Front Page Titles (by Subject) ESSAY I.: OBJECTS OF INTERNATIONAL LAW. - The Works of Jeremy Bentham, vol. 2
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ESSAY I.: OBJECTS OF INTERNATIONAL LAW. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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OBJECTS OF INTERNATIONAL LAW.
If a citizen of the world had to prepare an universal international code, what would he propose to himself as his object? It would be the common and equal utility of all nations: this would be his inclination and his duty. Would or would not the duty of a particular legislator, acting for one particular nation, be the same with that of the citizen of the world? That moderation, which would be a virtue in an individual acting for his own interests, would it become a vice, or treason, in a public man commissioned by a whole nation? Would it be sufficient for him to pursue in a strict or generous manner their interests as he would pursue his own?—or would it be proper, that he should pursue their interests as he would pursue his own, or ought he so to regulate his course in this respect as they would regulate theirs, were it possible for them to act with a full knowledge of all circumstances? And in this latter case, would the course he would pursue be unjust or equitable? What ought to be required of him in this respect?
Whatever he may think upon these questions—how small soever may be the regard which it may be wished that he should have for the common utility, it will not be the less necessary for him to understand it. This will be necessary for him on two accounts: In the first place, that he may follow this object in so far as his particular object is comprised in it;—secondly, that he may frame according to it, the expectations that he ought to entertain, the demands he ought to make upon other nations. For, in conclusion, the line of common utility once drawn, this would be the direction towards which the conduct of all nations would tend—in which their common efforts would find least resistance—in which they would operate with the greatest force—and in which the equilibrium once established, would be maintained with the least difficulty.
Let us take, for example, the famous law with respect to prizes, adopted by so many nations at the suggestion of Catherine II. of Russia. How formidable soever may have been the initiating power, there is no reason to think that it was fear which operated upon so many nations, together so powerful, and some of them so remote: it must have been its equity, that is to say, its common utility, or, what amounts to the same thing, its apparent utility, which determined their acceptance of it. I say real or apparent; for it will be seen that this is not the place to decide without necessity upon a question so delicate and complex.
But ought the sovereign of a state to sacrifice the interests of his subjects for the advantage of foreigners? Why not?—provided it be in a case, if there be such an one, in which it would have been praiseworthy in his subjects to make the sacrifice themselves.
Probity itself, so praiseworthy in an individual, why should it not be so in a whole nation? Praiseworthy in each one, how can it be otherwise in all? It may have been true that Charles the Second did well in selling Dunkirk: he would not have done less well, had he not put the price in his own pocket.
It is the end which determines the means. Here the end changes (or at least appears to change;) it is therefore necessary that the means should change or appear to change also.
The end of the conduct which a sovereign ought to observe relative to his own subjects,—the end of the internal laws of a society,—ought to be the greatest happiness of the society concerned. This is the end which individuals will unite in approving, if they approve of any. It is the straight line—the shortest line—the most natural of all those by which it is possible for a sovereign to direct his course. The end of the conduct he ought to observe towards other men, what ought it to be, judging by the same principle? Shall it again be said, the greatest happiness of his own subjects? Upon this footing, the welfare, the demands of other men, will be as nothing in his eyes: with regard to them, he will have no other object than that of subjecting them to his wishes by all manner of means. He will serve them as he actually serves the beasts, which are used by him as they use the herbs on which they browse—in short, as the ancient Greeks, as the Romans, as all the models of virtue in antiquity, as all the nations with whose history we are acquainted, employed them.
Yet in proceeding in this career, he cannot fail always to experience a certain resistance—resistance similar in its nature and in its cause, if not always in its certainty and efficacy, to that which individuals ought from the first to experience in a more restricted career; so that, from reiterated experience, states ought either to have set themselves to seek out—or at least would have found, their line of least resistance, as individuals of that same society have already found theirs; and this will be the line which represents the greatest and common utility of all nations taken together.
The point of repose will be that in which all the forces find their equilibrium, from which the greatest difficulty would be found in making them to depart.
Hence, in order to regulate his proceedings with regard to other nations, a given sovereign has no other means more adapted to attain his own particular end, than the setting before his eyes the general end—the most extended welfare of all the nations on the earth. So that it happens that this most vast and extended end—this foreign end—will appear, so to speak, to govern and to carry with it the principal, the ultimate end; in such manner, that in order to attain to this, there is no method more sure for a sovereign than so to act, as if he had no other object than to attain to the other;—in the same manner as in its approach to the sun, a satellite has no other course to pursue than that which is taken by the planet which governs it.
