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Positive Law and International Law*

Published online by Cambridge University Press:  28 March 2017

Roberto Ago
Roberto Ago*
Affiliation:
University of Rome
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Extract

One of the most representative authors of modern analytical philosophy, T. D. Weldon, has pointed out recently how he and his English and American colleagues have come to realize that many of the problems which their predecessors found insuperable arise not from something mysterious or inexplicable in the world around them, but from the peculiarities of the language with which we try to describe the world itself. This Oxford philosopher remarks that many errors in political doctrine and in various branches of philosophy are caused by “carelessness over the implications of language.” This carelessness, he goes on to say, is often due to the mistaken idea that words, and especially the words that normally recur in discussions on matters of political doctrine, have an intrinsic and essential meaning of their own, more or less in the same way as children have parents.

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Research Article
Information
American Journal of International Law , Volume 51 , Issue 4 , October 1957 , pp. 691 - 733
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Copyright © American Society of International Law 1957

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Footnotes

*

Translation by Miss Judith A. Hammond of the article, “Diritto Positivo e Diritto Intemazionale,” in Vol. I, of Studi in Onore di Tomaso Perassi. It appears in German in Vol. 6 of the Archiv des Völkerrechts, No. 3 (August, 1957), at pp. 257–307.

References

1 Weldon, T. D., The Vocabulary of Politics. An Enquiry into the Use and Abuse of Language in the Making of Political Theories 9 ff. (London, 1953)Google Scholar.

2 Another philosopher of the same school, Stebbing, L. S., Logic in Practice 51 ff. (4th ed., London, 1954)Google Scholar, recalls how Aristotle first noted that words are only sounds to which a meaning is conventionally attributed. And yet, she observes, it is important to stress this “conventional element,” because there is a tendency to forget it, and therefore not be sufficiently aware of the fact that meaning does not belong to the verbal sign as such, but only “to the sign as used.” The author then gives a series of typical examples, both political and economic, of the confusion in thought caused in discussions by those taking part using the same word and giving it different meanings, often without warning.

In Italy Bobbio, “Scienza del diritto e analisi del linguaggio,” in 1950 Riv. trim. di dir. e proc. civile 342 ff., and Scarpelli, , Filosofia analitica e giurisprudenza 9 ff. (Milan, 1953)Google Scholar, have pointed out the importance for legal science of this analysis of language carried out by analytical philosophy, founded as it is on the desire to control the use of language more strictly in order to introduce more exactitude into speech and to avoid ambiguities and misunderstandings.

3 The passage from Damaso, quoted by Kantorowiez, is the following: “Juris autem species sunt duae. Est enim jus naturale, quod natura animalia docuit. … Est etiam jus positivum sive expositum (lies: positum?) ab homine, ut sunt leges seculares et constitutiones ecclesiasticae.” Kantorowiez, V., “Das Prineipium decretalium des Johannes de Deo,” n. in 12 Zeitschrift der Savigny-Stiftung f. Rechtsgeschichte (Kan. Abt.) 440 and f. (1922)Google Scholar; and Damasus, n., 16 ibid. 332 (1927).

4 Kuttner, St., “Sur les origines du terme droit positif,” in 15 Revue hist, du droit frangais et Stranger (4 Ser.) 730 (1936)Google Scholar. The definition quoted is given by Abelard in his dialogue Inter Philosophum, Judaeum et Christianum: “Jus quippe aliud naturale, aliud positivum dicitur. Naturale quidem jus est. … Positivae autem justitiae quod ab hominibus institutum, ad utilitatem scil. vel honestatem tutius muniendam, aut sola consuetudine aut scripti nititur auctoritate. …”

5 Ibid.. 728.

6 Suárez, F., Tractatus de legibus ae Deo legislatore, Conimbricae, 1612, phot. repr. in The Classics of International Law. Selections from three works of Francisco Suárez (Washington, 1944), lib. I, cap. Ill, 13, p. 18 Google Scholar. In the following paragraph 14 Suárez then divides “lex positiva” into “divina” and “humana,” according to the Canonist tradition, deducing the distinction “a proximo principio unde manat.”

7 H. Grotii, De jure belli ae pacis libri tres (ed. Amstelaedami, MDCCXX), Prolegomena, 12, p. X and ff.; 15, pp. XII and ff.; and lib. I, cap. I, XIV & XV, p. 17 and f. “Jus voluntarium” differs from “jus naturale” by its origin, and is divided by Grotius, too, into “Divinum” and “Humanum.” Leibnitz also speaks of a “jus voluntarium” as distinct from natural law, and “receptum moribus vel a superiore constitutum”; see Leibnitz, Codex Juris Gentium Diplomatics (Hannoverae, MDCXCIII), Proefatio ad Lectorem, p. 8.

8 Rachelii, S., De jure naturae et gentium dissertationes, Kiloni, MDCLXXVI, phot. repr. in The Classics of International Law (ed. by L. v. Bar, Washington, 1916)Google Scholar, diss. prima, II–III, p. 2 and f.; VIII–IX, p. 5 and f., LVIII, p. 55; diss, altera, I–V, pp. 233 and ff.; XCII, p. 308; etc.

9 According to Wolff, , Jus gentium methodo scientifica pertractatum, ed. ace, Franco-furti et Lispiae, MDCCLXIV, phot. repr. in The Classics of International Law (ed. O. Nippold, Oxford, 1934)Google Scholar, Prolegomena, § 25, pp. 8 and ff., “Jus gentium positivum dicitur quod a voluntate Gentium ortum trahit.” This voluntary law differs from “jus gentium necessarium,” “internum,” “naturale,” on which it is based (see also Wolff, Institutions juris naturae et gentium, Venetiis, MDCCXCII, pars quarta, cap. I, §§ 1089–1090, p. 374 and ff.) and it includes law which originates in the presumed (jus voluntarium), expressed (jus pactitium) or tacit consent (jus consuetudinarium) of states. The tripartition of consent used by Wolff is the one already indicated by Rachel, De jure naturae, op. cit., diss, altera, X, pp. 242 and ff., who had distinguished between the “commune” and the “proprium” (particulare) in the. “jus gentium” (arbitrarium). For Wolff too “jus voluntarium” is common on the basis of the presumption that “maxima pro voluntate omnium gentium habendum erat, quod maiori eorum parti visum fuerit” (Jus gentium, op. cit. § 20, p. 7), while both “jus pactitium” and “jus consuetudinarium” are “jus particulare” (§§ 23 & 24, p, 8). Giuliano, , “La comunità internazionale e il diritto,” in Pubblicazioni della S. I. O. I., Studi, III (Padua, 1950), pp. 35, 61Google Scholar, going back partly to points made by von Ompteda and Nippold, observes that Wolff’s “jus gentium voluntarium” is “voluntarium” only by virtue of the imaginary “Civitas Maxima” with a Rector at its head who is endowed with the power of laying down laws, and that it is therefore voluntary only in name. This objection can be allowed if it is understood that Wolff includes under voluntary law a law which would be defined today as non-voluntary; and it would also stand for Wolff’s “jus consuetudinarium” and for the “jus voluntarium” of Grotius and those 17th, 18th and 19th-century authors who base customary law on the consent of states. Giuliano maintains (p. 27) that the “consensus” would not have been understood by the whole of classical doctrine to be a manifestation of will so much as a manifestation of psychological feeling, the “common sentiment” of the peoples. Put in these words, however, the assertion needs some reservations, no less than the parallel affirmation (pp. 19, 35) which is that in Wolff and in Vattel, the Jus naturae would no longer fulfill a precise function within the scientific construction of the international order. However, the interesting thing for us is that Wolff qualifies “jus voluntarium” as “positive” only insofar as he can show it to be voluntary in some way, by making it derive from the presumed consent of states.

The division of law adopted by Vattel is identical with that of Wolff; see Vattel, , Le Droit des gens ou principes de la loi naturelle appliquée à la conduite et aux affaires des Souverains (nouv. éd. par P. Pradier-Fodéré), Tome I (Paris, 1863)Google Scholar, Préliminaires, § 27, pp. 105 and f. For De Martens, C. F., Précis du droit des gens moderne de l’Europe (2ème éd. par Ch. Vergé), Tome premier (Paris, 1864)Google Scholar, Introduction, §§ 5, 6, p. 44 and ff., the “droit des gens positif et particulier” rests on tacit or recognized conventions or on simple customs, but is distinguished from the “droit des nations naturel, universel et nécessaire.”

10 See for example Klüber, , Droit des gens moderne de l’Europe 1 and f. (nouv. éd., Paris, 1861)Google Scholar, for “Ce droit (des Nations) est naturel, en tant qu’il dérive de la nature mçme des relations qui subsistent entre les Etats, positif lorsqu’il est fondé sur des conventions expresses ou tacites.” The adjective “positive” is used similarly in the thought of the 19th century to indicate the particular part of international law in force which is produced by the consent of states, as opposed to that part for which the adjective “natural” or “necessary” is reserved. See Manning, , Commentaries on the Law of Nations 66 (new ed. by S. Amos, London, 1875)Google Scholar; SirPhillimore, Robert, Commentaries upon International Law (3rd ed., London, 1879), c. III, XXII, p. 15 Google Scholar; Twiss, Travers, 1 Le droit des gens ou des nations (nouv. éd. rev., Paris, 1887), Ch. VI, p. 134 Google Scholar (this author uses “positif” and “établi” as synonyms); Fiore, , 1 Trattato di diritto internazionale pubblico (4th corr. ed., Turin, 1904)Google Scholar, cap. II, pp. 115 and f. (Fiore defines positive law as “jus positum”); 1 Ferguson, Manual of International Law 63 (London, 1884); Bonfils-Fauchille, , 1 Traité de droit international public (8th ed. rev.), Pt. I, 22 (Paris, 1922)Google Scholar.

