§3. In other cases it is not so much the claim of national interest admitted as semi-legitimate, but rather the development of international morality, which comes into conflict with recognised international law. Thus (e.g.) the restriction of the right of conquest, which in the last chapter I took to be commonly accepted, is due to the increased recognition which the rights of nationalities have received in recent times;---a recognition that in other ways inconveniently clashes with the established political order of modern Europe. In considering this interference of gradually changing international morality with the established rules of strict international duty, we are led naturally to the second part of the comparison proposed at the outset of this chapter:---that is, to the question whether the system of rules commonly recognised as International Law resembles Positive Law---within a State---or Positive Morality most, in respect of the elaborated precision, systematic coherence, and clear acceptance of its rules.
For it follows inevitably from the absence of any recognised regular organ with authority to settle disputed points, that in international relations the important distinction between laws actually established and laws that a statesman or jurist may think ought to be established is not clear and unmistakable, nor the transition from the latter to the former abrupt and definite,---as it is in the main in the sphere of civil law in a modern State. In any survey of social relations within any community, we are pretty sure to find a certain number of duties which it is recognised that men are not legally bound to fulfil, though there is a strong opinion that the legal obligation ought to be imposed. However much I may think that a man ought to be punished for mischief be has caused, and however decidedly public opinion may be on my side, still if he has not committed any act that has already been determined to be a crime either by precedent or by statute, the judge if really an expert will not condemn him to punishment: and if I try to supplement this defect in the legal system by private violence, the judge will condemn me. This distinction was not apprehended with perfect clearness, so long as the notion of a Law of Nature, having a validity prior to and independent of positive law, had a leading place among jural conceptions: but since it has come to be recognised that the proper source of new law is a special legislative organ distinct from the judicature, it. is clearly seen that there are two distinct species or grades of ``what ought to be'', in respect of legal coercion:---there are rules which the judge actually ought to enforce by punishing the violation, and there are other rules which (in a sense) it ought to be his duty to enforce, but is not.
In the case, however, of positive morality a similar distinction obviously cannot be applied without qualification: since moral rules that men generally think ought to be accepted as actually binding must ipso facto be accepted: it is this general thought which constitutes their acceptance. Further, though careful reflection will enable a man to distinguish between the generally accepted moral rules of his own age and country and the rules that the reflective individual thinks ought to be accepted, still the distinction is obscure and vague to most minds as regards their own morality here and now,---though sufficiently clear as regards morality in past ages or in China. If a ``plain honest man'' feels himself disposed to condemn any conduct, he is apt to think that all plain honest men must equally condemn it, if the circumstances of the case were clearly brought before them; hence it is his habit to express his personal condemnation in the name of common sense: he does not habitually recognise as possible a definite divergence between his own view of what ought to be and the positive morality of his age and country, unless such possibility has been brought home to him by some exceptionally sharp collision between the two. Moreover, it often happens that when such a conflict of opinions is disclosed on a moral question, there is really some doubt as to what rule is generally accepted, or whether any can be said to be so: for a dissident individual rarely stands alone, nor is it easy to say what majority constitutes general acceptance, or whether there is such a majority in any particular case of controversy. Again, in judging of any moral claim made by an individual or a class upon other individuals or classes, the divergence between the customary actions of men and their customary judgments of the actions of others introduces a further doubt as to the standard that ought to be applied: and the previous conduct of the particular claimant becomes an important consideration; since a man would not ordinarily be held justified in claiming from another a service that he had himself refused in a similar case.
In all these respects much of what is commonly expounded as International Law seems certainly to bear a closer resemblance to the moral than to the legal system of rules governing civil relations. Even in the processes of thought of many international jurists the distinction between what is and what ought to be an established rule seems to be obscure and imperfect. Both in theoretical discussions on international duty, and in the practical debates on such questions between States, there appears a strong indisposition to recognise that a rule which seems to the disputant right is not an accepted rule. Hence it is a common experience that treaties which profess to be merely declaratory of international law as it is, palpably go beyond a mere statement of the rules hitherto accepted; under the form of mere exposition they really aim at innovation: and the procedure is partly justified, because, owing to the absence of any regular legislative authority, the transitions by which prevalent opinions as to what international law ought to be pass into recognised rules of international law as it is, cannot, generally speaking, be made perfectly clear and definite. Changes must from time to time take place in the generally accepted views as to the strict international duties and rights of States; and when any such change is taking place, it must be expected that there will be differences of opinion both as to what constitutes general acceptance, and whether this exists in any particular case: and that these differences will be expressed in assertions by each disputant that the established rule is what he thinks it ought to be.[Back to:]