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Published online by Cambridge University Press: 16 January 2009
One danger that arises from the attention recently devoted to definition in jurisprudential writings is that too much importance may be attached to mere definition as such. Students especially tend to overlook the point that definitions possess no magic or finality, except when they happen to be prescribed authoritatively, for example by statute. What is important is not the definitions, but the analysis on which they are based. In order to appreciate this it is necessary to consider their function and structure, and that is the reason for Unking together in the present article two topics, which could otherwise be dealt with separately.
1 Ogden, and Richards, , The Meaning of Meaning, 10th ed. (1949), Chap. VI, especially pp. 110, 113.Google Scholar
2 An example of a definition not suited to the definee: a zoologist once defined “horse” for a lawyer as referring to “a warm-blooded, hairy, ungulate perisso-dactyle, vertebrate mammal,” on which the latter commented that it did not give him “a vivid picture of the animal”: Buckland, , A Manual of Roman Private Law, 2nd ed. (1939), p. xii.Google Scholar
3 “Definition and Theory in Jurisprudence” (1954) L.Q.R. pp. 37, especially 41, 47. Thus, a definition should not be of the word “right,” but of a statement such as “X has a right that Y pays him £10.”
4 Hart advocates his technique for the definition of “duty” as well. Perhaps he would not deny that the “X is …” method is also possible. “Duty” is an abstraction, and abstractions are formed by a selection of the elements common to a number of factual instances: Ogden, & Richards, , op. cit., pp. 113—4, 212–3.Google Scholar The “is” could be used to point to such common element thus: “duty is a pattern of conduct.” Hart may regard such a definition, even with additions, as falling into one of his “disquieting triad” of theory forms. The crucial question is whether such a definition of duty is adequate. That is the crux of this article.
5 See King in 11 Camb.L.J., pp. 229, 404 et seq. After stating his object to be a definition, “whose analysis displays the maximum degree of coherence to be found amongst the largest number of the most important elements in (a lawyer's professional) experience” (p. 404, also p. 232), he frames his definition (p. 418) running to thirty-four lines of print. The viewpoint adopted is that of the courts.
6 Thus, Cairns, Huntingdon, Legal Philosophy from Plato to Hegel (1949), p. 12Google Scholar, Hart, , in his definition of a legal right, op. cit., p. 49Google Scholar. It is not clear whether King himself inclines to this view or not when he says that a definition should organise “the largest number of the most important elements”: see the last note. “Largest number” implies that it may not be possible to include all the elements, but at p. 232 he proceeds to say that elements left out must be dealt with somehow. How they are dealt with depends on whether they are “part of the internal structure or of the external relations of law.” If they are “part of the internal structure,” presumably they must all be included. If so, “important” is pleonastic. On the other hand, if the criteria of “internal structure” and “important” rest on opinion, the definition includes only elements significant to the definor.
7 King, , op. cit., p. 230.Google Scholar
8 Ogden, and Richards, , op. cit., pp. 113–4, 212–3.Google Scholar
9 King, , op. cit., p. 231Google Scholar: “In his everyday practice a lawyer gets on very passably with vague, imprecise, and even mutually inconsistent notions of law. He has little practical difficulty in identifying the thing or things he is dealing with, and is seldom conscious of the need for, or utility of, refined general concepts. The awareness of the need, and the possible utility of its satisfaction, first arises in the minds of those concerned with the teaching of prospective lawyers, and particularly in the minds of those whose allotted task is to find a province for jurisprudence.” It is submitted, however, that even in teaching, in so far as jurisprudence is, or ought to be, a course in how to think rather than what to know, it would be profitable to instruct students in the technique of definition and to encourage them to frame their own definitions, the teacher's definition being only a model.
19 A study of the lower levels (e.g., how rights, precedent, etc., operate) may be more useful to the barrister than the higher (e.g., what is law?). The aim of equipping as efficient a lawyer as possible will bring in, not only the analysis of legal concepts (analytical), but also, e.g., the impact of branches of the law in society (functional). The utility of these kinds of study is admitted, but quibbles as to whether they should be called “jurisprudence” or not bedevil the question how they are to be taught.
11 If the subject-matter is simple, a detailed definition may also retain some elegance. If it is complex, a detailed definition will not be brief, nor vice versa. In no case will definition add to the analysis. Compare King's shorter definitions of law in 10 Camb.L.J., at p. 431, and in 11 Camb.L.J., at p. 236, note 14, with his longer definition, ibid., p. 418.
