International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Fall 2010 Issue

 

 

 

 

 

EDITORIAL

 

United States Jurisprudence, Judicial Interpretation and “The Law of Nations”

Dr. James G. Apple By: James G. Apple, Editor-in-Chief, International Judicial Monitor and President, International Judicial Academy

In Article I, Section 8 of the Constitution of the United States, there appears a little known, rarely noticed phrase: “the law of nations.” Several years ago I was in the company of a professor of U.S. history and American studies from a relatively prominent U.S. university. I mentioned to him the existence of that phrase in the Constitution and was surprised to learn that he did not know of it. I have since determined that ignorance about this phrase in the U.S. Constitution is not uncommon among ordinary citizens, judges, practicing lawyers, and academics, legal and otherwise.

There is another very early reference to the “law of nations” in one of the first statutes passed by the United States Congress. The Judiciary Act of 1789 included the Alien Tort Statute, now codified as 28 United States Code § 1350, which provides jurisdiction in the U.S. district courts over lawsuits by aliens for torts in violation of the law of nations or treaties of the United States.

The phrase is almost never mentioned in the current public debate in the United States about the meaning of the U.S. Constitution, and how to interpret it. This situation is probably derived partly from ignorance and possibly because its presence is an embarrassment to those who look for an “original” interpretation of the Constitution. “Originalists” are those who argue that the Constitution should be interpreted according to its original meaning, the meaning that the writers and framers of the Constitution intended constitutional words to have (if ever that could be determined with any degree of specificity). Originalists don’t like the law of nations, or international law as it is now called, in discussions about constitutional interpretation and judicial decision-making, because it admits of some kind of nefarious “foreign influence” in the creation of the Constitution and in the development of legal systems of the United States. They argue vigorously against the use of any foreign or international law in the interpretation of the Constitution. The existence of international law and its heritage in U.S. jurisprudence, for them, becomes “inconvenient” for their approach to constitutional interpretation and the content of American jurisprudence. The law of nations may be inconvenient, but its relevance is an “inconvenient truth.”

In light of the ignorance surrounding the existence of this phrase and its meaning in the U.S. Constitution, and controversy in some circles about the consequences of its presence there and about its role in the development of  U.S. legal systems, it is useful to inquire where the phrase came from, what it means, how it came to be included in the U.S. Constitution, and its role in American jurisprudence.

The phrase, “the law of nations,” has actually been around for a long time. It was first used by a Spanish monk: a philosopher, theologian and teacher named Francisco de Vitoria in the sixteenth century. The treatises of another sixteenth century Spanish monk and philosopher, Francisco Suarez, also included it. The phrase became more widely used after the publication, in 1625, of the first real book on the subject by Dutchman Hugo de Groot, (Hugo Grotius), De Jure Belli ac Pacis (On the Law of War and Peace).  From that time continental legal writers such as Samuel Pufendorf, Emmerich de Vattel, Jean Barbeyrac and others regularly used the phrase.

Some of the observers and commentators who do not like the phrases “law of nations” and its more modern counterpart, “international law,” and deny their  relevance to American law and American legal systems, argue that the fundamental basis of the U.S. legal system is the English common law. For them, the English common law is the sole source of outside wisdom for the drafting of the Constitition. There is no room for the continental development of a law of nations or international law, and they cannot be used as a basis for interpreting the U.S. Constitution. Some would go further and deny the existence of a law of nations or international law.

A fundamental problem with this approach is that it ignores completely legal history and the content of the English common law.

If there is any text that could be said to embody the entirety of the English common law, it is William Blackstone’s famous Commentaries on the Laws of England, published between 1765 and 1769, while he was Vinerian Professor of English Law at Oxford University. Unfortunately for the originalists, references to the “law of nations” abound in the Commentaries. It is found first in the “Introduction” to the first volume and throughout the insuing four volumes. In the Introduction Blackstone listed four basic rules of action, or basic laws, of which the law of nations was third on the list.

