MORGENTHAU_Functionalism, Positivism, Int. Law_1940 c

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Positivism, Functionalism, and International LawAuthor(s): Hans J. MorgenthauReviewed work(s):Source: The American Journal of International Law, Vol. 34, No. 2 (Apr., 1940), pp. 260-284Published by: American Society of International LawStable URL: http://www.jstor.org/stable/2192998.

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2/26

POSITIVISM,

FUNCTIONALISM,

AND

INTERNATIONALLAW

BY

HANS

J. MORGENTHAU

AssistantProfessor f Law and

Political

Science, Universityf

Kansas

City

If

an event

in the physicalworld

contradicts

ll

scientific orecasts, nd

thus

challenges he assumptions

n

whichthe forecastshave been

based,

it

is the natural

reactionof

scientificnquiry o reexamine he

foundations f

the specific

cience

and

attempt

o

reconcile cientific

indings

nd

empirical

facts. The social sciences do

not react in

the

same

way. They have

an

inveteratetendency to stick to their assumptionsand to suffer onstant

defeatfrom xperience ather

han to change

their

ssumptions

n

the

light

of

contradicting acts.' This

resistance o change

s

uppermost

n

the

his-

tory

of

international

aw.

All

the schemes

and

devices

by

which

great

humanitarians

nd shrewdpoliticians

ndeavored o reorganize he relations

between tates on the basis

of

aw,

have

not

stood the trial

of

history.

In-

stead

of

asking whether he

devices

were

adequate

to the

problems

which

they were

upposed to solve, t

was

the general

ttitude

of

the

nternational-

ists to take the

appropriateness fthe devices

forgranted

nd

to blame

the

factsforthe failure.2 Whenthe facts behave otherwise han we have pre-

dicted, heyseem to say, too

bad

for

he facts.

Not unlike

thesorcerers f

primitive ges, they attempt

to exorcise

social evils

by the

indefatigable

repetition f

magic formulae.

As the League

of

Nations

was

a

failure, et

us have

another

League.

As the first

nd

second Peace

Conferences

f

the

Hague didnot

succeed, et us have a

third

ne. As

arbitration ever ettled

a

political conflictwhichotherwisewould have led to

war,

et

us

have more

arbitration

for

the prevention

of

war.

As

the Disarmament

Conference

was a

senselesswaste of

intellect

and

time, why

not convoke

another

Disarmament

Conference?

It is a strange paradox that the lay public has observed a much more

sceptical

and

realistic,

hereforecientific,ttitude

toward

nternational aw

than

the scienceof nternational

aw

itself.

The

laymen

weremuch

quicker

to

recognize

he

gap between he

rules

of

nternational

aw

as

represented

y

science,

nd

the rulesof nternational

aw as

they

exist

n

actual

experience.

The

breakdown f

the

main

bulk

of

post-World

War

international aw

has

altogether

estroyed ublicconfidence

n a

science

which,

nmoved

by what

'As to this endency,

ee LancelotHogben, he

Retreat

rom eason

Conway

Memorial

Lecture, ondon, 936);

Lynd,

Knowledge orWhat?

Princeton, 939).

2See Wild,"What Is theTroublewith nternationalaw?" Am. Pol. Sci. Rev.,Vol.

XXXII

(1938),p. 479: "Too oftenn the

past

he has assumed

he ttitude hat

he

world

s

out of tepwith is aw,

nd tooseldom as he

considered

hepoint

hat

perhaps is

cience

is

partly oblame."

260


3/26

POSITIVISM,

FUNCTIONALISM,

AND INTERNATIONAL LAW

261

experiencemay show, invariably

follows ts preconceivedpattern.3

This

breakdown mplies

the

practical

refutation

f

the

ideas which have deter-

mined he development

f nternational

aw in the asthalf-century. Hence,

the science of internationalaw is now confrontedwith the alternativeof

maintaining

he traditionalpatternof assumptions,

oncepts

nd

devices

n

spite of the teachings

of

history,

r of revising his

pattern and

trying

o

reconcile he science

of nternationalaw and its subject-matter,

hat

is, the

rules

of

nternationalaw as they

are actually applied.4 The present

writer

has always held

that only the latter

way leads to theoretically orrect

nd

practicallyuseful

results. In thefollowing aper the

attemptwill be made

to

reexamine the

methodological

ssumptions

with

which the traditional

science of nternational

aw starts. These assumptions

re embodied

n the

positivistdoctrine f aw.

THE LEGAL PHILOSOPHY OF POSITIVISM

Positivistphilosophy

estricts heobject

of

scientific

nowledge o

matters

that

can

be

verified

y observation,

nd thus

excludes

from

ts domain all

matters

of an

a

priori,metaphysical

nature.5 Juridicpositivism

ransfers

this

delimitation

nto

the

legal sphere.

The

juridicpositivist

delimits

he

subject-matter

f

his

research

n

a

dual way.

On

the

one

hand,

he

proposes

to deal exclusively

with

matters egal,

and for his

purpose

trictly eparates

the legal sphere

from thics and mores s

well

as

psychology

nd

sociology.

Hence,

his

egalism.

On

the other

hand,

he restricts

is

attention

within

he

legal sphere

to the

legal

rules

enacted by

the

state,

and

excludes

all law

whose

existence

annot

be traced to

the statute

books

or

the decisions

f

the

courts. Hence,

his 6tatistmonism.

This

"positive"

law

the positivist

accepts

as

it

is,

without assing udgmentupon its ethical

value

or

question-

ing its practical appropriateness.

Hence, his agnosticism. The positivist

3

Professor

uincyWright

ouldreportn 1930 Research n

Internationalaw since he

War, p. 25):

"Of

the twenty urists

withwhom

he writer

as corresponded,nly

two

betrayed noteofpessimismt the prospects,nd that n both ases was qualified."

4Such

reexamination

s called

for

by

manywriters; ee,

for nstance, hilip

Marshall

Brown, his

JOURNAL,

Vol. 33

(1939),

p.

149;

Djuvara, Recueil es Coursdel'Acadgmie

e

Droit nternationalcited

hereafters Hague

Recueil),

Vol. 64 (1938),

p.

485;

Hudson,

Proceedings

f he2nd,3rd, nd 5thConferences

fTeachers

f

nternational

aw (Wash-

ington, 925,

1928, 933),

pp.

86 et eq., 2, 94,

95, respectively; acKenzie, roceedings

f

the 6th

Conference

f

Teachers

f

nternational

aw (Washington,938),

p.

109;

Friedman,

"The Disintegration

f European

Civilization nd the Future

of International aw,"

ModernLaw Review,

Vol. 2 (1938),

p.

213.

6

For the

characteristics

f positivist hilosophy,ee Comte,

Discours ur 1'esprit

ositif

(Paris, 1844),

p.

41

et seq.; Mill, AugusteComte

nd PositivismLondon,1866),

p. 6 et

seq.; see especially,he

excellent rticle, Positivism," y Ruggiero

n Encyclopedia

fthe

Social Sciences, ol.12,p. 260.

The

most

penetratingontemporaneousriticism

f positivist

cience s to be found n

Mortimer . Adler,What

Man Has

Made

of Man (New York,1937), specially

p. 28, 87,

97, 131, 132,

158et eq.,192,233,238 et eq.


4/26

262 THE

AMERICAN

JOURNAL

OF

INTERNATIONAL LAW

cherishes

he beliefthat

the "positive" law

is a

logicallycoherent

ystem

which

virtually ontains, and

through mere process

of

logical deduction

will

actually

produce,

ll

rules

necessary

or

he decision

f

all

possible

cases.

Hence, his systemworship nd dogmaticconceptualism.6

The historic

mportance

f the positivist

chool of

jurisprudence or

the

science

of

law

was fourfold.

First, positivism

accepted

the

breakdown

of

the

greatmetaphysical

ystems

f

theeighteenth

nd

theearly

nineteenth

centuries nd

the

resulting

ecadence

of

metaphysical

urisprudence

s

an

established fact. It endeavored to save

the scientific

haracter

of

juris-

prudenceby

eliminating

rom t all

metaphysical lements,

hus

separating

it

from

he

discredited

octrines fnatural

aw.

