The publication of a study on the state and the law of nations might require justification, though we do not wish to imply that there is no interest in the subject. Ever since GROTIUS' works were published, and the medieval concept of the unity of mankind almost entirely disappeared, this relationship has remained the subject of scholarly explorations, whose number in recent years has increased rather than diminished. This endless series of essays does not seem to have brought us closer to a solution and opinion is still as divided, and on the same issues, as it was in the period following the publication of de Jure Belli ac Pacis. Thus, it might well seem superfluous and even arrogant to wish to add another few pages of print to this series of serious explorations, and to increase the sententiae peritorum with yet another, imperiti inexpertique studiosi.
A Dutch professor ⁽¹⁾, looking back on this long procession of authors, each attempting to find a new application of the same solutions, compared the process to a man standing on a lonely mountain top, vainly attempting to seize hold of fantastic flamingo-like birds sweeping over his head, to symbolize the disheartening feeling overpowering those who consider the history of the doctrine merely as a senseless tangle of conflicting and contradictory opinions. The prospect might incline the weak in spirit to abandon any further research in order to reconcile themselves to the apparent impossibility of ever resolving the problem. But even if no other arguments stood blocking the way to such a capitulation, positive law itself does not allow of it. There is, namely, a provision in the law of nations which relates directly to the issues presently being debated on the law of nations. Article 38 of the Statute of the Permanent Court of International Justice is nothing other than the legal embodiment of the answer to one of these issues. Moreover, the criticism levelled against the article is equally directly related to those same issues involved in the relationship between the state and the law of nations.
This study has, then, been prompted by and is based on that same article and on the criticism to which it has been subjected. The inevitable consequence is that the lesson history is supposed to have taught us, i.e., that the problem cannot be resolved, which would seem to follow from the history of doctrine, must be looked at critically and studied anew. Even if the metaphor of the flamingoes were to be merely the poetic expression of a more or less covert agnosticism ⁽²⁾, the scholar who wishes to raise questions regarding positive law which will in due course require an answer, should still stop to reconsider before reconciling himself to the implications of such an attitude. Let there be no doubt that such questions do arise in connection with Article 38. The extensive debates which accompanied its final editing and the criticism which followed publication clearly indicate this.
The starting point of the present contribution is hereby delineated.
A critical investigation into the history of doctrine is called for. First of all, to prove that the metaphor of the flamingoes and its sceptical conclusions are unfounded, but above all because the only escape from reproach for yet another useless proliferation of opinion is to be found by heeding the lessons of history. Moreover, the last thing we wish to do is to put forward personal opinions. We have rather endeavoured to put forward arguments which, as we shall see, have only faded into the background because the lessons of history have been neglected. We hope to prove that HEGEL's exposition of the relationship between states and supranational law has never been given the attention it deserves.
The second part of this study then, attempts to rehabilitate this neglected doctrine, and to retrace HEGEL's misjudged train of thought, avoiding the possible causes of that misjudgement on the way. We close by taking the liberty of returning to the starting-point of these reflections by applying the doctrine we have advocated to the issues arising from Article 38. Although they were merely the cause, and not the purpose of our explorations, we have chosen to conclude thus, in order to prove that the doctrine we consider to be correct does not violate reality by introducing lopsided abstractions, and is, indeed, the only doctrine capable of coping with the nature of the problems and of providing a solution.
To conclude, we freely admit that the defence of this doctrine is of special concern to us because of the wider philosophical context in which it rightfully belongs. However, we believe that even without that context, the defence of the doctrine as a more or less autonomous theory will prove to be of value.

CHAPTER I

THE LAW OF NATIONS - THEORIES: GROTIUS TO HEGEL

1. GROTIUS distinguishes two categories affecting inter-state relationships as rules of law, the jus naturale and the jus gentium. The former consists of the rules of recta ratio ('dictatum rectae rationis') ⁽³⁾ and cannot be altered by anyone, not even by God. ⁽⁴⁾ The jus gentium, however, 'id est quod gentium omnium aut multarum voluntate vim obligandi accepit', ⁽⁵⁾ seems to be based on the wills of the nations involved. This also answers the question we should pose: Does GROTIUS recognize supranational rules that do not depend on individual states for their recognition? Clearly, the answer should then be: Yes, viz., all those rules which are part of natural law; the remaining rules are based on the consensus of states.
The words 'gentium omnium aut multarum voluntate', however, make us hesitate to accept such a hasty conclusion, especially when GROTIUS immediately goes on to say: 'multarum addidi, quia vix ullum jus reperitur extra jus naturale, quod ipse quoque gentium dici solet, omnium gentium commune'. ⁽⁶⁾ Before we formulate our answer, we obviously need to find out if those states which are exceptions in that they have not recognized the jus gentium rule in question, are nevertheless bound by it. In this case its binding force cannot be found in its recognition by the selfsame states, and the words 'consensus gentium' must mean something other than inter-state agreement. This becomes clear when we read: 'usus sum etiam ad huius juris probationem testimoniis philosophorum, historicorum, poetarum, postremo et oratorum . . . quod ubi multi diversis temporibus ac locis idem pro certo affirmant, id ad causam universalem referri debeat: quae in nostris quaestionibus alia esse non potest, quam aut recta illatio ex naturae principiis procedens, aut communis aliquis consensus. Illa jus naturae indicat, hic jus gentium'. ⁽⁷⁾ Hence, it is not so much the consensus of states as separate political entities which imparts a binding force to the jus gentium, but rather the testimony of the spokesmen of all humanity which proves that a rule of law is universally considered valid. 'Probatur autem hoc jus gentium pari modo quo jus non scriptum civile, usu continuo et testimonio peritorum'. ⁽⁸⁾ And elsewhere again: 'recurrendum igitur tum ad sapientium judicia tum ad coniecturas'. ⁽⁹⁾ Once it has been established in this manner that a rule must be considered part of the jus gentium, then all sovereigns are bound by it 'etiamsi nihil promiserint'. ⁽¹⁰⁾
In present-day terminology it could be said that GROTIUS requires as proof of its existence: 'usus continuus et testimonium peritorum'. His use of the word consensus detracts nothing from this. He never envisages a truly unanimous statement. The conjectures and presumptions which are resorted to when the facts are contradictory ⁽¹¹⁾ and the existence of a custom cannot be found, are, strictly speaking, improper means to fulfill the demand of actual consensus. Indeed, it is continually evident that this unanimity is seen rather as a construction to explain the validity of the jus gentium, disregarding its actualization, i.e., the actual existence of consensus. The question of the basis for the validity of legal rules can only be answered in two ways, according to GROTIUS: it is either natural law, or it is based on man's free will: 'quod enim ex certis principiis certa argumentatione deduci non potest et tamen ubique observatum apparet, sequitur ut ex voluntate libera ortum habeat'. ⁽¹²⁾
In view of the above, it is obvious that this voluntas libera is not the will of sovereign political entities or states, but the will of the human race as a whole, as manifest in custom and in the opinions of its most civilized and most outstanding members. ⁽¹³⁾

2. The views of authors who have written on the jus gentium since GROTIUS are usually divided into three groups. They either consider that natural law is the sole source of supranational rules, or that the jus voluntarium is an additional source, or that the latter is the sole source of these obligations. The first group can be dealt with most swiftly: those who flatly deny HUIG DE GROOT's jus voluntarium and only wish to consider natural law, per hypothesim, will adopt the view that supranational rules exist, regardless of their recognition by the states involved.
Those who think, like PUFENDORFF, that the law of nations exists only as jus naturale and is valid 'quippe cum consensus humani generis fit mancus', have come up with a quick answer which is, however, unsatisfactory. ⁽¹⁴⁾
This is not the case with the two other groups, whose answers are less simple, but more significant. ZOUCHE, TEXTOR, HUBER, WOLFF and VATTEL follow, more or less, GROTIUS' doctrine. RACHEL, BYNKERSHOEK, MOSER and DE MARTENS increasingly repudiate natural law as a separate complex of norms, and only find positive law in custom and treaties, adding the proviso that no rule is binding upon a state until the latter has accepted it explicitly or implicitly.
HUBER deviates very little from GROTIUS' train of thought. 'Jus gentium', he says, is that 'quod voluntate omnium aut sane cultiorum gentium vim obligandi accepit'. ⁽¹⁵⁾ However, he makes it abundantly clear that voluntas gentium does not imply the will of every or almost every state; rather, he seems to hold GROTIUS' view that what matters is 'consensus humani generis', the will of the human race. The rules of jus gentium are 'nullius certi populi autoritate introducta vel excognita', ⁽¹⁶⁾ and elsewhere he juxtaposes the 'jus certi populi' and the 'leges naturae totiusque humani generis instituta' in order to prove that sovereigns are bound by the latter, but not by the former. ⁽¹⁷⁾ So here, as in GROTIUS, we find the concept that the human race taken as a whole produces the rules of the jus gentium and that the states as political entities do not yet playa part in it.
The same occurs in TEXTOR, ⁽¹⁸⁾ who has, in addition, a special significance, owing to his elaboration of the idea, already present in GROTIUS, that custom does not bring about law, but is merely evidence of its existence. In the first place he stresses the point that consensus among most and especially among the more highly developed nations is enough to assume the existence of a rule of law: 'ubi primo extra controversiam est sufficere plerarumque gentium consensus et imprimis cultiorum'. ⁽¹⁹⁾ Like natural law, the jus gentium is based on the ratio naturalis, but differs from the latter in the way in which it is deduced from it: not directly, but 'mediante gentium exercitio'. ⁽²⁰⁾ The consequence must be that thejus gentium remains valid, notwithstanding any unilateral declaration to the contrary. The established rule of law loses its validity only if it can be proved that all or most parties desire its content to be changed: 'non dum hoc ipso; (viz., a unilateral contradictory act) 'jus gentium illud mutatum probasset, nisi demonstrasset omnium vel plurium gentium consensus contrarium'. ⁽²¹⁾ For those who want to invoke a rule of the law of nations, the fact that all or several parties have acted in this manner will be sufficient evidence. The onus to the contrary rests with the defendant. 'Sufficiat omnium vel plurium gentium usum sanae rationi conformem demonstrare, jam enim praesumptive probatum esse juris gentium, quod tale fit, et alteri qui contrarium defendere volet incumbet onus probandi usus contrarii'. ⁽²²⁾
Hence, also in TEXTOR the consensus gentium does not yet mean that the validity of the jus gentium can be based on its recognition by every state involved. His ideas tend towards those of PUFENDORFF, to the extent that he believes that its validity can only be based on the ratio naturalis. However, he deviates from PUFENDORFF in that he does not consider the recognition by the states altogether insignificant for the jus gentium, but still considers it as evidence. Thus, the consensus gentium becomes the cognitive source of supranational law; not the basis of its validity.
It is not until ZOUCHE that the significance of sovereign states comes to the fore. It is known that the words 'jus inter gentes', which may well have been incorrectly attributed to him, were adopted by D'AGUESSEAU in 1716 and eventually explicitly advocated by BENTHAM in 1789, to become fully domesticated in our time. ⁽²³⁾ It seems, though, that the terminology ZOUCHE used in his works has not had much influence on the theory and its further development. ⁽²⁴⁾
However, in ZOUCHE'S works a significant development can be seen in the doctrine enunciated by HUIG DE GROOT. Indeed, every now and again his words express his concept of jus gentium as a right of, and for, nations. The latter have an obligation to contribute to its development and are subject to its rule.
For jus gentium, according to ZOUCHE, is 'quod inter Principes vel populos diversarum gentium communiter intercedit', ⁽²⁵⁾ and it applies 'inter eas gentes aut populos, penes quos est imperium vel universalis et summa potestas'. ⁽²⁶⁾ The idea of an international community of individuals is permanently replaced by that of a community of states, and thus GROTIUS' work is completed. ⁽²⁷⁾
Now VATTEL, one of WOLFF'S disciples, does nothing more than consistently develop this theory. The law of nations deals exclusively with free, independent states and the natural law obtaining among them can therefore only be 'loi naturelle appliquée'. ⁽²⁸⁾ And in no way can it be equal to the law obtaining among individuals. But the idea of states as independent entities, which has replaced the idea of a community of the human race, has further consequences. In contrast to the medieval concept of unity, still clearly distinguishable in GROTIUS, greater emphasis is now laid on this independence, and its inherent consequences are further developed.
'Chaque État souverain se prétend et est effectivement indépendant de tous les autres'. ⁽²⁹⁾ WOLFF'S Civitas Maxima is a fallacy, 'ni bien juste ni assez solide pour en déduire les règles d'un droit des Gens ... ' ⁽³⁰⁾ In every society there should be a supreme power with a right to impose its will on others as a rule of law, and to enforce obedience. 'Or on ne peut rien concevoir, ni rien supposer de semblable entre les nations'. ⁽³¹⁾ The applied natural law obtaining among them must, therefore, be void of any sanctions, it exists only for the conscience: 'les nations étant libres et indépendantes, quoique les actions de l'une soient illégitimes et condamnables suivant les loix de la conscience, les autres sont obligées de les souffrir. La liberté de cette Nation ne demeurerait pas entière si les autres s'arrogeaient une inspection et des droits sur sa conduite'. ⁽³²⁾ 'De cette liberté et indépendance, il suit que c'est à chaque nation de juger de ce que la conscience exige d'elle. Une autre ne peut la contraindre à agir de telle ou telle manière'. ⁽³³⁾ 'Si elle abuse de la liberté, elle pèche, mais les autres doivent le souffrir, n'ayant aucun droit de lui commander'. ⁽³⁴⁾ Therefore, says VATTEL, it is but 'un droit imparfait' that rules the states. And DE LAPRADELLE, in his foreword to the Carnegie Foundation edition, further explains this: 'du droit imparfait au droit parfait, la différence n'est donc pas de la morale au droit, car dans l'esprit de VATTEL la faculté de demander est déja un droit'. But "l'esprit de VATTEL" is not ours and therefore we do not hesitate to eject VATTEL'S natural law, applicable solely as a matter for the conscience, from the realm of legal norm and to relegate it to that of morality. ⁽³⁵⁾ Hence in VATTEL, true supranational law can only be found in the explicit or implicit agreement between states, in treaties or in custom. In his work the concept of the sovereignty of states leading to an absolute repudiation of any legal restraint not deducible from their own sovereign wills comes to full flower. In essence, his conclusions correspond to those ideas the positivists use as their basic premise .