11 Hobbes, T. in Leviathan (London, 1651, re-ed. by M. Oakeshott, Oxford), Part 2, Ch. 26, 7, p. 186 Google Scholar, had divided laws into natural and positive, defining the latter as “those which … have been made laws by the will of those that have had the sovereign power over others.”

12 Pufendorfii, S., De jure naturae et gentium libri octo (ed. ult. Amstelodami, MDCLXXXVIII), phot. repr. in The Classics of International Law (ed. W. Simons, Oxford, 1934), lib. I, cap. VI, § 18, p. 77 Google Scholar: “lex … dividitur in naturalem et positivam … haec est … quae ab solo legislatoris arbitrio proficiscitur.” After this the author goes on to deny “positivum aliquod jus gentium, a superiore profecto.” Hobbes’ and Pufendorf’s ideas on the exclusion of the existence of a “jus gentium positivum” are shared by various writers: see C. Thomasii, Fundamenta juris naturae et gentium ex sensu communi deducta (Halae et Lipsiae, MDCCXIII), lib. I, c. V., §§ XXIX–XXXIV, p. 108 f., §§ LXV–LXXVIII, p. 115 f.; Textoris, J. W., Synopsis juris gentium (Basileae, MDCLXXX), phot. repr. in The Classics of International Law (ed. L. v. Bar, Washington, 1916), cap. II, 4–6, p. 9 Google Scholar; J. Barbeyrac, in the notes on the translation of Le droit de la guerre et de la paix par Hugues Grotius, tome premier (Basle, MDCCLXVIII), p. 56, n. 3; and also substantially T. Rutherforth, Institutes of Natural Law (Cambridge, MDCCLIV–LVI), Vol. First, Ch. I, V, p. 8; Vol. Second, Ch. IX, I, pp. 462 ff.

13 With this conclusion Pufendorf and his followers did not intend to deny the legal character of international law as Giuliano has quite rightly pointed out in La comunita internazionale, op. cit., pp. 33 f., 75 f., showing that for these writers “jus positivum” was only a kind, an aspect, a form of law. Therefore if the norms followed in relations between states were norms jus naturale, this only meant that they were norms of another type of law, but still of law.

14 The matter of jurisprudence is positive law:” with these words Austin begins his treatment of the subject. Austin, Lectures on Jurisprudence or the Philosophy of Positive Law (abr. by R. Campbell, thirteenth impr., London, 1920), part I, sec. I, introductory, p. 5. “Ein … nicht positives oder Naturrecht … kein Erkenntnisobjekt der Rechtswissenschaft, weil juristisch überhaupt gar kein Recht ist,” Bergbohm offers on his side. Jurisprudenz und Rechtsphilosophie, Bd. I (Leipzig, 1892), p. 549 Google Scholar. Later on Malberg, Carré de, “Réflexions tres simples sur l’objet de la science juridique,” in Recueil d’études sur les sources de droit en l’honneur François Gény, I (Paris, 1937), pp. 201 and ff.Google Scholar, will confirm that: “la science juridique se trouve toujours ramenée à ne connaître que du droit positif … elle répugne à l’idée du droit incréé, c’est-à-dire non édicté—ou tout au moins estampillé—par une autorité attitrée, tout comme la nature a horreur du vide.”

15 To clarify the meaning of the term “positive” Bergbohm, in Jurisprudenz, op. cit. 51, in a note observes: “Mit dem ‘Positivismus’ und der positiven Philosophie Aug. Comtes … hat dieser Terminus natürlich nichts zu thun.” He is decidedly opposed to those philosophers’ ideas on law (see also p. 311). In spite of this some authors hold that there remains some link of derivation between legal and philosophical positivism. Morgenthau, in “Positivism, Functionalism and International Law,” 34 A.J.I.L. 261 (1940)Google Scholar, after having pointed out that positivist philosophy “restricts the object of scientific knowledge to matters that can be verified by observation, and thus excludes from its domain all matters of an a priori, metaphysical nature,” goes on to say that legal positivism transfers this restriction into the sphere of law. The fact that legal positivism turns its attention not to all possible manifestations of law, but, as the same writer points out, only “to the legal rules enacted by the state, and excludes all law whose existence cannot be traced to the statute books or the decisions of the courts” is certainly not the result of an application of the experimental principle put forward by the positivist philosophy, to which it is obviously opposed (and Morgenthau recognizes this on p. 269). It is rather a consequence of the influence of a priori principles of different schools of philosophy, some of which preceded the positivist school.

These same points can be of value in respect to the assertion of Del Vecchio in Dispute e Conclusioni sul Diritto Naturale 7 and f. (2nd ed., Rome, 1953), that Bergbohm’s identification of law with positive law is a consequence of the “prejudice” on the part of positivist philosophy, whereby the only knowable reality is that of the senses. The same writer (Sulla positività come earattere del diritto, Modena, 1911) had, however, been obliged to point out how philosophers of other schools had come close to the idea of this identification: Vanni had made this point before him, while criticizing Petrone, in “La filosofia del diritto in Germania e la ricerca positiva. Nota critica,” in 22 Riv. it. per le scienze giuridiche 80 and f., 92 and f. (1896)Google Scholar, with particular reference to Lasson. However, it is Hegel himself who asserts in Grundlinien der Philosophic des Rechts (hrgb. E. Gans, 2d ed., Berlin, 1940), Einleitung, § 3, p. 24 and f.: “Das Recht ist positiv überhaupt … und diese gesetzliche Autorität ist das Prinzip für die Kenntnis desselben, die positive Rechtswissenschaft.” It is interesting to note that, following this tradition, the representative of the most modern German neo-idealistie movement, Binder (Grundlegung zur Rechtsphilosophie) will repeat almost a century later (the work came out in 1935) that positive law and only positive law is law, and that its validity and force rest on the “identity of its existence and of its being laid down.”

The necessity of avoiding confusion between juridical positivism “consistant à n’admettre le droit que sous sa forme positive,” and philosophical positivism has been strongly affirmed by Gény in “La notion du droit en France,” Archives de Philosophie du Droit et de Sociologie juridique, prem. année, 1931, p. 26, note 1. Waline agrees with this affirmation, for the most part, in “Positivisme philosophique, juridique et sociologique,” Mélanges R. Carré de Malberg 519 and ff. (Paris, 1933)Google Scholar. If this writer recognizes the existence of a link between positivism in philosophy and positivism in law (which he divided again into “legal positivism” and “sociological positivism”), it is only in the sense that, in his opinion, a follower of philosophical positivism could not admit the existence of a natural law.

16 K. Bergbohm, Jurisprudenz und Rechtsphilosophie 546. See also the note on p. 52: “Alles Recht ist positiv, alles Recht ist ‘gesetzt,’ und nur positives Recht ist Recht.” In German terminology the identification of positive law with “gesetzt” law had already been made by Hegel, Grundlinien, op. cit., dritter Teil, § 211, p. 265, and it will be found again in more recent authors like Stammler who, in Theorie der Rechtswissenschaft (Halle, 1911), II, p. 3, translates the Latin word “positivum” as the German “gesetzt.” For Lasson, , System der Rechtsphilosophie (Berlin, 1882), § 25, p. 231 Google Scholar, law is “eine äusserliche Ordnung mit dem Charakter des Fixirten” and in this sense it is “positives Recht.” In English thought, Austin, Lectures, op. cit., part I, sec. I, lec. V, p. 60, justifies the term “positive law” by the fact that it is a question of law “set by men.” Among the Italian philosophers of law of the same period a positivist like Vanni, Lezioni di filosofia del diritto (race, per O. Petrone, Rome, 1900–01), lit., p. 96, defines law as “norma in civitate posita”; and an author, who is a critic of German positivism and defends the theoretical legitimacy of natural law, like Petrone, , “Contributo all’ analisi dei caratteri differenziali del diritto,” in 22 Riv. it. per le scienze giuridiche 340 (1896)Google Scholar, considers positive law to be law “ storicamente avvenuto e divenuto,” as opposed to natural law “meremente ideale e potenziale”; and in the continuation of the same study he identifies the objectivity of law with its “ determinazione esteriore e positiva” and sees in the Décis, the Satzung, the laying down of law, its truly distinctive character, its “forma essenziale” and the “vero fondamento” of its existence.

17 Jurisprudenz u. Rechtsphilosophie 549. See also by Bergbohm, , Staatsverträge und Gesetze als Quellen des Völkerrechts 40 and f. (Dorpat, 1877)Google Scholar: “Ein Recht ist positiv, im Gegensatz zu einem bloss gedachten … wenn und soweit er der ‘erklärte Rechtswille einer Rechtsquelle ist’ … nur die Erklärung … durch den competenten rechtsbildenden Willen macht es zum positiv geltenden.” Here the link with Hegel is clear. Hegel, having stated that law is positive inasmuch as it is “in seinem objektiven Dasein gesetzt,” points out that “die positive Rechtswissenschaft ist isofern eine historische Wissenschaft, welche die Autorität zu ihrem Prinzip hat.” (Grundlinien, op. cit., dritter Absch., § 212, p. 268 and ff.) Besides the numerous writers quoted by Bergbohm (p. 41, n. 2), Nippold is also in agreement, Der völkerrechtliche Vertrag 18 (Bern, 1894): “Wir verstehen also unter Recht, positivem Recht … den Inbegriff derjenigen Normen, die thatsachliche Geltung haben, weil sie die erklärte Wille der rechtsschaffenden Autorität sind.” Later on, Somló, Juristische Grundlehre 87 (Leipzig, 1917)Google Scholar, defined law, which he identified with positive law, thus: “Das Recht ist eine Norm, die einer bestimmt gearteten Quelle entstimmt.” In the Italian positivist doctrine Vanni, Lezioni, op. cit. 96, speaks of the positive norm as “thought and willed by certain minds and established externally in a fixed form.”

