In the East a body of new moral ideas is sure in time to produce a stringof legal rulesand it is said by those who know India and its natives wellthat the production of what for want of a better name we must call a Codeis a favourite occupation with learned and active mindsthough of coursein a country which nowadays follows to a great extent the morality (thoughnot the faithof Christian Europeand receives new laws from a regularlyconstituted Legislaturethe enthusiasm for new moral doctrines is ever growingfeebler and the demand for legal rules accommodated to them is becoming less.
NowInternational Law was a Code in the same sense in which many Easterncollections of rules were CodesIt was founded on a new moralitythat whichhad been discovered in the supposed Law of Natureand in some minds it excitedunbounded enthusiasm.
The same process had previously been followed in Europe as regards RomanCivil LawWe may not quite understand the admiration which the technicalpart of the Roman Law inspiredbut of the fact there is no doubtThis processby which laws extended themselves had not quite died out when the internationaljurists appearedand in point of fact their system of rules was receivedby the world very much as a system of law founded on morals is received tothis day in the EastNo doubt it fell on soil prepared for itThe literateclassesthe scholarsgreat parts of the clergyand the sovereigns andstatesmen of Europe accepted itand the result was an instant decay of theworst atrocities of warIndeedit is only necessary to look at the earliestauthorities on International Lawin the 'De Jure Belli et Pacisof Grotiusfor exampleto see that the Law of Nations is essentially a moral andtosome extent a religioussystemThe appeal of Grotius is almost as frequentto morals and religion as to precedentand no doubt it is these portionsof the bookwhich to us have become almost commonplace or which seem irrelevant,which gained for it much of the authority which it ultimately obtained.
The bulk of these lectures will consist of an accountas summary as Ican make itof such portions of the International system as appear to meto be reasonably settledbut before I proceed to this portion of my course,I think I ought to say something on some modern criticisms of the basis ofInternational Law which have made their appearance quite recentlyand whichI think have a tendency to multiplyThe criticisms to which I refer appearto me to be a singular proof of the great authority which in our day hasbeen obtained by the treatise of John Austin on the Province of Jurisprudence.
They are in fact to a considerable extent a re-statement of his positions.
The scope of Austin's undertaking in this classical work is often nowadaysexaggeratedHe attemptedby analysis of the various conceptions which lawin its various senses includesto select one sense of law in which legalgeneralizations were possibleHis ultimate object appears to have been toeffect a scientific rearrangement of law as a CodeLittle unfortunatelyhas been done at presentsave perhaps in the German Empire and in India,to carry out this objectbut no doubt Austin did do something towards theultimate codification of positive law by confining his investigation to thevarious subordinate conceptions which make up law as so understoodAs probablymany of you knowhis fundamental assertion is that in every country thereis some portion of the community which can force the rest to do exactly whatit pleasesThis is called by him the 'Sovereign,a word on which it isnecessary as soon as possible to observe that it is here taken in a differentsense from that in which it is employed by the classical writers on InternationalLawFrom Austin's point of view International Law resembled morality morethan lawit was chiefly enforced by disapprobation of acts committed inviolation of itit could not be resolved into the command of any sovereign.
In my next lectureI shall contrast this word 'Sovereigntyas used byAustin and the so-called school of analytical jurists with its use in InternationalLawand specially consider the rights over land and water which are assertedby international lawyers to arise logically from the conception of Sovereignty.