3. Just as the true nature of the jus gentium (that it is the law of, and for, independent states) was not immediately fully understood, neither were the inherent consequences of the positivist doctrine that custom and treaties are the exclusive sources of the law of nations immediately developed in full.
RACHEL, whose views on the jus gentium have been called 'epochmaking for positivism' ⁽³⁶⁾ postulates that 'the law of nations is based on the consensus of states; for neither states nor free nations have power over each other . . . let alone that several free nations and states would be subjected to one power. So that, when they are united by a law that is not based on nature and to which they must all adhere, this law must necessarily be based on consensus'. ⁽³⁷⁾ Hence, the jus gentium is the law 'plurium liberarum gentium pacto sive placito expresse aut tacite initum'. ⁽³⁸⁾ Does this imply that every state is only bound by rules it has recognized itself? We would hesitate to confirm this. RACHEL makes a distinction between jus gentium commune and jus gentium proprium, more or less similar to the distinction between jus non scriptum and jus scriptum. ⁽³⁹⁾ He calls the jus gentium commune, 'quo complures aut forte pleraeque pro jure inter se utuntur' and the jus gentium proprium, 'quod in paucarum et forte duarum liberarum gentium peculiarem usum et communionem est conditum'. ⁽⁴⁰⁾ However, for the jus gentium proprium he goes on to say that: 'sicut ad ejus observatiam reliquae gentes adstringi nequeant'. ⁽⁴¹⁾ This would imply that the other jus gentium, i.e., the jus gentium commune, does obtain among those who took no part in the consensus. However, we have not found this stated in so many words ⁽⁴²⁾ and therefore we refrain from giving an unqualified opinion.
BYNKERSHOEK'S approach is somewhat different. Ratio and usus, he says, together constitute the jus gentium, and special attention should be paid to custom. Not until the latter is absent or customs conflict in practice, has ratio the casting vote. 'Ut in omni argumento quod de jure gentium est ita et hie ratio et usus utramque paginam faciunt'. ⁽⁴³⁾ Custom is the major part of the law of nations: 'Usus Tyrannorum omnium princeps'; ⁽⁴⁴⁾ nam moribus censetur praecipua part juris gentium' ⁽⁴⁵⁾ Occasionally, ratio seems to gain the victory over usus: 'haec est sententia Pactorum et Edictorum, Si ex iis Jus Gentium meiamur, dicendum videbatur ... etc. Sed non autem ex his Jus Gentium sufficere, quia Ratio, juris gentium magistra, non patitur etc ...' ⁽⁴⁶⁾ However, such preponderance of ratio is contradicted in too many instances by BYNKERSHOEK himself, so that we can see no more than an exception in it. ⁽⁴⁷⁾ The rule remains that treaties and custom, as long as they are in accordance with ratio, are the jus gentium. Not until they are absent or ambiguous does ratio decide. Now, here as elsewhere, the question arises: can a custom also bind those states that did not take part in its development or even in so many words expressed themselves otherwise? BYNKERSHOEK jealously guards against this. Only generally practised customs may be considered to obtain among all parties. Even the European custom of beginning a war by means of a preliminary declaration is still not jus gentium, for other nations do not recognize it. And with a caustic snub he adds that the European sovereign who neglects to declare war 'contra vulgarem Europaearum morem gerere credendum est, sed contra jus gentium gerere erorum tantum est dicere, qui quod domi suae fere servari vident, ubique locorum legem esse putant'. ⁽⁴⁸⁾ Therefore, custom always loses its validity if a unilateral declaration to the contrary is made. 'Jus gentium nihil est nisi praesumptio secundum consuetudinem, nec quicquam valet praesumptio ubi expressa est voluntas ejus de quo agitur'. ⁽⁴⁹⁾ 'Gentium consuetudo ex praesumpta voluntate singulas gentes obligat, nisi palam ei obnunciaverunt'. ⁽⁵⁰⁾ He is also against the unjustified presumption of an 'implied condition', 'si tu putes distinctiones ibi non expressas tacite esse intelligendas et sic Pacta et Edicta explicari posse, vellem si possem huic sententiae accedere, sed vereor ne obstent verba nimis generalia'. ⁽⁵¹⁾
Thus, BYNKERSHOEK displays a healthy opportunism on every page. He never fully explains his 'theory'. Anyway, it would not survive such exposure: the balance between ratio and usus is obtained because BYNKERSHOEK, being the perspicacious and deliberate genius he was, put the 'system' into operation. In the hands of others the untenability of this opportunistic approach is soon revealed and the balance created for the sake of dogmatism is lost. However, to conclude that opportunism should be preferred to attempts to obtain a closely-reasoned theory of the law of nations would be to overlook the fact that science, once aware of its own opportunism, can never be satisfied with it nor ever will be. Science requires its concepts to be incontestible and cannot be satisfied with opportunistic twists and turns. The true doctrine science purports to develop will contradict neither itself nor the facts. BYNKERSHOEK sacrificed the former for the latter, so that the doctrine had to continue to develop itself: opportunism has become transformed into dogmatic positivism.
MOSER has frequently been pointed out as the real founder of that dogmatic positivism. He certainly developed this viewpoint almost to its utmost consequences, going almost as far as to deny the existence of any law of nations. These tenets were supported and amended by DE MARTENS. In a pun, MOSER says that he does not write 'raisonniertes Völckerrecht', in which everyone hopes to find something to his taste, but only that which 'unter denen Europäischen Souveranen und Nationen üblich ist'. ⁽⁵²⁾ He wants only to look at past and present events, and he does not pause to wonder whether the situation ought perhaps to be different. 'Ich gebe in dieser gantzen Sache nicht sowohl einen Rechtslehrer ab als vielmehr einen Beschreiber dessen, wie die Europäischen Souverainen und Nationen miteinander umgehen und eben deswegen, weil es unter ihnen so hergebracht ist, es für Recht halten und angeben'. ⁽⁵³⁾ Whether all this is international law is of no importance. 'Taugen nur die Sachen, so mögen endlich die leges methodi dabei behörig beobachtet seyn oder nicht'. ⁽⁵⁴⁾ The law of nations cannot originate from one universally valid law, 'Weil alle Völcker von denen hier die Rede ist von einander independent seynd'. ⁽⁵⁵⁾ Universally valid treaties do not exist, neither does universal custom. ⁽⁵⁶⁾ The conclusion that a universally effective law of nations does not exist is therefore self-evident. But MOSER does not venture to draw this conclusion and takes an unexpected turn by saying: 'Was also auf vielen gleichformigen specialen Verträgen beruht, gibt zwar kein vollkommenes, doch einiges Recht an anderen Regenten oder Machten mit denen keine dergleichen Verträge geschlossen worden seynd eben dieses zu verlangen'. ⁽⁵⁷⁾ 'Je allgemeiner solches Herkommen ist, je länger es gedauert hat, je öffter es vorgekommen ist, und aus je neueren Zeiten es herrühret, um so stärcker verbindet dasselbige auch andere Souveraine Regenten und Nationen'. ⁽⁵⁸⁾ Then, in order to avoid criticism, he goes on to say: 'Der einige aber hinreichend und unwiderlegliche Beweis davon ist, dass die souverainen Regenten und Nationen in Europa es selbst zugestehen'. ⁽⁵⁹⁾
DE MARTENS rejects this strange view and forthrightly declares: "ce qui ne tient qu'aux traités ou aux usages particuliers, établis dans les rapports individuels de quelques États n'est comme tel obligatoire que pour ceux-ci et non pour le reste des peuples'. ⁽⁶⁰⁾ Therefore, a universally effective law of nations does not exist, ⁽⁶¹⁾ but 'il y a dans ce sens pour l'Europe autant de droits des gens particuliers, qu'il a de relations particulières de tel État de l'Europe avec tel autre'. ⁽⁶²⁾
DE MARTENS is well aware that in saying this he goes even further than actual practice: 'Les puissances de l'Europe en provoquant si souvent au droit des gens coutumier des nations civilisées, semblent lui accorder une force, qui ne suppose pas toujours la preuve particulière du fait de l'introduction de tel usage dans le rapport individuel auquel il s'agit de l'appliquer'. ⁽⁶³⁾ The law of nations has quite disappeared and what remains is a mere shadow: the systematic scheme of those private relationships, an abstract theory as a guideline for students: 'c'est en rassemblant les principes suivis le plus généralement par la plupart surtout des Grandes Puissances de l'Europe ... qu'on forme par abstraction une théorie du droit des gens de I'Europe'. ⁽⁶⁴⁾
Where on the one hand VATTEL'S presumption of the independence of states led to a denial of the enforceability of natural law, the positivists on the other hand came to a repudiation of the general validity of supranational rules, in other words they deny that internationallaw is universally valid law. The sovereignty of states, exclusively bound by rules they themselves have recognized, has blossomed into what we might call negative sovereignty, unlike the sovereignty envisaged by BODIN, and unlike the sovereignty conceived by HEGEL. BODIN lays the foundations of the purely positive aspect, the internal authority, i.e., the state as an immediate entity. He explicitly states that the sovereign monarch is above the laws of his country, but that he must of course submit to the divine law and to that of nature, as well as to that which he has agreed on with others, be it sovereigns or citizens: 'Sed legibus divinis ac naturalibus principes omnes ac populi aeque obligantur ... His ita constitutis sequitur principem summum pactis conventis aeque ac privatos obligari, sive cum exteris sive cum civibus contraxerit'. ⁽⁶⁵⁾ The thought of external sovereignty does not occur to BODIN and the principles of that external sovereignty were often wrongly sought in his work. In what Professor VAN VOLLENHOVEN called, rather more pregnantly than justly, 'VATTEL'S law of nations', ⁽⁶⁶⁾ the negative aspect (averting the influence of others, unity as a negation of dependence on or subjection to others) comes fully to the fore. HEGEL develops the double or absolute negation, the affirmative aspect ('absolute sovereignty' as a negation of the possibility of a purely supranational power, the elevation of the state to 'irdischer Gott. ')

4. Although further development of the ideas of VATTEL and DE MARTENS may logically lead to the Hegelian doctrine of the absolute sovereignty of states, historically it did not follow immediately. On the one hand, the old concepts appear to die hard, on the other, political circumstances between 1792 and 1815 did not favour the development of the theory of the law of nations. Even today, many are still attracted to natural law. It seems that even NAPOLEON underwent the influence of GÉRARD DE RAYNEVAL'S views on natural law. The latter was practically the only author of the time, apart from KANT, to have studied our subject. ⁽⁶⁷⁾ After the Congress of Vienna, the number of authors writing about the law of nations increased, but the foundations of the discipline remained unchanged until HEGEL published his Grundlinien der Philosophie des Rechts in 1820.
As to the foundation and significance of supranational law, KANT unequivocally took the side of VATTEL and DE MARTENS. He rejected the possibility of attaching sanctions to supranational norms. Even war must be denied the nature of a legal remedy: 'kein Krieg unabhängiger Staaten kann ein Strafkrieg sein. Denn Strafe findet nur im Verhältnisse eines Oberen gegen den Unterworfenen statt, welches Verhältniss nicht das der Staaten gegeneinander ist'. ⁽⁶⁸⁾
However, not only are sanctions impossible between independent states, even an appeal on the grounds of infringement of subjective rights cannot serve to justify an attack, and a claim for damages may never be based on this ground: a peace-treaty ending a war is based exclusively on the victor's position of power, 'und zwar nicht gemäss irgend einem vorzuschützenden Recht, was ihm wegen der vorgeblichen Läsion seines Gegners zustehe ... Daher kann der Ueberwinder nicht auf Erstattung der Kriegskosten antragen, weil er den Krieg seines Gegners alsdann für Ungerecht ausgeben müsste; sondern obgleich er sich dieses Argument denken mag, so darf er es doch nicht anführen, weil er ihn sonst fur einen Bestrafungskrieg erklären und so wiederum eine Beleidigung ausüben würde'. ⁽⁶⁹⁾
> Thus, it is not surprising that KANT straightforwardly declared that 'das Völkerrecht bloss in den Büchern übrig geblieben, aus den Kabinetten aber verschwunden, oder nach schon verübter Gewalt in Form der Deduktionen der Dunkelheit den Archiven anvertraut worden ist'. ⁽⁷⁰⁾ The only way to abandon this 'natural condition of lawlessness' ⁽⁷¹⁾ and to create an organized society, as KANT saw it, is to found a 'League of Nations', based on a treaty which remains terminable at all times. ⁽⁷²⁾ The promise of eternal peace and the concept of a Treaty of Nations detract nothing from the fact that KANT, (1) on the grounds of the independence of states, denied the law of nations any enforceability (VATTEL) and (2) considered treaties the only possibility of reaching a supranational legal order (DE MARTENS). Hence he fully endorsed the prevailing views of his time; any attempt to find new viewpoints in KANT'S work would be in vain. Therefore, it is not possible to speak of any influence by KANT in that respect. It is true that his philosophical terminology occasionally found acceptance, but those who used it have proffered quite different theories. ⁽⁷³⁾
One of them, SCHMALZ, is worth mentioning here because of the remarkable resemblance of his theory to that of TEXTOR and BYNKERSHOEK on the one hand and to that of STAMMLER and KRABBE on the other. SCHMALZ says that a positive law cannot be deduced from the 'Ideeen des Rechts'. In proportion to positive law, natural law in this sense is what 'esthetics is to a painting'. Only that which is generally valid can be considered positive law. 'Was in den ewigen Ideeen des Vernunft als Recht erkannt ist, das verbindet aIle Volker, wie all einzelne Menschen. ⁽⁷⁴⁾ 'Der allgemeine Glaube an sie als Rechtsregel, ist was sie sogleich grundet und unterscheidet' ⁽⁷⁵⁾ Positive law is only and exclusively known by custom, in as far as it is 'recognized, required and believed as a norm'. ⁽⁷⁶⁾ 'Unmittelbar allgemeine Entscheidungsquelle des Rechten under den Volkern ist allein das Gewohnheitsrecht'. ⁽⁷⁷⁾ Treaties can only serve as proof of that which is already presupposed in them and which must hence be valid as customary law. ⁽⁷⁸⁾ Thus, customary law is not based on the presumption of an implied agreement, but is valid as law, because it has its roots in the 'oberen Ideeen des Rechts' and as positive law, because as a custom it has proved to be known by the human consciousness. ⁽⁷⁹⁾ Then, assuming this knowledge, SCHMALZ admits the extension of a rule of customary law in cases corresponding to the same 'obere Rechtsidee'. ⁽⁸⁰⁾ In this manner, the validity of supranational law is separated entirely from its recognition by the states involved, but without SCHMALZ resorting to natural law in the classical sense. SCHMALZ'S ideas, which can be very well compared to ideas held today, remained almost entirely unnoticed by his contemporaries and found practically no one to support them.
Exactly the opposite must be said of KLÜBER'S work, ⁽⁸¹⁾ which was widely known, although its weakest aspect lies in its theoretical framework. According to KLÜBER, sources of international law are: agreements (explicit or implicit), analogy and natural law. This analogy, which can be justified in SCHMALZ'S concept, is as out of place as natural law in KLÜBER'S essentially positivist framework and was therefore rightly castigated. Thus, although his merits must be found elsewhere, his work is still worth mentioning in this context, because he is the first to confer certain sovereign rights upon states; ⁽⁸²⁾ these were used later on, and under different titles, (droits fondamentaux, absolus, internationaux, thétiques etc.) in an attempt to reconcile natural law and the doctrine of state sovereignty. By incorporating the main elements of sovereignty in their enclave, impenetrable for the law of nations, and by proclaiming them to be rules of natural law, the results obtained were more or less identical to those yielded by the doctrine of state sovereignty. KLÜBER considered those sovereign rights still liable to restriction or alienation ⁽⁸³⁾ but the concept of state sovereignty as independence, as a repudiation of subjection to others, which had hitherto been empty and solely negative, was gradually given content. In turn, HEGEL eliminated this negativity and turned it into affirmation, and thus completed at a stroke that which had previously only been achieved by approximation, namely the absolute sovereignty of the state that knows no superior legal power, and may do what it is able to do.