Blackstone left no doubt about the role of the law of nations in English common law. It was, he wrote, “adopted in it’s [sic] full extent by the common law, and is held to be a part of the law of the land.” Blackstone was not manufacturing this assertion out of thin air – he was actually relying on specific court decisions to back up his statement. No less a leading English jurist than Lord Mansfield. in the 1764 case of Triquet vs. Bath, recognized the applicability of the law of nations in a suit by English creditors against a member of a foreign embassy staff. Blackstone also relied on two earlier decisions of English courts in 1758 and 1759 involving issues of insurance and capture at sea.

What was the law of nations in Blackstone’s famous work? In Volume IV, Chapter 5, he describes it thus:

The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world; in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith, in that intercourse which most frequently occur between two or more independent states, and the individuals belonging to each.

The last reference, “individuals belonging to each,” is especially important, since it reveals that the law of nations as developed in the eighteenth century was not just a regulatory regime for nation-states; rather it applied to individual citizens as well. A U.S juris explained:

The Law of Nations in the eighteenth century embraced a good deal more than the body of practice and agreement that came later to be called public international law. In the De Jure Belli ac Pacis 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.1

Parenthetically it should be noted that Blackstone’s pupil at Oxford, the future noted jurist and legal philosopher Jeremy Bentham, was the first to depart from references to the “law of nations,” favoring a term that he conceived, “international law.”

Blackstone’s Commentaries, including his references to the law of nations, was a staple in the early legal education of American lawyers, so much so that in one of his books on early American jurisprudence, Professor Mark Janis of the University of Connecticut Law School and Oxford University and an eminent legal historian, declared that “Blackstone’s belief that the law of nations was a practical law, useful in the common law courts, has remained part and parcel of the American international law tradition for three centuries.”

The next step in this inquiry is to examine briefly early American exposure to the law of nations, other than references in Blackstone’s Commentaries. This analysis will lead to an understanding of how the phrase came to be used in the Constitution of the United States and one of the early statutes passed by the U.S. Congress, and why it should be useful to contemporary judges not only for purposes of constitutional interpretation but also in appropriate cases that come before their courts.

The explanation does not have to be long, because it can be summed up in one sentence. No less than six of the major “founding fathers” of the United States, including the author of the Declaration of Independence, the principal architect of the U.S. Constitution, and the three authors of the Federalist Papers, had all become acquainted with the law of nations in their legal studies and used it in their law practices and political actitivites. These six include Thomas Jefferson, James Madison, John Adams, Alexander Hamilton, John Marshall and John Jay. All of these men were familiar with the major writers on the law of nations, Hugo Grotius, Samuel Pufendorf, Emmerich de Vattel, and others. These founders admired their works and made references to them in their legal writings and in political arguments.

Moreover, John Adams, while President of the United States, cited John Marshall’s “familiarity with the law of nations” as his principle reason for nominating Marshall to be Chief Justice. And Benjamin Franklin, although not a lawyer, relied on the writings of Emmerich de Vattel for legal references when he attended a meeting of the Continental Congress in December, 1775.

The law of nations was such a pervasive legal subject in the jurisprudence of the American colonies and  ”part of the ordinary legal apparatus of American lawyers at the time of the Revolution” that one American jurist asserted that the “incorporation of the law of nations...seemed so...obvious that there was no reason to question its propriety.”

The only conclusion that can be drawn from this review is that the law of nations, or international law, is very much a part of U.S. legal heritage, that it was very relevant at the time of the founding of the thirteen colonies that formed the new American Republic, that it was relevant during the time of the writing of the Declaration of Independence and the U.S. Constitution, that it was relevant to the development of American jurisprudence in the years that followed the adoption of that Constitution, and that it  should be relevant in modern U.S. jurisprudence, available to all state and federal judges in the interpretation of the U.S. Constitution and the resolution of appropriate cases.


1 Edwin Dickinson, “The Law of Nations as Part of the National Law of the United States,” 101 University of Pennsylvania Law Review 26, at 26-27 (1952), cited in Mark Weston Janis, America and the Law of Nations, Oxford University Press, 2010, at p.14.

(Note: Much of the information and many of the references contained in this article were obtained from Professor Mark Weston Janis’ excellent book. America and the Law of Nations, cited above, to which this author is much indebted.


« Back to the Home Page

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2010 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
IJM welcomes comments, suggestions, and submissions.
Please contact the IJM editor at ijaworld@verizon.net.