We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 12 April 2017
Even in the most highly formalized systems of jurisprudence the rules and practices of the law cannot be entirely separated from the fundamental conceptions of law underlying them. The legal systems of France, The Netherlands and Germany have not been formalized to so great an extent that there is neither occasion nor opportunity for the application of the law to be conditioned by concepts derived from juridical theory. Duguit and Geny, Krabbe, and Kohler and Stammler, in their various works, have made this quite clear. In Anglo-American law the fictions so abundantly found are often no more than concrete formulations of abstract fundamental concepts which judges have thought to be valid and consistent with policy and which they could not conveniently introduce into the law in any other way. That fundamental conceptions of the law may affect its development more than their logical consistency warrants has been amply illustrated in the common law, equity, and American constitutional law. What is true of well-developed systems of jurisprudence is no less true of international law. Fundamental conceptions have probably had a greater influence here, since theologic and scholastic philosophies explain many of the rules of modern practice, and the rules of current practice owe their very existence, in large measure, to the reconciliaation of the philosophical concepts of the State, sovereignty and independence with the conception of a community of nations and a rule of law.
1 Holmes, O. W., The Common Law (Boston, 1881), p. 1 Google Scholar.
2 Lochner v. New York, 198 U. S. 45, 74 (1905).
3 Holmes, O. W., Collected Legal Papers (New York, 1921), p. 198 Google Scholar.
4 Cardozo, B., The Nature of the Judicial Process (New Haven, 1921)Google Scholar; The Growth of the Law (New Haven, 1924)Google Scholar; Cohen, M., Law and the Social Order (New York, 1933)Google Scholar; Frank, J., Law and the Modem Mind (New York, 1930)Google Scholar; Pound, R., Introduction to the Philosophy of Law (New Haven, 1922)Google Scholar; see, also, Haines, C. G., Revival of Natural Law Concepts (Cambridge, Mass., 1930), p. 309 ffGoogle Scholar.
5 Dickinson, E. D., “Changing Concepts and the Doctrine of Incorporation,” this Journal, Vol. 26 (1932), p. 239 Google Scholar.
6 Dr. H. Lauterpacht has suggested that these differences may not be as real as they are taken to be. “The So-Called Continental and Anglo-American Schools of Thought in International Law,” British Yearbook of International Law, 1931, pp. 31–62 Google Scholar. But wide divergences are not necessarily inconsistent with the existence of a single system of international law. The gulf between Anzilotti and Hurst is no greater than that between Brandeis and Butler.
7 The Lotus Case, Judgment, Sept. 7, 1927, Series A, No. 10, p. 17. (The first reference to a case will bear its full title; short titles will be used subsequently. References are to the Series of Publications of the Permanent Court of International Justice.)
8 Series A, No. 10, p. 18. Judge Weiss, dissenting, was even more emphatic in his identification of the State with international law. Ibid., p. 44.
9 Workers’ Delegate for The Netherlands at the Third Session of the International Labor Organization, Advisory Opinion, July 31, 1922, Series B, No. 1, p. 19.
10 Oscar Chinn Case, Judgment, Dec. 12, 1934, Series A/B, No. 63, p. 79.
11 Ibid., p. 112.
12 Customs Régime between Germany and Austria, Advisory Opinion, Sept. 5, 1931, Series A/B, No. 41, p. 47.
13 Series A, No. 10, p. 28; cited, also, by Judge Negulesco in his dissent to the Advisory Opinion, Jurisdiction of the European Commission of the Danube between Galatz and Braila, Dec. 8,1927, Series B, No. 14, p. 106.
14 (Dissenting) Judge Weiss, in The Lotus, Series A, No. 10, p. 43; Judge Loder, ibid., p. 34; Judge Finlay, ibid., p. 56, also dissenting to the Judgment in the Mavrommatis Palestine Concession (Jurisdiction) Case, Aug. 30,1924, Series A, No. 2, p. 47. The special problems relating to the assimilation of international customs to rules of law have also been examined by dissenting judges: Judge Altamira, The Lotus, Series A, No. 10, pp. 96, 103; Judge Nyholm, ibid., p. 60; Judge Negulesco, European Commission of the Danube, Series B, No. 14, pp. 105, 106.
15 Observation of Judge Kellogg, Case of the Free Zones of Upper Savoy and the District of Gex (Second phase), Order, Dec. 6, 1930, Series A, No. 24, p. 33.
16 Brazilian Federal Loans Case, Judgment, July 12, 1929, Series A, No. 21, p. 124.
17 Series A, No. 10, p. 31.
18 (Second phase), Judgment, June 7,1932, Series A/B, No. 46, p. 138.
19 Case concerning the Factory at Choržów (Claim for Indemnity, Merits), Judgment, Sept. 13, 1928, Series A, No. 17, p. 61.