CHAPTER II

HEGEL'S ALLEGED DENIAL OF SUPRANATIONAL LAW

5. In 1817 GEORG WILHELM FRIEDRICH HEGEL published his Encyclopaedie der philosophischen Wissenschaften, in which the philosophy of law was given a place in an all-embracing system and which presented a brief outline of the development of the Idea in this form of its existence. His Grundlinien der Philosophie des Rechts, in which the same line of thought was worked out in greater detail, appeared four years later. The publication of these two works was a turning point in the history of our doctrine. We have seen how the power of consequence forced authors to bring the independence of states more and more to the fore and to make the validity of the law of nations subject to the will of these states. However, the premise of their philosophies was always an empirically established fact or axioma: the independence of the states, the unenforceability of the law of nations, its supposed positivity (that is, its being based exclusively on custom or treaties). However, all these are tenets, whose factual truth could be argued, but whose necessity was left unexamined. This stands out in KANT'S philosophy, who, when regarding the factual situation of his time, drew the same conclusions as his contemporaries VATTEL and DE MARTENS, although he did foresee other possibilities for the future.
HEGEL held a different view, he set out to eliminate this coincidence to argue, once and for all, the irrefutable impossibility of a completely supranational law. Here is, then, the distinction which can be drawn between HEGEL and his predecessors. BODIN saw sovereignty solely as a 'simple relation to itself, i.e., internal sovereignty. His thought had not yet progressed to the concept of a coexistence of states. This concept was developed by VATTEL and DE MARTENS. The individual state finds itself in the company of, or opposed to, other states. Sovereignty now meant the negation of those other states by resisting their interference. At this stage, sovereignty meant 'being independent of others'. Like all negations, this implies a recognition of that which is negated. The mutual repudiation of interference by the other leads to a confirmation of the state's own sovereignty and of that of others, to a double negation or affirmation. This is the third step HEGEL took: sovereignty as supreme power, which at the same time is supreme justice, i.e., absolute sovereignty. According to HEGEL, the state is the absolute power on earth, so that any idea of a supranational legal power is automatically eliminated. ⁽⁸⁴⁾
Now we would like to pause briefly to look at the 'Hegelian method'. It is based solely and exclusively on one principle, never to add anything to the matter (i.e., the idea itself), 'nur zusehen'. ⁽⁸⁵⁾ The idea must therefore develop itself. This self-development is, furthermore, the proof of its result. HEGEL does not start from empirical premises nor from axiomas. ⁽⁸⁶⁾ but from the totally void Being, the presupposed possibility of determination, which, therefore, can never be omitted, but which, as the indeterminate Being, is very definitely ... determined! It is this determined indeterminacy, this contradiction, that will generate the self-movement of the idea. When starting from this indeterminate Being, which as the absolute indeterminate Being is identical to the Void, ⁽⁸⁷⁾ all other determinates develop, one following the other, in ordered sequence to culminate in the Idea, in which all determinates are dissolved, its only determinate being self-determination. Thus the end once again brings us to the beginning and the entire doctrine is an Encyclopedia (a cyclical doctrine) to which the philosophy of law belongs. ⁽⁸⁸⁾
At a certain moment, this philosophy of law reaches the point where the state is to be discussed, and this point, according to HEGEL, marks its transformation to the philosophy of history. This cyclical explanation or encyclopedia of science as a whole implies that every partial discussion, every discussion separating out one particular branch of science, departs from an apparently arbitrary starting-point, which must find its justification and proof in its antecedents. ⁽⁸⁹⁾ Thus, HEGEL'S doctrine of state sovereignty can only be understood in the full context of his philosophy of law and quoting a few odd statements will always be a precarious, not to say impermissable undertaking. However, since in this chapter HEGEL is discussed as but one of the many theorists in the field of international law and only those aspects of his doctrine will be discussed which are clear outside their context, furthermore, since those authors who have been influenced by HEGEL have with but few exceptions based their expositions on them without knowing or understanding his system as a whole, we consider we may limit ourselves to those single statements or aspects and leave a discussion of HEGEL'S doctrine and its possible elaboration till later.
It seems beyond doubt that HEGEL conceived the state as the absolute power on earth, ⁽⁹⁰⁾ as 'das sittliche Ganze, die Verwirklichung der Freiheit'. ⁽⁹¹⁾ Consequently, a state in relation to other states is a sovereign entity and has the right to be recognized as such. ⁽⁹²⁾ Their relationship is a volitional one, based on mutual independence, and it crystallizes into treaties. HEGEL endorsed the pacta sunt servanda rule, ⁽⁹³⁾ but added: 'Weil aber deren Verhältniss ihre Souveranität zum Prinzip hat so sind sie insofern im Naturzustande gegen einander, und ihre Rechte haben nicht in einem allgemeinen zur Macht ueber sie konstituierten, sondern in ihren besonderen Willen ihre Wirklichkeit'. ⁽⁹⁴⁾ 'Indem die Staaten in ihrem Verhältnisse der Selbständigkeit als besondere Willen gegen einander sind, und das Gelten der Traktate selbst hierauf beruht, der besondere Wille des Ganzen aber nach seinem Inhalte sein Wohl überhaupt ist, so ist dieses das höchste Gesetz in seinem Verhalten zu anderen'. ⁽⁹⁵⁾ Apparently, his recognition of the pacta sunt servanda rule is almost entirely stultified by these last few words.
HEGEL repeatedly points out: 'es gibt kein Praetor zwischen den Staaten'. ⁽⁹⁶⁾ The only judge over the states is world history, 'der an und fur sich seiende Geist, der Weltgeist'. ⁽⁹⁷⁾ Indeed, where, thus, even treaties are denied validity there is no room left for any law of nations and it is obvious that only war, imminent or real, determines the relations between states. ⁽⁹⁸⁾ Faced by such clear words, the fact that statements of a different vein are occasionally to be found seems of no avail. ⁽⁹⁹⁾ They can be important for a critical discussion of the Hegelian doctrine, but they did not induce the authors who followed HEGEL to change their idea of his doctrine.
We have now reached the third stage in the dogma of state sovereignty. ⁽¹⁰⁰⁾ The negative determination of independence, of not being subjected to any other power, has changed into the affirmative and absolute determination of 'Staatshoheit, absolute Macht auf Erden, irdische Gottheit'. Scholars have no choice but to take the latter into account. In the light of such an absolute and fundamental denial of any possibility of a supranational judicial power, partiality becomes inevitable. It is imperative that scholars of supranational law 'polish off' HEGEL'S tenets and leave no doubts whatever on the subject. We shall be looking at what happened and how satisfactory the results were.

CHAPTER III

THE THEORY OF THE LAW OF NATIONS AFTER HEGEL

6. HEGEL did not make it easy for those who succeeded him. His doctrine is the logical result of his method, of the method as he calls it, of the only correct method. The result seems as far-reaching as the method. Self-interest is the only standard that can be applied to the actions of states. No treaty, let alone any other rule conflicting with that self-interest, should be adhered to.
If HEGEL is not to be taken for a non-entity, and surely no-one would dare to call him that, there are, strictly speaking, only three alternatives: either to endorse his method, or to challenge it, or to prove that the method itself should lead to a different outcome. The first option is the easiest one, but it can not satisfy specialists in the field of international law, although several have tried to follow it. The object of their discipline is cut from under their feet, and the content of its rules is either declared to be constitutional law or totally ignored. The second alternative: to challenge and 'refute' the speculative method is not meant for jurists. It would be the task of philosophers to win that battle and they have left no stone unturned. However, in the Netherlands, it is enough to mention the name BOLLAND to make it clear that this battle is still to be fought and won. The third alternative: an 'improved' application of the dialectic process, has not been left untried, but has yielded very little result.
Therefore, it is no exaggeration to say that today's jurisprudence of the law of nations has still left HEGEL'S doctrine intact. However, to say that no progress has been made on other points since HEGEL would be a different matter. But the history of jurisprudence avoids HEGEL, leaves him unbeaten and seeks to forget him. In order to do so, the path of iron logic that was characteristic of its development must be left, and consequently, we are left with a rather chaotic picture of many conflicting constructions based on a variety of viewpoints.
In the century following the publication of HEGEL'S Rechtsphilosophie, we find:
(1) A return to the old natural law reappearing in very diverse forms, either as a jus naturaie, tinged with religion and endorsing the clerical writers, as a 'modern' doctrine in which natural law is but a smokescreen to hide what are in fact sovereign rights, or, in the 20th century, as a revival of the old jus naturale as PUFENDORFF had taught it and which had long been thought dead, or in other varieties.
(2) A shallow positivism seeking the basis of its validity in 'actual observance' without realizing that 'observance' already presupposes the existence of the norm that the scholars are attempting to deduce from it.
(3) A large group of authors who, having more or less consciously adopted HEGEL's concept of sovereignty (although they did not realise it was the inevitable outcome of his method) operate with the 'sovereign will' to explain the supranational validity of legal rules.
(4) Those who seek to base the validity of law on legal consciousness and thus attribute a merely derivative importance to its recognition by the state involved.
The authors of the last century can, therefore, in our opinion, be classified into six groups. The deniers; and those who search for an improved application of HEGEL'S method; and the other four directions outlined above. It goes without saying that any classification is always arbitrary and serves no other interest than creating an overseeable order.
The answer given by the various groups to the question underlying this enquiry is obvious. Natural law is of course totally independent of recognition by states. The positivists know only of treaties and custom and therefore take an opposing view: no positive law of nations without recognition by the states. ⁽¹⁰¹⁾ The advocates of the doctrine of state sovereignty stick rigidly to the same tenet. Finally, those who seek to base the validity of legal rules on human legal consciousness can merely use the recognition of states to prove the existence of a legal consciousness and must assume that a valid law of nations exists beyond this recognition.

7. Authors whose conclusions fall in line with HEGEL'S are often called 'deniers of the law of nations'. Only one of them is a Hegelian to the bone, 'plus royaliste que le roi': ADOLF LASSON. Oddly enough, his essay bears the title Prinzip und Zukunft des Völkerrechts and is of a somewhat polemic nature. The author points explicitly to HEGEL as his tutor ⁽¹⁰²⁾ but he himself displays little of HEGEL'S philosophical inclination. His passionate argumentation does not succeed in corroborating his tutor's doctrine, quite on the contrary, it completely fails to illuminate HEGEL'S argument. In order to prove the non-existence of supranational law, LASSON relies time and again on the 'wirkliche Erfahrung', on the 'Tatsachen' etc. ⁽¹⁰³⁾ The truth is, however, that these 'facts' are only the interpretation LASSON is prepared to give to them and in doing so he infringes his tutor's command: 'nichts von unserm Meinen hinzuzugeben, nur zuzusehen!'
ZORN'S work bears quite a different character, as it is based on the dogma of absolute sovereignty and the law of nations is quite consistently construed as 'aeusseres Staatsrecht' . ⁽¹⁰⁴⁾ The principle that 'Recht als Rechtsordnung gefasst ... ist ein Complex von Imperativen welche der Staat an seine Untertanen richtet und mit Zwang schützt' stands to the fore. ⁽¹⁰⁵⁾ 'Recht ist Ausfluss der Souveränität der Staaten'. ⁽¹⁰⁶⁾ Consequently, if ... that which is called the law of nations is indeed law, it will derive its power from the state. 'In's Besondere fällt das sog. "Völkerrecht" unter den Begriff des aeusseren Staatsrechtes' ⁽¹⁰⁷⁾. Therefore, the validity of treaties, beyond which no 'law of nations' can be found, is not derived from their conclusion, but from the ratification procedure these must undergo to become valid in municipal law. 'Ein zwischenstaatlicher "Vertrag" schafft nich "ipso jure" Recht. ⁽¹⁰⁸⁾ Der zwischen den Vertretern der Regierungen abgeschlossene Vertrag bleibt somit rechtsunverbindlicher Entwurf bis er die für die innerstaatliche Rechtsetzung vorgeschriebenen Stadien passiert hat. ⁽¹⁰⁹⁾ Dasjenige was den Vertrag zum Recht macht, ist die Ratification. Sie ist der Imperativ an die Staatsangehörigen, den Vertrag zu beobachten'. ⁽¹¹⁰⁾ Thus, once the dogma is accepted, ZORN developes it in an impeccably discursive way. On the other hand he does not in any way corroborate the dogma proper.
ERICH KAUFMANN, too, closely follows the Hegelian doctrine. He, too, considers the state to be 'the supreme power on earth' . 'Sein Wesen ist Machtentfaltung, ist der Wille sich in der Geschichte zu behaupten und durchzusetzen'. ⁽¹¹¹⁾ Somewhat oddly, he distinguishes 'Subordinationsrecht' and 'Koordinationsrecht'. ⁽¹¹²⁾ 'Bleiben die mehreren Willen nicht in allen zwischen ihnen obwaltenden Beziehungen die massgebenden, sondern müssen sie sich in einigen unterordnen, so herrscht in der einen Sphäre Koordinationsrecht, in der anderen Subordinationsrecht. Bei dieser Einteilung sind wir nur davon ausgegangen, dass das Recht Ordnung von Willensverhä1tnissen ist'. ⁽¹¹³⁾
In KAUFMANN'S view, the law of nations is exclusively 'Koordinationsrecht' and this implies that: (1) the law of nations can only be based on agreements ⁽¹¹⁴⁾ and that: (2) for these agreements themselves the pacta sunt servanda rule only obtains in as far as it serves the interest of states: 'Zuletzt muss doch immer sein Wille, sein Interesse das Massgebende bleiben'. ⁽¹¹⁵⁾ 'Das völkerrechtliche Vertragsrecht, dass auf den Interessen der Kontrahierenden Staaten beruht, hat seine Grenze an dem Interesse der Staaten'. ⁽¹¹⁶⁾ And more emphatically: 'Nur der, der kann, darf auch', ⁽¹¹⁷⁾ 'hier müssen Macht und Recht zusammenfallen'. ⁽¹¹⁸⁾ Ultimately, this theory can only be justified 'weil wir vertrauen, dass nur der Kulturplan innere Kraft und Bestand haben kann, der innere Berechtigung und Wahrheit hat'. ⁽¹¹⁹⁾
It is obvious that: the above corresponds to HEGEL'S doctrine to the minutest detail. ZORN and KAUFMANN have in common that the latter, too, takes the dogma of absolute ('Hegelian') state sovereignty as his starting point, thus contributing to its development, but failing to proffer the slightest foundation or defence of the premise itself. Therefore, the basis of the doctrine is still HEGEL'S train of thought and no new support has been provided.
It may be appropriate at this point to mention another group of 'deniers' of the law of nations, although they have nothing to do with HEGEL or with the doctrine of state sovereignty. We are referring to the school known as the British analytica! school of jurisprudence and to its two spokesmen: J. BENTHAM and J. AUSTIN. ⁽¹²⁰⁾ Especially the latter had at first quite a few followers, but his theory proved untenable. It appeared to be based on a mistake, caused by the ambiguity of the word 'law'. Hence, it has found no support outside the Anglo-Saxon countries and it was supported only within them for a short period of time. ⁽¹²¹⁾ Therefore we feel that a simple reference for the sake of completeness will be sufficient here.

