History is a most valuable teacher. It provides us with not only lessons about what has gone before, but insights into why events happen as they did, and perhaps most usefully what to try and avoid in the future, and what actions and activities might be useful in trying to recreate or imitate. And so it is with the study of law. Unfortunately, at least in my experience, the study of the history of law is not a discipline that is strongly pursued either inside or outside of academe.

But it should be, if for no other reason than to resolve some of the issues about the origins of American law, especially in the constitutional area, where there is a very strong and significant current debate about the way the United States Constitution should be interpreted. I am referring of course to the issue of originalism as a theory of constitutional interpretation, introduced into America legal thought by Associate Justice Hugo Black of the Supreme Court of the United States during his tenure on the bench (1937 - 1971). Originalism is that theory of constitutional interpretation that requires those doing the interpreting to look at the language of the U.S. Constitution and the original intent of those who drafted the Constitution in using the particular language that was chosen.

Whether this is a correct approach to constitutional interpretation is itself open to debate, either as a sole method of determining the meaning of the Constitution, or one of several methods that might be employed in the process. In the case of international law, or the law of nations as that body of law used to be called, the study of the original intent of the framers of the Constitution might provide some useful insight into interpreting the Constitution. It is particularly relevant considering that the phrase “the law of nations” actually appears in the Constitution, as well as in other legal documents dating to the same period as when the Constitution was drafted, approved and submitted to the several states for approval. For instance it is specifically mentioned in The Federalist Papers (No. 42) that contained explanations about and arguments in support of the many provisions of the Constitution, written in an attempt to influence the several states, especially New York, during the ratification process 1787 – 1789.

There has appeared over the years in legal pedagogy, little serious, notable explanations about how the phrase “the law of nations” came to be included in the Constitution, in the Federalist Papers, and in at least one very early statute passed by the United States Congress (the Alien Tort Claims Statute, passed by the Congress in 1789).

That situation has been corrected, at long last, by Professor Mark Westin Janis of the University of Connecticut Law School and a Visiting Fellow at the University of Oxford, with the publication of this book. From his presentations in the first two chapters, one learns about the meaning and use of that phrase, first in the English common law (which provided so much of the bases of the legal systems of the original thirteen colonies that formed the nucleus of what was to become the United States of America) and then among the “founding fathers” of the nation. In these and subsequent chapters the reader also learns that the law of nations played not only an important role in the creation of the United States government, by providing ideas for the framework of the Constitution and the reasons for establishing a nation separate from the United Kingdom, but also a major role in the development of the legal heritage of the United States after the creation of the United States, through its early history, in the events leading up the American Civil War and on into the early and mid 20th Century. The relevance of Professor Janis’ effort is expressed in the first sentence of the first chapter of the book: “How we think about any aspect of law is largely an inheritance.”

Professor Janis begins his discussion of his topic with an analysis of the writings of two very influential English jurists, William Blackstone and his one-time pupil, Jeremy Bentham. This is an appropriate place to start, because William Blackstone’s Commentaries on the Laws of England (1765-1769) forms the backbone of the English common law that was transferred to and adopted by the English colonies in America. Blackstone made frequent reference to the law of nations in his Commentaries. Professor Janis asked rhetorically: “What was Blackstone’s law of nations?” His answer: “Most of all it was practical law, used by real English lawyers in real English courts.”

The author goes on to compare Blackstone’s understanding of the law of nations with the “international law” of Jeremy Bentham, who coined the phrase in 1789 in his famous treatise, Introduction to the Principles of Morals and Legislation. A discussion of Bentham’s ideas are followed by an analysis of the differences between the two terms as used by their respective advocates, and also those differences when contrasted with a third phrase, “transnational law” created by a modern international jurist, Philip Jessup, in 1956.

Despite the terminological debate and the implications flowing from the use of each, Professor Janis concludes the first chapter with an observation about one very practical use of the law of nations (or international law or transnational law) that is still applicable today:

[T]he law of nations gave the eighteenth century English or American common law lawyer or court a way of finding the appropriate rule for a dispute touching on more than one legal system. Instead of deciding to apply English or American (or any foreign municipal) rule to such a multinational dispute, the court simply applied the rule drawn from the law of nations, a law theoretically applicable not only in an English or American court, but in foreign courts.

From a legal heritage and constitutional interpretation viewpoint, the most important chapter in the book is the second one, titled “Jefferson, Madison and Marshall: the Law of Nations and the New Republic.” In this chapter, Professor Janis points out in considerable detail and with thorough analysis the influence of the law of nations in the drafting of the Declaration of Independence, the Articles of Confederation, the Constitution of the United States and in early decisions of the Supreme Court of the United States.

In addition to Jefferson, Madison and Marshall, he also notes the influence of the law of nations on other “founding fathers,” namely John Adams, Benjamin Franklin, Alexander Hamilton, and John Jay. This chapter is so important in understanding the sources of ideas and provisions of the documents that created the United States that it should be made required reading by all political science and law students in the United States.

Professor Janis offers to the reader nine other chapters that follow the continued and historical role that the law of nations played in the political and legal development of the United States. He moves from the Revolutionary War and the immediate post war period to the 19th Century to focus on eminent American writers on the law of nations, particularly James Kent and Henry Wheaton. Chapters 5 and 6 are particularly noteworthy. In Chapter 5 he discusses the influence and applicability of the law of nations on the slave issue, and also how it affected the decision and individual opinions in the infamous Dred Scott decision of the U.S. Supreme Court. The following chapter takes up the law of nations in the Civil War era, characterized significantly by the development and promulgation of the Lieber Code, the first code dealing with international humanitarian law and the forerunner of the Geneva Conventions on the laws of war.

The concluding chapters of the book discuss the rise of international arbitration, the contributions of Elihu Root and William Howard Taft to the development of international law, Woodrow Wilson’s attempts to bring about a new world order through the creation of the League of Nations and the Permanent Court of International Justice, and Oliver Wendell Holmes influential decision in the Supreme Court case of Holland v. Missouri. The final chapter focuses on the status of international law in the U.S. after World War I, which saw the “repudiation” by the United States of the Versailles Treaty, the League of Nations, and the statute creating the Permanent Court of International Justice.

Although the books ends with a chapter largely devoted to the despondency of the international law community in the U.S. over the state and status of international law in the post war period of the 1920s and 1930s, Professor Janis concludes his book with an observation about what was to happen in the future, a comment which has relevance in today’s world:

Repudiating international law and international organization
had proved both futile and dangerous. As the United States
began to engage in an even more dangerous second world war, Americans were ready to abandon inter-war isolationism and entertain again some, if not all, of the promises of the law
of nations.

The international law community owes Professor Janis much gratitude for his extraordinary work of scholarship, analysis and insight into the role that the law of nations and international law have played in first, the formation of the United States, and then its development. In this era when not only the U.S. but all nations desperately need international law as a primary vehicle for resolving international disputes, and defusing dangerous activities that could lead to war, he has provided us with insight about the U.S. founding fathers foresight in embracing the law of nations as one of the rocks upon which the nation could be built, and how that embracing has shaped the United States in its development during the 200+ years of its existence.