12 Austin's definition of Law was based on material gathered almost entirely from English municipal law, but he proceeded to use it as a criterion for laws outside that field. For the resulting verbal artificialities into which he was forced, see Williams, Glanville (1945) 22 British Year Book of International Law, p. 146.Google Scholar
13 The definitions in the standard works on international law are good examples of prefatory definitions: Oppenheim, , International Law, i, 7th ed., s. 1Google Scholar, Brierly, , The Law of Nations, 4th ed., s. 1Google Scholar, Lawrence, , The Principles of International Law, 7th ed., s. 1Google Scholar (note Lawrence's remark following the definition).
14 50 L.Q.R., p. 474, 51 L.Q.R., p. 517, restated in General Theory of Law and State (1945).Google Scholar
15 The common will of States binding independently of each (Triepel, Völkerrecht und Landesrecht, 1899); the maxim pacta sunt servanda, whether an extra-legal assumption (Anzillotti, , Corso di Diritto Internazionale, 1929Google Scholar), or a rule of law (Cavaglieri, , Lezioni di Diritto Internazionale, 1925).Google Scholar
16 Many reasons have been suggested for obedience to municipal law, e.g., indolence, deference, sympathy, fear, reason: Bryce, , Studies in Politics and Jurisprudence (1901), ii, pp. 1–43.Google Scholar
17 Oppenheim, ii, pp. 133–51.
18 Covenant: articles 16 (1) (limited to breaches of articles 12, 13, 15), 16 (2) 16 (4). As to intervention under the League, see Oppenheim, 6th ed., ii, pp. 132–3. Charter: articles 2 (7), 5, 6, 39, 40, 41, 42.
19 Sanctions were applied in the war between Paraguay and Bolivia, 1934, and between Abyssinia and Italy in 1935. Action under the Charter has taken place in Indonesia, 1947, Palestine, 1948, Korea, 1950. There was no veto by the Soviet Union in the last instance since she was boycotting the United Nations at the time.
20 Jellinek, Notably, Allgemeine Staatslehre (1900).Google Scholar
21 Hurst (1944) 30 Grotius Society, at p. 124.
22 Salmond, , Jurisprudence, 10th ed., p. 318Google Scholar, Holland, , Jurisprudence, 13th ed., p. 94Google Scholar, Gray, , The Nature and Sources of the Law, 2nd ed., p. 27.Google Scholar Kelsen will quarrel with the notion of an entity “having” rights, etc., since in his view legal personality is a grouping of rights, treated as an unit, but this is not germane to the present discussion.
23 There has been a view that States are but collections of individuals and that it is they on whom rest the rights and duties. On this hypothesis, cadit quaestio. See Duguit, , Traité de droit constitutionnel, 3rd ed., i, pp. 713, et scq.Google Scholar, Scelle, , Précis de droit des gens, i, pp. 42Google Scholaret seq., and Manuel élémentaire de droit international public, p. vii.
24 Lauterpacht in 63 L.Q.R., p. 438, and International Law and Human Rights (1950) pp. 12 et seq., C. W. Jenks in 22 B.Y.I.L., p. 267, where the literature is cited.
25 e.g., United Nations Charter, article 104; Lauterpacht, 63 L.Q.R. at pp. 446–50, Human Rights, pp. 14–23, Jenks, , op. cit., pp. 272–3.Google Scholar
26 Advisory Opinion on the Reparation for Injuries Suffered in the Service of the United Nations (1949) I.C.J. Reps., p. 174, especially pp. 178, 179; Lauterpacht, , Human Rights, pp. 16Google Scholaret seq. For a municipal decision, see International Institute of Agriculture v. Profili (1929–30) Ann.Dig. Case 254.
27 Article 34 (1) of the Statute of the International Court denies procedural capacity to individuals, but Lauterpacht has pointed out that “the existence of a right and the power to assert it by judicial process are not identical”: 63 L.Q.R., at p. 455, 64 L.Q.R., at p. 97, Human Rights, at pp. 27, 54. Moreover, there have been instances of such capacity conferred by treaty: Convention XII of the Hague Conference, 1907, the Central American Court of Justice, 1907, Treaty of Versailles, 1919, articles 297, 304 (b), Steiner & Gross v. Polish State (1927–8) Ann.Dig. Case 188. It is also said that individuals cannot make treaties, but this is no reason why they may not have rights in other ways. Finally, it has been said that, the “adjective law” side of international law being war, a subject of a right is one who can make war, i.e., only States (Idelson, 30 Grotius Society, at p. 54). Even conceding the premise that war corresponds to “enforcement action,” the fact that individuals have no power of enforcement does not imply incapacity for rights.