8. A second group of writers largely agrees with HEGEL'S views, but feels that his exposition of the law of nations should lead to a different outcome. Hence they arrive at the third alternative outlined on page 22, although their methods differ.
PÜTTER, ⁽¹²²⁾ who merely paraphrased one of HEGEL'S statements (inter-state relations must be 'an-sich rechtlich'), ⁽¹²³⁾ still hesitates: 'das Völkerrecht ist der freie allgemeine vernünftige Staatswille, wie er sich in den gegenseitigen Verhältnissen als nothwendiges Gesetz bethätigt - praktisch ist'. ⁽¹²⁴⁾ However, it becomes clear that the law of nations thus obtained can hardly be called 'law' at all, because it is entirely beyond human judgement: 'es kann nämlich (im Kriege) nie die Frage sein ob eines oder welches von beide Unrecht habe, sondern beiden haben das Recht ihren allezeit für gerecht zu achtenden Staatswillen, mit aller Macht und Gewalt rechtlich auszuführen'. ⁽¹²⁵⁾ War acts as a trial by ordeal and thus history is the supreme court. ⁽¹²⁶⁾
FALLATI'S attempt to create room for the law of nations in HEGEL'S own train of thought is more original. ⁽¹²⁷⁾ To this end, he views the commonalty of states as fully analogous to the human community and he compares: (1) family and federal state, both based on natural feelings (love and a sense of nationality), (2) human society and the 'Völkergenossenschaft', both again to be conceived in three stages: (a) the stage of 'schroffe Sonderung' - on the one hand human economic existence, on the other the self-centeredness of states, (b) the stage of common interest: municipal legal order and the law of nations, (c) these two united in the national and international administration, (3) the state on the one hand, the 'Völkergenossenschaft' (the World State) on the other.
The success of this well-meant attempt depends on the tenability of the analogy between humans and states, and HEGEL'S method strenuously repudiates this premise, so that, although FALLATI'S argument merely seems to represent an attempt to achieve an improved application of that method, it in fact contradicts it.
A third elaboration of HEGEL'S doctrine, and the most important one, remains to be investigated. H.B. OPPENHEIM in his System des Völkerrechts ⁽¹²⁸⁾ proves to be a unique revisor of HEGEL'S opinion on supranational law. He calls the law of nations 'die aeussere Gestaltung der Geschichte', ⁽¹²⁹⁾ and finds its formal ground in the autonomy of states, ⁽¹³⁰⁾ whereas its 'immanent' ground (the basis of its validity) is found in the 'allgemeine Rechtsbewusstsein'. 'Dieses erscheint in den Rechtssitten und Gewohnheitsrechten für die Collisionen der Einzelnen Staaten zum Ausland und in den - ausgesprochenen oder stillschweigend geltenden - Normen der bestehenden Staatensystemen'. ⁽¹³¹⁾ So far, OPPENHEIM is way ahead of his time. He even almost anticipates the modern views of KRABBE, POLITIS and others. ⁽¹³²⁾ However, oddly enough, he subsequently demolishes it all and contradicts his own tenets in an inexplicable manner. The state remains sovereign, and can only commit itself as such, sovereignty is its supreme prerogative and - as a duty of se1f-preservation - its highest duty. ⁽¹³³⁾ Sovereignty as the 'state's absolute supreme power' means 'dass man nur Gott Rechenschaft schuldig sei' etc. ⁽¹³⁴⁾ Furthermore, the law of nations is all of a sudden almost exclusively to be found in treaties, an attitude which can hardly be reconciled with the tenets quoted above. 'Vielleicht gibt es völkerrechtliche Verpflichtungen ohne Vertrag - obgleich auch diese gewiss höchst negativer Natur sind - aber Staatsverträge ohne ausdrückliche Abschliessung gibt es sicherlich nicht. Der tacitus consensus ist ... eine der leersten Hypothesen der Doktrin'. ⁽¹³⁵⁾ Only the pacta sunt servanda rule obtains unreservedly. ⁽¹³⁶⁾
Thus, OPPENHEIM fails to develop his premise to the full, although this does not alter the fact that we should consider his work as a major attempt to elaborate the Hegelian doctrine of the law of nations.
The Italian author MANCINI occupies a very special place with regard to the question in point. He more or less adopts HEGEL'S notion of the state in its literal sense, although he does not arrive at this viewpoint via HEGEL'S dialectic method and does not draw the same conclusions from it. He makes a distinction between Nation and State, which ought to coincide, although this is not always the case. ⁽¹³⁷⁾ His definition of nazionalità almost literally corresponds to HEGEL'S definition of the notion of the state. 'La nazionalità non è che la explicazione collettiva della libertà'. ⁽¹³⁸⁾ He himself indicates the points which unite him with HEGEL as well as those which separate them: 'in fatti la Nazionalità, che liberamente si costituisce all'interno ed è in possesso della sua piena autonomia ne' rapporti esterni, non si differenzia dallo Stato raffigurato nel concetto Hegeliano ed allora. . . la scelta tra i due punti di partenza si risolve in una semplice questione di precedenza logica'. ⁽¹³⁹⁾
But, as we stated before, although their concepts of the state overlap, the conclusions they draw from these concepts do not coincide. MANCINI denies that law could ever be the product of human volition ⁽¹⁴⁰⁾ and seeks to find the validity of law as a whole in 'the higher atmosphere of moral nature, ' ⁽¹⁴¹⁾ i.e., of divinity: 'noi per lo contrario queste leggi stesse ... sottoponemmo all' autorità di leggi piu augusti e venerabile delle quali eloquente e non menzognera rivelatrice nel monde delle genti è la Natura, legislatore Iddio'. ⁽¹⁴²⁾
Hence, MANCINI'S expositions eventually boil down to natural law and his apparent affinity with HEGEL proves deceptive. However, in order to simplify a comparison between MANCINI and HEGEL, we have chosen to mention him here rather than together with the other exponents of his category.

9. We must now turn to the authors of the nineteenth century who either remained uninfluenced by HEGEL or were unconscious of his influence. They are the overwhelming majority and they dominate the entire doctrine. We outlined a classification above in order to obtain an overall picture of the situation. Unless we are greatly deceived, two of those categories either belong to the past or are beginning to dwindle, i.e., the positivists and those who, operating with a more or less 'absolute' notion of sovereignty, hope to base the law of nations on the volition of states. We shall discuss these two groups first, and save the views still obtaining today till the end of our discussion.
With regard to the positivists (WALKER, CALVO, BULMERINCQ, and others) we can be brief. ⁽¹⁴³⁾ They indulge in a tautology and ground the law of nations on 'actual observance' ⁽¹⁴⁴⁾ which amounts to the adage: the law of nations is valid ... because it is valid. ⁽¹⁴⁵⁾ They consider they can allow facts to speak for themselves and that their interpretation does not alter those facts ('évitant avec soin d'altérer d'une manière systématique le language des faits'). ⁽¹⁴⁶⁾ They also consider the law of nations exclusively as a historical discipline: ⁽¹⁴⁷⁾ 'when he becomes a theorist it is time for man to look askance at his opinion'. ⁽¹⁴⁸⁾ The question in point does not exist at all ... because they have turned a blind eye to it! ⁽¹⁴⁹⁾ Yet their tautology is not entirely void of all significance. They rightly recognize that a norm which is not operative cannot be called a real norm. 'Actual observance' is, as we shall see later on, a necessary moment of the integral, concrete norm. The mistake the positivists make is that they consider this moment to be the perfect one and therefore fail to recognize the other moments of the process of law. ⁽¹⁵⁰⁾

10. The next category, the advocates of the doctrine of state sovereignty, is of more importance. They were greater in number and recent authors devote the greater part of their expositions challenging their doctrine. ⁽¹⁵¹⁾ As was the case with the 'deniers' of the law of nations, their premise is the axioma of absolute state sovereignty. They do not come up with new grounds for it any more than the 'deniers' did. They call it a 'fact' or an essential characteristic of the state, which cannot be conceived without it, but they are not able to make out a good case for the necessity of this conception. Hence, HEGEL'S argument still remains the - of ten unconscious - justification of their premise, and therefore they are hardly at varianee with the deniers of the law of nations. They seek to construe the validity of the law of nations as supranationallaw by using the concept of absolute sovereignty, and this attempt is doomed to failure. A recognition of their failure should have induced them either to abandon the dogma of sovereignty or to deny the existence of supranational law.
The pioneer of this theory was BERGBOHM. His brilliant analysis of the relationship between the state and the law of nations demonstrates the incompatibility of concepts of absolute sovereignty and supranational law which are not based on the volition of states themselves. States can only feel bound by their own volition, or else they will jeopardize their own authority. 'Ihren eigenen Willen können die Staaten doch unbeschadet ihrer Selbständigkeit für sich geiten lassen'. ⁽¹⁵²⁾ Thus, the law of nations is only taken into account in as far as it can be deduced from the sovereign will of states, i.e., in the form of laws and treaties, the latter never to be considered other than as the immediate expression of the wiIl of states and therefore, never to be seen as a power superior to that will: 'Diese letzte Autorität (the "Gesammtakt") ist nämlich nie eine einzige, keine rechtliche Einheit, sondern bleibt immer nur ein Aggregat souverainer Einzelwillen'. ⁽¹⁵³⁾
This analysis was perfectly correct and it was taken to its logical conclusion by JELLINEK, namely if the sovereign will of states can not recognize any other basis for its commitments than itself, and if in practice the state is subjected to these commitments, then these must be self-commitments. Sovereignty is, therefore, nothing more than the possibility of self-commitment, 'der Macht dem eigenen Willen Vorschriften zu geben in der Fähigkeit für sich Recht zu erzeugen'. ⁽¹⁵⁴⁾ However, as this law finds some basis for its validity in the will of states themselves, the commitment ceases to exist as soon as their volition changes. Obviously this means that everything is completely arbitrary, the very opposite of law or justice. This is partly compensated for by the fiction that 'beim Staatswillen (unlike the individu al will) dauert das Wollen des einmal für den Willen als Inhalt gesetzten, solange fort bis ein zweiter Willensakt erfolgt, durch welchen der Fortdauer des früheren Willensaktes ein Ende gesetzt wird. Der Staat hört nicht auf das zu wollen, was er einmal als Inhalt seines Willens gesetzt hat, bis ein entgegengesetzter Willensakt den ersten aufhebt.' ⁽¹⁵⁵⁾ The latter implies rather than precludes the possibility that a new decision will be derogatory to a previous one and that, therefore, in all treaties the clausuIa rebus (or rather: voluntatibus) sic stantibus is presumed. ⁽¹⁵⁶⁾
The recognition that this view leads to a deceptive validity of the law of nations and that, in fact, the arbitrary wills of states are left unbridled, induced TRIEPEL to try a different construction. ⁽¹⁵⁷⁾ Like BERGBOHM and JELLINEK, he based the law of nations on the collective will of the contracting states, but perceived a new, superior unity in their consensus, 'der Wille des einzelnen Staates kann nicht Quelle des Völkerrechts sein', he castigated JELLINEK'S argument, ⁽¹⁵⁸⁾ 'Nur ein zu einer Willenseinheit durch Willenseinigung zusammen geflossener Gemeinwille mehrerer oder vieler Staaten kann die Quelle des Völkerrechts sein'. If - and this is what TRIEPEL purports to argue - this Gemeinwille must be seen as a power superior to the single will of states, the question can be raised: how did this 'Gemeinwille' obtain this power? TRIEPEL somewhat confusedly answers, the basis of the power is 'dass in dem Gemeinwillen ... ihm (das heisst dem Staate) nicht ein durchaus fremder, sondern zugleich sein eigener Wille erscheint. Nicht lediglich sein eigener Wille, aber doch nicht schlechthin ein fremder Wille. Sodass ihm nichts auferlegt wird was er sich nicht selbst auferlegt hat'. ⁽¹⁵⁹⁾159 The answer is far from clear: is the validity des Gemeinwillens based on the fact that the state recognizes its own will in it? In that case, it boils down to JELLINEK'S construction and the objections against it remain. Or must this validity be found in the fact that another will has 'wanted' this result? In that case, the principle of sovereignty is abolished and replaced by a situation of dependence upon others - which surely cannot have been intended. Or - third and last possibility - is the fact that two or more wills of states were expressed in the Vereinbarung the basis for the commitment? This leaves one question open: 'what causes it?' and the 'answer' would appear to be a repetition of the original tenet rather than an answer. Thus, TRIEPEL is not much at varianee with JELLINEK ⁽¹⁶⁰⁾ and he only gives an apparent elimination of the inconsistencies of JELLINEK'S construction. Both conceptions were also advocated by others, ⁽¹⁶¹⁾ although none of these have come up with the required answer. On the contrary, during the past twenty-five years the theory was almost constantly challenged, first by KRABBE, who challenged it in his Lehre der Rechtssouveränität and not so long ago by KELSEN in his Problem der Souveränität. It can therefore hardly be considered a theory which obtains today.

