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Henry Wheaton is the Blackstone of international law. By giving lawyers a simple, clear and convincing description of international law, as he understood it, Wheaton shaped the law of nations for his contemporaries, and their successors for at least half a century after his death. Wheaton’s Elements of International Law, first published in 1836, went through many editions, culminating in the canonical eighth edition, with notes by Richard Henry Dana, Jr., published in 1866. Dana’s became the most frequently cited version, and was selected by the Carnegie Endowment for reproduction in its series on the Classics of International Law. Wheaton’s Elements of lnternational Law presents the classic statement of international law doctrine, as it was understood for most of the nineteenth century.

The nineteenth-century doctrines known as “international law” developed out of the eighteenth century “law of nations” which itself grew out of seventeenth-century “ius gentium.”1 Each semantic shift reflected slight changes in scholarly attitudes towards the supranational legal order. Proponents (for example) of the term “international law” sought to promote a positivist doctrine, which would minimize the natural law elements of the old law of nations to privilege the views of governments and states.2 “Jus gentium” implied a common set of fundamental legal principles shared by all peoples.3 Recently, some publicists have started to speak of the “law of humanity” in order to challenge the role of nations and states in determining the world’s legal order.4 While this new usage captures the necessary universalism of supranational justice, it also threatens the premisses that support just institutions, by confusing the nature and purposes of law, nations, peoples and the state.

Recently some lawyers and statesmen have begun to cite judgments of the International Court of Justice as if they were decisive evidence of the content of international law. This trend, if it continues, will tend to diminish the influence of international law on the actions of states and others, by arrogating the authoritative determination of the content of international law to a tribunal that was never intended to generate rules of universal application, is ill-equipped to do so, and ought not usually to be viewed as having done so, except in very exceptional circumstances.

The most obvious difference between students of international relations and students of international law arises from the subjects of their inquiry. International relations scholars consider the relations between states. International law considers the norms that govern these relationships (and many other important transactions). Some have characterized this distinction as the difference between “realism” and “idealism,” the difference between what actually is done and what ought to be done by states.1

The fall of the Soviet Union and the liberation of East and Central Europe have emboldened international lawyers to reassert the principles of human rights and democracy that intermittently inspired their predecessors over the last four centuries. Some rely on state practice to justify democratic norms,1 by pointing out that many states now formally recognize some sort of individual or collective right to self-government.2 This is the “positivist” argument for liberal democracy.

One central measure of a government’s legitimate membership (or not) in the international community of nations is the respect that it demonstrates (or not) for fundamental human rights. Human rights are justified moral claims that human beings make on other human beings on the basis of their common humanity. Universal human rights are an important measure of any government’s legitimacy, because they apply in all societies everywhere. This does not mean that all peoples should demand exactly the same structure of rights in their different communities. Circumstances differ from place to place and are never exactly the same. But sincere deliberation about the application of universal human rights to a particular set of circumstances yields remarkable consensus across cultures. Circumstances vary, but human nature does not. Disagreements about the sources, application, enforcement, and limits of universal human rights usually turn on private interests, rather than real differences of perception or understanding.

Humanitarian intervention has always played an important part in international relations. States intervene in each other’s affairs to promote justice, to advance their own interests, or both — but usually call on justice and human rights first in justifying their actions. Even the most extreme apostle of sovereignty, Jean Bodin, conceded that one sovereign may intervene to punish another who governs without regard to the common good of his subjects.1 Some level of interference by governments or individuals to prevent the abuses of others must be tolerated in any case, whatever one’s views, for the same reason that some interference with others must always be legitimate under any legal system: because it cannot be totally avoided. Any action by a state, individual, group of states or group of individuals will have an effect on others, and to that extent interfere with them. The question for lawyers and philosophers cannot be whether intervention is legitimate (because a total prohibition on interference would preclude all action) but rather when intervention is legitimate and when it is not. Law sets limits on how much one person, group of persons, state or group of states may intervene to influence others, and establishes procedures to support official interventions (enforcement), or to prevent improper interventions (delicts or crimes).

Which groups enjoy the right to secede in international law, under what circumstances, and why? The “right to secede” in this context signifies the right of a group of the citizens or subjects of an existing state to remove themselves from its political jurisdiction, taking with them some portion of their former state’s territory, to form a new political entity. Secession diminishes existing states by narrowing their territorial jurisdiction. The right to secede assumes the previous existence of states and depends for its own justification on the antecedent justifications for statehood. When the reasons for secession outweigh the reasons that justify statehood, or serve those ends better than would the continued existence of states within their historical boundaries, then secession will be justified, and citizens will have the right to secede.

