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Citation: 1926 J. Soc'y Pub. Tchrs. L. 1 1926

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THE JOURNAL of the SOCIETY

of PUBLIC TEACHERS of LAW
+

1926

INTERNATIONAL LAW AS A SUBJECT

OF EDUCATION'
HE teacher of International Law to-day has a task which is
one of special difficulty, but also one of special opportunity.
His subject has suddenly become one of popular interest,
and its past record and future possibilities are being canvassed outside
academical and legal circles by many who are no longer content to
regard it as the unexciting province of the specialist. There is abroad
a vague but insistent aspiration towards the substitution of law and
order for anarchy in international relations, and the international
lawyer is expected to have views as to how this aspiration may be
satisfied in the future better than it has been in the past.
This public attention, though stimulating, is not without its
embarrassments, for it brings with it criticisms of the past which are
often unfair, and demands for the future which are often unrealisable.
It is, for instance, as absurd to blame International Law for not having
rendered impossible the outbreak of war in 1914, as it would be to
blame our national systems of law for the civil war in Ireland, or for
the half-dozen or so other civil wars that have taken place within the
last decade, and that are generally so strangely left out of account by
those who speak of war as if it were solely a phenomenon of international relations. And again, if we are entitled to charge against the
credit of International Law the barbarities that were committed in the
course of the Great War, this is only because it had attempted an
impossibly idealistic task-a task which national laws have prudently
refrained from attempting-that of regulating and humanising war
when it comes. If we judge International Law by its solid achievements and not by the distance by which its success has fallen short of
its self-imposed aims, there is no cause for discouragement ; and if we
are ever tempted to doubt the truth of that statement we should do well
to imagine for a moment what the state of our civilisation would be
to-day if either there were no such thing as International Law, or if its
rules were not, as in fact they are, observed on the vast majority of
occasions. As my friend M. Georges Kaeckenbeek has written
recently, " nous sommes beaucoup plus ais6ment frapp6s par l'absence
d'une r~gle juridique desirable que par l'existence d'une r~gle juridique
ndcessaire. Cette derni&re fait partie de notre conception rationnelle
du monde ambiant, et les efforts, les luttes, les sacrifices qu'il a fallu
pour la rdaliser 6chappent gdndralement h notre conscience. C'est
ainsi que, profitant journellement de la poste internationale, voyageant
Sl'tranger, protdgds en tous lieux dans leur sant6 et leurs droits, bien
I A Presidential Address delivered to the Society of Public Teachers of Law at its
annual meeting, held at the London School of Economics on July to, 1925.

SOCIETY OF PUBLIC TEACHERS OF LAW

des hommes sont enclins a soutenir avec une parfaite bonne foi, et
parfois mme avec 6rudition-car l'6rudition peut entrer partout, meme
dans les pires divagations-qu'il n'y a point et qu'il ne pourra jamais
y avoir de droit international." 1
It is easy then for the international lawyer to reply to the confessed
cynic, and to justify his subject as a worthy object of study. But there
is as little justification for complacency as there is for discouragement.
Lawyers as a class are instinctively and rightly conservative, deferential
to authority, reluctant to probe into fundamental questions ; we
demand certainty and we cling to it when we think we have got it.
Our first task is to understand and to expound the law as it is, and only
secondarily, and then not so much as lawyers but as citizens, to
criticise its shortcomings. But I venture to think that the international
lawyer to-day would be wise to resist this bias which he shares with his
colleagues. It is, of course, as true that international lawyers do not
make or alter International Law, as that municipal lawyers do not make
or alter municipal law. None the less it seems to me that the two
subjects are so different, and in particular the stages of development
which they have respectively reached are so unequal, that we ought not
to assume without examination that the two must necessarily be
presented to the student by the same method. In particular I suggest
that the international lawyer ought not to disinterest himself in the
future development of his subject, even to the extent to which his
colleague who is concerned with municipal law may safely do so.
Professor Roscoe Pound has invited us to think of Jurisprudence as" a
science of social engineering, having to do with that part of the-whole,
field which may be achieved by the ordering of human relations through
the action of politically organised society ; " he justifies the metaphor
because " engineeering is thought of as a process, as an activity, not
merely as a body of knowledge or as a fixed order of construction " ;
and he cites in illustration of this method of conceiving the jurists' task,
" the study of the actual social effects of legal institutions and legal
doctrines, study of the means of making legal rules effective, sociological study in preparation for law-making, study of judicial method,
a sociological legal-history, and the importance of reasonable and just
solutions of individual cases, where the last generation was content
with the abstract justice of abstract rules." 2 l am not here concerned
to consider whether this is the right spirit in which to approach the
study of law in general ; but I am profoundly convinced that it is the
only spirit in which, at any rate to-day, International Law can be profitably studied. " A large and liberal discontent " with the present
achievements of his subject should lead the international lawyer to
examine its traditional assumptions, questioning everything and accepting nothing on the mere authority of a great name. Such a spirit is
quite consistent with a becoming reverence for the past and with a
modest sense of one's own capacities.
Moreover, this attitude of independent and critical inquiry for
which I am pleading seems to me to bejustified, and indeed necessitated,
by the literally revolutionary changes in international organisation
which the last few years have brought about. The mere existence
of the League of Nations drives us back on the fundamentals of
Rivista di Diritto Internazionale, x924.
Iinterpretationsof Legal History, p. 152.