For greater simplicity, let us therefore substitute everywhere this object to the other:—and though unhappily there has not yet been any body of law which regulates the conduct of a given nation, in respect to all other nations on every occasion, as if this had been, or say rather, as if this ought to be, the rule,—yet let us do as much as is possible to establish one.
1. The first object of international law for a given nation:—Utility general, in so far as it consists in doing no injury to the other nations respectively, saving the regard which is proper to its own well-being.
2. Second object:—Utility general, in so far as it consists in doing the greatest good possible to other nations, saving the regard which is proper to its own well-being.
3. Third object:—Utility general, in so far as it consists in the given nation not receiving any injury from other nations respectively, saving the regard due to the well-being of these same nations.
4. Fourth object:—Utility general, in so far as it consists in such state receiving the greatest possible benefit from all other nations, saving the regard due to the well-being of these nations.
It is to the two former objects that the duties which the given nation ought to recognise may be referred. It is to the two latter that the rights which it ought to claim may be referred. But if these same rights shall in its opinion be violated, in what manner, by what means shall it apply, or seek for satisfaction? There is no other mode but that of war. But war is an evil—it is even the complication of all other evils.
5. Fifth object:—In case of war, make such arrangements, that the least possible evil may be produced, consistent with the acquisition of the good which is sought for.
Expressed in the most general manner, the end that a disinterested legislator upon international law would propose to himself, would therefore be the greatest happiness of all nations taken together.
In resolving this into the most primitive principles, he would follow the same route which he would follow with regard to internal laws. He would set himself to prevent positive international offences—to encourage the practice of positively useful actions.
He would regard as a positive crime every proceeding—every arrangement, by which the given nation should do more evil to foreign nations taken together, whose interests might be affected, than it should do good to itself. For example, the seizing a port which would be of no use except as the means of advantageously attacking a foreign nation;—the closing against other nations, or another nation, the seas and rivers, which are the highways of our globe;—the employing force or fraud for preventing a foreign nation from carrying on commerce with another nation. But by their reciprocity, injuries may compensate one another.
In the same manner, he would regard as a negative offence every determination, by which the given nation should refuse to render positive services to a foreign nation, when the rendering of them would produce more good to the last-mentioned nation, than it would produce evil to itself. For example, if the given nation, without having reason to fear for its own preservation (occupying two countries of which the productions were different,) should obstinately prohibit commerce with them and a foreign nation:—or if when a foreign nation should be visited with misfortune, and require assistance, it should neglect to furnish it:—or, in conclusion, if having in its own power certain malefactors who have malâ fide committed crimes to the prejudice of the foreign nation, it should neglect to do what depends upon it to bring them to justice.
War is, as has been said, a species of procedure by which one nation endeavours to enforce its rights at the expense of another nation. It is the only method to which recourse can be had, when no other method of obtaining satisfaction can be found by complainants, who have no arbitrator between them sufficiently strong, absolutely to take from them all hope of resistance. But if internal procedure be attended by painful ills, international procedure is attended by ills infinitely more painful—in certain respects in point of intensity, commonly in point of duration, and always in point of extent. The counterpart of them will, however, be found in the catalogue of offences against justice.
The laws of peace would therefore be the substantive laws of the international code: the laws of war would be the adjective laws of the same code.
The thread of analogy is now spun; it will be easy to follow it. There are, however, certain differences.
A nation has its property—its honour—and even its condition. It may be attacked in all these particulars, without the individuals who compose it being affected. Will it be said that it has its person? Let us guard against the employment of figures in matter of jurisprudence. Lawyers will borrow them, and turn them into fictions, amidst which all light and common sense will disappear; then mists will rise, amidst the darkness of which they will reap a harvest of false and pernicious consequences.