In

the second

place,

posi-

tivism

recognized hat the

subject-matter

f

urisprudence

was

the

law

and

nothingbut the law, and thatneithernon-legal ubjectsnornon-legal on-

siderations ould have

anyplace

in

t.

Furthermore,egal positivism

earned

from

he

positivist

movement

n

philosophy

nd

the natural

sciences

that

scientific

bjectivity

s

dependent

upon

an

object

intelligible

n

experience,

and

a

method aimed at

knowledge,not

at evaluation.

Finally,

the

great

legal

codifications

f

the

European

continental

countries

nd

the

Anglo-

American

tatutory aw found n

positivism

technique

of

interpretation

and

representation. This

technique fulfilled ts

purpose

satisfactorilys

long as

the social

and political

philosophy

of

the

statutes,

eitherdirectly

expressed

by

them or

indirectly

erivedfrom

hem

by way

of

ogical

deduc-

tion,

was

sufficiento

meetthe economic

nd

social needs as well

as the

polit-

ical

demands nd ethical

requirements f

a

given

ociety

t

a

givenhistorical

moment.

To be

sure, his

correspondence etween

he statutes

nd

the standardsof

society

has

never

existed

ompletely; ven

under

tationary

onditions

here

will

always be a marginal

sphere which

does

not

allow the

mere

logical

subsumption of

a

given case under

statutory

aw

without

violating

the

standards of

society.

In

orderto

satisfy

he

positivist

ssumptions

of the

logical

completeness

f

the

egal

order

nd

at the

same

time

meet the stand-

ards of society, hesestandardswere first o be read intothe statutesfrom

6

For the

characteristicsf uridic ositivism,

ee Finch,Hague

Recueil,Vol. 53

(1935),

p. 557,and

The Sources f

Modernnternational

aw

(Washington,

937),p. 20;

Oppen-

heim, The

Scienceof nternational

aw: Its

Task and Methods," hisJOURNAL,

Vol.

2

(1908), p.

333 et seq.;

Bergbohm,

taatsvertraege

nd Gesetze

ls

Quellen

es

Voelkerrechts

(Dorpat,

1876),p. 40 et

seq.; andJurisprudenz

ndVoelkerrechtLeipzig,

892),pp.

51, 52;

Kelsen, Die

philosophischen

rundlagen

er

Naturrechtslehrend

des

Rechtspositivismus

(Berlin,

928); Pound,"Mechanical

Jurisprudence,"olumbia

Law

Rev.,

Vol.

8 (1908),

p.

605;

MorrisCohen,

"The Concepts f Juridical nd

Scientific

aw," Politica,

Vol.

4

(1939),p. 8 et

eq.;

Ripert, Droitnaturel tpositivisme

uridique,"

nnales

e a

Faculte

e

Droit 'Aix,nouvelle 6rie,

No. 1 (Marseilles,

918),pp. 19,

20, 32

et

eq.;Anzilotti,

ours e

Droit nternational,ol. 1 (Paris,1929),p. 18 etseq.;Waline, Positivismehilosophique,

juridique t

ociologique,"

elanges

arre

e

Malberg Paris,1936),p.

519; G6ny, cience t

Techniquen

Droit rivFositifParis,

915),Vol.2, pp. 15et

eq., 1,37, 38.

A

good urvey

is tobe found

n Erim,Le Positivisme

uridique

t e Droit

nternational

Paris,1939).


5/26

POSITIVISM, FUNCTIONALISM, AND INTERNATIONAL LAW 263

which they then appeared to have been derivedby a mere ogical process.

Throughthe back door of pseudo-logical nterpretation

he outlawed com-

pany of natural law and extra-legalvalue judgmentsreentered he legal

system. This kindof pseudo-logical egerdemain ecamethe predominating

interpretative echnique of legal positivism n the

period of its decadence.

In the last decades of the nineteenth entury he standardsof societywent

far

away from he economic, ocial, political, nd

ethical assumptionsfrom

which the systemsof statutory aw had started.7 Hence, the positivists

were compelled o resort o a seriesof pseudo-logicalmakeshiftsn order o

maintain

the fiction

f

"legal self-sufficiency,"on

which positivist uris-

prudencehad founded ts theoretical ystem.

From three ides thisfictionwas, and still s, under

ttack. From the one

side, sociologicaland realist urisprudence, nspiredpartly and indirectly

by

the

original ociologicalpositivism

f

Comte,

does away with he

artificial

barriers

y whichpositivism

has

separated the legal

spherefrom he

whole

domain of

the social sciences o which t actually belongs.

Thus it destroys

the positivist ssumptions ogetherwith the positivist

onclusions.

From

the other side, the neo-positivism

f

Kelsen's puretheory

f

law

maintains

the

basic assumptions

f

positivism ut undertakes

o achieve the positivist

ends

by purifying

he

egal

sciencefrom

ll

material,

on-legal lements,

hus

eliminating he subject-matter

f

positivist rypto-metaphysics.

Several

schools

of

revived natural

law,

as

well

as the

politico-ideological

power

of

totalitarianism, ave joined

in

this

dual

scientificttack.

Totali-

tarianism has ostracized positivist urisprudence

as a manifestation

f

liberalistic ecadence n Germany nd Italy, where

he domination f uridic

thought y positivism

as

been

at

timesalmost

undisputed,

nd

whereposi-

tivismhas

exerted

ts

most far-reaching

nd

fertile

nfluence

n

the develop-

ment f he

egal

science.

Deprived

of ts

traditional

trongholds y political

suppression

nd

undermined

y

scientific

riticism,

ositivism

s no

longer

guiding nfluence

n

modern

egal thought.

POSITIVISM AND INTERNATIONAL LAW

In

international

aw,

unlike he other

branches

f

egal science,positivism

is

still

a

determining

nfluence.

Ever since

the

turn

of

the century,

nterna-

tionalistshave started with

positivist ssumptions,

have followed

he

posi-

tivist

method,

nd have

professed

dherence

o

the

principles

f

positivism.9

7

An excellent nalysis f thisdevelopments to be

found n Bonnecase's istory f

the

French kcolede l'Ex6gese."

a PensFe uridique ranQaise

e 1804 d l'heure r6sente,ol.

1 (Bordeaux, 933).

8

Roscoe Pound,

An

Introduction

o

the Philosophy

f

Law (New Haven, 1937),

p. 57.

9

Cavaglieri ould write

n

1911 ("La Conception

ositive

e la

sociWtdnternationale,"

Revue 6n. r. pub.,Vol. 18 (1911),p. 260): "Parmi ceuxqui s'adonnent ux 6tudes e droit

international,l n'est ujourd'hui ersonne ui ne fasse

pas solennellementrofession'ad-

h6rerA a nouvelle onception

ositive u droit. . ."

Someyears aterRipert ould ay

(Annales,

bc.

it., . 18):

". . . cette

generation

rofesse

n positivismeuridique bsolu."


6/26

264

THE

AMERICAN JOURNAL

OF

INTERNATIONAL

LAW

Neither

heopposition f

natural

aw,'0norKelsen's

neo-positivist

riticism,"

nor,finally, he

rather mplicit

riticism f

egal sociologists,'2

as been able

to

affect

he

predominance f

positivist hought ver

the

science of nterna-

tional law. The PermanentCourtof InternationalJustice till follows he

time-honored

seudo-logical method of

traditionalpositivismwhich

pre-

vailed

in

the

jurisdiction f

the domestic

upremecourts t

the turn of

the

century. The

annals of

hishighest

nternationalribunal ecord

no

nstance

where

an

advocate, like

Brandeis in Muller v.

Oregon,13

dared

to

break

throughthe

networkof

positivistformulae,nor of

any

majority opinion

which

would

not

have clung,on a

veryhigh evel of

technical

perfection,o

the

traditional

pattern

of

positivist

rgumentation. When

Judge Hudson

looks for

realistic

decisionwithrespect o

international aw

he has to

turn

to the Court of Appeals of the State of New York.14 Compared to mu-

nicipal

law,

internationalaw is in

a

retarded stage of

scientific evelop-

ment. As

represented y its

sanest

elements, he science

of

international

law still

tands where he

scienceof

municipal aw stoodin

1910;

in

terms

f

its

post-World

War development, ts

mostspectacular

branches,nvaded by

the

political

deology

of

Geneva,have gone

back at least to the

point

from

which

positivism tarted

n

the last decades

of the

nineteenth

entury.