18 J. Austin, Lectures, op. cit., Pt. I, sec. I, lee. VI, p. 60: “ Every positive law, or every law simply and strictly so called, is set by sovereign power, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme.” Similarly Holland, The Elements of Jurisprudence, Ch. IV, p. 41 (10th ed., Oxford, 1906): “ A Law, in the sense in which that term is employed in Jurisprudence, is enforced by a sovereign political authority. … In order to emphasise the fact that laws, in the strict sense of the term, are thus authoritatively imposed, they are described as ‘positive’ laws.”

19 Since the state is for Hegel (Grundlinien, op. cit., dritter Absch., § 257, p. 305) the “Wirklichkeit der sittlichen Idee,” law cannot but depend on the state and have its reality in the state. Consequently (§§ 211–212, p. 265 and ff.) he identifies “was Recht ist und gilt” with “das Gesetz” and affirms that “hat nur als Recht Verbindlichkeit was Gesetz ist.” He therefore must conclude that even in relations between sovereign states law does not have its “Wirklichkeit” in a general will “zur Macht über sie konstituirten,” but in their own particular will (§ 333, p. 419).

20 “Der Staat ist die einzige Quelle des Rechts,” Rudolph von Ihering affirms curtly in Der Zweck im Recht, Vol. I, 2nd ed., p. 318 (Leipzig, 1884). “Der verpflichtende Staatswille ist Recht.” Georg Jellinek states for his part Die rechtliche Natur der Staatenverträge (Wien, 1880), p. 6. The entire dependence of law on the state has also been asserted briefly by Lasson, System, op. cit. 412; by Nippold, Des völkerr. Vertrag, op. cit. 18 and f., and later by Hölder, , “Das positive Recht als Staatswille,” in 23 Arch. f. öff. Recht (1908)Google Scholar, and Somló, Juristische Grundlehre 330, for whom “die Quelle, aus der das Recht fliesst, letzten Endes die Rechtsmacht des betreffenden Staatswesens selbst ist.” At the beginning Kelsen, too, in Hanptprobleme des Staatsrechtslehre 97 and ff. (Tübingen, 1911), adopted the principle that objective law is the will of the state and that (p. 101) “alles Recht … soferne es Recht ist, Wille des Staates sein muss.”

Under the influence of German legal thought the idea of the dependence of law on the state was widely accepted at the beginning of this century by theorists of both public and private law. Romano names the most important of these in L’ordinamento giuridico. Studi sul concetto, le fonti e i caratteri del diritto, Pt. I (Pisa, 1917), p. 96, note 1, at the beginning of a criticism of the concept indicated here. This criticism is approved and confirmed successively by Orlando, “Recenti indirizzi circa i rapporti fra Diritto e Stato,” in Riv. di dir. pubblico, 1926, first part, p. 273 and ff. Also on this point see Del Vecchio’s criticism in “Sulla statualité del diritto,” Riv. int. di fil. del diritto, anno IX, fasc. 1, 1929, p. 3 and ff. Among modern writers “statualitá” is considered to be a necessary feature of the legal system by Carnelutti, , Teoria generale del diritto 75 (Rorne, 1951, 3rd rev. ed.).Google Scholar However, the writer explains that by this formula he means the principle of systematization or completeness, and that “statualitá should not be understood to mean that the state is its source, as many in fact do understand it.”

In France the theory which makes all law depend on the state was less well received. Of the more recent writers the most determined representative of this school of thought is CarrS de Malberg, Contribution a la thfiorie de l’Etat. Gény also recognizes the same idea in substance, although much less dogmatically and with some reservations. Géiny, , Science et Technique en Droit privé positif, I, pp. 55 and ff., 63 (Paris, 1914)Google Scholar : “Le droit positif ne s’établit que grâce à une société fortement organisée et renfermant en elle-même un pouvoir capable de préciser et d’imposer, par des moyens adéquats, les règies qui en foment le contenu nécessaire”; the only “droit positif dont nous puissions avec fruit serrer de près la notion” is law which is “constituté dans et par l’Etat.”

21 According to Austin, Lectures, op. cit., Pt. I, sec. I, lec. V, pp. 65, 74 and f.; lec. VI, p. 85, the rules generally known as “international law” are of “positive international morality,” and of “international morality” according to Pomeroy, Lectures on International Law in Time of Peace, § 28, p. 23 and ff. (ed. by Woolsey, Boston and New York, 1886). For Wheaton, , Eléments du droit international, Pt. I, Ch. 1, § 10, p. 22 (2d ed., I, Leipzig, 1852)Google Scholar, “entre les nations il n’y a qu’une obligation morale résultant de la raison” and it is only in a metaphorical sense that international law can be called law. Stephen, , International Law and International Relations, Introduction, IV ff., 10 ff., 45 ff. (London, 1884)Google Scholar, is convinced that relations between states are always non-legal; according to Lasson, , Prinzip und Zukunft des Völkerrechts, 8 ff., 35 ff., 52 ff., etc. (Berlin, 1871)Google Scholar, there are only non-legal “Staatensitte” in relations between states; Hagens, Staat, Recht und Völkerrecht 34 (München, 1890), sees international society as a mere “Interessengemeinschaft” and international law is reduced to mere rational law, to “ein vernunftpostuliertes Recht.”

In more modern thought a writer like Burckhardt, , Die Organisation der Rechtsgemeinschaft 351 ff. (zweite neu durchges. u. ergänzte Aufl., Zürich, 1944)Google Scholar, does not admit the existence of a positive international law because it is not created by manifestations of the will of an authority, and he reduces international law to a merely rational law. Also for Carnelutti (Teoria generale 75 ff.), international law is not true law because it lacks “that completeness which is expressed through the idea of ‘statualità’.” Giuliano (La Comunitá internazionale 75 and 93 f.) has called attention to the link between the attitude to international law taken up by writers like Carnelutti and that of 19th-century authors who followed the teaching of Austin. It is also interesting to notice the relatively similar outlook of an author like Stephen, above mentioned, and a modern writer like Corbett, , Law and Society in the Relations of States 8 ff., 91 ff. (New York, 1951)Google Scholar, for whom states now follow “patterns of practice” in their relations, rather than real legal norms.

22 E.g., Nippold (Der Völkerr. Vertrag 2 ff., 12, etc.) speaks of “positive Rechtsordnung” and, like Hegel, of “positive Rechtswissenschaft” and “positive Rechtslehre.” Later others will follow this example.

23 Jurisprudenz, op. cit. 549.

24 “Wann ist eine normierende ‘Macht’ eine ‘kompetente’?” Kelsen asks with reference to Bergbohm. Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts 89, note 1 (Tübingen, 1920). And he replies: “nur darum sind ihre Normen ‘positive’ Rechtsnormen, weil sie—von Rechtswegen—kompetent ist, Normen zu setzen!” Similarly Ross, Theorie der Rechtsquellen 6 (Leipzig and Vienna, 1929)Google Scholar, observes, with reference to the definition of law as “l’oeuvre du pouvoir compétent” given by Gény, that “die Kompetenz keine sinnlich wahrnehmhare Tatsäche, vielmehr selber ein normativer Begriff ist nnd so wiederum das Rechtsproblem voraussetz, das gelöst werden sollte.” The same could be said with reference to Carré de Malberg, who insists, on the one hand (Contribution, op. cit. 207; Réflexions, op. cit. 203), on the notion of positive law as “créé ou déclaré par l’autorité compétente,” and on the other (Contribution 67), denies the priority of law with regard to the state.

25 Perassi, T., “Teoria dommatica delle fonti di norme giuridiche in diritto internazionale,” 11 Riv. di dir. internazionale 196 (1917)Google Scholar.

26 Vanni (Lezioni 126) had already based the proof of the “legal nature” of a rule on the “pre-existing legal system,” pointing out that “una norma giuridica deve considerarsi come l’ultimo anello di una catena, i cui anelli precedenti costituiscono appunto l’ordine giuridico preesistente, il quale attribuisce ad alcuni la facoltà di stabilire delle norme, e per conseguenza attribuisce carattere giuridico alle norme stabilite.” Romano, And, “Sui decreti legge e lo stato d’assedio in occasione del terremoto di Messina e di Reggio Calabria,” 17 Biv. di Dir. Pubb. (Pt. I) 260 and f. (1909)Google Scholar, had noticed that “quando si indaga il fondamento obbligatorio di una legge, tale fondamento si rinviene in una legge precedente che stabilisce gli organi competenti ad emanarla ed i loro poteri.”

27 T. Perassi, loc. cit. 197 and ff. Romano, loc. cit. 261, having pointed out also that in the search for the basis of all law “we must stop at some point having reached the first law,” had, however, seen the origin of the obligatory force of this law in the “necessity which determined it,” agreeing with his principle that necessity “is the first and original source of all law.”