28 Panevezys-Saldutiskis Railway Case (1939) P.C.I.J., Ser. A/B, No. 76, at p. 16. President Coolidge: “The person and property of a citizen of the United States are a part of the general domain of the United States as a nation, even abroad,” quoted by E. Kaufman in Recueil, liv, p. 409. See also the so-called Rule as to Nationality Claims, Oppenheim, i, pp. 314—5, and 63 L.Q.R., at pp. 456–7.
29 Jurisdiction of the Courts of Danzig (1928) P.C.I.J., Ad. Op., 15, Papadopoulos Case (1927–8) Ann.Dig. Case 285 (ambiguous on this point); McCandless v. U. S. (1927–8) Ann.Dig. Case 363 (overruled on another point, ibid., Case 364); Noujaim Case (1931–2) Ann.Dig. Case 217a; Zoppot Street Crossing Case (1933–4) Ann.Dig. Case 104. Attempts to explain these rights otherwise than as creations of treaty law, see Oppenheim, i, p. 581, n. 4.
31 Civilian War Claimants' Association v. R. [1932] A.C. p. 14; Administrator of German Property v. Knoop [1933] Ch. p. 439; The “Zeilschip Nest” (1935–7) Ann.Dig. Case 117.
32 Respublica v. De Longchamps (1784) 1 Dallas p. 111, (where an individual was punished by an American court for an offence allegedly against international law) may only be an instance of international law becoming part of American municipal law.
33 The wording of article 38 of the Statute of the International Court clearly contemplates treaty-law as “international law.”
34 The distinction sometimes drawn between general treaties as “law-making” as opposed to particular treaties has been rejected, Lauterpacht, Private Law Sources and Analogies of International Law (1927) pp. 156–9. It is said that all treaties are “law-making” in that they prescribe patterns of conduct for the signatories and no others.
35 As to general principles especially, eee Lauterpacht, Function of Law in the International Community (1933) Pt. III, passim.
36 Implicit herein are the doctrines of res judicata, or the finality of concluded litigation, which is expressly adopted by the article, stare decisis, or the compulsory following of prior decisions, which is expressly rejected, and precedent, in the wide sense of using previous decisions as patterns, as to which the article is silent. The doctrine of precedent seems to have been adopted, e.g., Corfu Channel Case: Judgment on the Preliminary Objection (1948) I.C.J. Reps., p. 15, following Minority Schools in Upper Silesia Case (1928) P.C.I.J., Ser. A, No. 15; Corfu Channel Case: Judgment on the Merits (1949) I.C.J. Reps., p. 4, following Chorzow Factory Case (1927) P.C.I.J., Ser. A, No. 13. Municipal decisions have likewise been followed, e.g., Lotus (1927) P.C.I.J., Ser. A, No. 10, in the absence of international authority.
37 e.g., in the British Guiana Arbitration, 1898, the treaty specified fifty years as the period of prescription: Rule A of article 4.
38 e.g., in Eastern Exchange, etc., Telegraph Co., Ltd., Case (1923–4), Ann. Dig. Case 225.
39 Oppenheim, ii, pp. 26–9.
40 Lauterpacht, 25 Grotius Society, p. 51, Private Law Sources and Analogies, p. 75n., Oppenheim, i, pp. 37 et seq.; Dickinson, 26 A.J., p. 239; Scott, 1 A.J., p. 831; Westlake, 22 L.Q.R., p. 14 (reprinted, Collected Papers, p. 498); McNair, 30 Grotius Society, p. 11.
41 McNair, 9 B.Y.I.L., p. 59, passim.
42 (1879) 4 P.D. 149, reversed on another point, 5 P.D. 197.
43 [1892] A.C. 491. See albo Canadian cases, Re Arrow River and Tributaries Slide and Boom Co., Ltd. [1932] 2 D.L.R. 250; Att.-Gen. Ontario v. Att.-Gen. Canada [1937] A.C. 326.
44 In the United States treaties are a part of the law of the land, Constitution, article 6, and see State of Missouri v. Holland (1920) 252 U.S. 416, (1919–22) Ann.Dig. Case 1.
45 The statement of Lord Mansfield in Heathfield v. Chilton, 4 Burr. at 2016, that “The Act of Parliament, 7 Anne, c. 12, did not intend to alter nor can alter the law of nations,” is not taken seriously even by supporters of the doctrine of incorporation.