The collapse of

the

nternationalaw of

Geneva, when

for

he first ime ts

fictions

were

confronted

ith the

full

reality,meant

of

necessity

he

break-

down

of

the science which

had been only

its

ideological

reflection.

The

10

Professor auterpacht

Private Law Sources and

Analogiesof

International aw

(London, 927),p. 27, note

5; p. 58, note 7;

Oppenheim-Lauterpacht,

nternationalaw,

Vol.

1

(1937, p. 100)

defends he opinion hat positivism o

longer

dominates he

science f nternationalaw,

but has beenreplaced y a new

doctrine f

moderate atural

law. It

is

difficulto share hisopinion.

Natural aw and thepost-warcience f

nterna-

tional awhave only his n

common,hat hey verstep he

imits f xperience.

However,

one woulddo njustice o the

great

metaphysicalystems fnatural aw by

dentifying

hem

with

the

post-war cience f nternational

aw. Whereas uarez and

Grotius

were

fully

awareof the

aprioristic,

etaphysicalharacter f their

ropositionsnd

had

good philo-

sophical easons or dhering

o them, ost-war ositivism

elplessly

onfuses

eality ndimagination, ish and fact,because no longer oes t possess he scientific eansofdis-

tinguishing

etween oth.

Cf., lso, Laski,The State in

Theory nd PracticeNew York,

1935), p. 198; Wild,

oc.

cit.,

. 483 et eq.

11

See,

especially, as

Problem er ouveraenitaetnd

die

Theorie

es

Voelkerrechts

1928).

12See,

especially,Max

Huber,

Die

soziologischen

rundlagen

es Voelkerrechts

Berlin,

1928); Ray,

Hague

Recueil,

Vol. 48 (1934), p.

631 et seq.;Schindler,bid.,Vol. 46

(1933),

p. 229 et eq.;Morgenthau,a

Notion

u

"

politique"

t a

thgorie

es

diffgrends

nternationaux

(Paris,1933),pp. 37 et eq., 5

et eq., nd La RkalitMes

normes,

n

particulier

es

normes

u

droitnternationalParis,

1934),pp. 139, 140,

215.

13

208 U. S. 412

(1908).

An

excellent ppraisal

f

the

theoretical

mportance

fthis

ase

is to be

found n Frankfurter,Hours of

Labor and

Realism

n

Constitutional

aw,"

HarvardLaw Rev., Vol. 29 (1916),p. 353.

14

See the

referenceo

Cardozo'sopinion

n Techt v.

Hughes,

29 N. Y.

222,

241

(1920),

in

Hudson,

International aw in the

Twentieth entury,"

ornell

aw

Quarterly, ol.

10 (1925),p.

435,note75.


7/26

POSITIVISM, FUNCTIONALISM, AND

INTERNATIONAL

LAW 265

post-WorldWar science

of

nternational

aw

sharedthe short-lived

nd delu-

sive splendor

f ts

politicalmaster,

nd now shareswithhimthe finaldetec-

tion

of

their

ommon hamexistence s well as the

resulting isrepute.

The

helplessness f the science of nternational aw in thefaceof those dangers,

its very

unawarenessof

them,

ts

sincere self-deception

s to its scientific

character,

re

perhapsthe gravest

ndictmentswhich an

be

brought gainst

the scientific

alue of

thepositivist

doctrine

f

nternationalaw.'5 The

fail-

ure

of he

post-World

War science

f

nternational

aw s not due to

personal

r

accidental circumstances;

t

grows

ut

of

the

very ssumptions

nd

methods

whichhave led

juridicpositivism

o

defeat

n

the

domestic ield.

Yet, in

the

international ield he disastrous onsequences fthe genuineweakness fthe

positivist

doctrine

re doubled

by

the absence

of

the conditionswhich

n

the

domesticdomain made juridicpositivism t least a temporarynd apparent

success.

Juridic

positivism

tarts

with the

assumption

that

its

subject-matter

s

to

be found

exclusively

n the writtenaw of the state.

Only

the rulesof

law,

and all

the

rules

of law which

statutes

and

court

decisions

present

s

such,

are

the

material

with

which

the positivist

doctrine

has

to deal. The

criterion

f

the

existence,

hat

is,

the

validity

of

a

legal rule, s, then,

ts

incorporationnto the written aw

of

the state. We do not repeat herewhat

we have said elsewhere

f

the scientific

alue

of

this

uridic

monism,16

nd

consider nly

the results

f

ts

being pplied

to

the

rules

of

nternational

aw.

This criterion or the validity of legal rules means,

if

transferred

o the

international ield, hat the only

valid

rules of international

aw are those

which

re revealed

by

the decisions

of

courts

nd

international reaties

duly

ratified

nd

not formally evoked. Yet this concept

s

at

once confronted

with two problems

for which

the positivist doctrine

of

international aw

has

no

solution. On the

one

hand, all rules embodied

n

written

ocuments

are

not

valid

internationalaw, and,

on

the

other

hand,

there

re valid

rules

of international

aw other than

the rules

embodied

n

written

documents.

The

positivist

ormula s

applied

to

international

aw

is

at once too narrow

and too broad."7

15

or criticismfpost-warnternational

aw, ee especially, eckett, Internationalaw

in England, Law Quarterly ev.,Vol. 55 (1939),pp. 261, 62, 66; Borchard,his

OURNAL,

Vol. 27 (1933),p. 518,Vol. 28 (1934),p.

108; Hill, bid.,Vol. 23 (1929),p. 617; John assett

Moore, bid.,Vol. 27 (1933),p. 607; the ame,

nternationalaw and SomeCurrentllusions

(New York,1924);

the

same,

"An

Appeal

toReason,"ForeignAffairs,ol.

11

(1933), ee

especially p. 548,585;

the

ame, Post-War

nternationalaw," Columbia aw Rev.,

Vol.

27 (1927), ee especially . 412.

16

See Morgenthau,

a

Rgalitg

es

Normes,. 106et eq.;

cf.

lso, herather nalytical

han

critical emarks y Edwin

D.

Dickinson,Hague Recueil,Vol. 40 (1932), pp. 337,

344;

Siotto-Pintor,bid.,

Vol.

41

(1932),pp. 265,266; Verdross,bid.,Vol. 30 (1929),p. 276.

17

To the following iscussion, ee Morgenthau, Positivismemal compris t thgorie

rgaliste u Droit nternational," glangesAltamira Madrid,1936), p. 3 et seq.; see also,

Affolter,

Der

Rechtspositivismusn der

Rechtsuissenschaft,"

rchiv uer

effentliches

echt,

Vol.

12

(1896/97), p. 40,

41.


8/26

266 THE AMERICAN

JOURNAL OF INTERNATIONAL LAW

The science of international

aw has not developed a criterion o distin-

guish,

n an

objective

way, between seeminglynd actuallyvalid rules

of

international aw. "One can assert that nine-tenths

f the traditionaldoc-

trinesof nternationalaw are not actual internationalaw," said Professor

GeorgeJellinek

s farback as

1905.18

Declared Professor ppenheim

few

yearslater:

It

is

also indispensable

hat the scienceshould free tself from

the

tyranny fphrases.

As

things re, there s

scarcely doctrine f he aw

ofnationswhich s wholly ree rom hetyranny

fphrases. . . . Anyone

who s in touch with the application of nternational

aw in diplomatic

practicehears from tatesmen very day the

complaint hat booksput

forth anciful octrinesnsteadof he actual rules f

aw. Now it s

often

not difficulto push

the rrelevant o one sideand to extractwhat s egally

essential romhewaste ofphrase-ridden iscourse. But there reentire

areas

in

which he tyranny f phrases o turns

he head thatruleswhich

absolutely

never

were

rules of aw are represented

s such.19

"On no

subject

of

human

nterest, xcept theology,"

aid

JohnChipman

Gray at about the same time, "has there been

so much loose writing

nd

nebulous

speculations

s on

international

aw."

