’s agreement on a par with ‘regional understandings’ referred to in another part of the Covenant, and other diplomatic, political understandings? The problem is intriguing.” (This Journal, 13: 739, Oct., 1919.) See also Q.. Wright, American Political Science Review, 13: 556, November, 1919. The English and French texts of the treaty are printed in Sen. Doc. No. 85, 66th Cong., 1st sess.

4 This phrase seems synonymous with “unwritten principles of international law.” “To ascertain,” said Chief Justice Marshall, “that (portion of the law of nations) which is unwritten we resort to the great principles of reason and justice.” Bentzon v. Boyle, 9 Cranch, 191, 198 (1815).

5 “To receive is frequently a passive act; whatever is offered or done to another is received; but to accept is an act of choice.”(Crabb’s English Synonyms.)

6 “To dictate is a greater exercise of authority than to prescribe. To prescribe partakes altogether of the nature of counsel, and nothing of command; it serves as a rule to the person prescribed, and is justified by the superior wisdom and knowledge of the person prescribing.” (Crabb.)

7 “To institute is always the immediate act of some agent; to establish is sometimes the effect of circumstances.” (Crabb.)

8 “To sustain and support are frequently passive, maintain is always active. Sustain and support may also imply an active exercise of power or means which brings them still nearer to maintain. ”(Crabb.)

9 See Wright, Minnesota Law Review, 4 : 33 (December, 1919), Columbia Law Review, 20: 145–148 (February, 1920) ; Bernard, Four Lectures on Subjects connected with Diplomacy, London, 1868, p. 164; President Wilson, Statement to Senate Foreign Relations Committee, Aug. 19, 1919, 66th Cong., 1st sess., Sen. Doc. No. 106, pp. 502, 507, 514, 517, 534–535.

10 Austin, Jurisprudence, 4th ed., 1: 79, 88, 2: 510; Holland, Jurisprudence, 11th ed., p. 42; Gray, The Nature and Sources of the Law, p. 82; Salmond, Jurisprudence, p. 9. Austin’s emphasis upon the origin of true law in the command of superior authority has not been insisted upon by his successors, but they have followed him in insisting uponits sanction by regular judicial authority backed by the power of the state.

11 Root, the Sanctions of International Law, this Journal, 2 : 451; Lawrence, Principles of International Law, sec. 9; Willoughby, The Legal Nature of International Law, this Journal, 8: 357; Wright, the Enforcement of International Law through Municipal Lawinthe United States, U. of Illinois Studies in the Social Sciences, 5: 12.

12 Treaty of Versailles, Art. 440.

13 Infra, note 35.

14 The four types of obligation may be described as (1) political or pragmatically moral, (2) moral, (3) conventional or quasi-legal, and (4) legal. The first is sanctioned by the will and power of each state, the second by the intelligence and understanding of each state, the third by the intelligence and understanding of all states in the League, and the fourth by the will and power of the community of states or the League of Nations.

15 Thus “obligations not to resort to war” are accepted with reference to wars of conquest (Art. 10) and wars without preliminary attempts at pacific settlement (Art. 12). Principles making for “open, just and honorable relations between nations” are prescribed in reference to disarmament (Art. 8 ) , mandatories (Art.22) and international coöperation (Art. 23). “Understandings of international law are to be established as to the sphere of action of the League and the maintenance of peace (Arts. 3, 4, 11), as to just and proper measures for the settlement of non-justiciable disputes (Art. 15) and as to the Monroe Doctrine (Art. 21.) “Justice and a scrupulous respect for all treaty obligations in the dealings of organized peoples with one another” are to be maintained by the arbitration or judicial settlement of “disputes asto the interpretation of a treaty, as to any question of international law, as to the existence of anyfact which if established would constitute a breach of any international obligation,or as to the extent and nature of the reparation to be made for any such breach” (Art. 13).

