18 Apr George Washington’s 220 Year Overdue Library Book: “The Law of Nations”
In all the amused press notices about George Washington’s (very) overdue library books, one small detail is worth noting.
The library’s ledgers show that Washington took out the books on 5 October 1789, some five months into his presidency at a time when New York was still the capital. They were an essay on international affairs called Law of Nations and the twelfth volume of a 14-volume collection of debates from the English House of Commons.
(Emphasis added). Actually, the “Law of Nations” as most of our readers know, is the 18th century term for what today we call international law. And “Law of Nations” may in fact refer to Emmerich de Vattel’s “The Law of Nations”, perhaps the most influential treatise on international law among the American Founding generation. Was ol’ GW researching his Neutrality Act Proclamation?
Response… Actually, they’re not the same – the former being rooted in natural law and therefore binding on rulers/governments with or without their consent, the latter (coined by Bentham in the 1790s) referring to a a “club rules” regime whose authority stems solely from state consent to be bound. GW could have been looking for insight into the consequences of this distinction.
Edward, I believe Vattel’s description of the law of nations(or what he called “principles of the law of nature applied to nations”) does postulate state consent as a source of that law. Vattel divided the law of nations into two principle parts: (1) the necessary law of nations — those immutable principles that form and underlie this concept of law; and (2) the positive law of nations. This latter category included treaties and custom. It also included something Vattel termed the “voluntary law of nations.”
Of course, scholars disgreed on both the content and scope of the “law of nations.” See e.g. Henry Wheaton, History of the Law of Nations, in Europe and America: From the Earliest Times to the Treaty of Washington, 1842 (1845). It might fairly be argued, then, that the “natural law” principles of the law of nations — though fixed and scientifically discoverable in theory — where actually more closely akin to positive law in fact. It seems that it was only when natural law theories were accepted by a sufficient number of sovereigns that they became “law.” I am not sure we can readily distinguish between what was the immutable natural law and what was a customary modification of it.
Response…John, What I am referring to is the immediate political context in which what you describe was evolving: those obstreperous colonies had proclaimed “inalienable rights”; the French legislature was considering a resolution proclaiming that the “rights of man” extended to the “right of nations” to use armed force, if necessary, to secure such rights in neighboring countries. The reaction from Bentham et al. may have had less to do with jurisprudence, as such, than with the threat posed to other sovereigns by the zeal with which the manipulability of Grotian/Vattelian definitions was being exploited. BTW, to my knowledge, no one has investigated what Congress had in mind when, in one swoop, it substituted the words “international law” for “law of nations” wherever the latter appeared in federal statutes. The change may not be insignificant, e.g., for jurisdictional statutes such as Alien Tort Claims – but (feel free to correct me) I’m not aware anyone has dealt with it.