¹ Alvarez, Alejandro, “The New International Law” (1929), 15 Grotius Soc. Trans. 35,Google Scholar referred fleetingly to such schools as the English, the British, the Continental (European), the North American, the Anglo-Saxon, and the Pan-American, without indicating how these terms should be used. For a refutation of the view that there exist two schools, the Anglo-American and the Continental, see Lauterpacht, H., “The So-Called Anglo-American and Continental Schools of Thought in International Law” (1931), 12 Brit. Y.B. Int’l Law 31.Google Scholar

² McNair, Arnold D., “The Debt of International Law in Britain to the Civil Law and the Civilians” (1953), 39 Grotius Soc. Trans. 183.Google Scholar Exception has, however, been taken to McNair’s laconic comment that “it would seem probable that the importance of public international law and the frequency of its application in Scotland have diminished since the Act of Union.” Smith, T.B. in British Justice: The Scottish Contribution (1961) suggests, less laconically, at page 23,Google Scholar that “Scotland’s active participation in public international law is what has been restricted since 1707.” However one phrases the matter, it is clear at least that local Scottish custom has not had much impact on modern international law. Thomas W. Fulton in his classic work The Sovereignty of the Sea (1911) makes detailed references to such customs but declines to assert that they have been incorporated into modern British state practice in any internationally significant sense. See, for example, his discussion of the old Scottish custom of “a land kenning,” ibid., at 77 (and passim).

³ Welwood is best known for his pre-Seldenian defence of enclosure (mare clausum) in protection of Scottish coastal fishing interests against the Dutch. See Douglas Johnston, M., The International Law of Fisheries: A Framework for Policy-Oriented Inquiries 72, 166–67 (1965).Google Scholar Through his tract De dominio maris (1615), Welwood was the first jurist to take up the cudgels against the Grotian concept of mare liberum.

⁴ Scott is chiefly remembered today as a commentator on the work of Grotius. In 1707 he published his main work Hugoni Grotii De Jure Belli ac Pacis Librorum III: Compendium, Annotationibus et Commentariis selectis, illustratum.

⁵ Mackintosh was philosopher, physician, and politician as well as a highly successful advocate in London. His reputation in international law rests largely with his work Discourse on the Law of Nature and Nations (1799).

⁶ Reddie, an advocate and lower court judge, devoted his leisure to scholarly writings: Inquiries, Elementary and Historical, on the Science of Law (1840) ; An Historical View of the Law of Maritime Commerce (1841); Inquiries into International Law (1842); and Researches, Historical and Critical, in Maritime International Law (1844).

⁷ Lorimer is, of course, the most eminent Scottish contributor to the literature of international law. During his later years he enjoyed the highest European reputation of any British international lawyer of his age, and almost single-handedly erected an original system of legal philosophy. His principal works are The Institutes of Law: A Treatise of the Principles of Jurisprudence as Determined by Nature (1872), Institutes of the Law of Nations (1883), and the posthumous collection of his inaugural lectures between 1864 and 1889, entitled Studies National and International (1890).

⁸ Finlay, a prominent politician and judge, was author of International Arbitration (1904), and later became a member of the Permanent Court of International Arbitration.

⁹ Keith was one of the most remarkable academic prodigies of the twentieth century. Before becoming celebrated primarily as a Sanskrit scholar and constitutional lawyer, he published in 1907 his first work in the field of international law: State Succession in International Law. Later in life he was editor of the sixth and seventh English editions of Wheaton’s Elements of International Law.

¹⁰ Fulton is best known as the author of The Sovereignty of the Sea (1911). This work is generally regarded as a classic in the law of the sea literature.

¹¹ Krieger, Leonard, “Kant and the Crisis in Natural Law,” 26 J. History of Ideas 191 (1965).CrossRefGoogle Scholar

¹² Ibid., at 191–92.

¹³ See, for example, Paul Foriers and Chaim Perelman, “Natural Law and Natural Rights,” in Wiener, Phillip P., ed., Dictionary of the History of Ideas, Vol. 3, at 13–27.Google Scholar The natural law doctrine can be seen to be in ascendancy once again, in a modern form, due to the fashionable “expansion of rights” movement; cf. R. H. S. Tur, “The Leaves on the Trees,” [1976] Jurid. Rev. 139.