11. The situation with regard to natural law is different. It has remained a title covering in fact widely differing concepts for which a common denominator is hard to find. The term has always been used and by many authoritative authors. ⁽¹⁶²⁾ If we ignore those different concepts, it could be said that natural law has always had advocates since the times of GROTlUS and consequently managed to keep alive through the years. However, to say this would mean to confuse the shadow with the substance. It is, therefore, necessary to take a close look at the intentions the authors had when using the term and to classify these intentions before anything meaningful can be said on the subject.
First of all, there is the significant difference, that some construe natural law as an invariable system of concrete, particular and valid rules (jus necessarium) beyond which there might or might not be room for variable rules, which are not part of natural law. Others, however, see natural law merely as a term covering all they seek to conceive or imagine as ideal (i.e., not yet valid) norms or legal ideas. The first group can differ in opinion with respect to the following questions: (1) How can the validity of this jus necessarium be explained? (2) What rules are included in it? The latter vary one from the other in the ways in which they seek to conceive these ideal norms: either as the types according to which the actual norms should be created, or as single universal principles, or as one, i.e., as the legal idea, an invariable form with a variable content, thus again abandoning natural law.
We shall first discuss the avocates of natural law as an invariable system of positive rules. The doctrine of natural law as 'ideal law' will be discussed hereafter.
In the first half of the nineteenth century, there was a tendency in Britain to ignore GROTlUS' work and to resort to older theories about natural law ⁽¹⁶³⁾ and to find the origin of this law in the will of God. MANNING writes: 'The law of nature being identical with the will of God, it is necessary to ascertain that will, which is done either by consulting direct revelation, if that is declaratory or by the application of human reason where revelation is silent'. ⁽¹⁶⁴⁾ And PHILLIMORE: 'States are therefore governed in their mutual relations partly by Divine and partly by Positive Law. Divine Law is either (1) that which is written by the finger of God on the heart of man ⁽¹⁶⁵⁾ when it is called Natural Law or (2) that which has been miraculously made known to him, when it is called revealed or Christian Law'. ⁽¹⁶⁶⁾
However, these statements were few and far between. Prevailing opinion based natural law not on the will of God, but on the actual co-existence of states - which in the era of COMTE'S positivism was inevitable. ⁽¹⁶⁷⁾ WHEATON'S definition was still slightly contaminated: 'The law of nations ... may be defined as consisting of those rules of conduct, which reason deduces, as consonant to justice, from the nature of the society existing among independent nations, with such definitions and modifications as may be established by general consent'. ⁽¹⁶⁸⁾ The pure deduction of law from the actual fact of co-existing states was, however, soon adopted by several authors; PASQUALE FIORE states: 'il existe des lois, un droit des gens naturel et nécessaire et c'est celui auquel toutes les nations doivent se soumettre, pour que leur coexistence soit possible'. ⁽¹⁶⁹⁾ '(II) se déduit de la Nature des états'. ⁽¹⁷⁰⁾ And RENAULT: 'de l'existence simultanée de nations également indépendantes, on peut déduire rationellement des règles des nécessités d'action ou d'inaction, qui forment ce qu'on appelle le droit des gens primitif, naturel, nécessaire, absolu.' ⁽¹⁷¹⁾ Similar words, but with a touch of psychology, are spoken by PRADIER-FODÉRÉ: 'il prend sa base sur la nature des choses, c'est à dire sur la nature sociable des êtres humains collectifs'. ⁽¹⁷²⁾ And only recently SCELLE stated: 'Par Ie seul fait de la coexistence et des rapports nécessaires qui sont établis entre Etats il s'est développé des règles de vie commune, qu'on appelle Ie droit international' ⁽¹⁷³⁾ and Lord PHILLIMORE argued: 'I1 y a des droits qui dérivent de l'existence pure (des états)'. ⁽¹⁷⁴⁾
These authors were often castigated, and this was not altogether unreasonable, for committing a serious logical error by deducing the law from facts. ⁽¹⁷⁵⁾ The mere existence of independent states does not automatically imply that they have a right to exist, let alone that they should have a right to equality, respect etc. The latter is an impermissibIe deduction and therefore the theory is doomed from the beginning. Another thing is, that a precarious construction slipped into the results. We have already pointed out above ⁽¹⁷⁶⁾ that the doctrine of natural law was used to attribute so-called sovereign (absolute) rights to the states and to construe their complex as an enclave in which the jus voluntarium could not or could only just penetrate, and that the results thus obtained differed very little from those of the 'Hegelian' sovereignty. As we have seen, ⁽¹⁷⁷⁾ KLÜBER, one of the first to catalogue these sovereign rights, still considered them 'alienable', although the absolute - and therefore illimitable - nature of these rights is postulated more and more; moreover, it seems that they vary in number: 'Il est à peu près sans exemple', says PILLET , 'que 1'énumération de 1'un soit identique à celle de l'autre'. ⁽¹⁷⁸⁾ The law of nature thus focussed upon, contains a number of international fundamental rights, but only one obligation, viz., that these fundamental rights should be respected. ⁽¹⁷⁹⁾ In his abovementioned study, PILLET points out that in his interpretation, specifically the implication of the right of independenee more or less parallels the concept of absolute sovereignty, not leaving any notable difference. 'L'indépendance de l'état (as a fundamental right) est 1'erreur la plus grave, qui ait jamais été commise dans notre domaine et à elle seule est responsable de la plus grande part des imperfections de notre science.' ⁽¹⁸⁰⁾ 'Elle conduit fatalement à la négation même de tout droit entre les Etats aussi bien qu'entre les individus.' ⁽¹⁸¹⁾
It is remarkable that the authors who committed the logical error of deducing the law of nature from the actual co-existence of states are the same as those who use the concept of fundamental rights, especially that of independence. ⁽¹⁸²⁾ The latter is in no way a logical consequence of the former and even implies another deliberate step in the wrong direction. We do not venture to decide whether both steps might have been induced by one and the same perhaps subconscious psychological factor, the desire to reconcile the theory of international law with the ideas of the European governments of those days. What can be said with certainty is that the untenability of natural law in this form has become so obvious that nowadays no, or hardly any, advocates of the theory are to be found. Nonetheless, they are to be seen from time to time and their presence demonstrates, on the one hand, a commendable desire to ensure an unshakeable basis for supranational rules, and a reproachable unawareness of the scope and meaning of the tenets they advocate on the other.
As an example of the extent of this lack of awareness a discourse, called La philosophie du droit international by the same author who stated in 1925: 'du fait seul on ne peut fair sortir le droit'. In 1922, LE FUR wrote the following: 'Le droit international repose sur deux principes fondamentaux: (1) l'existence d'Etats juridiquement égaux, entre lesquelles il existe des rapports sociaux, 2) la reconnaissance par ces Etats d'un minimum de loi commune, loi internationale, donc par la même aussi en un certain sens loi supranationale, qui s'impose aux états et qu'ils ne peuvent modifier au gré de leur volonté. ⁽¹⁸³⁾ The law of nations is, therefore, based on the existence of states legally possessing equal rights - but this would presuppose a supranational legal order, in which such equality is valid! - and on the recognition by these states of a right, which in the same sentence is declared to be independent of this recognition. ⁽¹⁸⁴⁾ The only reasonable explanation for this statement is that, consequently, the law of nations is based not on the co-existence of states, nor on recognition, but ... on a 'necessary minimum of rules of natural law, not depending on these states for their validity!' This is further explained on page 22, where the principle pacta sunt servanda is argued to be an immediate consequence of the notion of justice, 'elle même conséquence immédiate de la notion du bien moral, essentiel à l'homme' . Perhaps the author thought that, by writing these last words, he had successfully avoided answering the obvious question: what exactly is the basis for the validity of this minimum of rules?
If a method of such inconsistent nature is used to find solutions in a discourse entitled 'the philosophy of the law of nations', it is not surprising that in the textbooks, these final (or basic) questions of jurisprudence are answered poorly as well, and it is somewhat ironical to read the otherwise righteous recriminations of inconsistency levelled by our author at the foundations of LAWRENCE'S Principles of International Law. ⁽¹⁸⁵⁾
The attempt to find areasonable explanation of LE FUR'S construction has led us automatically to a new definition of the theory of natural law: not the actual intercourse between states, but the human sense of morality, bestowed upon him by his Creator, is mentioned as the basis for the rules of the law of nations. LE FUR appears to have more or less hinted at this already, although he did not fully develop this theory.
VIKTOR CATHREIN gave a clear explanation of what he considered to be the principles of the law of nations. ⁽¹⁸⁶⁾ 'die Gesetze die der Schöpfer sozusagen in die Natur des Menschen gelegt hat und die von diesem durch die blosse Vernunft als gültig anerkannt werden.' ⁽¹⁸⁷⁾ There are only two and together they are one: the human sense of morality. It is the positive and the negative formulation of that sense of morality and therefore, essentially but one single norm, a mandatory and simultaneously prohibitory formula: suum cuique tribuere ⁽¹⁸⁸⁾ and nemini iniuria facienda. According to CATHREIN, all other legal commands and prohibitions can readily and logically be deduced from it. 'Diese Schlussfolgerungen samt den beiden obersten Grundsätzen bilden das Naturrecht im engeren und eigentlichen Sinne. ⁽¹⁸⁹⁾ This law of nations contains the common legal rights and obligations of states towards one another. 'Diese Rechtspflichten sind Schlussfolgerungen aus den beiden obersten Geboten: du sollst jedem das Seine geben, und du sollst kein Unrecht tun.' ⁽¹⁹⁰⁾ 'Aus den obersten Grundsätzen des Naturrechts ergeben sich notwendig durch logische Schlussfolgerung manche pflichten und Rechte der souveränen Staaten unter einander. Dieser Teil der internationalen Rechte und Pflichten bildet das natürliche Völkerrecht, das unabhängig von positiven Gesetzen und Abmachungen für alle souveränen Völker aller Zeiten und Zonen gilt'. ⁽¹⁹¹⁾
Although CATHREIN can at least be given credit for expressing himself clearly and for leaving no doubt as to the scope of his words, it seems that his tenets cause problems in another field. For when we take a closer look at these oberste Grundsätze, it soon appears that they contain either all there is, or nothing at all. Either they are useless and meaningless, or they already presuppose the conclusion that is allegedly drawn from them. The fact that both adages: suum cuique tribuere and nemini iniuria facienda were unsound definitions of the legal concept, was already perspicaciously argued by LEVY- ULLMAN in 1917. ⁽¹⁹²⁾ On their own they are meaningless, and will remain meaningless until some content is given to the words suum and iniuria. However, this would imply a definition of the concept of 'law' as a whole, and thus the definition intermingles with the concept to be defined. CATHREIN'S train of thought deviates only apparently from it. He ostensibly purports to consider the adages (oberste Grundsätze as he calls them) as the major of a syllogism, from which the international legal obligations will follow naturally. His repeated use of the words logische Schlussfolgerung justifies this presumption and at a later stage it appears that he does use them in such a manner. It goes without saying that for a normal syllogism one oberster Grundsatz is insufficient, ⁽¹⁹³⁾ and therefore, the reader of CATHREIN'S essay is left on the brink of expectation: when at last will the minor appear? Finally, on page 61, it emerges, but without further introduction, as if it were implied by what went before and as such is nothing new. 'Jeder Mensch hat eine Summe von Rechten zum Beispiel das Recht auf sein Leben, seine Freiheit, seine Ehre und so weiter und zwar besitzt er diese Rechte ... auf Grund des natürlichen Sittengesetzes oder des Naturrechtes'. These last few words are just an attempt to throw dust in our eyes, for 'natural law' had hitherto consisted of the above-mentioned adages and in these, life, freedom etc. are not mentioned. ⁽¹⁹⁴⁾ That which the law of nature would further consist of had to be deduced from these two adages (cf., the quotations on page 39). Here we can see most clearly where the real trouble lies: the minor shall be: man has a right to life, honour, freedom etc. and the conclusion readily follows: therefore, these rights must be respected. ⁽¹⁹⁵⁾ However, this minor intermingles with the major in exactly the same way as in the alleged definition of 'suum' and 'iniuria' . It is the minor in its utmost arbitrariness which gives the major its scope and meaning. The relative arbitrariness of the series of rights is already conspicuous in the words zum Beispiel and und so weiter. They imply that man has still other 'legal rights', What are they? An exhaustive answer to this question would presuppose the criterion of 'legal right' and this in turn would presuppose the answer to the question: what is the content of natural law? . . . but this answer was to be provided by the conclusion! This proves the arbitrariness of the minor, and that CATHREIN'S conclusion need not follow from it at all. Consequently, the law of nature is proven to depend entirely on subjective opinion and empirical findings and thus, to be the opposite of what it has been passed off as. It is indeed surprising that an author like VIKTOR CATHREIN S.J., so much at home in the discursive methods of scholasticism, would commit logical errors of such magnitude.
However, if we stop to think about the significance of this failed syllogism we observe that the entire problem of the re1ationship between positive law and the concept of law or justice is implied in it. By way of a syllogism, CATHREIN introduces the moments of positive law. ⁽¹⁹⁶⁾ The major, reduced to its essential meaning, is the form of the reine Sollen, the pure norm, abstracted from any determinant or content. The minor is the determinative, the 'element of Being' or the content. The ratio of major and minor is that of form and content, or necessity and contingency. The conclusion unites these two factors, and as such is the concrete, determinate, actual norm which is not entirely absorbed by either of the two moments, i.e. the norm in which both major and minor are presupposed. Thus, the concrete norm must have a contingent aspect, viz., in as far as it is determinate, i.e., finite. On the other hand, as a norm it is also independent of human arbitrariness and natural contingency. As its validity is never based on nature or the human will, its determinative always depends on these two factors (which join together as one: nature is merely considered as a factor which conditions the will). The fact that these two aspects of the actual or concrete norm are inseparable, although they can be clearly distinguished, is overlooked by those who, using logical necessity, seek to construe a system of concrete legal rules as 'natural law'. Sooner or later, they will feel compelled to covertly introduce the moment of determination, finiteness or contingency in order to lend at least some verisimilitude to their 'close argument'. Thus, with regard to natural law, we have already shown that every theory proffering an invariable law of nature consisting of concrete, fixed legal rules, is based on a logical error, and must therefore prove untenable, a conclusion which is not altogether void of significance.

12. This means that we are now able to discuss the second basic form in which natural law manifests itself, namely the concept or rather the conception of 'ideal law', visualized sometimes as a different kind of law, placed outside positive law but yet related to it and sometimes as a number of general principles creating the basis of positive law.
The most thorough expounder of this conception and a very convincing advocate of it was LORIMER. 'Positive law is in all its branches merely declaratory', ⁽¹⁹⁷⁾ this is the quintessence of his philosophy. The only difference between positive law of whatever kind, whether civil law, penal law, or international law, and the law of nature is that the former is laid down in fixed rules and that it is known as such. Thus, all branches of law are natural law, though in a determinate form. It may be that the rule is known through custom, in which case it is the result of a subconscious process. ⁽¹⁹⁸⁾ However, in the case of international law, yet other sources of positive law must be taken into account: treaties, and, in general, acts of governments can imply the creation of a legal rule, so that their effect is not limited to the parties directly involved. ⁽¹⁹⁹⁾ The same role can be played by private persons, be it in an association (Institut de Droit International, International Law Association, etc.) or individually (authoritative writers). ⁽²⁰⁰⁾ These are the various ways by which law which already 'existed' as natural law, but was yet unknown, can be determined, i.e., fixed. The question is whether the law of nature in this form will prove to be a tenable conception. In a certain way it stands vis-a-vis positive law, in as much as the latter is known only as a set of fixed rules, whereas on the other hand they are closely interrelated in as much as positive law will always be natural law in its determinate and known form. This interrelationship renders it impermissible to conceive natural law and positive law as separate entities. Natural law should rather be conceived as one aspect of positive law, i.e., as the aspect of justice or, to use a more 'Germanic' word, of righteousness, which has been abstracted from concrete, determinate or positive law in order to justify its 'existence' vis-a-vis and apart from positive law. LORIMER'S conception of natural law boils down to a system of not yet actualized, i.e., not yet positive legal norms, which need only be determined to become actual. The only possible answer to the question of what these as yet undetermined norms intrinsically are, is that per se they are nothing, for their only characteristic is that they can be converted into positive law. To ask 'what they are per se' is to ask how they are determined vis-a-vis positive law, in other words ... before they are determined! The question is, therefore, totally meaningless and we can only conceive the norms of natural law as the determinants incident to any determination. Hence, the norms of natural law are abstractions or, to put it more correctly: they are one abstraction, conceived as many. ⁽²⁰¹⁾
Thus, a true understanding of LORIMER'S conception leads to the same conclusion as the analysis of CATHREIN'S failed syllogism: in the actual positive law we perceive a necessary, non-volitional aspect, i.e., the basis of its validity, hitherto indeterminate though determinable, as well as a contingent aspect, i.e., its determination or content. ⁽²⁰²⁾ Natural law in this form then proves to be a more or less lucid conception of the former aspect and as such it is not out of place. However, the omission of the latter aspect implies the danger of its misapprehension, so that it seems preferable to abandon this conception and to deal exclusively with the concept of 'ideal law'. The fact that this danger is real can be seen from JOSEPH KOHLER'S interpretation; the latter unjustly considers himself a neo-hegelian and has a very vague conception of his Kulturrecht or modernes Naturrecht. It is not even clear whether he wants to conceive this Kulturrecht as actually positive law or as 'ideal law', let alone whether he understands this 'ideal law' to be a moment of justice and thus abstains from giving it actuality per se. ⁽²⁰³⁾
Finally, when summarizing what natural law after HEGEL has contributed to the theory, we find that this was untenable because of logical construction errors, and, in its second major form, i.e., as a conception, it contained a truth to be developed from it by thought. However, this would have to lead to a rejection of the conception itself. In that sense it nevertheless retains its (relative) value.