20

If

these statements

were true

in

the firstdecade

of

the century,

he

development

f

the post-World

War

science

of

international aw

has

only

added

to their significance.

The

Covenant

of

the League

of

Nations,

for

instance, s a duly ratified ocumentwhich has never been repealed. But

has it everbeen valid internationalaw as a whole?

If not, whichprovisions

never

had the quality

of

valid legal rules,

and

which

ones lost

this quality

in

the course

of

the

gradual collapse of the institution f Geneva?

No

treatise

of

the

law of nations offers

ny general

criterion o

answer

these

questions,

nor do the concrete nswers

given

with

reference

o

the

actual

validity

of

Article

16

of

the Covenant

reveal

any

such

underlying bjective

criterion.

The

absolute

denial

of

any validity,

he

assertion

of a so-called

"de facto

revision,"

and

the defense

of full

validity,

re advanced side

by

side.21

Similar

problems

rise with

respect

o theBriand-Kellogg

Pact

and

the

Peace Treaties

of

1919,

as

well

as

to

other

political treaties,

uch

as the

Pact

of

the

Little Entente,

alliance

treaties,

the

concepts

of

aggression,

independence,

ntervention, overnment,

nd so

forth.22

They

are em-

18

System

er

ubjektiven

effentlichenechteTuebingen,905),p. 321; see also

the even

strongerriticismyBergbohm,taatsvertraege,.

8.

19

The Future f nternational

aw (Oxford, 921;firstn German, 911),pp.

58, 59; see

also, The Science

f

ntemational aw, pp. 315,

334.

20

Nature nd Sources

f

the Law (New York,1927;

first dition, 909),p. 127.

21

Cf.,

for

nstance, chwarzenberger,

n The New Commonwealth uarterly, ol.

3

(1937/38), p. 263, 360

et seq.; bid.,Vol. 4 (1938/39), . 60 et eq.;for n excellent

tate-

ment ftheproblem,eeKunz, d.,p. 131, ndthis

JOURNAL,

ol. 33 (1939),p. 33.

-'

An excellent ontribution

o the understandingfthisproblems to be found

n

Baty,

"The

Trend

f

nternational

aw," thisJOURNAL, ol.

33

(1939),p.

653 et

seq.,

nd

"The

Abuse

of

Terms," bid.,

Vol. 30 (1936),p. 377.


9/26

POSITIVISM,

FUNCTIONALISM,

AND INTERNATIONAL

LAW

267

bodied

n

written

ocumentswhichwere duly

ratified nd

never

nvalidated.

Have they

ever beenvalid law from

he beginning,nd what

has become

of

them

n

the years

of

theirviolation? Are they

still valid?

If

they

are

not,

what destroyed heirvalidity? These are questionswhich he nterpreterf

domestic tatutes, ubject

to a rational

process fvalidation

nd nvalidation,

is not likely

to be asked,

and hencethe positivist

doctrine

f international

law,

following he pattern

of

domesticpositivism,

as nothingwithwhich

o

answer them.23

The basic assumption

of juridic positivism,

hat its

exclusive subject-

matter

s

the written

aw of

the

state, eads legal science

not only to the

in-

clusion

of

alleged egal

rules which

no longerhave

or

never

have had

legal

validity,

but

also

to the exclusion

of undoubtedly

valid rules of aw.

Posi-

tivist jurisprudence, tartingwith the axiom of "legal self-sufficiency,"

separates

the aw

from

he othernormative

pheres,

hat s, ethics nd

mores,

on

the

one hand, and from he

social sphere,

comprehendinghe psycho-

logical,

political,

and

economic

fields,on the

other hand. By

doing so,

positivism

evers

he

actual relations etween he

aw and the

otherbranches

of

the

normative

nd social sphere. It proceeds

on theassumption hat

the

law,

as

it really s, can

be understood

without he normative

nd social con-

text

n

which t actually stands.24

From theapplication

of this assumption

to international

aw

there results

threefold elimitation

f

legal

research,

contrary

o theexigencies

f

the

reality,

nd hence a threefold

misconception

of whatinternationalaw really s.

1.

The

normative

phere,comprehendinghe

totalityof rules governing

a

given

society, s one whole with

regard o thebasic precepts

t contains.25

23

This

absence f any scientific

est for

he validity f the rules

of nternationalaw is

responsible

or he perplexitynto

which ome

ofthe foremostepresentatives

fthe nter-

national

awofGenevahavefallen

nrecent

ears. Professorcelle,whohadfounded whole

system

f

"positive"

internationalaw upon

"international

olidarity," international

federalism,"

nd ike

"social facts,"n 1937

rrives t the conclusion

hatthere s

no

such

thing s

internationalaw at all.

"I1

n'y a plus en Europe

de droit

es gens,"he writesn

theJournal esNations

No. 1665,

eb. 28and March1,

1937). "Il n'y a plusdes

trait6s."

"The conclusioneemsunescapable," aysProfessor immern"The Declineof nterna-

tionalStandards,"nternational

ffairs,ol.

17 (1938),

p. 12), "that positive nternational

law,

so

called,

as

no

claim o thename f aw."

(See also the ame,The League

ofNations

and the Rule

of

Law

1918-1935

London,1936),p. 94.)

These scholars, ho

never ared

for uch

"abstract"

problems s thecriterion

fthevalidity

f rule f aw, now

fallfrom

one

error

nto he

ther. First, hey ccepted

he ssumed

alidityfpost-war

nternational

law

without

uestion; ow, ince

t is obvious

hatthemainbulk

ofthis o-called

nterna-

tional aw never asbeenvalid aw

at all,they

dentifyhis roduct

f heirmaginationith

the

mainbulkofpre-warnternational

aw,which oday

s as valid

as it has everbeen,

nd

declare hat nternational

aw simply oesnot

exist

24

"Can we evenunderstand

nglish aw without oing

beyond

he actualrules them-

selves?"asks Paton n his interestingaper,"WhitherJurisprudence,"olitica,Vol. 4

(1939),

p.

16.

25

To

thefollowing

iscussion,

ee Pound, The Partof

Philosophyn nternational

aw,"

Proceedings

f

the

6th nternationalongresss

f PhilosophyNew

York, 1927),

p. 374

et


10/26

268

THE

AMERICAN

JOURNAL OF

INTERNATIONAL

LAW

Although

here

may be

in a

given

societyparticular

egal rules

which

con-

tradict

particular

thical

rules

or

mores,

nd vice

versa,

he

main

bulk of

basic

ideals to

be realized,of ends

to be

achieved,and of

nterestso

be protected,

is generally he same in the different ranchesof a givennormative rder.

Law,

ethics,

and

mores

upport

each

other

in

the

pursuit

of

these

aims.

Legal rules refer o ethics

and mores

or

he

determination

f

their

meaning

and vice

ersa.26

The

guiding

nfluence,

owever,

s

to

the

ideals,ends, and

interests o be

pursued by the norms

under

which

a

given

society

lives,

emanatesfrom

he

ethical

phere.

From

t

law and mores

eceive

hefunda-

mental

distinctions etween he

good

and

the

bad,

the ends

to be

advanced

and

the

ends

to be

opposed,

the

interests

o

be

protected

nd

the

interests

to be

repudiated. At the

base

of

any legal system

here ies

a

body

of

prin-

ciples whichincorporate he guiding deas of justice and orderto be ex-

pounded

by the

rules

of

aw. The

intelligibility

f

any egal system

depends

uponthe

recognition

f

uch

a

set

of

fundamental

rinciples

which

onstitute

the

ethical

substance

of

the

legal system,

nd

shed

their

lluminatingight

upon each

particular

ule

of aw.

This

recognition

s

relatively asy

to

perform

n

the

domestic

field,

where

the

constitution odifies

he

main

bulk of

those

fundamental

rinciples, nd

a

highly

ntegrated ublic

opinion provides

upplementary

moral

guidance.

The task s

muchmore

difficult ith

espect

o

nternational

aw.

Here

there

is

no body of such

principles

eparate

from

he

ordinary

ulesof

aw.