¹⁴ Many international lawyers today are content to avoid philosophical or jurisprudential entanglements altogether. Some, looking to the ancient battle between natural law and positive law and knowing it is relevant to some of the great issues in international law today, are willing to be criticized for speaking “with two voices.” See, for example, Sir Gerald Fitzmaurice, “The Future of Public International Law and of the International Legal System in the Circumstances of Today” (1973), Livre du Centenaire 1873–1973, Institut de Droit International (Special Report: Evolution et perspectives du droit international), 196 at 307–12. But the leading systematic theorists in the literature are, of course, forced to adopt explicit philosophical positions. Many international lawyers have seen a modern version of natural law immanent in the jurisprudence of “human dignity” which pervades the writings of the policy science school of Myres S. McDougal and Harold D. Lasswell. Some of the current literature on “basic human needs” and “human welfare” is based essentially on universal values abstracted from an intuited conception of human nature. See, for example, Macdonald, Ronald St.J., Johnston, Douglas M., and Morris, Gerald, eds., The International Law and Policy of Human Welfare (1979), especially the editorial introduction, at 3–79.Google Scholar

¹⁵ Krieger, supra note 11, at 194.

¹⁶ Ibid, Krieger concludes: “In the final analysis, the staying power of the idea of natural law in its various forms reflects the fundamental belief of our culture that infinite creativity may well be the ideal of the arts and sciences, but that our creation of moral acts should conform to the reality of our common humanity.” Ibid., at 210.

¹⁷ Lord Wark, “Law of Nature,” in the Stair Society, An Introductory Survey of the Sources and Literature of Scots Law 249 (1936).

¹⁸ Stein, Peter, “Legal Thought in Eighteenth-Century Scotland,” [1957] Jurid. Rev. 1 at 4.Google Scholar A more recent version of this essay, under the title “Law and Society in Eighteenth Century Scottish Thought,” is included in Phillipson, N.T. and Mitchison, Rosalind, eds., Scotland in the Age of Improvement: Essays in Scottish History in the Eighteenth Century 148–68 (1970).Google Scholar

¹⁹ Stair, Viscount, Institutions of the Law of Scotland (1681), 1, i, 17–18.Google Scholar

²⁰ Lewis, John U., “The Moral Character of Positive Law in Viscount Stair’s Institutions of the Law of Scotland (1681): A Source for Rethinking the Nature of Legal Obligation,” [1976] Jurid Rev. 127 at 131–32.Google Scholar

²¹ Ibid., 135–36. Stair drew a distinction between obediential obligations, imposed on us by the will of God and therefore “natural,” and conventional obligations, which are binding through our own will as expressed in a promise or contract, whereby we give away part of the freedom God has left us. The latter are also based on natural law, because “there is nothing more natural than to stand by the faith of our pactions.” Stein (1970), supra note 18, at 151. This, it should be noted, is the natural law foundation of the international law doctrine of pacta sunt servanda. For a recent analysis of Stair’s theory of promise, see MacCormack, Geoffrey, “Grotius and Stair on Promises” (1977), 22 Amer. J. Juris. 160.CrossRefGoogle Scholar

²² For James Lorimer’s history of his own chair, see Studies National and International, supra note 7, at 222–42.

²³ Erskine reverted to the Grotian tradition, distinguishing between primary and secondary natural law: the former was what applied to man in the state of nature, the latter what applied to men in independent states. Stein (1970), supra note 18, at 152. This allowed the modern jurist to focus exclusively on the secondary application, permitting the expanding overlay of positive law to become the primary object of study without rejecting the ultimate source of authority in human reason, a gift of God. See Kermack, S.G., “Jurisprudence and Philosophy of Law,” in the Stair Society, An Introductory Survey of the Sources and Literature of Scots Law 438 at 440 (1936).Google Scholar Erskine’s work, practical and plain rather than subtle and philosophical, reflects the growing English (and commercial) influence on the development of Scots law.

²⁴ For a modern biography, see Mossner, Ernest C., The Life of David Hume (1954).Google Scholar

²⁵ When Hume was a young man, the “new philosophy” of Newton, and the mechanistic conception of the universe which Newton developed in his Principia through the principle of gravitation, had overtaken Cartesian physics and discredited it in the minds of British scientists. It was commonly believed that the a priori method of Descartes had reversed the proper order of investigation and that Newton had shown the only true way to valid scientific results. This new science had a profound effect on Hume’s empiricism. Kuypers, Mary S., Studies in the Eighteenth Century Background of Hume’s Empiricism 3–8, 64–87 (1966),Google Scholar Finally, Hume reached the point of asserting that beyond experience we cannot hope to go. Observation alone can provide us with our materials. Hume, therefore, challenged the favourite assumption of his age: that by the exercise of reason man could obtain satisfying answers to ultimate questions. Cragg, Gerald R., Reason and Authority in the Eighteenth Century 126–27 (1964).Google Scholar

²⁶ Krieger, op cit. supra note 11.