28 T. Perassi, loc. cit. 199.

29 “To pose the problem of the juridical nature of this rule,” observes Perassi (loc. cit. 204 ff.), “is to pose the problem of the origin of the legal system. Dogmatism would cease to be dogmatism, if it was capable of solving the problem.”

30 Ibid. 202 and f. According to Perassi, sociology, in its branch concerning law, has the task of studying “le relazioni tra l’ordinamento giuridico e la società di cui è la sovrastruttura,” while dogmatism aims at the scientific result “di conseguire la conoscenza sistematica di un ordinamento nella sua funzione di sistema di canoni di valutazione delle relazioni sociali” (see Corso di istituzioni di diritto pubblico (2d ed., Naples, 1922), Pt. I, Introduzione alle scienze giuridiche 20 and 23).

31 With a variety of attitudes, which I shall not consider here, the idea of legal science as “dogmatic” and of its limitations has been criticized by the most recent Italian students of international law. See in this connection the ideas developed by Ziccardi, , La costituzione dell’ordinamento internazionale 44 and ff. (Milan, 1943)Google Scholar; Sperduti, , La fonte suprema dell’ordinamento internazionale 114 and f. (Milan, 1946)Google Scholar; and “Norme giuridiche primarie e fondamento del diritto,” Riv. di dir. int., 1956, fasc. 1, p. 26; Giuliano, La comunità internazionale, op. cit. 115 ff.; and this writer Scienza giuridica e diritto internazionale 44 f. (Milan, 1950).

32 This expression is used in the revised and augmented French edition of the Reine Rechtslehre; see Kelsen, , Théorie pure du droit 33 and f. (Neuchâtel, 1953)Google Scholar.

33 The concept of the “Grundnorm” as being the hypothesis on which the unity of legal norms is based was introduced by Kelsen, in “Reichsgesetz und Landesgesetz nach österreichischer Verfassung,” in 32 Archiv des öff. Rechtes 216 and ff. (1914)Google Scholar. Therefore, as he himself Tecognizes in the preface to the second edition of Hauptprobleme der Staatsrechtslehre (Tübingen, 1923), p. XV and f., it was Verdross, “Zur Problem der Rechtsunterworfenheit des Gesetzgebers,” in Juristische Blätter (45 Jahr, 1916), who developed the idea of the basic rule as a constitution in the logical and legal sense and who presented it (p. 4) as a “ Wissenschaftshypothese” necessary to give legal science a basis on which to construct systematically the material of positive law. The works of Pitamic and Merkl, which followed, completed the definition of this school’s thought, showing the Grundnorm to be the hypothesis of legal knowledge and the basis of the “Stufentheorie des Rechtes” at the same time.

34 H. Kelsen, Das Problem der Souveränität 93.

35 Thus Verdross, , “Völkerrechtsquellen,” in 3 Wörterbuch des Völkerrechts und der Diplomatic 293 (fortges. u. hrgb. v. K. Strupp, Berlin and Leipzig, 1929)Google Scholar. The same idea had already been expressed in similar terms by this writer in Die Verfassung der Völkerrechtsgemeinschaft 21 (Vienna and Berlin, 1926): “… die oberste Norm, die Grundnorm, nie und niemals durch einem Organakt gesetzt, sondern selbst zur Begründung der obersten Organakte schon vorausgesetzt werden muss.” Küntzel expresses himself similarly in Ungeschriebenes Völkerrecht, Ein Beitrag zu der Lehre von der Quellen des Völkerrechts 1 (Königsberg, 1935).Google Scholar “It is not a law which is laid down, but merely one which is presumed,” says Morelli on the subject of the “fundamental law” in Nozioni di diritto internazionale 7 (4th rev. ed., Padua, 1955)Google Scholar. Also according to Guggenheim, , 1 Traité de droit international public 7 (Geneva, 1953)Google Scholar, “la norme fondamentale … est présupposée et eonstitue l’hypothèse première et indèmontrable pour la science juridique, d‘où dérivent les règies positives.”

36 “Die Grund—oder Ursprungsnorm—als Hypothese,” writes Kelsen (Allgemeine Staatslehre 104 (Berlin, 1925)), “muss von der Rechtserkenntnis eingeführt werden, um das Recht zu begreifende Material … ‘Recht’ zu erfassen.” And he confirms this in the more recent General Theory of Law and State 116 (Cambridge, 1946)Google Scholar: “To interpret these acts of human beings as legal acts and their products as binding norms, and that means to interpret the empirical material which presents itself as law as such, is possible only on the condition that the basic norm is presupposed as a valid norm.”

37 General Theory, op. cit., 114.

38 No less clearly, according to Morelli, Nozioni, op. cit. 22, the fundamental norm is not a positive norm because it does not originate from a formal source; and according to Guggenheim, Traité, op. cit. 7, the fundamental norm, not having been created by a lawmaking procedure, “n’est done pas elle-même une norme positive.”

In pointing out the contradiction that the presence of the “non-positive” basic norm represents in relation to the assertion of the necessary “positivity” of all the norms of law, the writer had shown (Scienza giuridica, op. cit. 40 ff.) that in order to deduce the validity of “positive” norms from the validity of the “non-positive” basic norm the latter must belong to the same world as the former. He had then remarked that if the positive norms constitute, as Kelsen says, the empirical material to which the jurist must be able to give a systematic unity, the basic norm must be presupposed to live in the same empirical world as the positive norms. Scarpelli, in Filosofia analitica, op. cit. 68 f., had objected that from the point of view of the “normativische” legal science, the positive legal norms are not “living” in the empirical world, and that therefore it is not necessary to think that the fundamental norm is also living in the empirical world. This is not the place to linger over such an affirmation which contradicts the clear assertions of Kelsen himself. It is enough to observe that Scarpelli himself later on stressed logically, if on another level, the necessarily identical nature of the fundamental norm and the other normative propositions towards which the former acts as a “criterion of control of validity.” This only confirms the foundation of the point made; that is, of the contradiction between the affirmation of the positivity of all legal norms on the one hand, and the necessary recognition of the existence of a norm, belonging to the same system and endowed with same nature, which is, however, clearly not positive, on the other.

39 Perassi adopted this outlook right from the first edition of his Lezioni di diritto internazionale, Pt. I, p. 35 (Rome, 1933), and he has not altered it in later editions. “Lo stesso è a dirsi per le altre norme dell’ordinamento internazionale, il quale, come ogni altro, oltre che dalle norme create da atti o fatti che esso stesso contempla come processi di produzione giuridica, è costituito da un gruppo, sia pure estremamente scarso, di norme fondamentali, la cui formazione è solo storicamente spiegabile, e la cui giuridicitè nell’ordinamento internazionale è quindi un postulato.” Similarly Balladore Pallieri already affirmed in the first edition of his Lezioni di diritto internazionale, Fasc. I, lit., p. 29 (Milan, 1935): “Also the international community has, and cannot but have certain supreme norms which give validity to the others but receive it from none; norms that the jurist finds inexplicable.” The latter, he reconfirmed in his 5th edition of Diritto internazionale pubblico, p. 14 (Milan, 1948), “parte assiomaticamente da alcune norme sopra cui impernia tutto il sistema e di cui presuppone, senza dimostrarlo, il valore.” This assertion is omitted in later editions of the same work (see 7th ed., Milan, 1956, p. 16 ff.) in which, though without being very clear, the author seems to follow the criticism of more recent thought in taking up the idea of the demonstrability, by inductive methods, of the existence of “original” international unwritten norms (see p. 23 f.). Castberg, Problems of Legal Philosophy 50 f. (Bergen, 1947), follows the same order of ideas as Perassi. He states the existence of a number of “fundamental norms” which are not “positively determined norms” and “the validity of which we postulate.”

40 “Die Prädizierung des Rechts als ‘geltendes’ oder ‘positives’ enthält ohne Zweifel einen Pleonasmus,” says Bergbohm (Jurisprudenz 49). But he immediately adds that it is a useful pleonasm for avoiding ambiguity with regard to those who may have the idea of a law of another kind. On the same page he adds: “Wir sprechen z. B. von dem ‘geltenden’ Recht … von seiner formellen ‘Giltigkeit.’ … Wir meinen damit soviel wie Wirksamkeit, “Verbindlichkeit, besonders geartete Verpfliehtungskraft der als rechtliehe bezeichneten Normen, kurz dasjenige im Recht, was da macht, dass man ihm zu gehorsamen verpflichtet ist.” Further on, p. 132, he confirms: “Die positivrechtlichen Normen haben eben diese ihre Eigenschaft durch einen gesehichtlichen Vorgang erhalten, ohne den sie überhaupt nicht hätten geltendes Recht werden können.” Agreeing with these remarks, Nippold (Der völkerr. Vertrag 7) says there is absolute correspondence between the concepts of positive law and law “in force.” The adjectives “positivo” and “vigente” are used to mean the same thing by Anzilotti, , Corso di diritto internazionale 17 (3rd rev. ed., Rome, 1928)Google Scholar: “Obietto della giurisprudenza e il diritto positivo; suo compito primo determinare e spiegare le norme vigenti, ordinandole nella forma logica di un sistema.”