INTERNATIONAL LAW-SUBJECT OF EDUCATION

political science, forces us to reconsider accepted theories of the nature

of the state, of the meaning of sovereignty, of the relations between the
small powers and the great, and between the advanced and the backward races. Never before, at any rate since the Reformation, has it
3een so impossible to deny the existence of an international society,
and where there is society, we know that there will inevitably be law.
Moreover, our country is being urged from many quarters to take
further steps which for good or evil will be pregnant with change for
International Law. There are, for instance, those who tell us that
one of the great needs of the world to-day is that means should be
devised for enforcing International Law ; or that a prerequisite of that
feeling of international security, of which none can deny the urgency,
is the adoption of universal compulsory arbitration. The student of
national law will no doubt be a better man and even a better lawyer for
having tried to think out for himself the philosophic basis of legal
principles, for having studied the history of their growth, for having
attempted to gauge their value by the test of social utility and for having
considered as earnestly as he can how they may be improved ; but an
interest in philosophy, in history, and in the art of legislation, is hardly
an essential part of his professional equipment. On the other hand,
without such interests the international lawyer cannot even begin to
face the sort of problem to which I have referred ; for if he attempts
to dissociate his subject to-day from these connected studies he will
merely condemn himself to certain sterility.
I am myself not much interested in the discussion whether International Law is entitled to be called law in the strict sense or not, except
to protest against the suggestion sometimes implied in such a discussion
that the value of International Law as an object of study is affected one
way or the other by the answer that we give to that question ; strict
law is not the only subject that deserves to be studied, and, on the whole,
the matter seems to me to be merely one of convenience of terminology.
But a truth which it is really important that we should appreciate, and
which that hackneyed question obscures rather than elucidates, is the
immaturity of the principles which we generally find i't convenient to
group under the name of International Law, and the lack of differentiation between them and the principles of kindred sciences. National
legal systems to-day have generally reached a stage of maturity at which
it is necessary for practical reasons to treat them as the subjects of
specialised study ; we find it at the least convenient to mark off our
study of a national system somewhat strictly from the study of other
branches of social science, such as ethics and politics, with which, none
the less, all law remains intimately connected. But International Law
is still at a stage of development where to make this rigid demarcation
of its province would be to misrepresent its true character.
I have attempted to describe in bare outline the nature of the task
to which the international lawyer must, as I conceive it, address himself to-day. It remains for me to consider how far a subject so undifferentiated from kindred studies, so inevitably lacking in precision,
is suitable for inclusion in a legal curriculum. From that point of view
International Law has, I confess, certain obvious disadvantages.
Iconoclasm, of which I have urged the possible need, is a dangerous
pursuit to commend to the young ; and if there is any truth in my
diagnosis it is obvious, as Westlake said, that International Law is not