16 Supra, note 11.

17 Careful writers distinguish between constitutional law, constitutional history, andconstitutional conventions. (See Dicey, The Law of the Constitution, 8th ed., chap.1,especially pp. 21 et seq.)Google Scholar Public law, in the absence of effective international organization, can hardly have the entirely objective sanction of private law because the judge is also a party at interest. The state is both judge and party. The independence of the judicial arm of the government in modern states, however, is usually so carefully protected that decisions on public law are almost as objective as on private law.

18 Holland, Studies in International Law, p. 151, Jurisprudence, 11th ed., p. 389.

19 Century Dictionary.

20 Isaiah, XI: 2.

21 Century.

22 Infra, note 28.

23 “The power of perception is that which we call the understanding.” Locke. Essay on the Human Understanding, 2: 21, sec. 5.

24 “Understanding may be represented as the faculty of judging.” Kant, Critique of Pure Reason (Bohn), p. 57.

25 Knowledge seems to be somewhat less than wisdom, as in Tennyson’s Locksley Hall; “Knowledge comes but wisdom lingers,” while wisdom is less than understanding, as in Proverbs, IV: 7; “Wisdom is the principal thing; therefore get wisdom; and with all thy getting get understanding.” Knowledge implies familiarity with things and their properties, wisdom with means and ends; knowledge is theoretical, wisdom practical, understanding both. This distinction between the equivalent Latin terms, scientia, sapientia and intellectus was familiar to the scholastics. See Taylor, The Mediaeval Mind, 1911, 2:405, 481.

26 “Intellect being a matured state of the understanding, is most properly applied to efforts of those who have their powers in full vigor; we speak of understanding as the characteristic distinction between man and brute; but human beings are distinguished from one another by the measure of their intellect.” (Crabb.)

27 Kant divided the cognitive faculty into the sensibility (Sinnlichkeit) which forms intuitions; the understanding (verstand) which thinks concepts and judgments; and the reason (vernunft) which attains ideas. Critique of Pure Reason (Bohn), p. 212. “Understanding is discursive and hence based on premises and hypotheses themselves not subjected to reflection, while . . . reason apprehends in one immediate act the whole system,both premise and inference, and thus has complete or unconditioned validity.” (Baldwin, Dictionary of Philosophy and Psychology, 2: 725.)

28 “A spirit,” says Berkeley, “is one simple, undivided, active being—as it perceives ideas it is called the understanding, and as it produces or otherwise operates about them it is called the will.” (Of the Principles of Human Knowledge,sec. 27.) The schoolmen had argued as to the superiority of understanding (intellectus) or will (voluntatis), Aquinas holding for the former and Scotus for the latter. Taylor, op. cit., 2: 440, 515. On the distinction between “assent” and “consent” see Wright, Minnesota Law Review, 4: 17 (Dec, 1919).

29 Standard Dictionary. The following definition and illustration from the Century seems about equivalent: “The act of one who understands or comprehends. ‘The Children of Issachar which were men had understanding of the times.’ I Chron. XII: 32.” See also use of “understood” infra, note 33.

30 Century.

31 Pollock, , The League of Nations, London, 1920, p.216.Google Scholar

32 This Journal, 13: 738 (October, 1919).

33 “The law of nations is in part unwritten and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice; but, asthese principles will be differently understood by different nations under different circumstances, we consider, them as being, in some degree, fixed and rendered stable bya series of judicial decisions. The decisions of the courts of every country, so far as they pre founded upon the law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this.” (Marshall, C. J., in Bentzon v. Boyle, 9 Cranch 191,198, 1815.)

34 The French term prescription as here used is practically equivalent to the English term as used in law. But this usage must be distinguished from the usage in an earlierphrase of the English text of the preamble. In English, prescription may mean something accepted because of the superior knowledge of the prescriber, as a physician’s prescription (see supra, note 6), or it may mean something accepted because of the passage of time, as a title to land obtained by long possession.

35 During the Senate hearings on September 19, 1919, the following colloquy took place:

“Senator Knox. Do you have a copy of the President’s original proposition for a league of nations with you?