41 Bierling does this, for example, 1 Juristische Prinzipienlehre 3 (Freiburg and Leipzig, 1894): “… alles Recht im juristischen Sinne nur als positives, d.h. irgendwo und irgendwam geltendes, auf irgend einen bestimmten Kreis von Subjekten be-schränktes Recht”; and p. 47: “positives Recht ist, oder als solches erscheint, was irgendwo und irgendwam als Recht gilt.” In Romano (Sui decreti legge, op. cit. 261) can be found a slight sign that would indicate the adoption of an idea of positive law as corresponding, within the law of the state, to all the norms “which are enforced by State organs.” This author can certainly not be considered as belonging to the positivist school.

42 Stammler, R., Theorie der Rechtswissenschaft 74 ff. (2nd ed., Halle, 1923)Google Scholar; Lehrbuch der Rechtsphilosophie 94 and f. (Berlin and Leipzig, 1922)Google Scholar. The author explains the concept “des positiven oder gesetzten Rechts” by pointing · out that “‘Positives’ Recht ist das bedingte rechtliche Wollen” (Theorie 75; Lehrbuch 95). Faithful to positivist canons he therefore adds that all historical law, in all its possible forms and manifestations, is positive law, “gesetztes Recht.”

43 J. Binder, Grundlegung, op. cit. 150 of the Italian translation.

44 Kelsen always adheres to the use of the term “positive law” in the traditional sense of law “laid down.” “Positiv, das heisst wortlich “gesetzt’,” he says in Das Problem der Souveränität 93, “ist somit die einzelne Rechtsnorm, soferne sie in dem auf der juristischen Hypothese der Ursprungsnorm einheitlich gegründeten System einer bestimmten Rechtsordnung gesetzt ist.” We have already seen how in his most recent works he has confirmed the idea that the positivity of a norm lies in its having been created by a law-making act which was set up in time and place. Similarly, according to Verdross, Die Einheit des reehtlichen Weltbildes auf Grundlage des Völkerrechtsverfassung 77 and f. (Tübingen, 1923), and Die Verfassung, op. cit. 6 f., the “positivity” of law lies in its “Erfüllung durch tatsächlich gesetzte Rechtsakte.” Verdross also upholds this idea in the most recent edition of his Völkerrecht, p. 18 (3rd ed., Vienna, 1955). Also Guggenheim, , “Was ist positives Volkerrecht?” in 8 Schweiz. Jahrb. f. internat. Recht 50 and f. (1951)Google Scholar; and 1 Traité 7 (Geneva, 1953), although he sees positive law and law in force or “wirksam” as expressions meaning the same thing, maintains that the positivity of a norm is always given by its creation through an act of the will of a subject conforming to a law-making procedure whose point of departure is given by the fundamental norm, which is an hypothesis and not a positive norm.

45 W. Burckhardt, Die Organisation der Rechtsgemeinschaft 351.

46 R. Carré de Malberg, Réflexions 194, 203.

47 Dabin, J., La philosophic de l’ordre juridique positif spéeialement dans les rapports de droit privé 34 and f. (Paris, 1929)Google Scholar.

48 This definition is to be found in the third edition of the Corso di diritto internazionale 17 (Rome, 1928). In the first edition of the same work (Rome, 1912), p. 12, Anzilotti had asserted that “il diritto, come norma obbligatoria dell’umana condotta, non esiste se non in quanto è posto da una volontà idonea ad obbligare i consociati.”

49 Salvioli, G., “Les règies générales de la pais,” in 46 Hague Recueil (1933, IV) 6, 9, 11Google Scholar.

50 G. Morelli, Nozioni, op. cit. 22.

51 Bobbio, N., La consuetudine come fatto normativo 21 (Padua, 1942)Google Scholar.

52 Sulla positivitá, op. cit. 14 and ff.; Lezioni di filosofla del diritto 234 f. (3rd rev. ed., Rome, 1936). Del Vecehio therefore clearly distinguishes between positivity and legality. The former is a logical property superior to events and passage of time, the latter a historical element, extrinsic and accidental.

Carnelutti, in the third edition of his Teoria generale 71 f., maintained that while “according to formula and tradition” the difference between positive law and natural law “would concern the source of the legal system,” in fact the difference only exists in the sense that “natural law is a collection of unsanctioned precepts.”

53 Radbruch, G., Grundzüge der Rechtsphilosophie 179 f. (Leipzig, 1914)Google Scholar. The author distinguishes between the positivity of law, identified with “Rechtsgeltung” in the sociological sense, and “Geltung” in the sense of a norm, which he finds corresponds to the “Verbindlichkeit” of law.

54 Cesarini-Sforza, W., H concetto del diritto e la giurisprudenza integrate 104 (Milan, 1913)Google Scholar. This is a pleonastic adjective, the author adds, “if one considers the legal phenomena, which can only be observable facts, so that a non-positive law is inconceivable; but useful if one wants to indicate the effective verification of legal phenomena with respect to the norms.”

55 M. Waline, Positivisme phil., op. cit. 525 ff. “Legal positivism,” represented, according to the writer, by Kelsen (who would have called it “critical positivism”) and Carré de Malberg, consists of admitting, as a determining criterion of the legal value of a norm, only its conformity to a fundamental legal norm “prise comme étalon des valeurs juridiques.” “Sociological positivism,” represented particularly by Jèze and Capitant, still according to Waline, sees positive law as “ce qui est effectivement appliqué en pratique, comme règle de droit, dans un pays donné à un moment donné.” See also by the same author, “Défense du positivisme juridique,” in Archives de Phil. du droit et de sociol. jur., neuv. année, 1939, p. 83 and ff.

56 Capitant, M., Introduction a, l’étude du droit civil 32 (4th ed., Paris, 1925)Google Scholar; May, G., Introduction à la science du droit 57, 65 (2nd rev. ed., Paris, 1925)Google Scholar.

57 Ripert, G. et Boulanger, J., Traité élémentaire de droit civil de Planiol, refondu et complété par G. Ripert et J. Boulanger, Vol. I, p. 2 (4th ed., Paris, 1948)Google Scholar. “Ces régies sont positives,” the two authors add, “en ce sens qu’elles forment un objet d’étude concret et certain; elles ont une formula arrêfie et précisée.”

58 Julliot de la Morandière, L., “Introduction à l’étude du droit civil français,” in 1 Introduction á l’étude du droit (L. Julliot de la Morandière, P. Esmein, H. Lévy-Bruhl, G. Scelle) 173, 178 (Paris, 1951)Google Scholar.

59 Carbonnier, J., 1 Droit civil 24 (Paris, 1955)Google Scholar.

60 Gihl, T., International Legislation 18 (Oxford, 1937)Google Scholar. For a definition of positive law Gihl returns to Bergbohm’s term: was als Recht funktioniert, but he obviously gives it a different value. According to the German legal philosopher only law produced exclusively by formal sources could function as such, while Gihl considers that all law which is functioning in reality, whatever its origin, is positive law.

61 Criticism of the idea of law as a product of will, whether this will is that of the state or claims to be general, is to be found especially in two studies by Hagerstrom: Is Positive Law an Expression of Will? (first published in 1916), and On the Question of the Notion of Law (1916), both reproduced in Inquiries into the Nature of Law and Morals 17 and ff., 56 and ff. (ed. by K. Olivecrona, tr. by C. D. Broad, Stockholm, 1953).

62 Hold-Ferneck, A., Lehrbuch des Völkerrechts, Vol. I, pp. 1 ff. (Leipzig, 1930)Google Scholar. “Positive normen,” he adds, “sind gelebte normen. Sie treten uns in der Erfolgung entgegen, die das Miteinander und Gegeneinander des Staatslebens entspricht.”

63 W. Küntzel, Ungeschriebenes Völkerrecht 82: “… der wahre Positivismus sieht das Wesen des Rechts nicht in festgefügten, äusserlich klarerkennbaren Rechtssätzen, die eine sichtbare Autorität nach bestimmten Regeln als Recht erklärt. … Positive Völkerrechtsnormen sind nicht nur solche Normen, die im Verfahren des Staatenkonsenses erzeugt worden sind, sondern auch solche, die in der Staatengemeinschaft sich als wirksame Normen durchgesetzt haben.”

64 P. Ziccardi, La costituzione 88 ff.; especially 93 ff.

65 G. Sperduti, La fonte suprema 108 f., 112 ff. According to him the concept of positive law thus expressed is the result of the fusion of two ideas: the first idea sees positive law as a social product, the second as that of the human spirit.

66 G. Sperduti, Norme giuridiche primarie 30. Therefore, according to him, all norms included in the system are now norms of positive law.

67 Quadri, R., Diritto internazionale pubblico 35, 79 f., 92 (2nd rev. ed., Palermo, 1956)Google Scholar. Quadri gives no reason for his assertion that the definition of “positive law” can derive from its etymology (jus positum), however. See also, by the same author, “Le fondement du caractère obligatoire du droit international publie,” in 80 Hague Recueil (1952, I) 587 Google Scholar.

68 M. Giuliano, La comunità internazionale 158, 223 and ff.

69 R. Laun, “La positività del diritto,” in Riv. di dir. pubblico, parte prima, sez. II, anno XXV, 1933, p. 309 and ff., and especially p. 311: “The positivity of law is therefore only a state of fact. Positive law consists of those (heteronomous) orders, which are effectively applied, followed and imposed.” The author has also confirmed this conception of positive law in the article “Naturrecht und Völkerrecht,” 4 Jahrb. f. internat. Recht 37: “Dasjenige, was wir das positive Recht nennen, ist eine Summo oder ein System von heteronomen Befehlen, welche sich auf den organisierten Zwang des Staates stützen”; and p. 38: “Das positive Recht, auch das positive Völkerrecht, ist eine Summe von Kausalzusammenhängen, welche bewirken, dass bestimmte Befehle der Machthaber gegenwärtig und vielleicht auch in der Zukunft befolgt oder erzwungen werden. Positivität ist demnach Gehorsam als Massenerscheinung, sie ist Massengehorsam.” Constantopoulos agrees with Laun’s conception of positivity, Verbindlichkeit und Konstruktion des positiven Völkerrechts, Einleitung, p. IX and f. (Hamburg, 1946).