Some

of thoseprinciples

may

be

only

partlyexpressed

n these

rules;

others

may

not be

expressed at

all,

and

hence have to

be

detected,

n

a

dangerously

uncertain

rocedure,

n

the

general

moral deas

underlying

he

international

law of

a

certain

ime,

a

certain

civilization,

r even

a

certain

nation.

Yet

the successful earch

for these

principles

s

as

essential for the

scientific

understanding

f

nternational

aw as of

any legal system.

Legal positivism

s

unable

to

grant

this

recognition;

or

at

its basis

there

is

the

hostility

o

all

matters

metaphysical,

hat

is,

those

which

cannot

be

ascertained

by

actual

observation.

Since

non-legal

rules

have

generally

entered hehorizonof the positivist uristas metaphysical ules ofnatural

law,

the

positivist

s

inclined o

identify

atural aw

and

ethics

as

such,

and

to

repudiate

both

as

metaphysics.

However,

to exclude

a

priori

a

certain

subject-matter

rom cientific

esearch

by calling

t

metaphysical,

nstead

of

impartially

xamining

ctual

experience,

s

to blindoneself o

a

preconceived

idea

originating,

ot

in

experience,

ut

in

mere

reasoning,

nd

thus

to

do

violence

o the facts.

Hence,

the

positivist

oncept

of

the normative

phere

seq.; Bentwich,

he

Religious oundations

f

nternationalismLondon, 933), specially

p. 262 et eq.; Zimmern,

International

aw

and

Social Consciousness,"ransactionsf he

Grotius ociety, ol. 20 (1934),p. 25 et eq.; cf., articularly,hebrilliantaperby Schwar-

zenberger,

The Rule

of

Law and the

Disintegration

f the

International

ociety," his

JOURNAL,

Vol.

33

(1939),p.

56.

26

We have dealtwith hisproblemn La RMalitWesNormes, .

155.


11/26

POSITIVISM, FUNCTIONALISM,

AND INTERNATIONAL

LAW

269

itself reveals

a

metaphysical

attitude,

a kind

of

negative

metaphysics

which plainly

contradicts he

very

assumptions

f a positive

science.27

Yet positivismhas

never been quite able

to live up

to its legalisticand

anti-metaphysicalssumptions. The verynature of ts subject-matter as

compelled t time

and

again

to

violate

ts

own

assumptions

nd make

use of

fundamental rinciples

ot

revealed

by

"

positive

law. In order

o give

at

least apparentsatisfaction

o

these

assumptions,

ositivism

dares to make

use

of

such principles

only

under

the

disguise

of

positivist

concepts,

and

therefore evelops

a

fictitious

method which tries

by

pseudo-logical rgu-

ments to

derive from"positive,"

that is,

written, ules of international

law

something hat

those rules

do

not contain.

The

interminable nd

quite

sterile

discussions

on the

foundation

f

the binding

force

of

international

law are evidence of this word-juggling,ince this is a problemwhich,as

defined

n

the positivist

erms of

mutual consent

and the

like,

is

contra-

dictory

n

itself,

nd

hence insoluble

withinthe

framework f

positivism.

The

foundation

f

the

binding

orce

f

"

positive

law can

logically

be

found,

not in

this

"positive"

law

itself,

ut

only

outside

t.28

Another xample

s

the

problem

of

sovereignty

s defined and

solved

by positivism.

Here

again

a

fundamental rinciple

which,by

its

very

nature,

cannot be derived

from positive"

law,but

fromwhich

"positive"

law itself atherderives ts

meaning,

s

to

be dealt

with

as if

t were

a

rule

of

"positive"

international

law.

It

is

for hese helpless ttempts

o conciliate ts

legalistic

ssumptions

with actual

juridic

experience

hat the

positivist

doctrine

of

international

law

is

bound to

misrepresent

he

reality

of international aw

and

to

fail

to

do justice

to its actual content.29

2.

The precepts

f nternational

aw

need not

only

to be

interpreted

n

the

lightof the

deals

and

ethico-legal

rinciples

which re at theirbasis. They

need also to be

seen within

he

sociological

context of

economic nterests,

social

tensions,

nd

aspirations

or

power,

which re the

motivating

orces

n

the international

ield,

nd

which

give

rise to

the factual

situations

forming

the raw material

for

regulation

by

international aw.30 The

correctness f

27

or this

point, ee Liard,

La

Science ositive

t

a

m6taphysique

4th ed., Paris, 1898),

pp. 38, 57, 72.

See also

Ruggiero,

oc. cit.,p. 261:

"Not

only

the

extreme

ifficulty

f

maintaining

tselfn a level trictly ositive

nd not

exceeding

he imits f

experience

ut

also thetendency

.

. to

dentifybjectivity

ithmateriality,

ave

often ausedpositivism

to range ver

nto

materialism,

hat s,

nto

metaphysics,

n contradictiono

its own

pre-

mises." As

to the

pecificegal

phenomenon

f

"positivismnding

n

disregard

f

positive

law," ee Lauterpacht,

n Modern

heories

f

Law

(London,

933), p. 132, 33;

nd

Morgen-

thau,Positivisme

al

Compris, p.

3,

4.

28

Strupp,

Hague Recueil,

ol. 47 (1934),p. 298; Brierly,

he

Law

of

Nations London,

1936),p.

45.

29

Brierly,

he

Shortcomings

f

International

aw, p.

4

et

seq.;

Morgenthau,

The

Problem fNeutrality," niversityf Kansas CityLaw Rev., Vol. VII (1939), p. 110;

Wild,

oc.

cit.,

.

478

et

eq.

30

For

this

point, ee Brierly,p. cit.,pp. 5, 16;

Kenneth

Colegrove,

roceedings

f

the

5th

Conference

f

Teachers

f

nternationalaw, p. 97; Ray,

Annales

ociologiques,

6rie

,


12/26

270 THE

AMERICAN

JOURNAL OF INTERNATIONAL LAW

thispostulate forthe

interpretation f municipal aw is today

self-evident.

Nobody

would evertry

o

interpretocial egislation

without eferenceo the

conflicting

ocial interests o be evaluated

and

the social relationsto

be

settled. Nobody would ever endeavorto grasp the legal meaning of eco-

nomic

egislationwithoutmaking conomic nterests

nd conflicts art of the

reasoning. Even where hereference o the

underlying conomic nd social

forces

nd

relations

s not

always explicit,

s

in

the fieldof

contracts, he

sociological

context s nevertheless

lways

referred

o

by implication. It

is

only

because

of

he

highly ypical

character

f

the

factual

ituations nd

their

social

and

economic

significance,

with which

everybody

s

familiar,

and

which are

completely

nd

adequately expressed

n

the

legal rules,

that the

merereferenceo

those

egal

rules

mplies

he

consideration

f

the social

and

economicfactorswhichare at theirbasis.

It

was, historically,

he

most disastrous error

of

positivism

to

mis-

understand

completely

this

implicit

reference o

the

sociological

context

which

every egal

rule contains. This error an

be traced back to the tradi-

tion of the

pandectists,

who

had in

the

Roman

law the

classical model

of

a

highly

typified egal systemwhich expressedwith

perfect ppropriateness

the fundamental

nterests

nd

relationships

which can

arise

from

hesocial

activitiesof men. So

perfectly

was

this sociologicalcontext

represented

n

the abstractions

f

the

Roman

law,

that the

pandectistswere

only

too

prone

to forgetts veryexistence nd to deal withthose abstractions s with n-

dependent ogical

entities.

So

did

the positivists,both

in

the municipal

and

international

fields.3' This

methodologicalerror was of minor im-

portance

where

he

legal

concepts

were

true abstractions rom

he interests

and

relations

which

hey

were

upposed

to

regulate. When,however,

hose

legal

rules were

applied

to

interests

nd

relationsto

which some

of

them

referred

nly partly,

thers

not at all, that

methodological rrorwas bound

to

have

a

disastrous

nfluence

pon

the

scientific alue

of

positivist uris-

prudence.

In

the domestic

field,

t

became instrumental

n

distorting he

legal realityand originating hat positivistconceptualismwith which a

decadent

egal

science

ttempted

o

adapt

the

old

legal

rules

o

new

economic

and

social

needs,

but

at

the same time

maintained he

fictitious

ssumption

that the written aw

already contained, ogically,

ll

the rules

necessary

for

the

solution fthose new

problems.

