1 This work is dedicated to the memory of R. R. Baxter, Professor in the Harvard Law School and Member of the International Court of Justice, who suggested that in “the positivist and realist tradition of American legal science, we have made ourselves great accumulators, assimilators, and distributors of information about international law,” but that more Americans should “embark on general problems of the law.” Baxter, , The Present State of the Science of International Law in the United States, 1977–78 Int’l L. Ass’n (Am. Branch) Proc. 20, 24 Google Scholar.

2 Blackstone, W., Commentaries on the Laws of England (a facsimile of the first edition 1765–1769, University of Chicago ed. 1979)Google Scholar [hereinafter cited as Blackstone].

3 Burns & Hart, Introduction to J. Bentham, A Comment on the Commentaries and a Fragment on Government at xix–xx (Burns & Hart eds. 1977).

4 Id. at xx–xxiv.

5 Bentham, A Fragment on Government, id. at 391–551 [hereinafter cited as Fragment].

6 Id. at 391.

7 Id. at 422–24.

8 Id. at 394.

9 J. Bentham, A Comment on the Commentaries, in A Comment on the Commentaries, supra note 3 [hereinafter cited as Comment]. The most popular source for academic study of Bentham had been J. Bentham, the Works of Jeremy Bentham (Bowring ed. 1843) [hereinafter cited as Bowring]. Insofar as possible, the present work relies on the newly edited volumes prepared under the supervision of H. L. A. Hart and on a reading of some of the original manuscripts. The author is indebted to the library of University College, London, where he was permitted to work with Bentham’s own drafts.

10 Introduction, supra note 3, at xxiv–xxxiii.

11 Comment, supra note 9, at 36.

12 Id. at 36–37.

13 Id. at 37.

14 1 Blackstone, supra note 2, at 45.

15 4 id. at 66.

16 Id. at 67–73.

17 Id. at 67.

18 See Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 114 (1784); The Paquete Habana, 175 U.S. 677, 700 (1900).

19 4 Blackstone, supra note 2, at 66–67.

20 Bentham, J., An Introduction to the Principles of Morals and Legislation (Burns, & Hart, eds. 1970)Google Scholar [hereinafter cited as Principles].

21 “Principles of legislation in matters betwixt nation and nation, or, to use a new though not inexpressive appellation, in matters of international law.” Id. at 6.

22 Id. at 293–300.

23 Id. at 293–94.

24 Id. at 294.

25 Id.

26 Id. at 296.

27 Id. There are at least two places where D’Aguesseau (1668–1751) expressed the preferences attributed to him by Bentham. Interestingly, D’Aguesseau, like Bentham as we see below, limited his discussion to relations between states:

[O]n pourroit appeler le droit qui doit s’observer entre les nations, ou jus inter gentes; par une expression plus propre et plus exacte que le terme général de droit des nations, ou de jus gentium, terme qui, comme on l’a déjà vu, et comme on le verra encore dans la suite, peut avoir un autre sens. [14 H. F. D’Aguesseau, Oeuvres Complètes 602 (Pardessus ed. 1819).]

Sur le Droit des Gens proprement dit, c’est-à-dire, celui qui a lieu de nation à nation, et qui auroit dȗ être appelé jus inter gentes, plutôt que jus gentium. [15 id. at 268.]

It may be that reading D’Aguesseau sparked Bentham’s creation of the term “international.” In any case, Bentham’s term moved into French as well as into English. The French, of course, now refer to droit international, as well as to droit des gens.

28 Hart, H. L. A., The Concept of Law 231 (1961)Google Scholar.

29 Principles, supra note 20, at 296.

30 See Blackstone, text to notes 15 and 17 supra.

31 We should expect as much. Bentham was attempting mostly to reform the law, Blackstone mostly to restate it. For an early English case involving individual rights before a municipal court, see Lord Mansfield’s opinion in Triquet v. Bath, 97 Eng. Rep. 936 (1764). As Dickinson noted:

[T]he Law of Nations in the eighteenth century embraced a good deal more than the body of practice and agreement which came later to be called public international law. In the De Jure Belli ac Pads of Hugo Grotius and in the treatises of his successors, it had been expounded as a universal law binding upon all mankind. In countries of the common law, at least, arbitrary distinctions between private and public right or duty were still far in the future. The universal law was law for individuals no less than for states. As such, it was concerned somewhat indiscriminately with matters between individuals, between individuals and states, and between states.