70 Nawiasky, H., Allgemeine Staatslehre als System der rechtlichen Grundbegriffe 19, 24, 129 (zweite durchgearb. u. erw. Aufl., Einsiedeln, 1948)Google Scholar.

71 Coing, H., Grundzüge der Rechtsphilosophie 226 f. (Berlin, 1950)CrossRefGoogle Scholar: “Das positive Recht … ist uns als historische Erscheinung gegeben, und in diesem Sinne positiv. … Das positive Recht gilt als Willenssatzung.”

72 Brethe de la Gressaye, J. et Laborde-Lacoste, M., Introduction générale à l’étude de droit 7, 170 et seq. (Paris, 1947)Google Scholar.

73 Balladore Pallieri, G., Diritto internazionale 9, 22 (7th ed.). In the Corso di diritto costituzionale (2nd ed., Milan, 1950)Google Scholar, the same writer states, on p. 5, that “Law is called positive law because of its belonging to a social organisation actually existing,” and on p. 44 he indicates as the principle of the “positivity” of law the need for its norms “to be laid down to gain strength and to create an effectively working legal system.” At p. 22 ff. of Diritto internazionale Balladore Pallieri replies to a point made by the author in Scienza giuridica, p. 95, note 1, “that the term natural law, in some ways correlative, is used with many meanings, and that it is obvious, therefore, that the term positive law used as its opposite, will take on just as many meanings.” Setting aside all reservations concerning the interdependence of the two expressions, it is strange that Balladore Pallieri should not be aware of the fact that the eventual plurality of meanings attributed to the term “natural law,” far from justifying the attribution of a similar number of meanings to the term “positive law,” rather adds to the confusion and ambiguity of a scientific debate in which correlations, which are in fact different, seem to be the same only because different things are meant by the same words.

74 Rousseau, , Principes généaux de droit international public 38, 42, 52 (Paris, 1944)Google Scholar.

75 Sperduti (La fonte suprema 76) has quite rightly pointed out that the so-called basic norm both in Kelsen’s system, Perassi’s early system, and that of Ziccardi, is a positive norm if the opinion of the latter were to be favored. It must always be considered as a non-positive norm, however, if the positivity of a norm depends, “as Kelsen and traditional thought maintain, on its being traced back to a source.”

76 According to Visscher, Charles De, “Contribution à l’étude des sources du droit international,” Rev. de Droit int. et de Lég. comp., 1933, pp. 405 ff.Google Scholar, not only the general principles of law recognized by the civilized nations are excluded from positive international law, but their mention by Art. 38 of the Statute of the Permanent Court of International Justice has explicitly recognized the insufficiency of positive international law, composed by formal sources such as custom and treaty, and the necessity of admitting as an indispensable complement the existence of other international norms based on natural law. Spiropoulos, , Die allgemeinen Rechtsgrundsätze im Völkerrecht 63 (Kiel, 1928)Google Scholar, states that the principles in question have the character of natural law, and puts them in the category of non-positive but “obligatory” international law. According to Verdross, , “Les principes généraux du droit dans la jurisprudence internationale,” 52 Hague Recueil 203 (1935)Google Scholar, one must distinguish clearly between the norms of positive customary and conventional international law, and those principles of law which, not yet having penetrated into positive law, are implicitly presupposed by it. This writer’s outlook has not changed substantially in the latest developments of his thought. In the third edition of his Völkerrecht, p. 23, he attributes to the general principles of law the function, which is extremely important for the construction of international law, of “die Grundlage des positiven Völkerrechts zu bilden.” He now formulates the moral norm, which he sees as the basic norm of international order, in the sense that “sich die Völkerrechtssubjekte so verhalten sollen, wie es die allgemeinen Rechtsgrundsätze und die auf ihrer Grundlage erzeugten Normen des Vertragsrechts und des Gewohnheitsrechts vorschreiben” (ibid. 25). Despite the fact that they are directly covered by the “völkerrechtliche Grundnorm,” Verdross still considers the general principles of law as “Grundsätze” which remain above and outside positive law when, and inasmuch as, no “positivization” on the part of a customary norm of an international instrument has taken place.

77 W. Küntzel, Ungeschriebenes Völkerrecht 82 ff. The author reaches the conclusion of the positivity of general principles of law on the basis of the fact that they have shown themselves to be “wirksame Normen” in international society. Like Verdross, Küntzel maintains that the general principles of law “die ‘formellen Quellen’ des Völkerrechts, Vertrag und Gewohnheit, gegenüberstehen,” and that they are still directly anchored to the ground norm of international order.

78 Spiropoulos, J., Théorie générale du droit international 107 (Paris, 1930)Google Scholar.

79 Diritto internazionale 21.

80 This essential difference, pointed out in Scienza giuridica, p. 79, has been clearly reaffirmed by Barile, “Tendenze e sviluppi della recente dottrina italiana di diritto internazionale pnbblico (1944–1951),” in 4 Comunicazioni e studi dell’Ist. di dir. internaz., Univ. di Milano 410 (1952); and “La rilevazione e l’integrazione del diritto internazionale non scritto e la liberté di apprezzamento del giudice,” 5 ibid. 159 f. Sperduti also seems to realize the necessity for this distinction in his latest article on “Norme giuridiche primarie,” p. 13 f., where he points out the difference between “a fact which bears exclusive and decisive relevance to the existence” of certain norms as legal norms, and of those facts as “antecedents,” “factors,” and “motives.” Following these premises the writer goes on to say that in the case of the primary norms one cannot reconstruct a phenomenon “of psychical concrescience of law-creating factors with the force of an efficient cause of their legal existence.” Because of this lack of an “fact of psychical consistency,” whose specific function is to determine their legal existence, these norms are “norms of spontaneous law.” One does not see how the author can reconcile these conclusions with the idea of a “source” for the “primary” norms, which has in common with the others, that is the “formal sources,” set up as such by norms of the legal system, the “effect of determining the existence of legal norms” (p. 16). Apart from other considerations, where an “fact of psychical consistency,” to use Sperduti’s terminology, is clearly missing, there can be causes, reasons, factors, motives, but not a “source,” not a “law-creating fact.” If one counts causes and factors like this as sources, then the concept of a source changes fundamentally and loses its usefulness for legal science.

81 It is not easy to understand, therefore, how a legal philosopher like Guggenheim, (Was ist positives Völkerrecht? 53 f., n. 39), can think of qualifying certain norms as produced by “law-creating facts,” for the simple reason that their content was determined “dureh religiöse Vorstellungen und gesellschaftliche Gegebenheiten.” It is from these premises that Guggenheim thinks he can deduce that “Auch diese sog., ‘spontane’ Normerzeugung kommt in einem Normerzeugungsverfahren zustande,”? disagreeing with the term “norms of spontaneous formation” given by this writer to those norms which do not appear as the products of real legal law-creating facts.

82 Balladore Pallieri (Diritto Internazionale 18), recognizes this fundamentally when he asserts that the “sources,” which he calls “original” because not effected by earlier norms, “cannot be defined in general terms, cannot have predetermined characteristics, and their force cannot derive from common, general characteristics which they possess; if this were so, if the presence of such characteristics were the basis of their force, it would postulate the presence of a norm which gives force to such general characteristics and confers the nature of a source on those acts which possess them.” But if the character of sources must be conferred on certain facts by a norm, it is not possible to define, even as original sources, facts on which this character has not been conferred by a norm. One cannot understand the usefulness of the idea of a “source” which cannot be considered as such, either in virtue of a norm which effects it, or of its own intrinsic characteristics. There is also a certain confusion between the idea of a source and that of a norm in this recent expression of Balladore Pallieri’s thought. One cannot but agree when he says that in every system “there must be some original norms” (ibid. 19); and he puts himself in a position similar to that which this writer adopted (Scienza giuridica 78) in distinguishing “between those norms which can be said to be of spontaneous formation and those whose formation is the work of law-making facts,” when he asserts (p. 18) that “besides a ‘derived’ formation of law, we therefore have an ‘original’ formation.” But this statement cannot be reconciled with the assertion that “besides derived sources we also find ‘original’ ones.” There is a contradiction in terms between the idea of an “original” norm and that of a norm derived somehow from a source, even if that source was “original.”

83 Diritto internazionale 23.

84 Reference is made here to what was already made clear in Seienza giuridica 80 f., that in practice it is impossible to set aside entirely the search for an inductive proof of the real and actual existence even of those norms which have been regularly laid down by the “source” of a definite legal order. It can happen otherwise that a norm is believed to exist and function, which in fact has ceased to exist because of the later formation of a norm which does not owe its origin to a legal law-making fact anticipated by the order in question. On the power of abrogation which custom must be granted over law, and the special power which must be recognized to this effect in the field of constitutional law, see Romano’s remarks in “ Osservazioni preliminari per una teoria sui limiti della funzione legislativa nel diritto italiano” (estr. dall’Arch. di dir. pubb., 1902, I), p. 24 ff.