Thus the

uridical

pseudo-logic

ecame

the artificial

makeshift

y

which

stationary

aw

could

be reconciledwith

moving

ocial

reality.

In

the

nternational

ield,

he

methodological

rror

f

neglecting

he

socio-

No. 3, p. 14et eq.;cf. specially,heexcellent emarks y Friedman,Modern aw Review,

Vol.2

(1938),p. 194;

nd

review,bid., .

81.

81

For the nfluencefRoman aw upon ntemational

aw,

see Pound,

oc.

cit.,pp. 376,

377; Lauterpacht, rivateLaw Sources,p. 23 et seq.; Alvarez,Nouvelle onception es

ttudes

uridiques, .

47 et

eq.


13/26

POSITIVISM, FUNCTIONALISM, AND INTERNATIONAL LAW 271

logical context f nternationalaw led to even worseconsequences.32 In the

domestic field, he correspondence etween egal concepts and sociological

contextwas at least a temporary act, and within his limitthe negligence

of the sociological contextand the assumptionof the "self-sufficiency"f

the written aw could be justified.

In

the most important branchesof

international aw this correspondencehas never, and could never, have

existed.

The

sociologicalrelationships nderlying

hose branchesof

inter-

national aw are characterized y their ndividual,non-typical ature.33 A

political ituation

n

the nternational ield s not ikely o repeat tself, ince

the variety

f

factors

f

which t is composedmakes for

n

indefinite umber

of

possible combinations. Hence only

a

strictly ndividualized

rule of law

will

be adequate

to

t. International aw provides artly

or

uch

ndividual-

ized rules by restrictinghe application of a rule to one individual case and

leaving he regulation f imilar uture ases to new egislative fforts. Peace

treaties are instancesof such individualizedrules

of

international

aw.

In

part, however, nternational aw does maintain the

form

of

the general,

typical

rule of aw and

depends

on

the

interpretation

f the

rule to

provide

the flexible

meaningwhichthe ever-changing ociological

context

requires.

All political treaties which are intent upon establishingpermanentrights

and duties between he contracting artiesare of this kind. The same gen-

erally

and

typicallywordedtext may imply quite differentules,according

to the

political functionwhich t is supposed

to fulfill.34Thus one

is

able,

for

instance, to distinguish hree different eriods

in

the history

of

the

Treaties of

Locarno.35

Those three periods are characterized by three

significant hanges

in

the normative content

of

the rules, resulting

rom

changes

n

the political context, lthough he wording f the rules remained

unchanged. The Covenant ofthe League

of

Nations,

as

a

whole,

s

well as

particular rovisions, or nstance,Article 6, have been submitted

o similar

modifications s

a

result of factual sociological developments

nd not of

legislative hanges.36

The same phenomenon ccurs not only

n

temporary uccession,

but

also

32

Reeves,

roceedingsf he2nd Conference

fTeachers

f

nternational

aw,pp. 72,

73.

33

This high

degree f ndividualizations clearly

ecognized

y Brierly, ague

Recueil,

Vol. 58, p. 16;

Ray, bid.,Vol.

48, p. 699; Schindler,bid.,Vol. 46,

p.

265.

34The samephenomenon

ith egard o municipal

ocial egislation as been

xcellently

described y

Frankfurter,

oc.

cit., p. 369, 370:

"It is now clearly nough ecognized

hat

each case presents

distinctssue;that ach case

mustbe determinedy thefacts elevant

to it; that weare dealing, n

truth, ot with

question f aw but the application

f an

undisputed ormula

o a constantly

hangingnd growing ariety

f economic

nd

social

facts. Each

case, herefore,allsfor new nd

distinctonsideration,

otonly f hegeneral

factsof ndustry

ut the specific

acts n regard o the employment

n question

nd

the

specific xigencies

hich

alled

for he specifictatute."

3

See Morgenthau,Theoriees anctionsnternationales,"evue e Droit nt. et deLeg.

Comp.,Vol.

16 (1935),p. 832.

36

See Morgenthau,

The

Resurrectionf Neutralityn Europe,"

Am. Pol. Sci.

Rev.,

Vol.33 (1939),p. 473.


14/26

272

THE

AMERICAN

JOURNAL

OF INTERNATIONAL

LAW

under

contemporaneous et

different

ociological onditions.

The identical

text

of an arbitrationreaty

r

non-aggression

act may

have quite

different

legal meanings,

ccording

o the political ituation

xisting etween

different

contracting arties.37 Even one and the same legal rule, as, for nstance,

Article

16 of theCovenant,

ends itself o different

nterpretations

ithre-

spect

to states living

under

different

olitical

conditions.38

The

positivist

doctrine

of

international

aw has completely gnoredthis

particular relationship

between the

rules of

international

aw

and

their

sociological

context.

Positivism transplanted schematically

the

highly

refined ositivist

method

of formalist

nd

conceptualist

nterpretation

nto

the domain

of internationalaw.

This method developed

under, and

was

justified

by, the specific

domestic

conditions

of

a

temporarily

tabilized

societywherethere was approximatelyno tension between law and so-

ciological

context

but

almost

complete

rationalization

nd

representation

f

the sociological

ontextwithin

he conceptsofpositive

aw.

Schematically

applied

to

a

law

and a

society

of

a

distinctly

ifferent ature,this method

was bound

to

produce

entirely nadequate

results. Wherethe

experience

f

international

aw showedthat

an individual ituation

required

n

individual

interpretation

f

the

legal

rule,

the

positivist

method

could not

fail

to dis-

regard

ll

individual

aspects

of the

factual

situation

and

concentrateupon

the

general

wording

f the

legal

rule

which,by

virtueof ts

logical

self-suffi-

ciency,

was

supposed

to

contain

ll

elements

necessary

or

ts

understanding;

and

to

thisthe

referenceo

the

sociological

ontext

ould

contribute

othing.

An

arbitration

reaty

which

ubmitted

ll

conflicts etween he

contracting

parties

to international

ribunals

was

a

legal

documentthat revealed its

legal significance

hrough

ts

text, .e.,

another

step

towards

the establish-

ment

of

an

international

rder based

upon respect

for aw.

Whether he

treaty

was concluded

between

Switzerland

and

Uruguay,

or

Denmark,

Sweden,

and

Norway,

or Great Britain

and

France,

or

Germany

nd

Poland

in

1925, 1935,

or 1939-these

were

"political"

considerations

rrelevantly

lying

beyond

the

scope

of

positivist

nterpretation.39

3. The positivistdoctrine,by recognizing s internationalaw onlythe

rules enforced y states,

excludes

from

he

domain of

international aw

all

rules whose

validity

cannot be traced

to the writtendocuments

of

states.

On

the

other

hand,

the

positivist

doctrine

annot

deny

that

such

rules,

ike

most rules

of

general

international

aw, actually

exist. Confronted

with

the

embarrassing

ilemma

of

violating

ts

own

etatist

ssumptions

r of dis-

37

Leresche,

La Crise

du Droitdes Gens,"

Rev. nt.

Franqaise

u

Droit

des Gens,Vol.

6

(1938),p.

303.

38

See the

excellent riticismy

Barandon,

as

System

er

politischen

taatsvertraegeeit

1918 Handbuch es Voelkerrechts,ol.4), p. 1.

39

See author's

nalysis

of

arbitrationreaties

oncluded

nderdifferentolitical

ir-

cumstances,

n International urisdiction,

ts Nature

and

its

Limits in

German, 929),

p. 131 et eq.


15/26

POSITIVISM,

FUNCTIONALISM, AND INTERNATIONAL LAW 273

regarding

n obvious

part

of

legal experience, he positivist doctrinehas

taken

refuge

n a

concept which

has

become

a

veritable

panacea

for

its

theoreticaltroubles. We are

referring

o the

concept

of

customary aw,

whichhas servedfor he traditionaldoctrine f nternational aw as a kind

of

collective designation

or all

the rules

of

international aw the origin

of

which cannot directly

be traced to

written ources.

