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The Changing Science of International Law

Published online by Cambridge University Press:  28 March 2017

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Abstract

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Type
Editorial Comment
Copyright
Copyright © American Society of International Law 1962

References

1 Compare, e.g., in German, the then celebrated treatise on international law by Franz von Liszt with the 1959 treatise by Alfred Verdross, or, in English, the first edition of Oppenheim’s treatise with the latest edition by Lauterpacht.

2 See this writer’s editorial in 53 A.J.I.L. 379–385 (1959).

3 See, as a recent example, the abundance of international and municipal “cases,” quoted from the original sources, in Georg Dahm, Völkerreeht, Vol. I (1958).

4 See, e.g., Dickinson, Edwin D., “International Law: An Inventory,” 33 Calif. Law Rev. 506549 (1945)CrossRefGoogle Scholar.

5 Walter, Schiffer, The Legal Community of Mankind (1954)Google Scholar.

6 Hegel, for whose dialectic philosophy the sovereign state was “the reality of the ethical idea,” came to the conclusion that international law cannot even be thought, that it is “denkunmoeglich.” The influence of Hegel’s glorification of the sovereign state finds expression in recent decades in the science of international law of the totalitarian states, whether Fascist or Communist. But there were always deniers, whose denial was based merely on an analytical critique: e.g., Austin.

7 Likewise, the doubts of the Neo-Thomist scholar, Jean Dabin, as to whether international law is really law in the full sense, stem from an analytical critique.

8 See Hans, Morgenthau, Politics among Nations (1948)Google Scholar.

9 Grenville, Clark and Louis, Sohn, World Peace through World Law (2nd ed., 1960)Google Scholar.

10 See Professor Lissitzyn’s book review in 1959 Cornell Law Q. 293–295.

11 That is why the occasional remark by W. Friedmann, that the book is an exercise in drafting rather than a contribution to contemporary international law, can be justified.

12 The Study of International Law (1955).

13 See the special number: Post-War Thinking on the Rule of Law, 50 Mich. Law Rev. 483–613 (1961). W. B. Harvey (ibid. 487–500) distinguishes three concepts: the constitutional (A. V. Dicey), the American (due process of law), and traditional natural law. See also W. W. Bishop, “The International Rule of Law” (ibid. 553–574). See further, e.g., Williams, Judge Robert N., “World Rule of Law,” 63 W. Va. Law Rev. 118129 (1961)Google Scholar; McClure, W., World Legal Order (1960)Google Scholar.

14 See its pamphlet: Basic Facts (1961). It publishes the Journal, The Bulletin, Newsletters, as well as special monographs.

15 It has also published Reports on the Rule of Law in the United States, Italy and the Federal Republic of Germany (1958), three Reports on Hungary, two on Tibet, and one against apartheid in the Union of South Africa. See also Dudley B. Bonsai (American member of the International Commission of Jurists), “The Judiciary and the Bar,” 40 Texas Law Rev. 2–17 (1961).

16 We may recall the old French Association: “La Paix par le Droit.”

17 On the Rule of Law and “World Law,” see also the special number: Next Steps in Extending the Rule of Law, 30 Notre Dame Lawyer (1961).

18 Roscoe, Pound, A World Legal Order (Fletcher School of Law and Diplomacy, 1959)Google Scholar.

19 Arthur Larson, Design for Research in International Rule of Law (1960, mimeo.); now in printed form (1961, pp. 111).

20 See his dissenting opinions as a Judge of the International Court of Justice; and his last book, Le Droit International Nouveau (1960).

21 García Amador, F. V., Introducción al Bstudio del Derecho International Contemporáneo (1959)Google Scholar.

22 Wilfred Jenks, C., The Common Law of Mankind (1958)Google Scholar. As to critical review articles, see Talk, E. A. and Mendlowitz, S. M., “Some Criticisms of C. W. Jenks’ Approach to International Law,” 1961 Rutgers Law Rev. 131 Google Scholar; Julius Stone’s review article in International Studies (New Delhi, India), 1960, pp. 414–441.

23 See this writer’s editorial in 55 A.J.I.L. 951–958 (1961). We read also in Hendry’s, J. M. “Canada and Modern International Law,” 39 Can. Bar Rev. 5977 (1961)Google Scholar: “Our goal is the establishment of the international Rule of Law.” (p. 63.) It needs a value-oriented jurisprudence: “Aiding our quest for a new international legal order is the revival, in some form, of natural law doctrines.” (p. 62.)

24 Cf. Lasswell and McDougal, in 52 Yale Law J. 203 ff. (1943); McDougal, 56 ibid. 1345–1355 (1947); idem, in 1 A. J. Comp. Law 24–57 (1952); idem, “International Law, Power and Politics: A Contemporary Conception,” 82 Hague Academy Recueil des Cours 137–258 (1961).

25 Grant, Gilmore, “Legal Realism: Its Cause and Cure,” 70 Yale Law J. 1037 (1961)Google Scholar.

26 Charles De, Visscher, Theory and Reality in Public International Law (English trans., 1957)Google Scholar. See this writer’s book review in 70 Harvard Law Rev. 1331–1335 (1957).

27 Milton, Katz, “International Legal Studies: A New Vista for the Legal Profession,” 42 ABA Journal 53 (1956)Google Scholar; Cavers, David F., “The Developing Field of International Legal Studies,” 47 Pol. Sci. Rev. 10561075 (1957)Google Scholar; Howard, John B., “International Legal Studies,” 1959 Univ. of Chicago Law Rev. 577596 Google Scholar.

28 Report on Harvard School for 1954–55, pp. 1–11.

29 Jessup, Philip C., A Modern Law of Nations (1948)Google Scholar; Transnational Law (1956) ; The Use of International Law (1959).

30 Erler, G., Grundprobleme des internationalen Wirtschaftsrechts (1956)Google Scholar.

31 Milton, Katz and Kingman, Brewster Jr., The Law of International Transactions and Relations. Cases and Materials (1960)Google Scholar.

32 Ibid. 3.

33 Ibid. 4–5.

34 As a recent example, the defense of the obsolete and fictitious construction of international general customary law as pactum taciturn, a construction so dear to nationalistic writers, some time ago: Tunkin, Q. I., “Remarks on the Juridical Nature of Customary Norms of International Law,” 49 Calif. Law Rev. 419430 (1961)CrossRefGoogle Scholar.

35 Guha Eoy, S. N., “Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?” 55 A.J.I.L. 863891 (1961)Google Scholar.

36 The New York Times, Dec. 19, 1961. We speak in the text only of the Indian arguments against Portuguese rights under general international law. That the Indian representative defended also the taking of Goa by force, “Charter or no Charter, Council or no Council,” is of course a very different matter, for the use of force, except in self-defense against an armed attack, is illegal even for enforcing a right. And here the Indian representative could not refer to a law made by the “colonialists.” The U.N. Charter was drafted with the collaboration of India and was voluntarily ratified by India.