85 With reference to this distinction one must beware of believing that it is based on a more or less distant historical fact. Norms not deriving from formal sources not only arise at the beginning of the formation of a society, but are also continually arising after this. On the contrary written norms, of an original or revolutionary constitution, for example, are norms created by a real source in the legal sense, contrary to what Balladore Pallieri maintains in Diritto Intemazionale 17 f. The laying down of constitutional norms by a certain original or revolutionary constituent assembly, for example, is a legal law-making fact, because a norm shows itself to be existing in the conscience of the members of society, which confers the necessary power on this assembly. This norm can certainly be said to be really original, in the sense that it was spontaneously formed in the conscience of the members and was not “laid down” by any creative organ, but the norms “laid down” by the assembly cannot. The assembly would produce “legal” norms even though it was not endowed with “legal” power to do so.

86 The need for legal science to apply the inductive method, particularly in the case of international law, already explicitly recognized by some authors (see for example Ziccardi, , La Costituzione, op. cit. 98 ff., 112 Google Scholar, in Italy), has recently found a supporter in Schwarzenberger, International Law, Vol. I, p. XLVIII and ff. (2nd ed., London, 1949) ; and “The Province of the Doctrine of International Law,” in Current Legal Problems 240 and ff. (1956). A reading of his remarks shows that Schwarzenberger, by opposing the deductive to the “inductive approach,” intends to do away with the idea of a recourse to a priori deductions from theoretical or rational principles, or to confusions between lex lata and lex ferenda in the construction of international law and the determination of its norms. By opposing the deductive to the inductive method he therefore wants to stress the need for vigorous adherence to practice, especially to that which results from jurisprudence, in order to determine the law in force. This is a preoccupation not without foundation, but which has little to do with the study in question.

87 It seems appropriate to point out that the inductive method applied by legal science reaches the conclusion of a norm’s existence from a series of single external manifestations of its function as a legal norm and from a recognition of the effects which it produces as such. This recognition must be certain, to permit a valid inference. One must therefore be particularly careful when maintaining (as, e.g., Sperduti, Norme giuridiche primarie 14, and La fonte suprema 214 ff.) that the recognition of legal norms “can be reached by a last inference subsequent to the others.” This is not to say that in some cases the existence of a norm cannot be inferred from the existence of other norms which necessarily presuppose it. But this can happen only if the existence of those other norms is ascertained from other sources, and that the norm inferred from them is not claimed as their “basis of legal norms”: one cannot infer a truth by induction from facts whose existence can be proved only through the very truth which it is hoped to prove.

88 A writer like Ziccardi, for example, though he has reached the conclusion that legal science is a science that operates exclusively from facts given by empirical experiment, and having therefore, by stating the validity of the inductive method, overcome the identification of legal science with a limited dogma whose only task was to deduce proofs of former legal norms, still felt it necessary to limit the application of these results to one norm, that is, the “suprema norma sulle fonti.” Recognition of all the other norms would be reached by means of a deductive approach from that first norm, and that “source” contemplated by it (La Costituzione 126). Still more recently, Sperduti (Norme giuridiche primarie 12) maintained that “primary” or “fundamental” norms “include, and only consist of one or more norms concerning legal production.”

89 One does not find a distinction of this kind in writers who have thoroughly understood the nature of jus non scriptum. Vittorio Scialoja, p.es., “Sulla teoria della interpretazione delle leggi,” Note in Studii giuridici dedicati e offerti a F. Schupfer, Pt. III, p. 306 (Turin, 1898), speaks of this law as “a tacit fundamental law, which is an immediate emanation from ordered social forces which can be called by the now traditional term of customary law.” He then adds: “All written law is based on this customary law, because the law which governs laws can only be essentially customary.”

It is particularly significant that Anzilotti, in the famous manuscripts which he added to his Corso di diritto internazionale (4th ed.), Con l’aggiunta di note inedite dell’ atitore e di un capitolo sugli accordi lateranensi, Vol. I, Opere di Dionisio Anzilotti a eura della S.I.O.I., p. 72, note 10 (Padua, 1955), maintained that “we must widen the concept of custom … to include what is true in the so-called necessary and constitutional law of international Society.” Referring then to Raestad’s work, “Droit coutumier” et “principes généraux” en droit international, Anzilotti refers to the latter’s idea that there is no difference between customary law and general principles, “because general principles and the legal constitution have usage as their foundation,” and he therefore deduces that it is proved “once more that one can give a wider meaning to the idea of custom in order to include the new general principles, in the sense of principles given with the constitution of the society in question.” As for Raestad, he confirmed in a later posthumous work, La philosophie du droit international public 75 (Oslo, 1949), the idea of the fundamental unity of general principles and international customary law.

Giuliano (La comunità internazionale 179) points out quite rightly how, in writers who make a distinction between international customary norms and those other superordered norms which they call by different names, there is no “safe criterion of discrimination” between the two categories of norms. Again, according to this writer (p. 176), the adoption by many of the difference in name would in some way be a consequence of the necessity of making at least some fundamental norms of international law independent of the rigid scheme “of a source outside the consciences of the subjects” into which legal thought has more and more forced its representation of the “social factor which creates so-called customary law.” However, historically, the idea of the so-called constitutional or fundamental principles was previous to the rigid forms of that description of custom as a law-creating procedure, based exclusively on the material element of usus to which Giuliano refers. Rather, that idea represents the slightest recognition of a logical necessity which legal thought, though restrained by the persistence of some canons of positivist derivation, could not deny altogether. If, in doing this, legal thought did not go so far as to include all jus non scriptum in the field of norms recognized as not produced by legally predetermined law-creating processes, but wished rather to make a clear separation between primary law on one side and customary law on the other, this seems simply to have been because of the difficulty of taking all at once such a vastly important step away from principles and ideas which previously had been almost entirely unquestioned.

90 As has already been observed (Scienza giuridica 90, note 1), logically there is nothing to prevent us from admitting the existence of particular norms, besides the general ones, within the framework of customary norms. But logically there is nothing which forces us to think that these eventual particular customary norms must have a different origin from that of other norms of jus non scriptum, and in particular from that of the primary norms of the order. The need that Sperduti had felt for this (La fonte suprema 159 ff.) derived solely from the fact that he still conceived both types of norms as being the product of specific law-creating facts; hence his preoccupation that the process of legal production of primary norms should be suitable only for the production of absolutely universal norms. If we think of both types as having no specific legal law-creating fact as their origin, it is clear that the eventual presence, besides norms which are shown to be universally valid in practice, of norms which prove to have force only in a narrower sphere, would present no difficulty and would cause no need for a hierarchical differentiation.

91 The irrelevance, for the problem of existence of international unwritten norms, of a distinction based on their content has already been pointed out by Barile, La rilevazione 161 f., who has also noted how international practice makes no distinction between principles and customs in the case of norms of international jus non scriptum.

Bentivoglio has given his approval to a distinction based on the content of norms, which aims at specifying, within the vast framework of unwritten international law, “a group of fundamental principles which give a clear expression of the essence and function of the order.” “Interpretazione del diritto e diritto internazionale,” in Pubb. dell’Univ. di Pavia, n. 119 (1953), p. 254 ff. It should, however, be made clear that according to this writer too the distinction he admits does not assume importance for the problem of the formation of norms of international unwritten law. In fact Bentivoglio also agrees with the idea that all universal international law is a law whose existence cannot be traced back to any qualified source of legal production.

92 The idea that one of the “primary” or “constitutional” norms of the international order anticipates and organizes custom as a specific “legal law-creating fact” of that order, is to be found in the Italian school of thought, for example, in Fedozzi, “Introduzione al diritto internazionale e parte generale,” in 1 Trattato di diritto internazionale per cura di P. Fedozzi e S. Romano 43 (2d rev. ed., Padua, 1933); Balladore Pallieri, Diritto internazionale 17, 20; Sperduti, La fonte suprema 209 ff., and Norme giuridiche primarie 12 ff., 24, note; Quadri, Diritto internazionale 81, 95; Monaco, Manuale di diritto internazionale pubblico e privato 48 ff. (Turin, 1949).

It is significant that if the writer from whom more or less all of those mentioned took the idea of the existence of “fundamental or constitutional principles” in the international community, that is, Romano, in his Corso di diritto internazionale 31 ff. (4th rev. ed., Padua, 1939), places a distinction between those principles and customary law, he bases this distinction exclusively on the fact that these principles were not formed gradually like customary law, but arose at the setting up of a community. He therefore has no thought of subordinating customary law to constitutional principles so that one of these should anticipate custom as a law-creating legal fact creating secondary norms. Romano, unlike some of his followers, is really consistent in his conception of customary law as having an “almost unconscious and therefore involuntary” origin, or (Corso di diritto costituzionale 357 (7th rev. ed., Padua, 1943)), “as a norm spontaneously formed without a particular act of will.” This is a conception which logically excludes the possibility of inserting the idea of a special law-creating fact, legally anticipated and organized, whose task is to produce customary norms.

A similar idea of customary law is to be found in Esposito, “Il controllo giurisdizionale sulla costituzionalità, delle leggi in Italia,” estr. dalla 5 Riv. di dir. processuale 4 (1950, No. 4), who speaks of a “spontaneous rise and fall of legal rules in the field of custom, despite all the prohibitions of written law.” Carnelutti (Teoria generale 34) says expressly that the customary formation of legal norms is purely “natural” and not “artificial” as is that of positive laws. Further afield, Olivecrona, Law as Pact 61 f. (Copenhagen-London, 1939), states that traditional customary law is not “formally constituted,” and “is to a large extent developed more or less unconsciously.”