Among nations, there is no punishment. In general, there is nothing but restitution, to the effect of causing the evil to cease;—rarely, indemnification for the past; because among them there can scarcely be any mauvaise foi. There is but too much of it too often among their chiefs; so that there would be no great evil if, at the close of his career, every conqueror were to end his days upon the rack—if the justice which Thomyris executed upon Cyrus were not deemed more striking, and his head were not thrown into a vessel of blood,—without doubting that the head of Cyrus was most properly thrown there. But however dishonest the intention of their chiefs may be, the subjects are always honest. The nation once bound—and it is the chief which binds it—however criminal the aggression may be, there is properly no other criminal than the chief:—individuals are only his innocent and unfortunate instruments. The extenuation which is drawn from the weight of authority, rises here to the level of an entire exemption.
The suffrages of the principle of antipathy are here found in accord with the principle of utility: on the one part, vengeance wants a suitable object; on the other hand, every punishment would be unnecessary, useless, expensive, and inefficacious.
As to the third and fourth objects, it is scarcely necessary to insist on them:—nations, as well as men, sovereigns as well as individuals, pay sufficient attention to their own interests—there is scarcely any need to seek to lead them to it. There remain the two first and the last.
To actions by which the conduct of an individual tends to swerve from the end which internal laws ought to propose to themselves, I have given, by way of anticipation, the name of offences:—by a similar anticipation, we may apply the same appellation to actions by which the conduct of a whole nation swerves from the object which international laws ought to propose to themselves.
Among sovereigns, as well as among individuals, there are some offences de bonne foi; there are others de mauvaise foi. One must be blind to deny the latter—one must be much more sadly blind to deny the others. People sometimes think to prove their discernment by referring everything to the latter head, or to prove it equally by referring everything to the former. It is in this manner they proceed in judging of men, and especially of sovereigns: they grant to them an intelligence without limits, rather than recognise in them a grain of probity; they are believed never to have blushed at folly, provided that it has had malignity for its companion. So much has been said of the injustice of sovereigns, that I could wish a little consideration were given to the still more common injustice of their detractors; who, whilst they preserve their concealment, revenge themselves upon the species in general, for the adulation which in public they lavish upon individuals.
The following are among the causes of offences de bonne foi, and of wars:—
1. Uncertainty of the right of succession with regard to vacant thrones claimed by two parties.
2. Intestine troubles in neighbouring states. These troubles may also have for their cause an uncertainty of the same kind as the preceding, or a dispute concerning constitutional law in the neighbouring state, either between the sovereign and his subjects, or between different members of the sovereign body.
3. Uncertainty with respect to limits, whether actual or ideal. The object of these limits may be to keep separate either goods, or persons, or causes.
4. Uncertainty as to the limits of new discoveries made by one party or another.*
5. Jealousies caused by forced cessions, more or less recent.
6. Disputes or wars, from whatsoever cause they may arise, among circumjacent states.
7. Religious hatred.
Means of Prevention.
1. Homologation of unwritten laws which are considered as established by custom.
2. New conventions—new international laws to be made upon all points which remain unascertained; that is to say, upon the greater number of points in which the interests of two states are capable of collision.
3. Perfecting the style of the laws of all kinds, whether internal or international. How many wars have there been, which have had for their principal, or even their only cause, no more noble origin than the negligence or inability of a lawyer or a geometrician!
[* ]In modern times, one of the most fruitful sources of war has been the limits of new discoveries. They have sometimes been traced by common agreement:—but this has seldom happened till after wars or discontents which have sown the seeds of wars. It would be better to undertake such labours in cool blood, and to make previous arrangements with regard to possible discoveries, without waiting till they are made. It was thus that a pope once thought, with a mathematical line, to have for ever crushed the seeds of future wars. This was not ill-imagined at a time when the earth was flat, and the servant of servants was the ruler of kings. Since that time the earth has become round, and the power of the triple crown is somewhat retrenched. Still, however, that demarcation is not the less good as a lesson, how defective soever it may be as a law. The difficulty would be to trace such limits as should agree with objects which have not been seen. An island, for example: in what case ought the whole of it to belong to those who first discovered it, and when to many others who have equally touched at it? Ought it to belong to him who first saw it without entering it,—to him who first entered it,—or to him who first went round it? How also shall an island in every case be distinguished from a part of a continent, or even from an entire continent, which may be very extensive? And when it respects a discovered continent, to what distance shall the right of possession extend? Shall it be the space inclosed by the sea, the two nearest navigable rivers, and the high ground in which these rivers take their rise? What depth shall constitute a navigable river? &c. In these points may be seen a crowd of questions sufficiently difficult of resolution.