²⁷ Duncan, Elmer H. and Baird, Robert M., “Thomas Reid’s Criticisms of Adam Smith’s Theory of Moral Sentiments” (1977), 38 J. History of Ideas 509.CrossRefGoogle Scholar

²⁸ Stein (1957), supra note 18, at 8.

²⁹ Ibid.

³⁰ Lehmann, William G., “The Historical Approach in the Juridical Writings of Lord Kames,” [1964] Jurid Rev. 17.Google Scholar In a full-scale work, the same author underlines the seminal nature of Karnes’s writings and their contributions to American thought: Lehmann, William C., Henry Home, Lord Kames and the Scottish Enlightenment: A Study in National Character and in the History of Ideas ( 1971 ).Google Scholar

³¹ Stein (1957), supra note 18, at 9–12.

³² Ibid., 13.

³³ Hume, David, Political Discourses (1752) and History of England (1754, etc.).Google Scholar

³⁴ Stein (1957), supra note 18, at 13.

³⁵ The story is told of Karnes’s cruel jest in pronouncing death on an old chess-playing crony: “That’s checkmate to you, Matthew.”

³⁶ Duncan Forbes, “‘Scientific’ Whiggism: Adam Smith and John Millar” (1954), 7 Camb. J. 643. Smith and Millar are usually regarded along wtih Hume, Ferguson, and Robertson (and sometimes Kames) as the Edinburgh literati who dominated the social philosophy of their age. See Chitnis, Anand C., The Scottish Enlightenment: A Social History (1976), passim.Google Scholar

³⁷ See Lehmann, William C., John Millar of Glasgow 1735–1801: His Life and Thought and His Contribution to Sociological Analysis (1960), passim.Google Scholar

³⁸ Olson, Richard, “Scottish Philosophy and Mathematics, 1750–1830” (1971), 32 J. History of Ideas 29.CrossRefGoogle Scholar On the multifaceted contributions of the Scottish moral philosophers to other disciplines, see Schneider, Louis, The Scottish Moralists on Human Nature and Society (1967).Google Scholar

³⁹ Cragg, op. cit. supra note 25, at 127–28.

⁴⁰ Ibid., 129–30.

⁴¹ Skinner, Andrew S., “Adam Smith: Science and the Role of the Imagination,” in Todd, W.B., ed., Hume and the Enlightenment 164–88 (1974).Google Scholar

⁴² Harris, R.W., Reason and Nature in the Eighteenth Century 390 (1968).Google Scholar

⁴³ See Cantor, G.N., “Berkeley, Reid, and the Mathematization of Mid-Eighteenth Century Optics” (1977), 38 J. History of Ideas 429.CrossRefGoogle Scholar

⁴⁴ See biographical sketch of Ferguson in the Dictionary of National Biography.

⁴⁵ Pringle (1707-82) was appointed jointly to the chairs in pneumatics (i.e., metaphysics) and moral philosophy in 1734. For several years thereafter he occupied these chairs despite his absence in England and his preoccupation with the practice of medicine.

⁴⁶ Skinner, op. cit. supra note 41, at 173–78.

⁴⁷ Chitnis, op. cit. supra note 36, at 91–123. See also Rendall, Jane, The Origins of the Scottish Enlightenment, 1707–1776 (1979),Google Scholar and Meek, R.L., Social Science and the Ignoble Savage (1976).Google Scholar

⁴⁸ Millar, for example, cited Scotland after the departure of the Crown in 1603 as an example of retardation, and Ferguson anticipated Gibbon in citing the decline of Rome.

⁴⁹ Chitnis, op. cit. supra note 36, at 98.

⁵⁰ Swingewood, A., “Origins of Sociology: The Case of the Scottish Enlightenment” (1970), 21 Brit. J. Sociology 164.CrossRefGoogle Scholar This author concludes: “In their method, in their discussions of social stratification, social conflict, social change, and the social role of the division of labour, the leading members of the Scottish Enlightenment speak with a modern voice and raise precisely those problems which are now regarded as the essence of sociological inquiry.” Ibid., at 177. The best-known spokesman for this viewpoint is D. G. MacRae. See, for example, his Ideology and Society (1961). See also Lehmann, W., Adam Ferguson and the Beginnings of Modern Sociology (1930)Google Scholar; and Schneider, op. cit. supra note 38, passim.

