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judging for himself how far the covenant expressed in the law ought to bind him. And yet it is this spirit and this people that would set up an International High Court of Justice. B It is a settled conviction of American lawyers that the common law is part of the eternal jural order. We may philosophize otherwise and know better, but it is difficult for us to conceive of law where there is neither legislative, declarative, nor judicial precedent. Therefore, when the rest of the world, which has a somewhat different concep tion of law generally, thinks it can get along with international law as laid down by doctrinal writers, the English and Americans conceive that it means to get along without any real international law at all.42 On the Continent, where the intrinsic jural reason of the rule is taken to be a sufficient basis for it, men have no such trouble. To Americans such a basis is no basis. We must have the convenant .—the agreement to be bound—witnessed by a treaty or convention or judicial decision by the appointed magistrate. Hence we are taken with the idea of an International Court. It would be an interesting question to consider how far Continental jurists, with their ideas of '•"So will be constituted a true permanent court of international arbitration, a true inter national judiciary, from which will spring a true system of international law." (Clarke. 1 Am. Jour. Int. Law, 342, 408.) "The mere opinion of jurists, however eminent or learned, . . . are not of them selves sufficient." (Lord Alverstone in West Rand Central Gold Mining Co. v. The King, 2 K. B. 391.) There should be the same reason for respecting precedent in this as in other branches of the law. (Scott's Preface to Cases in International Law.)
the relatively low value of decisions and precedents and the high value of doc trinal writings, would agree with us as to the legal and binding value of the decisions of such a Court. But the point I wish to make is that we are urging such a Court to meet the exigencies of our own peculiar legal theories: the point is interesting, per haps, merely as a matter of philoso phical rumination, but it is important as presaging the weakness and impossi bility of any real Court of Nations. It is an old experience that ideas reach their complete logical development in detail after they have ceased to be vital. The idea of covenants without the sword has broken down in political theory and is moribund in our polity. Puritan indi vidualism is on the wane in our social economy and shows signs of decline in its last stronghold—our common law. But apparently we still have faith that it can govern the world. "How beautiful upon the mountains are the feet of him that bringeth good tidings, that publisheth peace." It is significant that those who urge such a Court most in peace con gresses and conferences, and in pulpit and print, are the same well-meaning enthusiasts who have filled our statute books with unenforceable pronounce ments of the sovereign will. "The more they do law," said the Anglo-Saxon Chronicle, "the more they do unlaw." Certainly there is nothing more lawless than unenforceable law; nothing more useless than a judge who cannot enforce his decrees; nothing more futile than a "fire that burns not, a light that shines not."