93 Scienza giuridica 84 et seq. On the difficulties which writers encounter in their effort to “make the action from which international customary law must have sprung, correspond with a process with more or less definite characteristics,” see also Giuliano, La comunita internazionale 174 ff.

Sperduti (Norme giuridiche primarie 22 ff., note 22), wanted to make a final attempt as saving the idea that custom can be represented as a fact of legal production by imagining that the fact itself was a psychical creative action, though involuntary, whereby the conscience of the members would operate, so creating norms of law, because of a primary legal norm which would anticipate this action as a “ source.” The spontaneous formation of a norm in the conscience of the members of the social body, on which Sperduti bases his argument, can be a psychical concrescence. But this does not allow for it to be transformed into a psychical action which will “create” the norm in question. As I have already had occasion to make clear elsewhere, the birth of something cannot be presented as an action which will bring about this birth itself.

94 The old expression “jus non scriptum,” usually applied particularly to custom, did not mean a type of norm that was materially not written, so much as the type of norm which, not having been manifested by an appropriate creative act, can only be recognized as existing by the outward manifestations of its functioning in the conscience of members of the social body. Giuliano, in La comunità, internazionale, op. cit. 179, observes correctly that also the “other norms of fundamental or constitutional or natural principles could only be recognized as existing on the basis of an analysis of fact and of international practice.” More recently, the impossibility of establishing a distinction between customary norms and general principles, because of the identity of the procedures which the international judge follows in both cases, has been illustrated by Barile, La rilevazione, op. cit. 159 f.

95 It had already been pointed out that the characterization of certain norms as legal norms must be based on the typical aspects of their way of operating, in Lezioni di diritto internazionale 7 (Milan, 1949–50), when the author indicated the specific value attached to the facts of social life by legal judgment as the element which distinguishes the legal sphere from those judgments of another nature. This idea has since been made clear and further developed in Scienza giuridica, op. cit. 69 ff.

96 La fonte suprema, op. cit. 212 f. In order to remain faithful to these ideas, Sperdnti, in Ms latest article, “Norme giuridiehe primarie,” loc. cit. 16, has recourse to a use of the word “source” with which even he does not seem entirely satisfied.

97 As we saw, the fact that primary norms belong to the legal system is determined, according to Sperduti, by inference from other norms of the legal system for which they form the necessary premises.

98 Diritto internazionale, op. cit. 79, 88 f.

99 The writer openly states this (ibid. 26) when he asserts that the legal norm is only the outward manifestation of the phenomenon of the authority of social power. Sperduti, Norme giuridiehe primarie, op. cit. 16 f., criticizes Quadri’s idea of a “will of the social body.” But even reduced to a mere metaphor, as Sperduti would like, the idea of a “social will,” while serving no useful purpose, could be the cause of misunderstanding.

100 M. Oiuliano, “Considerazioni sulla costruzione dell’ordinamento internazionale,” in Conranicazioni e studi dell’Istituto di diritto internazionale e straniero dell’Università di Milano, Vol. II, p. 201 (Milan, 1946).

101 See, respectively, La comunità internazionale, op. cit. 162, 166, 174, 181, 226, 229. Similarly, in connection with “general principles of law recognized by civilized nations,” Giuliano specifies as their “technical sources” “these same human societies organized as States.”

102 Already in Scienza giuridica 81, this writer had occasion to point out that a reference to the conscience of the members of the social body can only be legitimate if this conscience is considered not as a “source” but as the “seat” of the norms, the place in which they are born, live and die, where they are written ideally even though they are norms of “jus non scriptum”; on condition, that is, that the reflexive meaning of “conscience” is not confused with the active meaning of “creation” or “approval.” It is obvious that one can speak of the “spontaneity” of the formation of certain norms only if one sets aside any idea of their being produced or formulated, either by this society as a whole, or by the conscience of its members. Spontaneous formation, production and formulation are words which naturally exclude each other. Giuliano particularly stressed the fact that the “formation or rejection of general international norms” is a “spontaneous and natural phenomenon,” in his most recent book: I diritti e gli obblighi degli Stati. Tomo primo: L’ambiente dell’attività degli Stati, in Trattato di diritto internazionale (dir. da G. Balladore Pallieri, G. Morelli, R. Quadri, sez. prima, Vol. III, Padua, 1956), p. 39.

103 The fact that “social forces” cause its legal system to operate in society does not justify the inference that “it is society which confers legality on its system of legal organization,” as Sperduti states, Norme giuridiche primarie, op. cit. 27. Whatever the idea which the author intended to express by this statement, this last idea certainly lends itself to ambiguity. To indulge, as he does, in such statements as “it is society which creates law” (p. 30), or in the use of the metaphor of law as an emanation of the will of the social body, confirms the reality of the danger just mentioned, as do some of Giuliano’s expressions recalled above, and some of Quadri’s, which go even further.

104 In his Considerazioni sulla costruzione dell’ord. int., op. cit. 186, Giuliano had described legality as a force given to certain norms by the “conviction of the members.” A reference to this subjective and “ideological” element was therefore enough to permit a distinction to be made between legal norms and other social norms. It would seem that this idea has been abandoned by the author in the second part of his next study, La Comunità internazionale, op. cit. 222 f., where one finds him accepting the idea that what makes the legal system different from other systems of social norms lies “only in the speciality of the values, or—if you prefer—the meanings, which legal judgments attribute to the social behaviour in question.” To say this is to admit that these judgments are characterized as judgments because of an objective element inherent in them, and not because of a merely subjective conviction of the members of the social body. However, some doubt still remains as to whether Giuliano has in fact abandoned the first idea, since he seems to Testate it more recently in Norma giuridica, diritto soggettivo e obbligo giuridico (Pubbl. della Fac. di giur. dell’Univ. di Modena, No. 84, 1952), p. 21, note 3.

105 A. Ross, A Textbook of International Law 95 (London, 1947): “As will appear from the above, there is undoubtedly something right in this reaction. There are sources of law other than those positively formulated. Insofar one must agree with the naturalist theories.” “But this does not mean,” the writer adds straight away, “that there are also ‘natural’ (supersensual, a priori) sources of law, but merely expresses the socio-psychological reality that judicial decisions, as described above, are also determined by spontaneous free factors of many kinds.” He points out that ambiguity of the term “positivism,” which can be defined either as “what is based on experience” or as “what is formally established.”

106 L’Esposito, II controllo giurisdizionale, op. cit. 3, declares “that in every order beside the legal rules, formed within predetermined ways and limits, there exist rules which are also valid and efficient that arose outside legal channels.” For A. P. d’Entrèves (Natural Law, An Introduction to Legal Philosophy 67 (London, 1951)) “Positive law does not exhaust the whole range of legal experience. There may be laws other than the commands of the sovereign, laws with a different structure yet nevertheless binding and formally perfect.” And he quotes as an example the “laws of the international community.”

According to Barile, La rilevazione, op. cit. 155, “International unwritten law of the present day could be called ‘law in force’ if this ambiguous phrase were understood, not in the sense that this law is not an historical fact, but that it has force in its existence as a purely legal phenomenon directly linked with the whole of historical reality and not bound by formally set rules.”

107 Scienza giuridica, op. cit. 107 f. See also Giuliano, La Comunità internazionale, op. cit. 228 f.; and I Diritti e gli obblighi, op. cit. Barile is concerned with an examination of some important consequences concerning problems of international law, which can be deduced from recognizing the “spontaneity” of common international law. Barile, La rilevazione e l’integrazione, op. cit. 144 ff., 162 ff., 191 ff., and “Interpretazione del giudice e interpretazione di parte del diritto internazionale non scritto,” in Riv. di dir. internazionale, 1954, fasc. 2–3, p. 168 f. See also Bentivoglio, Interpretazione, op. cit. 247 ff. But there are certainly numerous and vast fields in which useful results may be obtained from a correct view of the characteristics of general international law as those of a spontaneously formed law. Note should be taken of the recent agreement of Sperduti, Norme giuridiche primarie, op. cit. 19 f., on some corollaries established for this recognition, particularly concerning the final elimination of the so-called problem of the “foundation” of law, especially that of international law.

108 Sperduti has expressly shown his preference for this solution in the end, Norme giuridiche primarie, op. cit. 29 f. The analysis of legal thought which is carried out in the preceding pages could perhaps persuade this writer that his way of understanding “positive law” does not in fact correspond with “that which has always, or generally, been understood.”

109 This solution, which the writer prefers, has also been followed in the most recent Italian international thought by Barile, La rilevazione, op. cit. 146, note 8. According to him, “The expression ‘positive’ law … indicates that part of the law in force which having been formally laid down by a social will, whether by that of a dominant group or the will of the parties in a convention, can be in contrast with non-positive law, because of its content, but was formed spontaneously in the conscience of the members of a given organization.” Elsewhere (Interpretazione del giudice, op. cit. 168 ff.) the same writer often uses the expression “formally laid down law” as a synonym of “positive law” and the opposite of “spontaneous law.” This expression is correct and legitimate in itself. The only danger is that it may suggest the idea—which we have seen willingly played with by others—of the existence alongside law “formally laid down” of a law which has not been “formally laid down” with the natural consequence that we are presented with “layings down” and “sources” which are not formal, not legally anticipated. These are in fact ideas which have no place in legal science, and a return to them is contrary to the clarification which we are seeking.