⁵¹ “The philosophers of the Scottish Enlightenment were the first group of thinkers about law to challenge both the natural law ideas which were dominant on the continent of Europe and the Hobbesian positivism that attributed all law to the sovereign’s will. They looked on law as a social science and developed a dynamic conception of law, which was the antithesis of ‘legalism’ and which anticipated several of the dominant ideas of 19th and 20th century legal thought. In treating law as a means of social control which could only be understood when it was studied as a developing social institution, they were the precursors of Savigny, of Maine, and of Ehrlich, and they would probably have applauded Roscoe Pound’s delineation of law as ‘social engineering’.” Stein (1970), supra note 18, at 165.

⁵² Caldwell, R.L., “Another Look at Thomas Reid” (1962), 23 J. History of Ideas 545.CrossRefGoogle Scholar

⁵³ See, for example, Grave, S.A., The Scottish Philosophy of Common Sense (1960)Google Scholar; Robinson, Daniel S., The Story of Scottish Philosophy (1961)Google Scholar; Feibleman, James, “Reid and the Origins of Modern Realism” (1944), 5 J. History of Ideas 113 CrossRefGoogle Scholar; Caldwell, op. cit. supra note 52; and Kivy, Peter, “ Lectures on the Fine Arts: An Unpublished Manuscript of Thomas Reid’s” (1970), 31 J. History of Ideas 17.CrossRefGoogle Scholar The revival of the Scottish school of common sense owed much to G. E. Moore’s defence of its teachings in 1925.

⁵⁴ Even more than Reid’s, Stewart’s teachings represented the kind of intuitionism against which the Mills, father and son, went to such pains to refute. Yet, despite this, James Mill, a former student of Stewart’s, confessed to being one of his admirers. Reputedly, Stewart’s reading of German philosophy stopped at Leibnitz. His admitted inability to understand, and answer, Kant, was probably fatal to the reputation of the Scottish school on the continent of Europe, where the German school had become predominant by the early nineteenth century. Significantly, it was Reid’s writings, not Stewart’s, that Hamilton attempted to reconcile with Kant’s in the 1820’s and 1830’s.

⁵⁵ Quoted in Grave, op. cit. supra note 53, at 1.

⁵⁶ Beattie was a poet as well as philosopher. In the latter capacity, his reputation rests mainly with his Essay on the Nature and Immutability of Truth, in Opposition to Sophistry and Scepticism (1770), a popular response to Hume. Later, in a letter, Hume was to refer to Beattie as “that bigotted and silly fellow.” Robinson, op. cit. supra note 53, at 24. Beattie is, however, credited with having been the intermediary through which Kant first became acquainted with the thought of Hume. Wolff, Robert P., “Kant’s Debt to Hume via Beattie” (1960), 21 J. History of Ideas 117.CrossRefGoogle Scholar Oswald was a rather shallow kind of theologist. His principal philosophic writing was An Appeal to Common Sense in Behalf of Religion (Vol. 1, 1766, and Vol. 2, 1772). For a comparison of the contributions of Beattie and Oswald, see Grave, op. cit. supra note 53, at 5.

⁵⁷ Grave, op. cit. supra note 53, at 4.

⁵⁸ Ibid., 82–83.

⁵⁹ Ibid., 83.

⁶⁰ Ibid., 82–93.

⁶¹ See, for example, Skinner, Andrew S., “Adam Smith: The Development of a System” (1976),23 Scot. J. Pol. Econ. III, at 111–15CrossRefGoogle Scholar; Sir Alexander Gray, “Adam Smith,” ibid., 153; Lamb, Robert B., “Adam Smith’s System: Sympathy not Self-Interest” (1974), 35 J. History of Ideas 671 Google Scholar; and Megill, A.D., “Theory and Experience in Adam Smith” (1975), 36 Google Scholar ibid., 79.

⁶² Frankena, William, “Hutcheson’s Moral Sense Theory” (1955), 16 J. History of Ideas 356.CrossRefGoogle Scholar

⁶³ Korsmeyer, Carolyn W., “Relativism and Hutcheson’s Aesthetic Theory” (1975) 36 J- History of Ideas 319.CrossRefGoogle Scholar

⁶⁴ For Adam Ferguson’s indirect criticism of both doctrines, see Mossner, Ernest C., ed., “ Of the Principle of Moral Estimation: A Discourse between David Hume, Robert Clerk, and Adam Smith: An Unpublished MS by Adam Ferguson” (1960), 21 J. History of Ideas 222.CrossRefGoogle Scholar Ferguson, through Clerk, challenges both doctrines. Mossner believes that this manuscript is probably based on an actual conversation.

⁶⁵ Lamb, op. cit. supra note 61, at 674–75.

