The Legal Nature of International Law

Abstract

International law — to use Bentham's innovation of 1789, which has found favor with the public, instead of the older, more expressive term, law of nations—has been variously denounced and praised as international morality or ethics; international courtesy or convention in the social sense of the word; comity as distinguished from rule of law; or merely and finally as the foreign policy, such as the Monroe Doctrine, which at a particular time happens to catch the fancy of nations. If admitted as law in general or as possessing some of the elements of ordinary municipal law, the principle that pinches is declared not to be law and to have no binding force whatever, because there is no supreme court of nations in which the dispute may be litigated and no sheriff to execute the decree, supposing that one had actually been delivered. But the judgment of a municipal court is not self-executing, as, for instance, when President Jackson stamped his foot, saying: “John Marshall has made the decision; now let him execute it!” The executive officer of the court, the sheriff or marshal, did not enforce it, and that, forsooth, changed the nature of the transaction! Suppose the sheriff meets resistance in performing the mandate of the court, the armed force of the nation may be called upon and in final result the nation is in the field.