It says much, however, for their strong political sense and sagacity. If this is the true and only description of law, it is tantamount to saying that law is force and force is law; in other words, that the commands of a legitimate government need not be regarded when it is weak, but that the enactments of power must always be obeyed, however it is acquired, and whether its decrees are in accordance with right or contrary to justice. It is a ready justification for tyranny, equally sanctioning the “lettres de cachet” of the ancient regime, and the proscriptions of the Convention, equally at hand for the National Assembly at Versailles, or for the Commune at Paris. But however much it may be disguised, it is the only alternative definition of law, when once you say that law is not of divine ordinance and tradition. If no regard is to be had to the definition of right, but the term law is to be applied to any adequate act of repression, there is in truth nothing but force. Yet why should force adequate to its purpose seek to cloak itself in the forms of law? I suppose the question must have been put and answered before; but the answer can only be because law is felt to import a totally different set of ideas from force.
It is necessary, more especially now that the utilitarian theory is dominant, to enter a protest according to the turn the argument may take, but in the end nothing more can be said than was said by Cicero in the century before our Lord:—
“Est enim unum jus, quo devincta est hominum societas, et quod lex constituit una; quæ lex est recta ratio imperandi atque prohibendi: quam qui ignorat is est injustus, sive est illa scripta uspiam, sive nusquam. Quod si justitia est obtemperatio scriptis legibus institutisque populorum, et si, ut iidem dicunt utilitate omnia metienda sunt, negliget leges, easque perrumpit, si poterit, is, qui sibi eam rem fructuosam putabit fore. Ita fit, ut nulla sit omnino justitia; si neque naturâ est, eaque propter utilitatem constituitur, utilitate alia convellitur.”—De Legibus, i. 15.
It is only upon this construction that the Law of Nations can be said to exist, as “there is no superordinate authority to enforce it.” It is accordingly asserted that the law of nations is not really law. But is not this only when it is regarded from the point of view of “organised constraint?”[13] If it is regarded as a divine ordinance, or even as under the divine sanction, then it is law in a much higher degree than simple internal or municipal law, for it more immediately and directly depends upon this sanction; and hence nations may more confidently appeal to heaven for the redress of wrong here below than individuals—seeing that, as Bossuet somewhere says, God rewards and chastises nations in this world, since it is not according to His divine dispensation to reward them corporately in the next.
More recently, however, the extraordinary successes and subversions which we have witnessed during this last year, have brought the Pall Mall Gazette face to face with problems pressing for immediate and anxious settlement; and in a series of articles it has discussed the question of the law of nations with much depth and earnestness.
I there observe phrases which I can hardly distinguish from those I have just employed. Combating Mr Mill’s view, the writer says:—
“Nobody knows better than he that International Law is not really law, and why it is not law; but he seems to have jumped to the conclusion that it is therefore the same thing as morality.... There cannot, in truth, be any closer analogy than that which we drew the other day between the law of nations and the law of honour, and between public war and private duelling.” [This is upon an assumption that there is nothing “essentially immoral in the code of honour,” as “to a great extent it coincided with morality.”] “But it differed from simple morality in that its precepts were enforced, not by general disapprobation, but by a challenge to the offender by anybody who supposed himself to be aggrieved by the offence. The possible result always was, that the champion of the law might himself be shot, and this was the weakness of the system. But this is exactly the weakness of international law, and the original idea at the basis both of public war and of private duelling was precisely the same,—that God Almighty somehow interposed in favour of the combatant who had the juster cause. There is clear historical evidence that the feuds which became duels were supposed to be fought out under divine supervision, just as battles were believed to be decided by the God of battles.”
I believe that if history could be re-written from this point of view that many startling revelations would be brought to light. It is with reluctance that I turn from the points upon which I approach to agreement with the writer, to those upon which we fundamentally differ.
And here I must remark, that “the accurate and intelligible account of law and government which forms the basis of Bentham’s juridical system”[14] (supra, p. 9), is not distinguishable from, and in any case ultimately depends upon, his theory of utility as a foundation, or, as his later disciples say, a “standard” of morals. Such a standard is the negation of all morality; and if it ever came to stand alone every notion of morals would be obliterated, because, being open to every interpretation, and incapable of supplying any definite rule itself, it would abrogate every other, and under a plausible form abandon mankind to its lusts and passions.
In the Pall Mall Gazette, April 12, 1871, an article entitled “Mr Darwin on Conscience,” discusses Benthamism with reference to Darwinism. There is a fitness in this which does not immediately appear.