46 (1906) 14 S.L.T. 227. See also Nairn Molvan v. Att.-Gen. Palestine [1948] A.C. 351; Lord Porter in Theophile v. Sol.-Gen. [1950] A.C. at 195.
47 25 Grotius Society at p. 76, 30 ibid., at p. 13.
48 Here, too, the supremacy of the common law has been admitted: 25 Grotius Society, at pp. 76–7, Westlake, , op. cit., p. 509.Google Scholar
49 [1899] A.C. 572.
50 [1905] 2 K.B. 391.
51 “The opinions of text-writers that a conquering State was liable for the obligations of the conquered State were rejected not because they were contrary to international law (a question not discussed), but because they were contrary to principles of English law laid down in cases like Campbell v. Hall, 1 Cowp. 204”: Jennings, , The Law and the Constitution, 4th ed., pp. 160–61n.Google Scholar
52 Jennings doubts whether the decision would have been different even if there had been a rule of international law, op. cit., loc. cit.
53 For the attitude of British courts towards international law sources generally, see The Maria, 1 C.Rob. at pp. 359 et seq.; R. v. Keyn (1876) L.R. 2 Ex.D. at pp. 202 et seq.; McCartney v. Garbutt (1890) L.R. 24 Q.B.D. at pp. 360 et seq.; Re Piracy Jure Gentium [1934] A.C. at 588.
54 Haynes v. Harwood [1935] 1 K.B. 146.
55 De Wutz v. Hendricks, 2 Bing. 314; Commercial Estates Co. of Egypt v. Board of Trade [1925] 1 K.B. 271.
56 Commentaries, IV, Chap. 5, p. 67.
57 Barbuit's Case, Forrester's Cases, temp. Talb. 281; Triquet v. Bath, 3 Burr. 1478, 1480; Lockwood v. Coysgarne, 3 Burr. 1676. 1678; Heathfield v. Chilton, 4 Burr. 2015, 2016; Darling v. Atkins, 3 Wilson, 33, 35; Hopkins v. De Robeck, 3 T.R. 79, 80; Viveash v. Becker, 3 M. & S. 284; Novello v. Toogood, 1 B. & C. 554, 562; Service v. Castaneda, 2 Coll, 56, 59; Magdalena Steam Navigation Co. v. Martin, 2 E. & E. 94, 114; Parkinson v. Potter (1885) 16 Q.B.D. 152, 157; Musurus Bey v. Gadban [1894] 2 Q.B. 352, 361; Be Suarez [1918] 1 Ch. 176, 192, 196; Engelke v. Musmann [1928] A.C. 443, 449.
58 Adair, , Exterritoriality of Ambassadors in the Sixteenth and Seventeenth CenturiesGoogle Scholar, and see 25 Orotius Society, at p. 53.
59 See the pertinent remarks of Lord Ellenborough C.J. in Viveash v. Becker, 3 M. & S. at 292, 298.
60 It may be asked, not very seriously, how the doctrine of incorporation is reconcileable with the orthodox theory that judges never make law, but only declare existing law. The common law is theoretically deemed to have existed since before 1189, at which date international law could hardly be said to have been a part of it. The orthodox theory has been rightly castigated as a “childish fiction,” but it is interesting to observe that Blackstone was one of its supporters and one wonders how many of the judges, whose dicta lend colour to the doctrine of incorporation, would also have upheld the traditional theory of the common law.
61 2 Bing 314, perhaps the best authority, but see Jennings's comment on it, op. cit., loc. cit.
62 2 Giff. 628.
63 (1876) L.R. 2.Ex.D. 63.
64 [1925] 1 K.B. 271.
65 Ibid., at 295.
66 [1938] A.C. at. 497–8.
67 [1939] A.C. at 167–8. In Anglo-Iranian Oil Co., Ltd. v. Jaffrate [1953] 1 W.L.R. at 253, only the latter part of Lord Atkin's dictum was quoted.
68 [1946] P. at 142. See also Scott L.J. in R. v. Bottrill [1947] K.B. at 50.
69 [1950] A.C. at 195.
70 The Canadian case of Re Drummond Wren [1945] 4 D.L.E. 674 is more in accordance with this explanation than the doctrine of incorporation.
71 Respublica v. De Longchamps (1784) 1 Dallas, 111; Paquete Habana and Lola (1899)Google Scholar 175 U.S. 677.
72 The writer is greatly indebted to Mr. J. W. C. Turner and Dr. K. Lipstein for suggestions and criticisms.