Mr. William C. Bullitt (Chief of Division of Current Intelligence Summaries on Peace Mission). I have, sir.

Senator Knox. Will you produce it?

Mr. Bullitt. I have this in two forms. I happen to have a rather curious document here, which I hope may be returned to me, inasmuch as it is a unique copy. It is the President’s original proposal, written on his own typewriter, I believe, which was presented to me on January 10 (1919) by Col. House, with an inscription on the top of it.”

The preamble of the document referred to is as follows:

“In order to secure peace, security, and orderly government by the prescription of open, just, and honorable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among governments, and by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organized peoples with one another, the powers signatory to this covenant and agreement jointly and severally adopt this constitution of the league of nations.”

The only changes in the preamble as finally adopted are an alteration in the opening phrase; addition of the phrase “by the acceptance of obligations not to resort to war;” omission at the end of the words “jointly and severally,” and substitution of “High contracting parties” for “powers signatory to this covenant,” of “agree” for “adopt” and of “covenant” for “constitution.” (66th Cong., 1st sess., Sen. Doc. No. 106, pp. 1164–1165.)

36 The term “conventions,” here used synonymously with “understandings,” has become more familiar and has been adopted by such writers as Anson (Law and Custom of the Constitution, 1: 76), and Lowell (The Government of England,1: 10–11). It must, of course, be distinguished from the use of the term “convention” in international law as practically synonymous with “treaty.” The two usages are in a sense opposed. “Conventional international law” is written, as opposed to the unwritten “customary international law;” whereas “conventions of the constitution” are for the most part, but not necessarily, unwritten.

37 Doubtless, principles of international law are based on consent of the wills as well as assent of the understandings of the parties. Thus, even though all states have agreed upon the theoretical excellence of a rule, the rule is not international law unless they have also signified expressly or tacitly a willingness to be bound by it. General acceptance of a treaty “in principle” does not make the treaty law, though it may make it an understanding. See, also, supra, note 28.

38 The Scotia, 14 Wall. 170 (1871). See also Bentzon v. Boyle, supra, note 33; The Paquette Habana, 175 U. S. 677 (1899).

39 West Rand Central Gold Mining Co. v. Rex, L. K. (1905), 2 K. B. 391. See, also, Eegina v. Keyn, L. R. (1876), 2 Ex. D. 63.

40 Vattel, The Law of Nations, Introduction, sec. 27. Vattel recognizes a fourth type of international law, “the necessary law of nations,” founded on natural law or pure reason. Ibid., sec. 7. See, also, Grotius, De Jure Belli ac Pacis, Prolegomena, sec. 40.

41 Hall, International Law, 7th ed., p. 4.

42 Kohler, Zeitschrift fur Völkerrecht, 9: 5, trans., Michigan Law Review, 15: 635–638.

43 See Baty, U. of Penna. Law Review, 63: 703 (June, 1915); Wright, “The Legal Nature of Treaties,” this Journal, 10: 707 (Oct., 1916).