⁶⁶ Hume, David, Enquiry Concerning Human Understanding, 65,Google Scholar quoted in Skinner, op. cit. supra note 41, at 164. Smith’s plan, it has been said, was ”to range over the whole field of social phenomena — customs and institutions, the arts and sciences — and reduce it to law.” Forbes, op. cit. supra note 36, at 643.

⁶⁷ Ibid., 165.

⁶⁸ A distinguished modern economist has refused to yield to sentimentality, even on the 200th anniversary of Smith’s great work. “In a word, the relevance of the Wealth of Nations to contemporary economic policy is the very doubtful relevance of an earlier age of innocent confidence in the ability of the average man to govern his own affairs for himself — together with a certain Scottish callousness to the effect that if a man cannot govern his own affairs successfully, so much the worse for him” [emphasis added]. Johnson, Harry G., “The Relevance of The Wealth of Nations to Contemporary Economic Policy” (1976), 23 Scot. J. Pol. Econ. 171, at 176.CrossRefGoogle Scholar

⁶⁹ Patriots have, of course, challenged the view that “the Scots have been more madly intolerant then other people” and characterized this as a myth. Paton, H.J., The Claim of Scotland 38–40 (1967).Google Scholar

⁷⁰ Most historians today favour the interpretation that it was a long-term view of economic self-interest that motivated most of the Scots who voted for the union. See, for example, Daiches, David, Scotland and the Union 166 (1977).Google Scholar In the period leading up to the union of 1707, Scotland had gone through “seven ill years” (1696–1703) of famine and bitter economic hardship, aggravated by a disastrous Scottish investment in colonialism in Darien. In stressing the importance of economic factors in the decision favouring union, some nationalists have argued that the union of 1707 can be seen as “an expression of nationalism in dire circumstances.” Webb, Keith, The Growth of Nationalism in Scotland 24–25 (1977).Google Scholar As has often been observed, Scott and Burns were both unionists, though fiercely patriotic. For the economic history of Scotland since 1707, see Campbell, R. H., Scotland since 1707: The Rise of an Industrial Society (1965).Google Scholar See also Lythe, S.G.E. and Butt, J., An Economic History of Scotland, 1100–1939 (1975).Google Scholar

⁷¹ David Hume, ”Of Refinement in the Arts,” quoted in Chitnis, op. cit. supra note 36, at 100.

⁷² Quoted in ibid., 101–2.

⁷³ It should be recalled that the term “international law” was first coined, by Jeremy Bentham, no earlier than the 1770’s.

⁷⁴ Even earlier than Welwood were such writers as Sir James Balfour, Alexander King, and Habbakuk Bisset — all Scottish. Balfour wrote on maritime law in his Practicles (c. 1580), King in his Tractatus (c. 1590), and Bisset in his Rolment of Courtes (c. 1600). Lord Normand’s introductory comment in International Law Association, Report of 46th Conference 6–7 (Edinburgh, 1954). Also writing on questions of maritime law at that time was Alberico Gentili (1552–1608), professor of civil law at Oxford — but Gentili can hardly be claimed as a British writer! See McNair, op. cit. supra note 2, passim, for an account of the English civilians (the Doctors Commons), the judges of the Admiralty Court, and their contributions to maritime law up to 1872. Welwood was, however, the first British writer to produce a systematic treatise on the subject — indeed two treatises: The Sea-Laws of Scotland (1590) and The Abridgement of All Sea-Lawes (1613, 1636).

⁷⁵ Johnston, op. cit. supra note 3, at 166-67. Today we should give credit to Welwood for being the first to challenge the Grotian assumption of inexhaustibility of species. Ibid., 321–22.

⁷⁶ Cited in Fulton, op. cit. supra note 2, at 354.

⁷⁷ Smith, op. cit. supra note 2, at 165.

⁷⁸ The chief work of Richard Zouche ( 1590–1661) is Juris et Judicii Fecialis sive Juris inter Centes Explicatio published in 1650. Translated by J. L. Brierly and edited by T. E. Holland, it is included in The Classics of International Law, edited by James Brown Scott for the Carnegie Institution. Like Gentili before him, Zouche was professor of civil law at Oxford.

⁷⁹ Carmichael, Gershom, Pufendorf’s De Officio hominis et civis juxta legem naturalem libri duo (1724).Google Scholar

⁸⁰ Fulton, op. cit. supra note 2, at 600.

⁸¹ Professor R. Flint, the author of Lorimer’s obituary, reproduced in James Lorimer, Studies National and International ( 1890), supra note 7, insists that although Lorimer cared little for some of Hamilton’s theories, he owed most to him. Under the influence of Hamilton’s teachings, Lorimer, he says, “became convinced of the insufficiency of a Sensationalist Philosophy and of a Utilitarian Ethics.” Ibid., at xi.