SOCIETY OF PUBLIC TEACHERS OF LAW

a study that can be recommended with the object of training the mind,
but rather one which-demands a mind already to some extent trained.'
Obviously again, as a subject of merely vocational education it is of
little practical use ; nine-tenths of ourstudents will probably never be
called upon to advise professionally on a point of International Law.
I take it, however, that few of us will attach much importance to a
criticism which would at the same time banish from our curricula
Roman Law, Jurisprudence, and Legal History at least. There seem
to me, nevertheless, to be two advantages in particular which the study
of International Law can give to our students which they can hardly
obtain in equal measure from any of the more specialised subjects of
a legal education.
In the first place I think it is true to say that International Law
offers for their examination an essentially customary system of law
actually in operation ; and this is a phenomenon which we can otherwise only investigate by laborious historical research into legal origins,
if not into anthropology. Just as human anatomy can, I believe,
be more easily learnt by examining organisms less complex and less
differentiated than the human body, so the essential nature of law can
best be learnt from the examination of rules of conduct which, whatever
we like to call them, are the protoplasm out of which the law as we know
it has developed. What is it that gives obligatory force to a rule of
law? Is it merely constraint? Does consent play any part, or is the
very sense of obligation perhaps a delusion, a trick of our minds, the
product of a merely evolutionary process ?
These are, problems of the -philosophy of law which can be evaded
by the student of municipal law with comparative ease, since the
practical bearings of the answers to them are not very evident; but the
international lawyer simply cannot refuse to face them. The municipal
lawyer too may easily forget that all the current coin of our legal
commerce to-day, notions such as those of legislation, of adjudication,
of sanction, are in reality highly complex ideas, the products of a long
history, which only receive definition in the maturity of a legal system.
He may forget too the very complicated conditions of civilised life
which they require for their successful operation, because in the society
with which he has to deal those conditions are part of the order of things
which he is entitled to regard as normal. But the study of International
Law forces us at least to try to understand what these conditions are.
When, for instance, it is proposed, as it is on many hands to-day, to
attempt to create a more effective sanction for International Law, the
views of one who has not even attempted to understand why it is that
the sanctions of municipal law do in general work smoothly and
regularly are not merely negligible but may even be dangerous, since
it is never safe to assume that we can transplant an institution from the
national into the international sphere, unless we have first ascertained
that the conditions upon which its success depends in the former are
also present in the latter. It is the same with all the other problems
of the better organisation of international relations which press themselves so insistently on the attention of anyone who takes the" engineering " view of the international lawyer's function. What are the possibilities of extending the rule of law into fields of international conduct
which it does not at present regulate ? _Have we yet reached the time
Collected Papers, p. 412.

INTERNATIONAL LAW-SUBJECT OF EDUCATION

when we may fairly expect " sovereign " states to agree to submit their
differences to compulsory judicial settlement and to observe such an
agreement if they should make it ? Would International Law be
improved by attempting to codify it, or on the other hand would this
-nore probably sterilise its powers of development ? These are questions which cannot be answered intelligently unless we have tried to
ask ourselves what law really is, what is its function, and what are the
conditions and the limitations of its usefulness.
Moreover, we cannot have any real understanding of what law in
general is, unless we have related it in our minds to other human
institutions ; and the very lack of differentiation in International Law,
which from ono point of view is a disadvantage to the beginner, enables
the teacher to point out affinities between law and other subjects, which
are less easy to detect, although they equally exist, in a more sophisticated system. So long as we limit our study to the latter, we must
perforce mark off law as such somewhat too rigidly from ethics and
from politics, and it is easy to forget that its connection with those
subjects is really something far more fundamental sub specie aeternitatis
than the difference between it and them ; that, in fact, the boundary
lines which we draw around the subject of law only exist for the convenience of our specialised study. To concentrate our attention only
on the differences between these closely related things would be to
form false notions of them all, to forget that in truth ethics, politics,
jurisprudence, are only three branches of a single wider study, that of
human conduct in society, and that the ultimate foundation of them
all is the same.
These are the considerations which lead me to think that for the
philosophic study of law there is no medium so valuable as International
Law. It has from this point of view the same function in our curriculum as jurisprudence, with the advantage that it is more easily
presented to the student in a palatable form.
But there is a second advantage which I suggest that International
Law possesses over other subjects. It is one on which Westlake laid
stress in the lecture from which I have already quoted. Every man
who desires to play a worthy part in the life of his country is bound to
regard current politics as one of the two or three most important
interests of his life ; and International Law is the only channel by which
some training in political affairs can be introduced into the legal
curriculum. I cannot put my argument on this point better than by
adopting Westlake's own words: " International Law is no more a
subject for specialists than home politics are, nor can it be if the duty
of the citizen is concerned with international action. Arid while, as
a subject for study at the university, it differs favourably from home
politics in its being comparatively independent of party spirit, the very
fact that party motives do not bring it so continually under popular
discussion makes it the more necessary for the university to draw
attention to it. We have here the men of whom a large part will
become, and all ought to become, interested participators in the
international career and tasks which lie before the United Kingdom.
It would be matter for regret if a too exclusive attention to the general
training of their intellects permitted them to leave us without having
been invited to reflect on the principles which make that participation
useful."
J. L. BRIERLY.