Words mean what we want what we want them to mean (as Humpty Dumpty once observed), “neither more nor less.”1 This gives meaning a certain fluidity,2 since what one wants or needs from words can change. Yet words also represent ideas about reality, and are more or less useful as they capture and perpetuate useful ideas with language.3 This pushes meaning towards stability, resting on history and experience. Some tension will always remain between what words have meant, and what words might usefully come to mean, to serve new circumstances. “Truth consists in the right ordering of names in our affirmations” (as Hobbes so sensibly recognized), so that those who wish to pursue the truth will have to decide what the words that they use will mean, or find themselves eventually “entangled in words, as a bird in lime twigs; the more he struggles, the more belimed.”4

This volume has considered 20 important questions in international law from the perspective of the republican principles that support the international legal order. The purpose of this discussion has been neither to engage the numerous authors who have debated these questions in the past, nor to set out a complete elaboration of republican legal theory, but rather to explain in clear terms some basic implications of certain fundamental truths about law and justice that regulate most international legal obligations. States and individuals have a duty to obey and respect proposed international norms only to the extent that proposed norms respect the basic republican principles of international law. These chapters start from first principles to point out some obvious implications of the republican commitment to justice and the common good of all people. International law rests on republican foundations, and would not be just, binding, or interesting if it did not.

With the collapse of the Soviet Union, and the emergence of democracies or quasi-democracies in Russia, South Africa, and throughout South America, the most powerful and persistent opponents of popular sovereignty have receded, or admitted their mistakes, and a sort of democratic triumphalism has entered the legal literature. Where Hugo Grotius once boldly rejected the idea that supreme power necessarily resides in the people, frankly viewing certain peoples (he mentioned Cappadocians) as fit to be slaves,1 some scholars now assert an “emerging right of democratic governance” such that no government should be considered legitimate without free, fair and frequent elections.2

Modern international law began in the seventeenth century as “the law of nature applied to nations.” Lawyers and philosophers studying the natural rights and duties of persons had developed an equal concern for the rights and duties of states.1 States and persons are not the same, as clear-headed advocates of international law such as Emmerich de Vattel readily admitted, but the temptation to recycle good philosophy as law was very strong, some parallels between persons and states are legitimate, and most lawyers have spent as much time representing individuals (not states) as philosophers have spent thinking about individuals (and not states), so the habit of translating doctrine from one sphere to the other remains very strong.

International law developed primarily to serve the needs of the governments of “states,” which is to say, to support the rulers of territorially based subject populations, exercising a monopoly within their boundaries of “sovereign” coercive power. Other non-state international organizations have long existed alongside states, such as the Virginia Company, the East India Company, and the Royal African Company, but none of these institutions enjoyed much formal recognition in the development of international legal structures. Now finally these and similar international economic organizations have finally captured the public imagination, and eager academics seek to apply the insights of institutional economics, law and economics, and industrial organization to international law, to demarcate new lines of competence between states and other international organizations.

Any discussion of the sources of law must also consider when, if ever, the laws should be obeyed. What is the basis of law’s binding force? The essential attribute and ultimate claim of all law is that, as law, it deserves the uncoerced obedience of its subjects. Customary international “law,” to be law, must claim to bind the nations, states and peoples subject to its jurisdiction. To deserve obedience, customary law, like all law, must first substantiate the basis of this claim.1

No inquiry into international law, and its place in the international order, can get very far (or make much sense) without a theory of what law is, and what makes the law worthwhile. The answer to both questions is this: the central element of law in every legal system — what makes law “law” as distinct from other systems of rules or coercion — is law’s claim to codify justice. All laws and legal systems claim to realize justice. Rules that do not claim justice cannot claim to be laws.1 This is not to say that all laws are just, but rather that all legal systems claim to be just, or to realize justice better than other available systems for mediating conflicts and regulating human society.

The legislature is the single most important branch of government in any nation governed by the rule of law. When law rules, the legislature matters, because the legislature makes the laws. The central dilemma for drafters of written republican constitutions has been how to create a legislature that will make laws that advance and protect the common good of all citizens, without favoring one group over others. Legislatures that do not serve the common good subvert the purposes of government by protecting some particular set of private interests, at the expense of the people as a whole.

The problem set for republicans by groups is: which group or aggregation of citizens should count in pursuit of the common good? The relevant collective for the first republic, in Rome, was all Roman citizens, each of whom enjoyed “liberty” (“libertas”), by which the Romans meant equal freedom from arbitrary interference or coercion by others, including officers of the state.1 Republican legal theory depends on aggregating citizens into a group (the “people” or “populus”) who act together to construct a sense of justice and the common good amongst themselves.2 Rome began as a small village with few inhabitants and extensive rights for all citizens. As the Roman empire grew, the rights of Roman citizens diminished, until nearly everyone in the Mediterranean world enjoyed Roman “citizenship” under an arbitrary central government in Rome. The common good gave way to the emperor’s whim, leading many to conclude that size had ruined liberty in Rome, and that only small republics can survive.3