Dickinson, , The Law of Nations as Part of the National Law of the United States, 101 U. Pa. L. Rev. 26, 26–27 (1952)Google Scholar.

32 Austin, J., The Province of Jurisprudence Determined 201 (ed. 1954)Google Scholar.

33 Id. at 140–42.

34 Jacobini, , Current Note: Some Observations Concerning Jeremy Bentham’s Concepts of International Law, 42 AJIL 415, 416–17 (1948)Google Scholar. Comparing the views of Austin and James Mill on whether international law was properly law, Jacobini concluded that “it is obvious that John Austin reflects more clearly the technical position taken by Bentham regarding this matter.” Id. at 417. It does not seem that Jacobini looked at the material cited infra at note 36, but rather relied exclusively on what had appeared in Bowring’s edition of Bentham, supra note 9.

35 Principles, supra note 20, at 297.

36 J. Bentham, of Laws in General at xxxi (Hart ed. 1970) [hereinafter cited as Laws].

37 Id. at 1

38 Id. at 16

39 Id.

40 Id.

41 See text to note 52 infra.

42 Laws, supra note 36, at 68–70.

43 Id. at 70.

44 Id.

45 Id.

46 H. L. A. Hart, supra note 28, at 231.

47 Principles, supra note 20, at 6.

48 2 Bowring, supra note 9, at 535–60.

49 Id. at 537–40 and 546–60. The other essays are Of Subjects, or of the Personal Extent of the Dominion of the Laws, id. at 540–44, which has to do with the question of which sovereigns may regulate which subjects, and Of War, Considered in Respect of Its Causes and Consequences, id. at 544– 46, which outlines Bentham’s view of the causes of war, a theme more fully developed in the Plan for an Universal and Perpetual Peace.

50 Id. at 537.

51 Id.

52 Id.

53 Id. at 538.

54 Id.

55 Id.

56 Id. at 539.

57 Id. at 540.

58 Id. at 546

59 Id. at 546–52

60 Id. at 552.

61 Id.

62 Id. at 554.

63 Id.

64 Id. at 553.

65 See H. L. A. Hart, Essays on Bentham 1–20 (1982).

66 In a note added in 1823, 34 years after the first publication of Principles, Bentham wrote: “As to the word international, from this work, or the first of the works edited in French by Mr Dumont, it has taken root in the language. Witness Reviews and Newspapers.” Principles, supra note 20, at 297.

67 There are probably thousands of examples where judges and publicists have used the law of nations and international law interchangeably. Let one example suffice: “The Law of Nations, or International Law, may be defined as the body of rules and principles of action which are binding upon civilized states in their relations with one another.” Brierly, J., The Law of Nations 1 (6th ed. Waldock 1963)Google Scholar.

68 See text to note 27 supra.

69 Jessup, P., Transnational Law 2 (1956)Google Scholar. In terms of inclúsiveness, transnational law is comparable to the old law of nations. Jessup created his new term because he felt “the term ‘international’ is misleading since it suggests that one is concerned only with the relations of one nation (or state) to other nations (or states).” Id. at 1.

70 See the contrasting points of view in Dreyfus v. Von Finck, 534 F.2d 24, 30–31 (2d Cir.), cert, denied, 429 U.S. 835 (1976); and Filartiga v. Peña-Irala, 630 F.2d 876, 884–85 (2d Cir. 1980).

71 A very pessimistic view of definitions of international law is to be found in Williams, , International Law and the Controversy Concerning the Word “Law,” 22 Brit. Y.B. Int’l L. 146 (1945)Google Scholar. Williams concludes that “[t]he only intelligent way to deal with a verbal question like that concerning the definition of the word ‘law’ is to give up thinking and arguing about it.” Id. at 163. This seems to go too far. If one cannot settle on a single definition of a term, e.g., international law, why not recognize how each definition has its time and place? Far from giving up thinking and arguing about the term, such recognition calls for a more thoughtful analysis.

72 Dickinson, supra note 31, at 27.

73 1 Blackstone, supra note 2, at 263–64.

74 Story, J., Commentaries on the Conflict of Laws, Foreign and Domestic at v (1st ed. 1834)Google Scholar.

75 Id. at 2.

76 Principles, supra note 20, at 296.

77 Whether the development of such rules outside international law was an unmixed blessing is an interesting question. We are much troubled by the notion of an international business or commercial law. See Loussouarn, Y. & Bredin, J., Droit du Commerce International 1–13 (1969)Google Scholar.