In conclusion, our review of the various theories of natural law positively produced the following: (1) (CATHREIN c.s.) that determinate, valid norms could never be natural law, as their determinative is always interrelated with finiteness or variability, and therefore, incompatible with the characteristic of necessity of natural law, (2) (LORIMER) that the conception of norms of natural law as indeterminate, not yet valid rules leads to an understanding of the latter as the aspect of validity of positive law, which can be distinguished from it but may not be separated from it.
When we subsequently consider that the idea of a law of nature as a determinate though non-valid norm is per se a contradiction (for a non-valid norm is not a norm) and we must thus abandon the conception of natural law as a system of ready-made norms which in the end may not be called norms, it follows that in jurisprudence there is no room left for the law of nature.

13. In order to escape the consequences of HEGEL'S alleged denial of the law of nations, yet another cure has been recommended. The idea that law, and therefore, also international law, would find its validity in the human legal consciousness.
With regard to supranational law, to which we must of course limit ourselves, BLUNTSCHLI already pointed out the significance of the human legal consciousness. However, this was no novelty, as the medieval authors and, as we saw earlier, HUIG DE GROOT based the jus gentium on this universal legal consciousness, but as we have tried to prove, after HUIG DE GROOT this 'concept of humanity' was gradually replaced by the view that jus gentium, the law of nations and for nations, was only mediately based on the human legal consciousness, i.e., through the individual states.
BLUNTSCHLI abandons this viewpoint and states: 'Die Uebereinstimmung der Völker (consensus gentium) wirkt mehr noch als Ausdruck des gemeinsamen Rechtsbewusstseins der Menschheit, denn als Willensaeusserung der einzelnen Statent? ⁽²⁰⁴⁾ In the spirit of GROTIUS he argues: 'Wie in den Uebungen der Völker so ist auch in den Aeusserungen erleuchteter Staatsmänner und in den Werken der Wissenschaft das Rechtsbewusstsein der civilisirten Menschheit ausgesprochen'. ⁽²⁰⁵⁾ 'Wenn die herkommlichen Uebungen ... von dem fortschreitenden Rechtsbewusstsein gemissbilligt werden, so sind dieselben nicht oder nicht mehr verbindlich'. ⁽²⁰⁶⁾
WESTLAKE, too, more or less returns to this Grotian viewpoint. It is true that, speaking of the 'international society', he states: 'states are its immediate, men its ultimate members' ⁽²⁰⁷⁾ but for the validity of international law he still requires the universal consensus of humanity as a whole and does not attach any significance to the assent of the states involved: 'It is not necessary to show that the state in question has assented to the rule . . . It is enough to show that general consensus of opinion . . . is in favour of the rule'. ⁽²⁰⁸⁾ 'Le consentement général de l'opinion parmi ses membres est la seule autorité capable d'établir des règles'. ⁽²⁰⁹⁾
That which these authors called the basis of supranational law was defined for the first time in the works of KRABBE as the basis of all law. On the one hand, this corroborates the doctrine, as the latter will no longer be an unexplained and inexplicable exception to that which had remained unchallenged in the municipal law of states, namely the role of states in the development of law. On the other hand, its potential foibles could become more conspicuous, as in this definition the role of the human legal consciousness is emphasized to be the main point of the theory and no longer a relatively secondary matter.
We immediately obtain a better understanding of the nature of those hitherto somewhat vague words: 'legal consciousness', when we read 'that the legal nature of a norm and therefore its validity spring from the interrelationship between norms and the pristine human legal consciousness. If the connection between this part of spiritual life and norms is lost, norms have lost their validity'. ⁽²¹⁰⁾ Legal consciousness is called 'the binding force, a pristine power in the life of man, the fact of experience, which illuminates the existence and evolution of law'. ⁽²¹¹⁾
Hence, legal consciousness and norms are interrelated. Not until we find the answer to the question as to the nature of this relationship will we be able to fully understand the function or role of that legal consciousness. However, a general remark should be made concerning the relationship between those two notions. Consciousness always implies consciousness of something, legal consciousness thus concerns law and the validity and significance of certain norms. Therefore, what is called legal consciousness is the conscious mind of the individual for whom a certain norm holds true. For this conscious mind (which may be called legal consciousness, but which by calling it such will not be separated from other forms of consciousness, like those of esthetics, religion or morality), i.e., for this individual consciousness then, a certain norm is valid. This same individual consciousness (and not another adjacent one) then wonders how it has come about that such a binding norm holds true for it. The premise is: 'Why am I aware that this norm is binding for me and what does the obligation per se imply?' Thus, initially it wonders about the basis of this obligation and subsequently about the concept of its validity, the legal concept - and this will prove to be the answer to the first question.
Therefore, the conscious mind for which the norm holds true and the conscious mind questioning the basis and concept of its validity are one and the same. It was necessary to make this general remark in order to place KRABBE'S solution in the correct light. KRABBE'S answer to the above question is: a norm receives its validity from my legal consciousness, which in the light of our premise means nothing but: I am aware that a norm is binding because ... I am aware that it is binding, and therefore proves to be a perfect tautology. In Professor KRABBE'S very words: 'Hence, valid law is any norm. . . rooted in the human legal consciousness'. ⁽²¹²⁾ If we replace 'valid' by 'binding upon the conscious mind' and 'rooted in the legal consciousness' by 'valid for the conscious mind', the tautology is completed. Professor KRABBE himself did not draw this conclusion, and this is due to the fact that he did not think in terms of the unity of the conscious mind, but, perhaps erroneously, separated legal consciousness (i.e., the conscious mind aware of the binding norm) from 'other' forms of consciousness, specifically from the inquiring mind, searching for explanations. The latter, which is our own conscious mind searching for answers, is not initially conscious of itself at all. It experiences its content, i.e., the norm or obligation as an immediate datum, not as valid per se for the conscious mind and as such totally wrapped up in it. Wondering about the cause or ground of this immediate datum, Professor KRABBE reached the conclusion that legal consciousness is a separate form of consciousness for which norms hold true, and thus he achieved no more than a conscious mind per se which is aware of norms and which inquires after their validity. However, in this conception the conscious mind lies outside himself, i.e., it is not identical to the pristine inquiring mind, but another form of consciousness; the latter is an immediate datum, too, for which the pristine inquiring mind must be a fact. In that respect it makes no difference if occasionally it would be admitted that the 'fact' this form of consciousness is aware of is really nothing other than the conscious mind, when this legal consciousness is referred to as a 'power' lying outside one's own conscious mind, i.e., a 'part' that can be separated from it or a 'fact' which holds true for it. This projection of the conscious mind (as the legal consciousness) outside himself, i.e., this treatment of the self as an external factor leads to the view that something other than a tautology has been uncovered here.
Yet this doctrine, like the tautology of the positivists ⁽²¹³⁾ and CATHREIN'S failed syllogism, ⁽²¹⁴⁾ is not insignificant, as from this tautology the conclusion is drawn that every norm has its subjective aspect. Just like the 'actual observance', which is the criterion of positivism that made us realize that positive law must also be operative law, and must actually be observed, just like the major in CATHREIN'S syllogism that was nothing but the abstract, empty form of the Sollen, the tautology discussed here is significant because it shows us that norms as such must be known to become actual, positive law - even if the fact that they are known is not sufficient to obtain that status. At a later stage we will learn that these three moments - the abstract form of the Sollen, the recognition of its existence, and its factual validity - are the three moments of positive law. ⁽²¹⁵⁾

14. Although he seems to occupy an entirely separate place, DUGUIT'S theory shows great similarity to both the doctrine of the law of nature and that of the legal consciousness. Although DUGUIT himself is rather vague about the naturalist character of his tenets, ⁽²¹⁶⁾ the explanation of the latter by DE VISSCHER, especially with regard to international law, does not leave any doubt. However, we hope to be able to show that the theory of the Bordelaise professor himself also suffers from naturalist contaminations.
DUGUIT takes great pains over his method, which he calls 'une méthode véritablement et exclusivement réaliste', and he proposes to eliminate 'tout ce qui n'est pas un fait véritablement constaté", especially 'tout élément d'ordre métaphysique', In this view, the essence of science lies in that realistic method. ⁽²¹⁷⁾ Nevertheless, we suspect beforehand that he, too, will not stop at the facts and will have to work with relationships between those facts which are devised rather than observed and, therefore, will not be able to escape the inconsistency all empiricists and positivists suffer from. We are not, therefore, surprised to read on page 12: 'L'homme est un être conscient et sociable. Cela posé on aperçoit immediatement la nécessité d'une loi s'imposant à l'homme, vivant en société, et le caractère de cette loi', Although he explicitly reiterates that the necessary existence of this law 'résulte de l'observation des faits', even the closest observer will have to agree with us that this necessity is nowhere to be found, although it could be imagined on more or less correct grounds. ⁽²¹⁸⁾ The continuous repetition of the same tenet in the subsequent part of his argument is of no avail: at this point the untenability of this so-called scientific realistic method is most painfully uncovered. ⁽²¹⁹⁾
DUGUIT rejects any attempt to conceive law as a 'norm - in the normal sense - i.e., as a rule to which our will considers itself bound, because it is the expression of a superior power. He understands quite well that from the 'factual existence' of society the validity of ethical norms cannot be explained. Consequently, he tries to eliminate all ethics from his conception of norms and to convert norms into facts. The problem of right and wrong - one would say, the basis of any law - is consigned to the realm of idle speculation by using the almost vituperative term métaphysique, ⁽²²⁰⁾ and what remains is the fact that the social organism will react to an infringement of its laws by imposing sanctions. 'Quand je parle d'une norme s'imposant aux hommes et fondée sur le fait social, j'ai en vue une règle qui s'impose, à eux en fait, qui ne modifie d'aucune facon le caractère de leur être, la substance de leur vouloir ... Les cellules composantes d'un organisme sont soumises à la loi de cet organisme. De même les individues composant un groupement social sont soumis à la loi de ce groupement'. ⁽²²¹⁾ 'En parlant d'obligation, il est entendu ... qu'il s'agit non pas d'une obligation modifiant la volonté substantielle de l'individu, mais une obligation simplement sociale, c'est à dire telle que si elle n'est pas remplie, il se produit un certain déséquilibre dans les éléments constitutifs du groupement social et par suite une réaction sociale'. ⁽²²²⁾
The so-called 'loi sociale', i.e., the fact that acts of a certain nature will be followed by sanctions, consists of the law of economics, morality (?) and the rules of law. The extent to which DUGUIT is forced to eliminate all ethics from his conception of norms is most obvious in his definition of morality. It is impossible to conceive morality other than as a set of rules, which are valid for the conscious mind, and which are considered by the will as binding; but the latter would imply the reintroduction of 'metaphysics'! Thus, there is no alternative ... than to call that morality, which is not morality at all, viz.,: 'cet ensemble de pratiques, qu'on appelle les moeurs d'une société. Il apparait aussi bien pour la mode des habits (!) que pour les pratiques d'un ordre plus élévé'. ⁽²²³⁾
The fact that the reaction of the social organism is given neither automatically (in terms of economics) nor unorganizedly (in terms of 'morality') but 'la masse des esprits dans une société considérée, a conscience que la sanction de cette règle peut être assurée d'une manière permanente par une réaction sociale, reçevant une organisation plus ou moins développée', ⁽²²⁴⁾ is indicative of the existence of law. 'Pour nous, dire d'une norm qu'elle est obligatoire comme norme juridique, cela veut dire simplement qu'à un moment donné, dans le groupe considéré, si la norme est violée, la masse des esprits comprend qu'il est juste, suivant l'idée qu'elle se forme de la justice à ce moment, qu'il est nécessaire pour le maintien de l'interdépendance sociale, que ce qu'il y a de force consciente incluse dans le groupe, intervienne pour réprimer cette violation'. ⁽²²⁵⁾
Then follows a distinction which DUGUIT himself calls a 'distinction capitale', viz., the distinction between normative and constructive rules. The first definition of normative rules is rather unwieldy, it seems to apply to any rule of law: 'la règle de droit normative, ou règle de droit proprement dite, est la règle qui impose à tout homme vivant en société une certaine abstention ou une certaine action'. ⁽²²⁶⁾ But, by way of explanation, he goes on to say: 'elle est la condition même de la vie sociale. Elle est le statut social qui lie nécessairement tous les individus membres du groupe'. ⁽²²⁷⁾
Thus, constructive rules are those 'qui sont établies pour assurer dans le mesure du possible le respect et l'application des règles de droit normatives'. ⁽²²⁸⁾ Both italicized words point in the direction of a distinction we have previously observed: that of the jus voluntarium vis-a-vis the jus necessarium. In spite of the sociological make-up, in this 'modern' distinction the ancient classification is genuinely maintained. A few rules are valid independent of the human will, which in DUGUIT'S words means that 'la masse des esprits' must necessarily want their sanction, i.e., that no alternative remains, whereas with regard to the constructive rules there is room for dissenting opinions.
DUGUIT rejects the observation that at this point he has envisaged natural law, by saying that the rule he has in mind 'est la règle dérivant des conditions de vie actuelles, momentanées et changeantes d'une société donnée'. ⁽²²⁹⁾
If this were true, the 'necessity' of those normative rules would be a meaningless word: those rules would change with the 'changing circumstances of everyday life' and nobody would be able to foretell whether the rules which seem indispensable today might not prove obsolete tomorrow. However, if we look at the examples quoted by DUGUIT, we see that he does envisage precisely those rules which as jus necessarium are beyond the influence of changing circumstances in time, and, therefore, must be known as rules of natural law. Looking at the Code Civil, DUGUIT says, apart from family law, three normative rules can be seen: 'la liberté des conventions, Ie respect de la propriété, et l'obligation de réparer le préjudice causé à autrui. Toutes les autres dispositions sont d'ordre technique et constructif". ⁽²³⁰⁾ We are not able to find the influence of the 'conditions de vie actuelles' and it is hard to avoid the impression that we are dealing with naturalist principles here. ⁽²³¹⁾
However, any doubts on the subject are eliminated by DE VISSCHER'S elaboration of this distinction with regard to international law. He calls the normative rules 'les principes qui dominent la formation du droit positif, qui représentent l'élément inépuisable de vie et de progrès dans l'élaboration du droit international positif', ⁽²³²⁾ and he posits them opposite positive law as the essential vis-a-vis the accidental, the substantial vis-a-vis the formal, the eternal vis-a-vis the transitory. ⁽²³³⁾ In doing so, DE VISSCHER has merely made clear what DUGUIT hesitated to accept: that his distinction is one of natural law. The modern terminology eventually appears to define an ancient idea.

