To Henry Sidgwick.
The West Lodge,
Downing College,
Cambridge.
11 Dec. 1888.
I have been reading your proof sheets[16] with great interest, and really as regards the parts which most concern me I have little to suggest. I think the chapter on law and morality particularly good. Were I writing the book I should in my present state of ignorance "hedge" a little about continental notions of law. Since I had some talk with you I have been reading several German law books, and my view of the duties of a German judge is all the more hazy. I find that a jurist, even when he is writing about elementary legal ideas, e.g. possession, will cite "Entscheidungen der oberste Gerichte von Celle, Darmstadt, Rostock etc.," if he thinks them sound—but how far he would think himself bound as judge by decisions which made against his theory I cannot tell. All seems rendered so vague by the notion of a heutige römische Recht. But I think that you have just hit off the English idea of a good judge—he does justice when he sees an opportunity of doing it. I do not think that a man could be a judge of quite the highest order without a strong feeling for political morality. On p. [92], chap. XII. you might add if you could do so that our highest courts of appeal, House of Lords and Judicial Committee, hold themselves bound by their own decisions in earlier cases.
As regards the existence of different laws in different parts of a country you might reckon among the advantages the gain in experience. I have no doubt that Scotch experience has improved English law and English experience Scotch law. Thus some use of an experimental method is made possible; e.g. take "Sunday closing" we can experiment on Wales and Cornwall. On the whole I have been surprised to find how little harm is done by the difference between Scotch and English law. I have read but very few cases that were caused by such differences.
I admire the chapter on International Law and Morality; it is the best thing that I have read about the subject. In my view the great difficulty in obtaining a body of international rules deserving the name of law lies in the extreme fewness of the "persons" subject to that law and the infrequency and restricted range of the arguable questions which arise between them. The "code" of actually observed rules is thus all shreds and patches. In short, international law is so incoherent.