The

insurmountable

theoreticaldifficultiesf

explaining he existence

of

a

so-called

customary

law have been

pointed

out elsewhere,40nd this is

no

place

to resume the

discussion. It is sufficiento

state that

the

reconciliationwhich the

posi-

tivist doctrine

s

able

to

establish

between

ts

monist, egalistic ssumptions

and

the existence

of a

so-called customary aw,

is

merely apparent.

In

orderto save these assumptions s well as thosefacts, t resorts o a series

offictions,ike tacit consent,recognition,udicial admission, nd so forth,

which

indirectly

ndeavor to

attribute

the

existence

of the

so-called cus-

tomary

rules

of

nternationalaw to

the

egislative

will of

states.

PREFACE TO A FUNCTIONAL THEORY OF

INTERNATIONAL LAW

The fundamentalweakness

of

the positivistdoctrine

f

nternational aw

lies in its

inadequacy

to

international

aw

as it

really

s.

Unfaithful o its

own

assumptions,

t contains t

the same time more

nd

less than

the actual

rules

of

nternational

aw,

which t

furthermoreubmits o subjective valua-

tion nthe ight fethical nd politicalprinciples fassumedlyuniversal,yet

doubtful, alidity.

A

truly

cientific

heory

f

nternational

aw

must

avoid

these mistakes

n

order

o

come closer

o the

reality.

It seemsto be a

logical

choice

to call such a

theory

by

the name of realist. There

are,

however,

two

objections

to this

choice.

On

the

one hand,

the

increasingdisrepute

of

the

traditional

doctrine

f international

aw

has

led

no

few

practitioners

of this doctrine o demonstrate

heir loseness

o the

reality

f

nternational

law

by calling

hemselves realists.

41

This misuse

has

deprived

he term

of its

distinctive

haracter

n

the international ield.

On

the other

hand,

realismhas

become

a

collective

designation

or

everal tendencies

n

modern

jurisprudence, ll aiming at replacing,by differentmeans, the fictitious

legalism

of

traditional urisprudencewith

conception

nearer o the

realities

of the

law.

All

these tendencieshave

this

n

common:

They

do

not

regard

the

legal

rules

as

definitely

etermined

by

their

legislative

or

judicial

formulation, ut search

for he

psychological, ocial, political

and

economic

forceswhich

determine

he actual content

and

working

f

legal rules

and

40

La

R&UlitM

es

Normes, . 89 et eq.;

for

riticism

f the

doctrine

f

customary

nterna-

tional aw, seealso,Brierly, ague Recueil, ol.

58, p. 29; Ray, bid.,

Vol.

48, pp. 697,698.

41

ee,

for

nstance, aufmann, ague Recueil, ol.

54 (1935),pp.

319,

320;

Scelle, bid.,

Vol. 46 (1933), p. 691; Verdross,bid.,Vol. 30 (1929), p. 277; Le Fur, n RevuedeDroit

International,ol.

17 (1936),p. 7-authors who

have certainly ot verymuch

n

common

besides

he

laim

f

being realists." Cf. lso,

Lundstedt ho, ccording

o

Pound,oc. cit.,

p. 145,qualifies ound,Kelsen, nd Duguit s

"realists"


16/26


17/26

POSITIVISM, FUNCTIONALISM, AND INTERNATIONAL LAW

275

can be drawn rom hisrecognitionf the functionalelationshipetween

socialforces nd nternationalaw.44

I.

A

functionalheoryf nternationalawhasto startwith he ecognition

of the particularlyntimate ature f thisrelationship.45n the domestic

field,egalrules an be imposed y the groupwhich

olds he

monopoly

f

organized hysical orce,hat s,theofficialsf he tate. The nternational

sphere s characterizedy the absence f such group. Internationalaw

owes ts existenceo identical r complementarynterestsf tates, acked

by power s a last resort, r,where uch denticalnterests o not exist, o

a

mere alance

f

powerwhich revents state

from

reakinghese ules

f

internationalaw. Wherethere s neither ommunityf interests or

balance

f

power, here

s

no

nternationalaw. Whereas

omestic

aw

may

originaten the arbitrary illof the rule-makinggencies f the state,

internationalaw s usually he result f objective ocialforces. When,

n

the nternational

ield,

n

arbitraryule-makingower ries

o

impose

ules

supported

either

y

commonnterests or

by

a

balance

of

power,

hese

rulesnever

ecome

alid

aw,

or

gain only phemeralxistence

nd

scant

efficacy;

he

history

f

herules mbodied

n

the

Treaty

f

Versailles

nd the

Covenant

f he

League

ofNations s a

strikingxample

fthis.

It is also due to this ntimate elationshipetween ocialforces

nd

egal

rules

hat

n

the nternationalield undamentalhanges

f

the

ocial

forces

and, hence, fthe egalrules, ollow ach other t frequentntervalsnd nan

abrupt, ftenviolent,manner.

In

the domestic ield he regulative

social force ominatingll others

s

the

state. It has

developed

ot

only

an

overwhelmingower pparatus, ut

also

highly

efined

echanisms

f

legislative

nd

udicial eadjustment,

hichead

the

ocial orces

nto ertain

channels

without isrupting

he

legal

and

social continuity.Here,

the

state

elects

n

authoritativeecisions he socialforces o be recognizedy

the law. It

decides o whatextent he

existingegal

rules hall

yield

o

changingonditions,o what xtent hey

hall

esist hem,

nd

n

what

ways

they hall ry o transformhem. In the nternationalield he uthoritative

decision s replaced y the free nterplay f political ndmilitaryorces.

This

makes gradual eadjustment

f

the

aw

to changing

ocial

onditions

extremely

ifficult.

ny

undamental

hange

f

he ocial

orces

nderlying

a

system

f

nternationalaw

of

necessity

nduces he

prospective

enefi-

ciaries f

he hange

o

try

o

bring

bout

correspondinghange

f

he

egal

rules,whereashebeneficiariesf he egal

tatus uo

will esist ny hange

f

the old

order. Here

a

competitiveontest

or

power

will determine

he

44These consequencesan be statedwithin

he

imits f this

paper only

n

very

general

terms,nd other onsequences aybe revealed hroughpplication ftheprinciples evel-

oped n the text o special

problems; ee theenumerationfpossible urther

onsequences,

in

Positivisme alcompris,. 20.

45

This relationships clearly

ecognized y Huber, p. cit., . 9 et eq.;

Schindler,

oc.cit.,

p. 237 et eq.; see also,La

R6alit6

esNormes, p. 139, 140,215.


18/26

276

THE

AMERICAN

JOURNAL

OF

INTERNATIONAL

LAW

victorious

ocial

forces, nd

the

change of

the

existing

egal

order

will

be

decided,not

through

legal

procedure

rovidedfor

bythis

same

legal

order,

but

through

conflagration

f

conflicting

ocial

forces

which

challengethe

legal order s a whole.46

Where uch

a

conflict

etween

ocial

forces nd

the rulesof

aw

exists, he

character nd

function f

the

whole

legal

order

undergo

transformation.

We have

proposed to call

this

relationship

y

the

name of

"tension,"

and

have dealt

with ts

legal

consequences

lsewhere.47

II.

This

recognition f

thepeculiar

relationship

etween

ocial

forces

nd

rules

of

nternational

aw

provides

he

clue

for

restating,n

functional

erms,

the doctrine f

the

validity

of

international

aw.48

A

rule

of

international

law

does

not, as

positivism

was

prone to

believe,

receive

ts

validity

from

its enactment nto a legal instrument, s, for instance, an international

treaty.

There

are rules of

nternational

aw

which

are

valid,

althoughnot

enacted

in

such

legal

instruments,

nd

there are rules of

international

aw

which

are not

valid,

although

enacted

in

such

instruments.

Enactment,

therefore,

s

no

objective

criterion or

he

alleged

validity

of a

rule of

inter-

national

aw.

A

rule, be

it

legal,

moral,

or

conventional,

s valid

when

ts

violation

s

likely

o

be

followed

y

an

unfavorable

eaction, hat

is,

a

sanc-

tion

against

its

violator. An

alleged

rule,

the violation of

which is

not

followed

by

such a

sanction,

s a

mere

dea,

a

wish,

a

suggestion,

ut

not a

valid

rule. An

alleged

rule

of

international aw, against the violationof

which

no

state

reacts,

nd

is

likely

o

react,

s

proved,

by

this

very

absence

of

probable

reaction,not to

be

a valid

ruleof

nternational

aw.