⁸² Baynes, Thomas S., “Sir William Hamilton,” in Blackie, John S. and others, eds., Edinburgh Essays 241–300 (1857).Google Scholar

⁸³ Quoted by Flint in Lorimer, op. cit. supra note 81, at xii.

⁸⁴ Ibid.

⁸⁵ Campbell, A.H., “James Lorimer: A Natural Lawyer of the Nineteenth Century” (1953), 39 Grotius Soc. Trans. 211, at 218.Google Scholar

⁸⁶ Normand, op. cit. supra note 74, at 8. For a brief account, see Campbell, op. cit. supra note 85, at 217–22.

⁸⁷ Ibid., 216. Moreover, most would agree that Lorimer’s system rests less on the “real” facts of human nature — whatever these might be — than on Lorimer’s personal opinion about, or perception of, human nature. For a criticism along these lines by a contemporary of Lorimer, see Grierson, P.J. Hamilton, “The De Facto Principle in Jurisprudence” (1890), 2 Jurid. Rev. 245.Google Scholar

⁸⁸ Campbell, op. cit. supra note 85, at 219–22.

⁸⁹ Lorimer, op. cit. supra note 81, at 47–49.

⁹⁰ Ibid., 50.

⁹¹ Ibid.

⁹² Lorimer was openly scornful of the “unscientific” English approach to legal scholarship in general. Ibid., 103–4. For a similarly critical view of the English school of international law, see the (anonymous) review of Wharton’s Digest in The Edinburgh Review, No. 339, Art. VI (July 1887).

⁹³ Campbell, op. cit. supra note 85, at 214–16. Pollock’s defence of the English school of jurisprudence was put in these words: ”The theory of legislation must to some extent involve a theory of ethics, though it need not involve any decision upon ultimate metaphysical questions. But the analytical branch of political science, including the pure science of positive laws, is altogether independent of ethical theories, though not of the fact that in every commonwealth there are received moral standards which the rules of law must in the long run follow. And that is the definite scientific result which we in England say that the work of the past century has given us. The precision and abstraction which we have succeeded in attaching to our technical terms was mistaken, until quite lately, by foreign students, and even by able Scottish followers of the Continental methods like Lorimer of Edinburgh, for crude-ness and narrowness of thought. The English student, in turn, is naturally repelled by this misunderstanding, and is prone to assume that no solid good is to be expected of philosophers who have not yet clearly separated in their minds the notion of things as they are from that of things as they ought to be.” Frederick Pollock, An Introduction to the History of the Science of Politics 123–24 (1890) (Beacon paperback ed., 1960).

⁹⁴ Cited in Campbell, op. cit. supra note 85, at 214.

⁹⁵ Campbell, G. Paton, H., “The Eighteenth Century and Later,” in the Stair Society, An Introduction to Scottish Legal History 50 at 53 (1958)Google Scholar. Bell, the last of the great institutionalists, may also be regarded as the first of the modernists in Scottish legal scholarship. His famous Commentaries on the Law of Scotland and on the Principles of Mercantile Jurisprudence was the standard work on the Scots law of property, contract, and trade throughout the nineteenth century. His other great work was his Principles of the Law of Scotland. The jurisprudential triumph of Bell, an “anglicizing Whig,” has been said to reflect a general loss of confidence, indeed a virtual collapse, in Scottish culture in the early nineteenth century. William Ferguson, Scotland: 1689 to the Present 317 (1968).

⁹⁶ For a sympathetic British view of the natural law school, see Nathaniel Micklem, “The Philosophical Tradition in International Law” (1957), 43 Grotius Soc. Trans. 127. For an earlier and less sympathetic continental view, see Kunz, Josef L., “On the Theoretical Basis of the Law of Nations” (1924),10 Google Scholar ibid., 115. For a defence of the philosophical approach to the theory of international law, and for an assault on the historical, analytical, and me-chanical-positivist approaches of the nineteenth century, see Pound, Roscoe, “Philosophical Theory and International Law” (1923), 4 Bibliotheca Vis-seriana 71.Google Scholar For an exposition of the historical approach, see Sir Paul Vino-gradoff, “Historical Types of International Law” (1923), 4 ibid., 1.

⁹⁷ “ ‘We may, without hesitation,’ he says, ‘confine our investigations almost exclusively (a) to the higher races of mankind, (b) to the more vigorous periods of their moral, intellectual, and political life and (c) to the more highly developed portion of each community, as represented by its more prominent individual members.’ So elsewhere he speaks without further elucidation of ‘bad customs,’ ‘reactionary tendencies,’ ‘retrograde races.’ Like a good Victorian he never doubted that it was obvious beyond all need of proof what was ‘higher’ and what ‘lower,’ what was ‘progress’ and what ‘reaction’.” Campbell, op. cit. supra note 85, at 219.

