Executive Legislative and Judical Recognition of International Law in the United States

Authors

Charles G. Fenwick, Washington

Abstract

The indefiniteness which attends both the concept and the con- tent of what is known as international law will sufficiently explain why it is difficult to -determine the exact relation which that body of law which regulates the conduct of states bears to the domestic law of each individual state. First of all, jurists are not agreed as to whether international law deserves to be called law in any real sense. The followers of the school of AUSTIN who, restrict law to the category of commands imposed by a political superior upon a political inferior, naturally refuse to recognize the so-called international law as anything more than international morality. They look upon it as a system of rules more or less generally observed but lacking the effective sanction of laws imposed by a sovereign power upon its subjects. On the other hand, those who, with SAVIGNY and the school of historical jurisprudence, give a wider application to the term "law" and find in it the expression of the common will of a political community rather than of a command imposed by a political superior upon political inferiors; maintain that international law possesses the character of true law in as much as it consists of rules adopted by the common consent of nations and enforced largely by the moral sanction of public opinion.

Recommended Citation

Charles G. Fenwick, Executive Legislative and Judical Recognition of International Law in the United States, 11 Mich. L. Rev. 296 (1913).
Available at: https://repository.law.umich.edu/mlr/vol11/iss4/3