If this reception was a movement which brought about a greater unity in the form and substance of the laws of Western Europe, there was another factor at work which tended in the opposite direction. The claims of the Empire to universal authority become more and more unreal: the claims of the Pope are either rejected entirely, or the ecclesiastical sphere is strictly delimited. The State becomes sovereign. For this purpose it makes no difference whether it is a High Court of Parliament or an absolute monarch which is the supreme authority: law comes to be thought of as the command of a sovereign person or assembly. 'No law', we are told, 'can be unjust', for law is the standard of justice, and there is no other standard by which the justice of law can be measured. The fact that there is in every State a sovereign power which can make and unmake the law at its pleasure makes possible the creation of a uniform law for all the subjects of a State, and so far as the State coincides with the nation, makes for the creation of a national unity in law. Thus Frederick the Great gave a code to Prussia, thus Napoleon gave France a code which swept away the diversities of the provincial customs; yet it served more than merely national purposes, for it found its way not only into the countries conquered by him, where it survived his conquests, but even into lands where he never held sway. Our French fellow-citizens in Quebec use an adaptation of it as a statement of their law. It took longer before Germany as a whole obtained a uniformity of law. The very strength of the national aspirations roused by the war against Napoleon stood for a time in the way of codification. The great German lawyer of that time, Savigny, thought of national law as a half-unconscious product of the national feeling of right. The Code of Napoleon had been a revolutionary code, founded (imperfectly, no doubt) on the doctrines of the rights of man; codification for Germany would mean the adoption of something abstract, not specifically national. It was only a century of extraordinary fruitful learned activity, bringing with it at the same time a new and intense study of the Roman law, and a revival of the knowledge and application of the native conceptions of law, that made possible the German civil code which came into force fifteen years ago.
England has never seriously undertaken the work of codification, and its law, uniform and national already in the Middle Ages, has become in the modern world something far wider than a merely national law. The English settlers in the new world brought their law with them. To-day English law, modified no doubt by State and Federal legislation, is the Common Law of the great republic of the United States. The colonies which still remain within our Empire are territories of the English law, save where, as in South Africa or Quebec, civilized settlers had already established and retained their own law. Throughout these lands, it matters little under which flag, an English lawyer finds the Courts speaking a language which he understands.
Thus it came about that the world, which derives its civilization from Western Europe, may be divided into lands of the English law, and lands where in outward form at least the law is Roman. And yet we must not make too much of this division. In the first place it cuts across national boundaries. It unites us with the United States of America, it separates us from some of our own colonies while it unites them with continental Europe. In the second place law is, like language, a form of thought; and diversity of form, though it hinders, does not prevent a unity of substance.
Among the forces which have made for unity something should be said of the conception of a law of nature. The phrase has been out of fashion in this country since the days of Bentham and Austin, who laid stress upon the positive, one might say arbitrary, character of the only law which they would recognize as law in the proper sense of the word. I am not concerned here to discuss its philosophical validity. But it has never been lost sight of. It is one of the inheritances of the Roman law tradition. Alike in the Middle Ages, and since their close, it has been the subject of speculation and an influence guiding the legislator, the thinker, and the administrator of law. There is a whole literature upon it on the Continent. It bulks pretty largely in Blackstone: you can see its influence on the judges of the eighteenth century in this country; the founders of the American Republic put a good deal of it into their constitution, and American judges will still refer to it without shame. What it really means is a standard by which the law here and now may be judged, a standard founded on the needs of human nature. That the standard becomes a different one, as the needs and possibilities of humanity develop, has not prevented the seeking after such a standard.
It is perhaps only another way of putting the same thing to say that law has developed and is developing constantly by reference to the pursuit of ends more or less consciously arrived at by mankind. So far as these ends are common, and I take it that in the main, amid national and individual diversity and conflict they are common ends, law has been formed for their attainment. On the whole what men have asked law to do for them has been the same at any given stage in civilization. The eighteenth century asked for liberty, property, and happiness. We are putting a rather different meaning, or perhaps a different stress on the words, not only here but throughout the civilized world, and the main movements of legal change are in the same direction everywhere.
One word about the two kinds of law known as Public and Private International law.
The fact that the laws of different countries are different gives rise to problems whenever the Courts of one country have to deal with a set of facts where some foreign element is involved, for instance a citizen or an inhabitant of another country, or property which is in another country, or a contract or transaction which took place abroad. Now we have long got past the stage at which the Courts could simply disregard the foreign element, could say this man is a foreigner, therefore he has no rights; or this event took place abroad, and therefore we will treat it as if it had never happened. On the other hand it will not do for the Court to apply simply its own law. Grave injustice would be done, for instance, if a transaction made on the faith of law which will give a certain effect to it, were treated as made under another law which will give it a different effect or no effect at all. For this reason the Courts of every country have formed rules (sometimes called Private International Law; sometimes, and as some hold, more properly, called 'Conflict of Laws') by which they determine how far, where a foreign element is involved, the foreign law is to be carried out rather than the law which the Court applies in ordinary cases. These rules are not the same in every country, because differences of opinion are possible as to what justice requires. But the very existence of such rules shows that the Courts hold that the world of law is one, however much diversified, and that no one territorial law can blindly go on its way without taking account of its neighbours.
International law in the more proper sense of the word, that is Public International Law, or the law which governs the relations between States, is a very different thing. Something of the kind was not unknown in the ancient world; the Greeks, for instance, had rules against the poisoning of wells, the proper treatment of envoys, and the making and keeping of treaties. But in its modern form it dates just from the time when States were waking up to the consciousness of sovereignty, and when the horrors of the wars which followed the Reformation showed that even sovereign powers ought to conform to some rules of conduct. It has been the work in its origin of writers and teachers of law, and has been built up more recently by agreement between States. Unlike the law between man and man, which modern states enforce by organized compulsion, there is no standing organization whose business it is to see that it is kept. It is not true to say that for this reason it is not law at all, for in primitive times the recognized rules of private law were enforced not by State sanction but by the action of individuals, with the support of the opinions and at times the active help of their neighbours and friends. But a law which is defied with success and impunity is no law. The reality and strength of International Law has lain in the fact that its breach brought at least the risk of suffering, through the common disapprobation of civilized nations; its preservation and maintenance for the future must lie in a certainty of disaster, not greatly less than that which awaits the transgressor of private law.
BOOKS FOR REFERENCE
Jethro Brown, The Austinian Theory of Law. Murray.