20 Series A/B, No. 63, p. 66.
21 Ibid., p. 80.
22 Ibid, (dissent), pp. 136–6.
23 Series A/B, No. 63, (dissent), pp. 149–50.
24 Zones Case, Order, Dec. 6, 1930, Series A, No. 24, p. 41.
25 Idem.
26 Zones Case, Judgment, 1932, Series A/B, No. 46, p. 162.
27 Zones Case, Judgment, 1932, Series A/B, No. 46, p. 184.
28 Nationality Decrees in Tunis and Morocco, Advisory Opinion, Feb. 7, 1923, Series B, No. 4, p. 23.
29 Ibid., p. 24.
30 Sept. 5, 1923, Series B, No. 7, p. 16.
31 Statute of the P.C.I.J., Art. 34.
32 Cf. Triepel, H., Völkerrecht und Landesrecht (Leipzig, 1899)Google Scholar,
33 Cf. Kelsen, H., Das Problem der Souveränität und die Theorie des Völkerrechts (Tubingen, 1920)Google Scholar; Verdross, A., Die Einheit des rechtlicken Weltbildes (Tubingen, 1923)Google Scholar.
34 Jellinek, G., Die rechtliche Natur der Staatenvertrage (Vienna, 1880)Google Scholar; Die Lehre von den Staatenverbindungen (Berlin, 1882)Google Scholar.
35 Sept. 10, 1923, Series B, No. 6, p. 25. (My italics.)
36 July 12, 1929, Series A, No. 20, p. 41. (My italics.)
37 March 3, 1928, Series B, No. 15, p. 17.
38 Series B, No. 6, p. 36.
39 German Interests in Polish Upper Silesia (Merits), Judgment, May 25, 1926, Series A, No, 7, p. 42.
40 Series A/B, No. 63, p. 88.
41 Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University v. The State of Czechoslovakia), Judgment, Dec. 15, 1933, Series A/B, No. 61, p. 221.
42 Series A, No. 17, p. 27.
43 Aug. 20, 1924, Series A, No. 2, pp. 12–13.
44 Series A, No. 20, p. 17.
45 Ibid., p. 62.
46 Mavrommatis Concessions (Jurisdiction), Series A, No. 2, p. 16. Judge Anzilotti observed that this was “a very accurate statement of the principles. . . .” (German Interests in Polish Upper Silesia (Jurisdiction), Judgment, Aug. 25, 1923, Series A, No. 6, p. 30). The same view was reiterated by the Court in the Upper Silesian Minority Schools Case (Judgment, April 26, 1928, Series A, No. 15, p. 22), and in the Choržów Factory (Jurisdiction) Case (Series A, No. 9, p. 32).
47 Status of Eastern Carelia, Advisory Opinion, July 23, 1923, Series B, No. 5, p. 27. Several dissenting judges have enlarged on the Eastern Carelia theme: Judge Pessôa referred to this as “an expression of the respect due to the sovereignty of nations.” (Mavrommatis (Jurisdiction) Case, Series A, No. 2, p. 88); also Judge Moore, in the same case, thought this to be “a well-settled principle of public law.” (Series A, No. 2, p. 74.)
48 German Interests in Polish Upper Silesia, Series A, No. 6, p. 14.
49 Idem.
50 Series A, No. 15, p. 23.
51 Ibid., p. 22.
52 Interpretation of Art. 3, par. 2, of the Treaty of Lausanne, Advisory Opinion, Nov. 21, 1925, Series B, No. 12, p. 30.
53 Series A, No. 15, p. 53.
54 Series A, No. 24, p. 43.
55 “The true view should be that the plea to the jurisdiction cannot be considered as submitted too late and that it can be raised at whatever state and at whatever stage of the proceedings.” (Series A, No. 15, p. 68.)
56 Mavrommatis (Jurisdiction) Case, Series A, No. 2, p. 34.
57 Judgment, 1932, Series A/B, No. 46, p. 156.
58 Series A/B, No. 49. Judges Anzilotti (ibid., pp. 349–50) and Rolin-Jaequemyns (Preliminary exception, Judgment, June 24, 1932, Series A/B, No. 47, p. 258), dissenting, felt that it was inconsistent for the Court to answer questions in the form in which they were there presented.