⁹⁸ Because of his “developmental” approach to the law of nature and the law of nations, it was logically impossible for Lorimer to accept the doctrine of state equality except as an expedient fiction, and this he was not prepared to do. Instead, Lorimer develops from his conception of nature and inter-state relations an elaborate and difficult doctrine of recognition, and from this his concepts of normal and abnormal relations of states are logically derived. Lorimer, James, The Institutes of the Law of Nations (1883), Vol.1, at 1–16.Google Scholar In place of the conventional chapter on state equality, Lorimer has one upon “The Necessity of Ascertaining the Relative Value of States,” the gist of which he summarizes in these words: “All states are equally entitled to be recognized as States on the simple ground that they are States; but all States are not entitled to be recognized as equal States, simply because they are not equal States.” Ibid., Vol. 2, at 260.

⁹⁹ James Lorimer, The Institutes of Law, chap. 3 (“Of the Autonomy of Human Nature”). “The ultimate object of jurisprudence is the realization of the idea of humanity, the attainment of human perfection, and this object is identical with the object of ethics. The proximate object of jurisprudence, the object which it seeks as a separate science, is liberty” (emphasis added). Ibid., 279.

¹⁰⁰ Lorimer, op. cit. supra note 98, Vol. 1, at 3.

¹⁰¹ Ibid., Vol. 2, at 271.

¹⁰² On the competition between egalitarianism and libertarianism in contemporary international law, see Johnston, Douglas M., “The Foundations of Justice in International Law,” in Macdonald, , Johnston, , and Morris, , op. cit. supra note 14, at 118–20.Google Scholar

¹⁰³ Jenks, C. Wilfred, “The Significance Today of Lorimer’s Ultimate Problem of International Jurisprudence” (1940), 26 Grotius Soc. Trans. 36.Google Scholar

¹⁰⁴ This Scottish tendency seems to underlie his otherwise typically Victorian contempt for the proletariat. Lorimer, op. cit. supra note 81, at 74.

¹⁰⁵ But on Smith, as author of The Wealth of Nations, see Johnson, op. cit. supra note 68.

¹⁰⁶ Lorimer, op. cit. supra note 81, at 153.

¹⁰⁷ Ibid., 127.

¹⁰⁸ Ibid., 60–61. The problem of international organization is described by Lorimer as the “ultimate problem of international jurisprudence.” Lorimer, op. cit. supra note 98, Vol. 2, Book V. See Jenks, op. cit. supra note 103, passim.

¹⁰⁹ Ibid., 37.

¹¹⁰ Lorimer, op. cit. supra note 98, Vol. 1, at 445–46.

¹¹¹ Within the sphere of what Lorimer called “the abnormal jural relations of political entities” the function of international law, he said, is ”to constrain the proximate will, and the factors on which it must rely are force and fear.” Ibid., Vol. 2, at 12.

¹¹² Lorimer, op. cit. supra, note 81, at 129.

¹¹³ Lorimer agreed with Bluntschli that “the failure of all previous schemes of international organization can be satisfactorily explained by their aiming at two impossible objects: (a) The establishment of international arrangements which should be immutable; and (b) The political equalization of recognized States, whether with or without their equalization in fact.” Ibid., 160.

¹¹⁴ Lorimer, op. cit. supra note 98, Vol. 2, at 200.

¹¹⁵ In none of the books consulted on the history of the League of Nations idea was any reference to Lorimer found.

¹¹⁶ Indeed it has been conceded, even by critical commentators, that some of Lorimer’s ideas on international organization went beyond the League to the United Nations. Moreover, he foresaw the International Court and something like the Commonwealth of Nations. Sir Fitzmaurice, Gerald, “James Lorimer (1818–1890) : A Natural Lawyer among the Positivists,” in Evolution et perspectives du droit international, supra note 14, at 87–88.Google Scholar For a strong defence of Lorimer’s idea of international government against conservative positivists like Thomas E. Holland, see Jenks, op. cit. supra note 103, at 63–64. See also Higgins, A. Pearce, “La Contribution de quatre grands juristes britanniques au Droit International” (1932), 40 Recueil des Cours 5 for a sympathetic account of Lorimer by a conservative international lawyer.Google Scholar

¹¹⁷ The leading proponents of international codification in Lorimer’s lifetime were the famous Swiss jurist Johann Bluntschli (“our venerated father”) and Dudley Field, the American philanthropist.