44 Bagehot, The English Constitution, N. Y., 1893, p. 98; Bryce, Studies in History and Jurisprudence, 1: 139, et seq.; Dicey, The Law of the Constitution, 8th ed., pp. 122et seqGoogle Scholar. American writers are inclined to resent the charge that their constitution is excessively “rigid.” (Infra, note 45.) In the narrow sense the distinction between a rigid and a flexible constitution depends upon the ease of amendment, i.e., the difference between the process of constitutional amendment and the process of ordinary legislation. The distinction, however, may be given a broader application, not to the constitution as a written document, but to the constitution considered as the entire body of rules, principles and conventions governing the organization and activity of the government. In this sense a constitution becomes more rigid as the provisions of the written constitution become more detailed. The formal document may be very difficult to amend, yet the constitution, in the broader sense, may be exceedingly flexible, provided the formal document is confined to the barest outlines of organization, leaving details to be filled in by legislative, executive, administrative or judicial interpretation and practice. Thus, the flexibility of a constitution varies not only with the ease of amendment, but also with the generality of expression and the degree of discretion allowed the interpreting authorities. Where, as on the continent of Europe, constitutions are usually left to the interpretation of the political departments of government, they may change sporadically according to the whims of politics, though it must be noticed that administrative courts have tended to assume an increasingly judicial character and to extend their control of public law at the expense of purely political organs. Where, as in the United States, much of the constitution is interpreted by the ordinary courts, the constitution is likely to change slowly but continually. “I recognize,” says Justice Holmes, “that judges do and must legislate. But they can do so only interstitially. They are confined from molar to .molecular motions.” (Southern Pacific v. Jensen, 244 U. S. 205, 1917.) Where, as in England, a sharp distinction exists between the law and the conventions of the constitution, some portions, especially those dealing with the guarantees of individuals against the government, change slowly by judicial law-making and infrequent acts of parliament, while the conventions dealing especially with the relations of cabinet, Lords and Commons, change more rapidly with the play of party politics. (See Munro, The Government of the United States, New York, 1919, p. 59.)

45 The successful creation of a “rigid” constitution for the United States in 1787 maybe thought to discredit this opinion. America, however, was much further advanced in organization in 1787 than is the world in 1920. Nor is it true that the constitution “was struck off at one time by the brain and purpose of man.” In the main it simply formulated established British and colonial practices. Finally, we may question whether the constitution has in fact proved particularly “rigid” since 1787. Elucidation of its flexibility after the manner of Bagehot’s analysis of the British constitution may be described as the thesis of President Wilson’s discussions of American government.

“Ours,” he says in Congressional Government (1885), “is, scarcely less than the British, a living and fecund system. It does not, indeed, find its rootage so widely in the hidden soil of unwritten law; its tap-root at least is the Constitution; but the Constitution is now, like Magna Carta and the Bill of Rights, only the sap center of a system of government vastly larger than the stock from which it has branched. . . . The Constitution itself is not a complete system, it takes none but the first steps in organization, . . . and the fact that it attempts nothing more is its chief strength. For it to go beyond elementary provisions would be to lose elasticity and adaptability. Thegrowth of the nation and the consequent development of the governmental system would snap asunder a Constitution which could not adapt itself to the new conditions of an advancing society. . . . Our Constitution has proved lasting because of its simplicity. It is a corner-stone, not a complete building; or, rather, to return to the old figure, it is a root, not a perfect Vine.” (pp. 7–9.)

The same thought is developed in Constitutional Government (1908). “Living political constitutions must be Darwinian in structure and in practice. Fortunately, the definitions and prescriptions of our constitutional law though conceived in the Newtonian spirit and upon the Newtonian principle, are sufficiently broad and elastic to allow for the play of life and circumstance. . . . The Government of the United States has hada vital and normal organic growth and has proved itself eminently adapted to express thechanging temper and purposes of the American people from age to age.” (p. 57.)

Bryce remarks to the same effect: “The American Constitution has changed, is changing,and by the law of its existence must continue to change, in its substance and practical working even when its words remain the same.” (American Commonwealth, 1888, ed. 1891, p. 390.)

Board explains the method of constitutional evolution in the United States: “Only fifteen (now nineteen) new clauses, it is true, have been added by way of amendment to thewritten document, but Congress has filled up the bare outline by elaborate statutes; party operations have altered fundamentally the spirit and working of much of the machinery; official practice has set up new standards from time to time; and the supremecourt, by generous canons of interpretation, has expanded, in ways undreamed of by theFathers, the letter of the law. In fact, the customs of our constitution form as largean element as they do in the English constitution. A correct appreciation of the evolutionary character of the federal system is, therefore, necessary for a true understanding of the genius of the American political institutions.” (American Government and Politics, 1910, p. 60.) Professor Munro in his recent book on the Government of the United States (1919) is especially emphatic on this point, (p. 57.)