307 



to this view, International Law or Right is nothing more than positive 

 morality. The last proposition is, indeed, undoubtedly true ; but it is 

 equally clear, as we have seen, that his definition of the law is untenable, 

 and that his conclusion that International Law, or Right, is not law in 

 the true sense, cannot be sustained. On the contrary, it constitutes a 

 system of law, or right, essentially similar in its nature, and in its general 

 principles and method to the Law of Private Right, or rather to that por- 

 tion of the Law of Private Right which consists of the doctrine oi rights, 

 as distinguished from the doctrine of actions; which, as we have seen, con- 

 sists merely of the principles of justice or natural riglit — including, of 

 course, such arbitrary and accidental piinciples as are admitted by those 

 principles. Hence, it must be said that not only International Right, 

 but Private Right also, are, in fact, only positive morality ; for they both 

 consist merely of the principles of natural justice as received in the gen- 

 eral conscience, and these constitute but a branch or division of positive 

 morality. 



International Law, therefore, may be described as being merely an 

 application of the principles of justice or natural right to the relations 

 existing between different States, regarded as juridical persons ; nor is any 

 other conception of it possible. The theory that conceives it to be based 

 upon custom, and also that which conceives it to be based on convention, 

 and, iu fine, all other theories, are necessarily included in this. For each 

 of these theories rests upon the assumption that justice, or right, demands 

 the observance of the principle asserted, i. e., the observance of custom, 

 or of^ convention— and hence, as in the case of private law, the practice of 

 nations, and treaties, and other contracts are merely elements in the 

 problem ; which, in every controversy, is simply to determine, in view of 

 these, and all other circumstances, what are the mutual rights and obli- 

 gations of the parties. 



The doctrine of private rights, as observed in each State, and the doc- 

 trine of international rights, are, therefore, essentially the same ; and this 

 was well and clearly conceived by the Roman lawyers in their concep- 

 tion of {ha jus gentium or jus naturale, and by Aristotle in liis conception 

 of the nomos koinos, or common law, as including all those principles of 

 natural right, or justice, observed by men generally. But in both cases, 

 as we have observed, with regard to Private Right, the principles of jus- 

 tice or natural right can become the practical standard only when gener- 

 ally received. (6) 



§ 53. Of Private International Right. 



Hence, the system of rules and principles known as private interna- 

 tional law, and sometimes treated under the title, "The Conflict of 

 Laws," is improperly so called. This system may be described as in- 

 cluding the rules and principles which govern the transactions taking 

 place outside of the State, but presented to the courts of the State for 

 determination. Controversies with reference to such transactions are 