To sum up, we must conclude that no more than a glance at DUGUIT'S theory is sufficient to see: (1) that its realistic method is the opposite of 'vraiment scientifique', as it is untenable per se and leads to inconsistencies, (2) that it leads to the elimination of all ethical aspects from norms and converts the law into a biological set of rules, (3) that its distinction of normative and constructive rules ultimately leads to natural law.
From the above it will be abundantly plain that this is not the way to produce a tenable theory of the law of nations. DUGUIT specifically fails to release the law of nations from the ban of HEGEL'S denial. Although he seems to prefer the 'realistic method' to HEGEL'S speculative one, he leaves the latter - which he seems to know only from quotations in other writers' works or not at all ⁽²³⁴⁾ - unchallenged. Without further explanation he exchanges HEGEL'S method for his own, which is conspicuously untenable. It goes without saying that this is hardly the way to challenge HEGEL'S doctrine. ⁽²³⁵⁾

CHAPTER IV

CONCLUSIONS

15. During the discourse of the previous pages we have mentioned the most important authors and their theories from GROTIUS until today. We limited our discussion of their views to a rough outline, since they have often been discussed elsewhere. We did this because the history of this development, seen from one fixed angle, enables us to draw certain conclusions. We did not intend to challenge those views once again, as they have been challenged repeatedly and successfully before. We also refrained from an exhaustive discussion of the theories still obtaining today. But, whatever their value may be, we believe we have shown that on the special point discussed here, their construction had to prove untenable, whereas on the other hand, scant justice has been done to HEGEL'S views, for no evidence was found yet to justify their consignment to the same fate.
We have seen that since GROTIUS, the notion of the state has gradually gained importance and has become more prominent and that the law of nations, which in GROTIUS'S works is still practically unrelated to this notion, is subjected to its influence more and more. The development of the theory of supranational law from GROTIUS to HEGEL is a continuous self-criticism, a logical and necessary process. As the theory develops (and the European nations are organized as states) the notion of the state thrives to maturity. With regard to HEGEL, only one question remains, whether his strong affirmation contains a surplus, whether it does not overlook boundaries and limitations, the denial of which would be made quite comprehensible by the events and the spirit of his time.
This is what the theory of the law of nations should have taken as its starting-point, this is where its task for the coming age lies. Instead of accepting HEGEL'S heritage and following it up, people have misunderstood him or sought to forget him. We have seen that the few attempts to review his doctrine critically could only be valued as attempts, and that one single term 'allgemeiner Wille' almost universally lifted from its context and converted into the abstract 'will of states', has supplied the material for a series of contradictory constructions. Finally, we have observed a relapse back to natural law as a reaction to this and the birth of two new theories of law. However, these were of no use to us either or proved untenable when developed to the full.
This being the state of affairs, we are not at all surprised that an important movement has appeared which, being uncertain about an eventual solution to the problem at issue, fails to keep looking for answers and decides to presuppose them by way of a confirmative or negative hypothesis. The 'reine Rechtslehre' ⁽²³⁶⁾ designed by KELSEN is nothing but the methodical development of this sceptical reaction. KELSEN wants only to co-ordinate the empirical legal material and he shows that this can be done by taking either the primacy of municipal law or the sovereignty of the law of nations as a starting-point. Which of these viewpoints is adopted is a matter of personal inclination, but in either case it has only hypothetical value. Once the choice is made, KELSEN'S 'reine Rechtslehre' leads the way to a juridically pure ordering of the available material, although this cannot be done other than by (purposively and deliberately) turning a blind eye to anything that cannot be conceived as a norm itself. The fact that not until it is bereft of all non-normative characteristics - especially of its 'authority' - can the state assume a place in KELSEN'S system, is but one example of this.
The strictly maintained hypothetical nature of the pure doctrine of law cannot satisfy everybody and, therefore, some (e.g., VERDROSS) have sought to avoid it by proving the irrefutable existence of the 'Primat der Völkerrechtsverfassung'. ⁽²³⁷⁾ However, the justification of the choice between the two 'hypothetical norms of origin' lies beyond the field of pure jurisprudence and therefore KELSEN explicitly rejects it. The question is, however, whether this in itself unsupported scepticism has a cause and whether HEGEL'S doctrine of supranational law in particular and perhaps, consequently, one of the two hypotheses should be accepted. The fact that the answer to this question does not lie within what is called pure jurisprudence will not discourage us, for we are not forced to restrict our thoughts a priori to this field. Although pure jurisprudence may be a tool to put the available material into juristic shape, it cannot prescribe the scope of the material itself. Hence, we again find ourselves confronted with the task of examining HEGEL'S train of thought and of finding out whether this conclusion is really what it appears to be.

(To be continued with the remaining chapters:
V. Hegel's concept of law and state
VI. Hegel's theory of the law of nations and the modern organisation of states
VII. The doctrine of the world state, Kelsen's doctrine of pure law
VIII. Art. 38 of the Statute of the Permanent Court of International Justice.)

Endnotes:

1. Professor VERZIJL in: 'Rechtsgeleerd Magazijn', 1926, page 120 et seq.

2. The author even speaks of 'Vaihinger's inexorable(?) "Als-ob"; a way of thinking which by its mere superficiality makes it look like philosophy' (J. HESSING).

3. 'De Jure belli ac pacis', ed. MOLHUYSEN, Leiden, 1919, I, 1, para. 10, 1, page 25.

4. Op.cit. I, 1, para. 10, 5, page 26.

5. Op.cit. I, 1, para. 14, 1, page 30.

6. Ibid.

7. Op.cit. Proleg. 40, page 15.

8. Op.cit. I, 1, para. 14, 2, page 30.

9. Op.cit. II, 18, para. 4, 2, page 337.

10. Op.cit. I, 3, para. 16, 1, page 90.

11. Op.cit. II, 18, para. 4, 2, page 337.

12. Op.cit. Proleg. 40, page 15.

13. Otherwise: KOSTERS, 'Les fondements du droit des gens', Lugd. Batav., 1925, page 46.

14. S. PUFENDORFF, 'De Jure Naturae ac Gentium Libri VIII', Londini Scanorum, 1672, II, 3, para. 7. J.J. BURLAMAQUI, 'Principes du droit de la Nature et des Gens', Yverdon 1768, Tome VI, Cap. I, paras. 4-10. Cfr., REEVES in 'Recueil des Cours' etc., etc., 1924, II, page 33 and KOSTERS, op. cit. pages 76 and 182. However, KOSTERS does not consider BURLAMAQUI an exponent of the PUFENDORFF school.

15. ULR. HUBER, 'De Jure civitatis libri III', Franequerae, 1684, I, 4, 4, page 25.

16. Op.cit. I, 4, 25, page 28.

17. Op.cit. I, 42, 3, page 333.

18. 'Synopsis juris gentium' (1680). Ed. Carnegie Institute of Washington, 1916.

Cf., KOSTERS, op.cit. page 80.

19. Op.cit. Cap. I, page 2.

20. Ibidem, page 4. Cf., page 2: 'usus ... est index voluntatis gentium'

21. Ibidem, page 6.

22. Ibidem, page 7.

23. First in VITORIA: 'Quod naturalis ratio inter omnes gentes constituit vocatur jus gentium'. D'AGUESSEAU, 'Oeuvres' II, 337 (ed. 1773): 'Droit entre les nations'. J. BENTHAM, 'Principles of Morals and Legislation (1789)': 'International Law'.

24. J. REEVES in 'Recueil des cours' etc. 1924, II, page 32.

25. R. ZOUCHE, 'Iuris et iudicii fecialis sive iuris inter gentes et quaestionum de eorum explicatio' (1650). Ed. CARNEGIE Institute of Washington, 1911, page 1.

26. Op.cit. page 2.

27. Cf., KOSTERS, op.cit. pages 54 and 71.

28. EMÉRIC DE VATTEL, 'Le droit des gens ou les principes de la loi naturelle appliquée à la conduite et aux affaires des Nations et des souverains' (1758). Ed. Carnegie Institute of Washington, 1916: Préface, pp. V, XIV. Préliminaires para. 6 (page 3), para 7 (page 4). Contra: HOBBES, 'De Cive', I, 14, para 4 ed. 1642. Paris, page 158.

29. Op.cit. Préface page XVII. See also pages VIII, IX and XIX, Préliminaires

paras 9, 14, 15, 16, 20, etc. (pages 5, 8, 9, 11, etc.).

30. Ibidem.

31. Ibidem (italics by TELDERS).

32. Op.cit. para. 9, page 5.

33. Op.cit. para. 16, page 9.

34. Op.cit. para. 20, page 11.

35. Cf., also op.cit, para. 14, page 8.

36. S. RACHEL, 'Dissertatio altera de jure gentium' (1676). Ed. Carnegie Institute or Washington, 1916. Cf., c. ROHLAND in NIEMEYER'S 'Zeitschrift fur Internat. Recht', 1925: 'So RACHEL, Der Bahnbrecher des völkerrechtlichen Positivismus', and KOSTERS, op.cit. page 86.

37. Op.cit. Cap. II.

38. Op.cit. Cap. XVI, page 251.

39. Op.cit, Cap. XXV, page 259.

40. Op.cit, Cap. XXIII, page 256. ROHLAND calls this distinction 'klar und begrifflich' (Ioc.cit. page 49). The distinction between 'several or perhaps most' and 'few or perhaps only two' seems mere casuistry and anything but 'klar und begrifflich' to us!

41. Ibidem.

42. ROHLAND and KOSTERS do not refer to the matter.

43. 'Quaestiones juris publici', Lugd. Batav., 1737, Lib. II, Cap. V, (page 220), cf., Lib. I, Cap. II (page 40), Cap. X (page 77), Cap. XI (page 84), Cap. XII (page 95), Cap. XVII (page 121), Liber II, Cap. X (page 231) etc. 'De foro legatorum', Lugd. Batav. 1721, pages 57, 178, etc.

44. 'Quaest.' Lib. I, Cap. X (page 76).

45. 'Quaest. Lib. II, Cap. VII (page 233).

46. Ibidem Lib. I, Cap. XII (page 95). Cf., Cap. II (pages 10 and 41): 'Ratio juris gentium est anima; aequitas juris gentium magistra',

47. Cf., KOSTERS, op.cit. page 88 et seq.

48. 'Quaest' Lib. I. Cap. II (page 9).

49. 'De foro legatorum', page 159.

50. Ibidem, page 198.

51. 'Quaest: Lib. I, Cap. XII (page 98).

52. J.J. MOSER. 'Grundsätze des jetzt üblichen Europäischen Völckerrechts in

Friedenszeiten', Hanau 1750, 'Vorrede' (n/n), page 3.

53. Ibidem, page 3.

54. Ibidem, page 5.

55. Op.cit. para. 6, page 2.

56. Op.cit. para. 7, page 2, para. 10, page 3.

57. Op.cit. para. 12, page 3.

58. Op.cit. para. 16, page 4.

59. Op.cit. para. 17, page 4.

60. FG. DE MARTENS, 'Precis du droit des gens moderne de I'Europe' (1789), 2nd

édition, Göttingen, para 7, page 9.

61. Op.cit. para. 9, page 13.

62. Op.cit. para. 6, page 8.

63. Op.cit. para. 7, page 10.

64. Op.cit. para. 8, page 12.

65. J . BODIN, 'Les six livres de la République', Paris, 1577, Éd. Latine 1591. VOET'S theory of the 'comitas gentium' in civil international law is based on the same notion: 'de Statutis eorumque concursu', Amsterdam, 1661, pp. 57, 143 etc.

66. C. VAN VOLLENHOVEN, 'De drie treden van het volkenrecht', Den Haag, 1919.

67. Cf., CHEVALLEY, 'Essai sur le droit des gens napoléonien', Paris, 1911.

GERARD DE RAYNEVAL, 'Institutions du droit de la nature et des gens', Paris, 1803.

68. KANT, 'Metaphysik der Sitten', para. 57, 2e Auflage von K. VORLÄNDER, Leip-

zig, 1907, page 177.

69. Op.cit. para. 58, page 178.

70. Op.cit. para. 61, page 181

71. Op.cit. para. 54, page 173; para. 61, page 180.

72. Ibidem. Cf., 'Zum ewigen Frieden' ('Werke' 1916, Part VI).

73. 73. SCHMALZ, 'Das Europäische Völkerrecht', Berlin, 1817, page 3. et seq. K.S.

ZACHARlAE, 'Vierzig Bücher vom Staate, Stuttgart 1820-1832, I, 106 et seq., 211 et seq. K.H.L. POELITZ, 'Die Staatswissenschaften', 1823, I, page 114 et seq.

74. Op.cit. page 42.

75. Op.cit. page 46.

76. Op.cit. page 45.

77. Op.cit. page 44

78. Op.cit. pages 9-10.

79. The function of proof of the 'usus' we have already found in TEXTOR'S words.

But does not the relationship between 'ratio' and 'usus' in BYNKERSHOEK mean the same as the relationship between 'Rechtsidee' and 'Gewohnheit' in SCHMALZ? And does this not remind us of STAMMLER'S 'Rechtsidee' on the one hand and the legal consciousness in KRABBE and his supporters on the other? See also page 56 et seq.

80. Op.cit, pages 10, 46.

81. J.L. KLÜBER, 'Droit des gens moderne de l'Europe', Stuttgart, 1819.

82. Op.cit. para. 21, page 40.

83. Op.cit. para. 39.

84. We will thoroughly investigate the true meaning of these statements later. The result will prove less absolute than it appears now.

85. 'Der eigenen immanenten Entwickelung der Sache selbst zuzusehen', 'Philosophie des Rechts', edition BOLLAND, Leiden, 1902, para. 2, page 2. Here, 'zusehen' means: to let the idea develop itself. Hence, any perception or observation of the senses is out of the question.

86. Cf., 'Womit muss der Anfang der Wissenschaft gemacht werden?' - 'Logik' I, page 51 et seq. (ed. LASSON).

87. Cf., 'Logik', page 63: 'Dies Einfache, das sonst keine weitere Bedeutung hat, dies Leere, ist also schlechthin der Anfang der Philosophie'.

88. Cf., 'Philosophie des Rechts' para. 2, 'Zusatz', page 2.

89. Cf., op.cit. para. 2, page 2.

90. Op.cit. para. 331, page 322.

91. Op.cit. para. 258, 'Zusatz', page 236.

92. Op.cit. para. 331, page 322.

93. Op.cit. para. 333, page 323.

94. Ibidem.

95. Op.cit. para. 336, page 324.

96. Op.cit. para. 333, page 323, para. 339 'Zusatz' page 326.

97. 'Die Weltgeschichte ist das Weltgericht' (SCHILLER).