¹¹⁸ Lorimer, op. cit. supra note 80, at 77-87. The Institut was founded at Ghent in 1873. Apart from Bluntschli, Field, and Lorimer, the following were present at the inaugural meeting: Rolin-Jaequemyns (Belgium), Mancini (Italy), Calvo (Argentina), Besobrasoff (Russia), Moynier (Switzerland), Asser (The Netherlands), and Laveleye (Belgium). Bad health prevented Westlake from attending. Bernard at Oxford seems to have been out of sympathy with the whole enterprise, identifying it with the cause of codification, which he dismissed as “little better than a chimera.” The Institut, it should be noted, eventually came around to accept Lorimer’s cautious attitude to codification. Fitzmaurice, op. cit. supra note 116, at 84.

¹¹⁹ A sympathetic obituary in 6 Scot. Law Rev. 71 (1890) concedes that his lectures rarely, if ever, attracted more than twenty or thirty students. It should be noted, however, that the Edinburgh Faculty of Law was held in low estate at that time. The same obituary refers to the “degrading inefficiency” of the Faculty and praises Lorimer for his indefatigable, though unsuccessful, efforts to institute educational reforms. His students, though few, seem to have been loyal, but the obituary goes on to describe as “pathetic” the circumstance of “an accomplished professor of European reputation year by year haranguing benches barely vitalized by a few struggling aspirants for another bench.” Ibid., 73.

¹²⁰ In the early years of the twentieth century there was a significant increase in the volume of literature to be reviewed in the journals. The Juridical Review in those years generally had one or two notes each year on an international law topic of current interest, and sometimes as many as four book reviews in the same field. The Scottish Law Review, on the other hand, very rarely published anything on the subject, though in 1905 it rose to the peak by producing three reviews of books on international law. The next international law book review did not appear in this journal until 1913, and even that one was on private international law.

¹²¹ Grant occupied this chair until 1922. He was remembered as a brilliant lecturer by his students. Wilson, William, “The Law of Nations” in the Stair Society, supra note 95, at 411, 422–23.Google Scholar Wilson was Grant’s successor.

¹²² Membership in the Grotius Society was open to all British subjects who were acceptable to the Executive Committee as qualified to contribute to the objectives of the Society, but the format of occasional meetings in London to hear the presentation of papers was bound, if not calculated, to secure the maximum participation of the London-Oxbridge axis and the minimal participation of the “provincials” in Scotland and the North of England.

¹²³ Perhaps partly because of the growing frequency of resort to international arbitration, it was becoming increasingly fashionable for judges in Britain at the turn of the century to take an interest in current questions of international law. This was evident in Scotland, as in England. In 1903, for example, Lord Kinross was elected as one of the vice-presidents of the International Law Association.

¹²⁴ North Atlantic Coast Fisheries Arbitration (1910), Vol. 9 (Oral Arguments, Part I), 6–471. Fulton refers to Finlay’s presentation in this famous case as “exceedingly able, lucid, and temperate.” Fulton, op. cit. supra note 2, at viii-ix.

¹²⁵ For further biographical data, see 16 J. Compar. Legis. 1 (1916).

¹²⁶ “I have, therefore, found it unnecessary to discuss the relation of international law to ethics, and I have avoided topics which can be dealt with satisfactorily only as parts of a general theory of jurisprudence.” Wheaton’s Elements of International Law (6th Eng. ed., Keith, 1929), Vol. I, at vii.

¹²⁷ Keith defends his emphasis on the principles of sovereignty and state equality — so rounded denounced by Lorimer — on the ground that they were upheld by Wheaton as well as the League of Nations Covenant. “Recent polemics against the conceptions of sovereignty and equality between States are perfectly valid as protests against the absurd conclusions which have been drawn from one-sided interpretations of these principles, but in the sense in which these terms were understood by Wheaton they are not open to any valid objection, and the League of Nations Covenant is manifestly designed to secure them a due place in international law, so that it has seemed quite needless to abandon current terminology.” Ibid. But he overlooks that his deliberate omission of Wheaton’s “rationalistic” theory has the effect of distorting the author’s original interpretation of the principles of sovereignty and state equality.

¹²⁸ In the absence of Mr. Charteris, an abstract of his I.L.A. paper was given by Dr. Thomas Baty: 28 Scot. Law Rev. 154 (1912). For other writings by Charteris on related topics, see 18 Jurid. Rev. 288 (1906–7); 21 ibid., 181 (1909–10); 23 ibid., 355 (1911–12); and 25 ibid., 209 (1913).

¹²⁹ 16 J. Compar. Legis. 3 (1916).