Anna Masutti and Filippo Tomasello
Edited by Rafael Leal-Arcas
Edited by Samuel Cogolati and Jan Wouters
Chapter 5 follows the development of the doctrines based on sociology. The doctrine of the French school of jurists marked a complete turning away from the doctrine of the law of nations that until then had been dominant. Although the legal doctrine of Léon Duguit (1859–1928) was primarily concerned with the State sphere, it nevertheless had important repercussions in relation to the law of nations, and for that reason its principal arguments are briefly presented here. Duguit was one of the greatest French jurists of the nineteenth and twentieth centuries, and the author of numerous and important works on the general theory of law and of the State. Georges Scelle (1878–1961) likewise proclaimed his conception of law to be objectivist, and his conception applied in a very special way to the law of nations. For Scelle, who on numerous points extended the Duguit doctrine, law was the result of a social fact, an is. Law proceeded from the causative laws of the biological order, which controlled the life of man as a social being. N. S. Politis (1872–1942) developed a brilliant application of Duguit’s doctrine to the law of nations. Through his books and his course at the Hague Academy Politis was, in the inter-War period, one of the most noted representatives of the intellectual movement postulating the suppression of the notion of sovereignty and the recognition of the direct international personality of the individual, with the consequences from the perspective of international criminal law and the rights of individuals that would result. The ‘realist theory’ of Rolando Quadri1 (1907–76) as to the ‘will of the social corpus’ started from the existence of an international society, and within it, as in any society, of an authority which was by definition superior to the members considered individually. The phenomenon of authority within society was the primary fact around which law crystallised. Finally the chapter examines the US New Haven school whose principal exponent was Myres Smith McDougal (1906–98). 1 Cf. R. Quadri, Diritto internazionale pubblico, 5th edn., Naples, 1968, pp. 27–31; R. Quadri, ‘Le fondement du caractère obligatoire du droit international public’, CCHAIL, vol. 80, 1952-I, pp. 622–7.
This chapter is concerned with the doctrines that conceive the law of nations as a category of imperfect law. For these doctrines, organised and centralised law such as exists within modern States is not the indispensable hallmark of true law. It is, however, considered to be the most developed form of law, one towards which every legal order must tend. For these thinkers, then, non-State legal orders, i.e., decentralised legal orders, are, necessarily, primitive forms of legal order. The anarchic distribution of power, the power to interpret rules for oneself, and the existence of private justice, cannot in the long run satisfy the need for justice and order felt by a developing social organism. Consequently all law-of-co-ordination is law ‘in the making’. This way of seeing things has been common to numerous philosophers and legal theoreticians wedded firmly to sanctions as a constitutive element of legal rules, but who could not bring themselves to deny the legally binding character of international law. By accentuating the weaknesses rather than the alleged non-existence of international sanctions, these authors allowed for the possibility of an intermediate explanation. The weaknesses of international law were thus immersed and sublimated in an evolutionist theory which made it possible for international law to grow by degrees towards the requisite degree of juridicity, as opposed to thinking of juridicity as the exclusive privilege of State law, and unilaterally denying that it features in other types of law. The chapter then details seven of these separate doctrines and concludes with a critique of the doctrines discussed.
Chapter 7 examines the ‘eclectic’ doctrines of the post-war period starting with a study of the general situation after World War II. The post-war period saw a rapid decline in great doctrinal systems, and of international law theories constructed on speculative overall bases. Similarly, the question of the foundations of international law largely disappeared from centre stage, left by international jurists to legal philosophers who paid little attention to it. Manuals and treatises on the law of nations generally include a short chapter on the ‘foundations’ question; but such chapters usually contain little more than résumés of the great doctrines considered in the preceding chapters. A marked sign of this tendency is to be found in the general courses of international law at the Hague Academy. Pre-war courses almost all contained a chapter on the question of the foundations of international law. In post-war courses, by contrast, this chapter is usually omitted. The chapter continues with a study of the ‘eclectic’ doctrines of P. Weil and J. A. Carrillo-Salcedo, both of whom were writing in the 1990s. Weil began by recognising the insufficiency of each of the two main disputing doctrines, natural law and positivism, if either was taken in isolation. In reality, he said, the two doctrinal currents were complementary, and must inevitably be so, one being descriptive (positivism) and the other critical (natural law). Carrillo-Salcedo reminded his readers that international law must be perceived at one and the same time as a concrete reality, i.e., as the product of the wills of States, and as a normative reality capable of binding a State against its will. The chapter concludes with a critical consideration of the doctrines.