98. Op.cit. para. 334, page 324.

99. Cf., para. 258 'Zusatz', para. 330 'Zusatz'.

100. See page 18.

101. Strictly speaking the positivists do not recognize any law at all, but only customary conduct, not customary law but custom, of which the adherence to treaties would be an example.

102. Op.cit. Berlin, 1871, 'Vorrede', page VII.

103. E.g., pages 6, 8.

104. PH. ZORN, 'Die Deutsche Staatsverträge' in: 'Zeitschrift für die gesammte Staatswissenschaft', 36. Band, 1880, page Ionwards. See also: 'Das Staatsrecht des Deutschen Reiches' I1, para. 35, 2nd edition, Berlin, 1897, page 411.

105. Op.cit. page 6.

106. Op.cit. page 20.

107. Op.cit. page 8.

108. Op.cit. page 9.

109. Op.cit. page 10.

110. Op.cit. page 36.

111. E. KAUFMANN, 'Das Wesen des Völkerrechts und die Clausuia Rebus Sic Stantibus', Tübingen, 1911, page 135.

112. 'Koordinationsrecht' is no law at all and this is clearly shown as KELSEN develops his argument. See also KEL8EN, 'Das problem der Souveränität und die Theorie des Völkerrechts, Tübingen, 1920, page 198 et seq., note 3.

113. Op.cit. page 128.

114. Op.cit. page 160.

115. Op.cit. page 179. Cf., HEGEL'S 'Rechtsphilosophie', para. 336, (page 325).

116. Op.cit. page 182.

117. Op.cit. page 151.

118. Op.cit. page 153.

119. Ibidem. Cf., HEGEL'S 'Rechtsphilosophie' paras. 342, 345 et seq.

120. J. BENTHAM, 'A general view of a complete code of laws', Works (Ed. BOWRING) lIl, 162. 'Principles of International Law', Works, II, 537. J. AUSTIN, 'Lectures on Jurisprudence', 5th edition, London, 1885, page 182 et seq., 575 et seq.

121. SUMNER MAINE sharply called AUSTIN'S theory, 'Very interesting but quite innocuous'.

122. PÜTTER, 'Beiträge zur Völkerrechtsgeschichte und Wissenschaft', Leipzig, 1843.

123. HEGEL, 'Philosophie des Rechts', para. 330 'Zusatz' 'An-sich' = implicit, not actual.

124. Op.cit. page 14.

125. Op.cit. page 18.

126. Op.cit. page 19.

127. FALLATI, 'Die Genesis der Völkergesellschaft' in: 'Zeitschrift für die gesammte

Staatswissenschaft', 1844, pages 160 et seq., 260 et seq., 558 et seq.

128. Frankfurt, 1845.

129. Op.cit. Kap. I, para. 2.

130. Op.cit. Kap. I, para. 4.

131.

132. See page 44 et seq.

133. Op.cit. 11. Teil, Kap. VI, para. 2.

134. Op.cit. 11. Teil, Kap. VI, para. 3.

135. Op.cit. III. Teil, para. 2.

136. Op.cit. III. Teil, para. 6.

137. HEGEL, 'Wenn ... der Staat mit der Nation in Eins zusammenfällt, so ist dies ein grosses Glück', 'Werke', XVIII: 48.

138. MANCINI, 'Diritto Internazionale', Naples, 1873, page 38. HEGEL, 'Der Staat (das Volk als Staat) ist die Verwirklichung der Freiheit'.

139. Op.cit. page 44.

140. Of which HEGEL is unjustly alleged to be the author, among others by VER-

DROSS, op.cit. page 5.

141. Op.cit. page 25.

142. Op.cit. page 72.

143. 'Wer den Völkerrechtsjuristen von heute einen bedächtigen Positivismus empfiehlt, der hat die Aufgaben nicht begriffen, die gerade unsere Zeit der Völkerrechtswissenschaft setzt', w. SCHÜCKING in 1912.

144. WALKER, 'A history of the law of nations', Cambridge, 1899, page 21.

145. See page 31. Cf., also KELSEN, op.cit. page 90.

146. CALVO, 'Le droit international théorique et pratique', Paris, 1880, page 130.

147. BULMERINQ, 'Praxis, Theorie und Codifiation des Völkerrechts' Leipzig, 1874, page 82. LAWRENCE, 'The Principles of international law', 4th edition, page 13.

148. WALKER, op.cit. page 21.

149. Their 'solution' does not vary much from the interpretation of those who find the basis of any law of nations in agreements and who never wonder whether this should be considered a reality or a fiction: FUNCK BRENTANO and SOREL, 'Précis du droit des gens', Paris, 1877, page 3. Cf., the handbooks by KENT, HALLECK, HALL, TAYLOR and others. Even KOSTERS writes (op.cit. page 259) that he "n'admet comme droit des gens que les seules règles, au sujet desquelles il existe réellement un consentement - jût-il présumé - entre les états'.

150. Cf., infra pages 47 and 63 et seq.

151. 'Kritik findet sich bei SOMLO und den anderen, KELSENS und SANDERS Arbeiten sind buchstäblich zu drei vierteln Kritiken und Polemiken', KUNZ: 'Völkerrechtswissenschaft und reine Rechtslehre', Vienna, 1923, page 15.

152. BERGBOHM, 'Staatsverträge und Gesetze als QueUen des Völkerrechts', Dorpat, 1877, page 19.

153. Op.cit, page 89.

154. JELLINEK, 'Die rechtliche Natur der Staatsverträge', Vienna, 1880, page 18.

Cf., 'Allgemeine Staatslehre', 3rd edition, Berlin, 1919, pages 375 et seq. and 479.

155. Op.cit, page 27.

156. Op.cit. page 40.

157. Just before TRIEPEL'S book was published, KAUFMANN in his work had mentioned this: 'Die Rechtskraft des internationalen Rechts', Stuttgart 1899, page 77.

158. H. TRIEPEL, 'Völkerrecht und Landesrecht', Leipzig, 1899, page 32. He calls JELLlNEK'S theory a 'logische Unding', page 77.

159. Op.cit. page 82.

160. Cf., KELSEN op.cit. page 138.

161. Supporters of TRIEPEL are among others: HEILBORN, 'Grundbegriffe des Völkerrechts', 1912, supporters of JELLINEK are among others VON LISZT, 'Das Völkerrecht' and E. MAYER, 'Die juristische Natur des Völkerrechts', Munich, 1918.

162. Theories of natural law, in whatever form, are those of: WHEATON (1836), MANNING (1839), HEFFTER (1844), PHILLIMORE (1836), RENAULT (1879), PRADIER-FODÉRÉ (1885), PASQUALE FIORE (1885), TRAVERS TWISS (1887), LORIMER (1893), HILL (1912), KOHLER (1918), CATHREIN (1918), MAUSBACH (1918), LORD PHILLIMORB (1923), LE FUR (1925) etc. etc. Cf., KOSTERS op.cit. page 157 et seq.

163. Cf., among other theories the scholastic doctrine in STAHL, 'Geschichte der Rechtsphilosophie', 5th edition, 1878, page 56 et seq. and the interpretations of the Reformers in M. BOEGNER, 'L'influence de la Réforme sur le développement du droit international', in 'Recueil des Cours' etc., 1925, I, pages 267 and 270.

164. W. OKE MANNING, 'Commentaries on the law of nations', 1839, page 58.

165. Cf., Romans 11: 15 ... the work of the law written in their hearts, their conscience also bearing witness . . .

166. Sir R. PHILLIMORE, 'Commentaries upon International Law', 3rd edition, London, 1879, page 15.

167. MANNING takes a peculiar turn when he claims that the only thing God can want for humanity is happiness, so that 'the principle of utility is identical with the law of nature'. Yet he emphatically states that he is not an admirer of Bentham's theorie (op.cit, pages 58-59).

168. H. WHEATON, 'Elements of International Law', 1836, Ch. I, para. 11, page 46 (italics by me).

169. PASQUALE FIORE, 'Nouveau Droit International public', 2nd edition, Paris, 1885, page 153. Cf., DESPAGNET, 'Cours de droit international public', 2nd edition, Paris, 1899, page 37 et seq.

170. Op.cit, page 156.

171. L. RENAULT, 'Introduction à l'étude du droit international', Paris, 1879, page 13.

172. PRADIER-FODÉRÉ, 'Traité du droit international public européen et américain', Vol. I, Paris, 1885, page 72.

173. G. SCELLE, 'Le Pacte des nations et sa liaison avec Ie Traité de Paix', Paris, 1919, page 37.

174. Lord PHILLIMORE, 'Droits et devoirs fondamentaux des Etats', Recueil des Cours' etc. 1923, page 29

175. 'Du fait seul on ne peut faire sortir le droit', LE FUR in R.D. I, 1925, page 63. 'Par elle-même et à elle seule une situation de fait n'engendre jamais une relation juridique', CH. DE VISSCHER, 'Recueil des Cours' etc., 1925, I, page 342. 'Un simple fait matériel ne peut pas produire un effet dans le domaine du droit', DUGUIT, loc. cito I, page 158. 'Es führt also keine logische Brücke von demjenigen was ist zu demjenigen was sein solI', HEYMANS, Einführung in die Ethik, 1914, page 10, etc. etc.

176. Page 192.

177. Ibidem.

178. A. PILLET, 'Recherches sur les droits fondamentaux des Etats' in: 'Revue générale de droit intern. public', 1898, para 1, No. 1.

179. RENAULT op.cit. page 13: 'Ce droit (naturel) est nécessairement restreint, parce qu'il a surtout un caractère négatif'.

180. Op.cit. para. 2, No. 6.

181. Op.cit. para. 2, No. 7.

182. Except SCELLE.

183. L. LE FUR, 'La philosophie du droit international', in 'Revue générale de droit international public', 1922. Offprint, page 9. Cf., 'Jus naturae ac gentiurn', 'Umfrage' in NIEMEYER'S 'Zeitschrift für internationales Recht', 1925, page 125 et seq

184. Qui s'impose aux Etats'.

185. 'Revue de droit international et de législation comparée', 1925, page 70 et seq.

186. V. CATHREIN, 'Die Grundlage des Völkerrechts', Freiburg, 1918. The same ideas in J. MAUSBACH, 'Naturrecht und Völkerrecht', Freiburg, 1918.

187. Op.cit. page 45. Cf., MAUSBACH, page 22.

188. Cf., MAUSBACH, op.cit. page 52 et seq.

189. Op.cit. page 48.

190. Op.cit. page 61.

191. Op.cit. page 62.

192. LEVY-ULLMANN, 'La définition du droit', Paris, 1917, page 17 et seq.

193. One, for both 'Grundsätze' are one and the same positive and negative 'Satz', so that a conclusion can be drawn from neither of them.

194. Cf., MAUSBACH, op.cit. page 27, where somewhat covertly the same line of argument is followed and the minor is found in: 'den Sinn und Zweck aller Wesen und Einrichtungen'.

195. For the maior 'nemini iniuria facienda' the same holds true, mutatis mutandis.

196. In itse1f there is nothing against this: cf., the Stoic and HEGEL'S 'Alles ist ein Schluss', VI: para. 181.

197. J. LORIMER, 'The institutes of the law of nations', Edinburgh-London, 1883, I, page 14.

198. 'Customs as unconscious interpreters of the law of nature', op.cit. I, page 27. Cf., HEGEL, Philosophie des Rechts, para. 211.

199. Op.cit. pages 39-43.

200. Op.cit. I, page 54. Cf., Article 38 of the Statute of the Permanent Court of International Justice.

201. Whereas their only determinative is 'determinability' they are not yet many, as this would suppose a variety of determinatives.

202. Cf., LE FUR in 'Jus naturae ac gentium' Loc.cit., page 115: 'Car immuable dans son élément premier - qui n'est autre chose qu'un principe moral(?), l'idée de la justice, l'âme du droit - le droit est très variable au contrair dans son application'.

203. J. KOHLER, 'Grundlagen des Völkerrechts', Stuttgart, 1918, page 3: 'Die Ordnung muss so gestaltet sein, dass sie den Anforderungen der Kultur entspricht; ein diesen Anforderungen entsprechendes Recht ist eben das Kulturrecht'.

204. BLUNTSCHLI, 'Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt', Nordlingen 1868, I, para. 13.

205. Op.cit. I, para. 16.

206. Op.cit. I, para. 15.

207. J. WESTLAKE, 'Collected papers', ed. L. OPPENHEIM, Cambridge, 1914, page 78.

208. Ibidem.

209. 'Principes du droit international', ed. NYS, Brussels-Paris, 1895, pages 83-84.

210. 'Het Rechtsgezag', The Hague, 1917, page 12.

211. Op.cit. pages 14-15.

212. Op.cit, page 2.

213. Vide supra page 30.

214. Vide supra page 40.

215. Vide infra page 63 et seq.

216. He even rejects the view that his doctrine would be related to natural law (but cf., page 228).

217. L. DUGUIT, 'Traité de droit constitutionel', Vol. 1, Paris, 1921, pages 3-11.

218. 'The necessity does not exist, it is not there. it can neither be controlled nor observed, nor can it be indicated or shown: BOLLAND, 'Spreuken' (1911): 90. (Necessity can only be conceived!).

219. If DUGUIT had been consistent he would have arrived at the doctrine of positivism. The only thing that can be observed is that states repeatedly act in the same way. The so-called realistic science of the law of nations would then have to be confined to a description of those acts, and this is exactly what MOSER and DE MARTENS, and later WALKER, CALVO, BULMERINQ et al. have indicated to be its task.

220. The so-called realistic method itself is based on a 'métaphysique' but on one

of the worst kind!

221. Op.cit. I page 18.

222. Op.cit. I page 20.

223. Op.cit. I page 28.

224. Op.cit. I page 41.

225. Op.cit. I page 65. It will not escape the reader's attention that with the two words I have written in italics (peut (may) and juste) ethics or 'métaphysique' are reintroduced! For their meaning cannot be anything other than that the rule must be known as just, or there can be no question of law.

226. Op.cit. I, page 37.

227. Op.cit. I page 38.

228. Ibidem.

229. Op.cit, II, page 71.

230. Op.cit. I, page 40.

231. Cf., KELSEN, 'Allgemeine Staatslehre', page 16: 'Kritische Untersuchungen der modernen soziologischen Systemen haben gezeigt, dass sie alle . . . doch wiederum nur Ethik, Theologie oder Naturrecht betreiben' ..

232. CH. DE VISSCHER, 'La Codification du droit international', 'Recueil des Cours' etc., 1925, I, page 342.

233. Op.cit. page 345.

234. Cf., J.J. ROUSSEAU, KANT, and HEGEL' in: 'Revue de droit public', 1918.

235. Cf., page 22.

236. 'Das Problem der Souveranität' etc., Tübingen 1920. 'Allgemeine Staatslehre', Berlin, 1925.

237. VERDROSS, 'Die Einheit des rechtlichen Weltbildes', Tübingen, 1923, page 134.