59 Zones Case, Judgment, 1932, Series A/B, No. 46, p. 161.
60 Wimbledon Case, Judgment, Aug. 17, 1923, Series A, No. 1, p. 25.
61 Exchange of Greek and Turkish Populations, Advisory Opinion, Feb. 21, 1925, Series B, No. 10, p. 21.
62 Series A/B, No. 41, p. 52.
63 Chinn Case, Series A/B, No. 63, p. 93.
64 The Lotus, Series A, No. 10, p. 19.
65 Zones Case, Order, Dec. 6, 1930, Series A, No. 24, p. 11.
66 Interpretation of the Statute of the Memel Territory, Judgment, Aug. 11. 1932. Series A/B, No. 49, pp. 346–7.
67 Series A/B, No. 41, p. 46.
68 The Lotus, Series A, No. 10, p. 18.
69 Zones Case, Series A, No. 24, p. 12.
70 Question of Jaworzina, Advisory Opinion, Dec. 6,1923, Series B, No. 8, p. 41; Jurisdiction of the European Commission of the Danube, Advisory Opinion, Dec. 8,1927, Series B, No. 14, p. 89; Access to the Port of Danzig of Polish War Vessels, Advisory Opinion, Dec. 11, 1931, Series A/B, No. 43, p. 142; Zones Case, Judgment, June 7, 1932, Series A/B, No. 46, pp. 166–167; Interpretation of the Statute of the Memel Territory, Judgment, Aug. 11, 1932, Series A/B, No. 49, p. 313; Minority Schools in Albania, Advisory Opinion, April 6, 1935, Series A/B, No. 64, p. 15.
71 Series A/B, No. 64, p. 15.
72 Competence of the International Labor Organization (Agricultural Labor), Advisory Opinion, Aug. 12, 1922, Series B, No. 2, p. 23.
73 Series A, No. 1, p. 25.
74 Territorial Jurisdiction of the International Commission of the River Oder, Judgment, Sept. 10, 1929, Series A, No. 23, p. 26.
75 Danzig Railway Officials, Series B, No. 15, p. 26.
76 Statute of Memel, Series A/B, No. 49, p. 316.
77 Series A/B, No. 63, p. 79.
78 Nationality Decrees in Tunis and Morocco, Series B, No. 4, p. 24.
79 Judges Anzilotti and Huber, joint dissent, in The Wimbledon, Series A, No. 1, p. 37; Judge Anzilotti, dissenting, in the Chinn Case, Series A/B, No. 63, p. 113; Judge Negulesco, dissenting, Zones Case, Order, May 25, 1928, Series A, No. 22, p. 30.
80 Danube Commission, Series B, No. 14, p. 63 (My italics.) In his dissent, Judge Negulesco attributed sovereign powers to the Commission, p. 105.
81 Legal Status of Eastern Greenland, Judgment, April 5, 1933, Series A/B, No. 53, pp. 45–6.
82 Austro-German Customs Régime, Series A/B, No. 41, pp. 45, 52.
83 Ibid., p. 57.
84 Ibid., p. 77.
85 One might expect that the Permanent Court would have placed greater stress than it has upon the capacity for the conduct of foreign affairs independently as a test of sovereignty. This it has not had occasion to do, except by suggestion and inference. Judges Huber (Series B, No. 18, p. 33) and Anzilotti (Series B, No. 18, p. 22) in their separate dissenting opinions in the case of Danzig and the International Labor Organization did, however, emphasize this element.
86 The Lotus, Series A, No. 10, p. 18.
87 Ibid., p. 25.
88 Ibid., p. 20.
89 Lighthouses Case between France and Greece, Judgment, March 17, 1934, Series A/B, No. 62, p. 19.
90 Ibid., p. 24.
91 Series A, No. 1, p. 29: “In any case a neutrality order, issued by an individual State, could not prevail over the provisions of the Treaty of Peace.”
92 Advisory Opinion, July 21, 1930, Series B, No. 17, p. 32.
93 Zones Order, 1930, Series A, No. 24, p. 12.
94 Series A, No. 7, p. 19.
95 Series A/B, No. 63, p. 77.
96 Series A, No. 17, p. 33.
97 Series A, No. 10, p. 24.
98 Exchange of Greek and Turkish Populations, Advisory Opinion, Feb. 21, 1925, Series B, No. 10, p. 20.
99 Series B, No. 7, p. 26.
100 Series A/B, No. 61, p. 243.
101 Series A/B, No. 49, p. 336.
102 Ibid., p. 300.
103 Ibid., p. 336.
104 Serbian Loans, Series A, No. 20, p. 19.
105 Brazilian Loans, Series A, No. 21, pp. 124—5.
106 Series A, No. 20, p. 46.
107 Series A/B, No. 62, pp. 20–24.
108 Feb. 4, 1932, Series A/B, No. 44, pp. 23–25.
109 Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Advisory Opinion, Dec. 4, 1935, Series A/B, No. 65, p. 50.
110 Judge Anzilotti, his reputation as the “dissenter” of the Court now firmly established, objected to the jurisdictional conclusion. “The fact that the Court’s opinion has been sought on a question which relates to the municipal law of a particular country, apart from any question of international law or of an international dispute, suffices, in my view, to justify the Court in declining to give its opinion.” Ibid,., pp. 62–63.