When, and in what sense are laws ever “valid”? Applying republican legal principles to the question of legal validity will demonstrate that the actual validity of a law always ultimately depends on the law’s own underlying moral justification. To see why, one must first disentangle three senses of the word “valid”. Some laws are valid (“actually valid”) because they actually deserve to be obeyed. Some laws are valid (“legally valid”) because a particular legal system asserts that they ought to be obeyed. And some laws are valid (“morally valid”) in the sense that although the legal system in question has not yet made them legally valid, one could morally justify doing so.1

The past is a foreign country, its people strangers and its laws obscure. Like other foreign places, this alien world has much to teach lawyers about how things might have been and are, in our own world and legal institutions. No one can really understand her or his own legal system without leaving it first, and looking back from the outside. The comparative study of law makes one’s own legal system more comprehensible, by revealing its idiosyncrasies. Legal history is comparative law without travel. Historical comparisons give lawyers and legislators the distance that they need to reform and to understand the law, without the distortions of contemporary partisan conflicts, which sometimes trouble other students of comparative law.

When George Washington gave his inaugural speech as the first President of the United States under the new federal Constitution, he asserted that “the destiny of the republican model of government” was “deeply, perhaps … finally, staked on the experiment entrusted to the hands of the American People”.1 A new “Senate” would meet on the “Capitol” hill, overlooking the “Tiber” (formerly “Goose Creek”) river, as in Rome,2 to restore “the sacred fire of liberty” to the western world.3 The vocabulary of eighteenth-century revolution reverberated with purposeful echoes of republican Rome, as political activists self-consciously assumed the Roman mantle. James Madison and Alexander Hamilton, the primary authors and advocates of the United States Constitution, wrote together pseudonymously as “Publius” to defend their creation,4 associating themselves with Publius Valerius Poplicola, founder and first consul of the Roman republic.5 Camille Desmoulins attributed the French Revolution to Cicero’s ideal of Roman politics, imbibed by children in the schools.6 At every opportunity, American and French revolutionaries proclaimed their desire to re-establish the “stupendous fabrics” of republican government that had fostered liberty at Rome.7

Republican legal systems are systems of law and government that embrace the basic tenets of republican legal theory, as developed by Marcus Tullius Cicero, Polybius and their contemporaries, and by their various heirs and imitators in Italy, England, France, and the United States of America.1 Republicans argue that serving the public good constitutes the only sound basis for a just legal order, and conclude that all laws in all jurisdictions deserve public deference only to the extent they do so. The fundamental republican test of a legal system’s legitimacy is whether its laws actually advance the res publica or “common good of the people”.2 Cicero observed that all republics must belong to separate “peoples”, by which he meant to large numbers of persons associated together to create a common sense of justice and shared public good.3 This remains the basis of republican legal theory today. Republican legal systems are whichever systems of law and justice serve the common good of the people the best.

“Public discourse” signifies speeches, publications and other statements made in pursuit of the public good. If (as it is for republicans) the sole aim of government, laws and the state is to serve the common good of the people, then public discourse offers the primary practical technique for finding (or clarifying) what the laws should require. “Public discourse” (in this sense) regards public policy as distinguished from “private discourse” among citizens seeking to develop their own private friendships and interests. This line between “public” and “private” discourse may be difficult to draw, because it concerns the fundamental division of power within society and the state. Public discourse defines and limits the powers of the government, but also of individuals. That which is not public is private, and vice versa, but it is public discourse itself that must, in the end, decide the boundaries. The standards of behavior that should govern public discourse constitute “civility”. Many of these same standards also extend to private discourse, with some exceptions.

The Fourth Section of the Fourth Article of the Constitution of the United States of America pledges that the national government will “guarantee to every state in this Union a Republican Form of Government”. By “republic”, eighteenth-century English-speaking writers meant to signify (as Thomas Paine most famously explained it), whatever government best serves “the purport, matter, or object for which government ought to be instituted, and on which it is to be employed”, which is to say, the “res-publica, the public affairs, or the public good; or, literally translated, the public thing”. From this it follows that whatever government “does not act on the principle of a republic, or, in other words, that does not make the res-publica its whole and sole object, is not a good government”, and “[rjepublican government is no other than government established and conducted for the interest of the public, as well individually as collectively”.1

The first self-consciously “republican” ideology originated in the senatorial opposition to Gaius Julius Caesar, and implies a procedural commitment to certain “republican” political and legal institutions, usually attributed to Rome’s republican constitution of 509–49 BC. The basic desiderata of republican government, as articulated in the republican legal tradition derived from Rome, secure government for the common good through the checks and balances of a mixed constitution, comprising a sovereign people, an elected executive, a deliberative senate, and a regulated popular assembly, constrained by an independent judiciary, and subject to the rule of law. Some republicans would add representation, the separation of powers, or equality of material possessions, to protect public liberty (“libertas”) and avoid Rome’s eventual descent into popular tyranny and military despotism. Republican liberty signifies subjection to the law and to magistrates, acting for the common good, and never to the private will or domination “dominatio” of any private master.1