This view was partially exposed in an article which was inserted in the Tablet, September 28, 1861,[7] entitled “International Law and the Law of Nations,” and, all things considered, I do not think that I can better consult the interests of my readers, than by reproducing an extract from it here, as a convenient basis of operation from which to advance into a somewhat unexplored country:—
“It has been the fashion since Bentham’s[8] time, to substitute the phrase ‘International Law’ for the ‘Law of Nations,’ as if they were convertible terms. The substitution, however, covers a distinction sufficiently important.
“The ‘Law of Nations’ is an obligation which binds the consciences of nations to respect the eternal principle of justice in their relations with each other. ‘International law’ is the system of rules, precedents, and maxims accumulated in recognition of the eternal law. But as men may build a theatre or a gambling-house upon the foundations constructed for a religious edifice, and upon a stone consecrated for an altar, so has it been possible for diplomacy to substitute a system of chicanery for the simple laws which were intended to facilitate the intercourse of nations, and with such effect as in a great number of cases to place international law in contradiction with the law of nations—as, for instance, when in a certain case the law of nations says that it is wrong to invade a neighbour’s territory, international law is made to say that it is lawful to invade in such a case, because such-and-such monarchs in past history have done so.
“Practically the effect of the substitution is, that the sentiment of justice disappears, that wars which formerly were called unjust, are now called inevitable, so that good men, disheartened at the conflicting evidence of precedents, yield their sense of right and wrong, and defer to the adjudication of diplomatists. This is particularly satisfactory to the modern spirit which will admit nothing to be law which is superior to, and distinct from, that which the human intellect has determined to be law.
“But the sense of right and wrong in good men is that which gives its whole efficacy to the law of nations. There is nothing else in the last resort, to restrain the ambition and passion of princes, but the reprobation of mankind—nothing but the fear of invading that “moral territory”[9] which even bad men find it necessary to conquer, ‘dans l’ame des peuples ses voisins.’ On the other hand, the whole mass of precedents to which diplomatists appeal, which are rarely carefully collated with those which legists have accumulated and digested, is nothing but a veil which thinly covers the supremacy of might and the right of force.
“In fact, the conventional deference which is paid to them, is at best only the hypocritical homage which force is constrained to pay to justice before it strikes its blow.
“International law, therefore, as accumulated in the precedents of diplomatists, is a parasitical growth upon that tree which has its roots in the hearts of nations, and which may be compared to one of those old oaks under which kings used to sit and administer justice. It was a dream of Dodwell’s that the ‘law of nations was a divine revelation made to the family preserved in the ark.’ In the grotesqueness and wildness of this theory we detect a true idea. The law of nations is an unwritten law, tradited in the memories of the people, or, so far as it is written, to be found in the works of writers on public law, like Grotius, whose authorities, as Sir J. Mackintosh remarks, are in great part, and very properly, made up of the sayings of the poets and orators of the world, ‘for they address themselves to the general feelings and sympathies of mankind.’ It is in this that the Scriptural saying about the people is so true—‘But they will maintain the state of the world.’ And it is a just observation, that ‘the people are often wrong in their opinions, but in their sentiments rarely.’ You may produce state papers and manifestoes, written with all the dexterity of Talleyrand, and the lying tact of Fouché, but you will not convince the people. You have your opportunity. The Liberal press of Europe, at this moment, may be said to be in possession of the whole field of political literature; nevertheless, nothing will prevent its being recorded in history,[10] that Victor Emmanuel in seizing upon the patrimony of St Peter was a robber, and his conquest an usurpation.”
I have observed that International Law is the more appropriate term from Bentham’s point of view, and as Bentham is the most redoubtable opponent of natural right and the law of nations, I will quote him at some length:—
“Another man says that there is an eternal and immutable rule of right, and that that rule of right dictates so-and-so. And then he begins giving you his sentiments upon anything that comes uppermost; and these sentiments (you are to take it for granted) are so many branches of the eternal rule of right.... A great multitude of people are continually talking of the law of nature; and they go on giving you their sentiments about what is right and what is wrong, and these sentiments, you are to understand, are so many chapters and sections of the law of nature. Instead of the phrase, law of nature, you have sometimes law of reason, right reason, natural justice, natural equity, good order. Any of them will do equally well. This latter is most used in politics. The three last are much more tolerable than the others, because they do not very explicitly claim to be anything more than phrases. They insist, but feebly, upon the being looked upon as so many positive standards of themselves, and seem content to be taken, upon occasion, for phrases expressive of the conformity of the thing in question to the proper standard, whatever that may be. On most occasions, however, it will be better to say utility—utility is clearer, as referring more especially to pain and pleasure.”
In truth, although Mr Bentham indulges a pleasant ridicule, yet the ridicule and the thing ridiculed being eliminated, the fact that there is a belief in a law of nature remains untouched. It is probable, therefore, that appeals will be frequent to what is believed to be “the eternal and immutable rule of right,” “to the law of nature,” &c., i.e. each and every individual, all mankind distributively, so appeal, because there is a deep conviction among mankind, severally and collectively, that there is this eternal and immutable rule of right, blurred and obscured though it may be, or concealed behind a cloud of human passion and error: and most men, moreover, will have an instinct which will tell them when an individual is substituting his own ideas for the eternal and immutable law,—as, for instance, when at the conclusion of the sentence quoted, Mr Bentham seeks to substitute his own peculiar crochet, as embodied in the word “utility” (which may be used indifferently in the sense of the absolute or relative, the supernatural or the natural, the immediate or the remote utility), as synonymous with “natural justice,” “natural equity,” and “good order.”