The

gradual

invalidationof

the

territorial

rovisions f

the

Treaty

of

Versailles,

nd

of

most

articles f

the

Covenant of

the

League

of

Nations,

by

violation nd

non-

interventionf

sanctions

against

these

violations,

re experimental

roof

of

the correctness f

this

concept

of

validity.49

How,

then, are

we to

know

beforehandwhen

such sanctions

re

likely

to

intervene

n

behalf f

a

violated

norm,

nd

when

not,and,

hence,how

are

we

46

Thisproblem, hich efersothevalidity f nternationalawand tsdynamicspects,

should

be

clearly

istinguishedrom

he

problem

iscussed

upra,

under

ar.

2.

There

we

had

to do

with

hequestion

s to

how n

the

nternationalield

he

particular

haracter-

istics f

the

social

context

re

representedn

the

material

oncepts

f

the egal

rules.

47

On

the

theoryf

ntemational

tensions,"

ee

Morgenthau,

nternational

urisdiction,

p.

59 et eq.;

andLa

Notion

u

"Politique," .

37 et

eq. This

theory as

been

thoroughly

discussed y

Ray,

Annales

ociologiques,6rie

, No.

1

(1935),p. 163et

eq.

48

As to

the

problem f

the

validity

f

nternationalaw,

see

Morgenthau,

a

R6alit6

es

Normes,p.

28 et

eq., 12 et

eq.

Professor

imasheff,

n

ntroduction

o

the

Sociologyf

Law

(Cambridge,939),

p. 271,

alls

he heory

eveloped here n

"artificial

onstruction."

However,t

seems

o usthat

he

rtificiality

fthis

heorys

only he

reflex f

he

artificial

character f nternationalaw tself; s tothis heoryfvalidityngeneral, ee hisremarks,

ibid., p.

142,

166, 99,

300. The

psychological

echanism

nderlyinghe

validity

f

nter-

national

aw is

well

described y

Baty n

thisJOURNAL,

ol. 33

(1939), p. 653.

49

For the

relationship

etween

anctions

nd

validity,ee

also,

"

Th6orie es

Sanctions

Internationales,"

oc.

cit., p. 474

et

eq., 09 et

eq.


19/26

POSITIVISM,

FUNCTIONALISM, AND

INTERNATIONAL LAW 277

to

say,

in

an

objective,

cientific ay,whichnorms

re valid and

which re

not?

The

consideration fthe functional

actorwill give the

answer.

1.

The commonest nd

simplest est for

hevalidityof an

alleged

rule of

international aw is this: State A has, in the past, requestedState B to per-

form ertain

ctions correspondingo the

rule,

whereasState B, inturn,has

requested State A

to performertain

ctions

corresponding o the same or

another rule.

Where these

identical or

complementary nterests

n

the

mutual observance of these

rules did

not suffice o guarantee the actual

observance,both

states were

willing o enforce

ompliancewith the

rule

by

protest, eprisal,

r military ction.

Wherethere

was, in thepast, a recog-

nized

identicalor

complementarynterest

n a certain ction on

the part of

two or

more

tates, ogetherwith he

willingness o enforce his

action,

here

exists he ikelihoodhat thesamesanctions or hesake ofthesame nterests

will also

be

performed

n

thefuture.

Respect forthe status of

diplomatic

representativesas been, n

the past, an

interest ecognized nd

guaranteed

with anctions

by

all

states;therefore,he

forecast s justified hat the

states

will

follow he same

courseof

action in the future.

The

enactment f rules

corresponding

o such interests n international

treatiesmay indicate

thepermanent

ature of those nterests, ut this

s

an

assumptionwhichneeds

supportfrom he facts and

whichcan be

disproved

by

them.

Another

ndication

of the permanenceof

such interests s

their

sublimation nto

moral principles,which

pretenduniversalvalidity and

endeavor

to give

certain nterests f

exceptional mportance

justification

superior

to that

which theycould derive

from he law.

2.

The situation,however,

s not

always so simple. Three

possible situ-

ations

present

hemselves or-

xamination. It can be

that:

(a)

Identicalor

complementarynterestsurvive he

willingness

o

enforce

the

actions

corresponding o

them. The

provisions of the

Treaties

of

Locarno were the

function fidentical

and

complementarynterests f

the

contracting arties.

When

Germanyviolated these

treatiesby

remilitariz-

ing the Rhineland,

the interests f the

signatories n

the demilitarization

survived theirwillingness o enforce an attitude corresponding o their

interests, nd thus

the respective rules

of international aw

lost their

validity.

(b)

The

willingness

o

enforce ertain

actions corresponding

o identical

or

complementarynterests

urvives the

interests hemselves. The

provi-

sions of the

Treaty of

Versailles

establishing he German-Polishfrontier

fromthe outset

did not correspond o

the interestof

both states. These

provisionswereobservedfor

period of twentyyears

because thereexisted

a

balance of

power between

both nations

and theirrespective

llies,

which

prevented ither f themfromviolating he law.

(c)

The

interests nd

thewillingness o

enforce heactions

corresponding

to

them

disappear

altogether. In this

categorybelong the

French-Russian

and

German-Italian

military lliances, the

Pact of the Little

Entente,

the


20/26

278

THE

AMERICAN

JOURNAL

OF INTERNATIONAL

LAW

political

provisions

f the

Covenant

of the

League of Nations, and

numerous

provisions

fthe

Peace

Treatiesof

1919.

What

does

the

analysis

of

these

cases

show withregard

o the

validity

of

internationalaw? In the cases (a) and (c) the rules of international aw

become

invalid according

o

the functional oncept

of validitybecause

no

longer

does there

exist

a likelihood

of sanctions

being

performed,

hould

those

rulesbe

violated.

In

case

(b)

thevalidity

ofthe rules depends

upon

a

balance ofpower,

which

may

be

stable

for certain

ime,

nd then uddenly

become

unstable,

but

which

n

our

time s

of a ratherpermanently

nstable

and precarious

nature.

All cases have

this in common,

that

they

make

forecasts

s to

the likelihood

f sanctions

extremely

ncertain.

The

enact-

ment of the

rules

n

international

reaties

s here of

no

avail, and,

as con-

temporaneousexamples have amply shown,is rather misleading. Their

conformity

ithmoral

principles

s scarcely

more lluminating

ecause

of

the

aforesaiddifficulty

f

ascertaining

he exact

moral natureof such

principles.

Where

the

functional

elationships etween

sociological

forces

nd

inter-

national

aw

is

in a

state

of

transition

rom 1) to

one of the situations

nder

(2)

the development

may as

well stop

at an

intermediate

oint between

(1),

on

the one

hand,and (2

a)

and (c), on

the other;proceed

to (2 b); or,

finally, ome

to an end

at (2

a) or (c).

Here,the validity

of the respective

rules

of international

aw is,

so to

speak,

in

suspense,

and

may be

as well

maintainedor destroyed. Withrespectto such rules the scienceof inter-

national

aw becomes

system

f guesses,

njoying

greater r esser

chance

of

being proved

true according

o the

factual

development

f the

functional

relationship

etween

he

social forces

nd

the rules

of nternational

aw.50

III.

It

follows

rom

his

analysis

that

thereexist

two

obviously

different

types

of international

aw,

one founded upon

the

permanent

and stable

interests,

he

other based upon

the temporary

nd fluctuating

nterests

f

states.5"

This differentiation

s

not only

of fundamental mportance

or he

understanding

f the

validity

of

nternationalaw;

it

leads

to

yet

more

far-

reaching onsequences s to thesubject-matter,

he

methods,

nd

the

scien-

tific

haracter

f the

science

of nternational

aw. One

might

ven

say

that

it leads

to the recognition

f

two

different

ciences

of

nternational

aw

which

deal

with different

ubject-matters,

nd

apply,

or

rather

ought

to

apply,

different

ethods

f res

MORGENTHAU_Functionalism, Positivism, Int. Law_1940 c

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