A CASE STUDY ON JURISPRUDENCE AS A SOURCE OF INTERNATIONAL LAW: OPPENHEIM'S INFLUENCE

Developments in International Law

Volumn 58, Issue , 2007, Pages 91-117

  Perreau Saussine, Amanda ^a,b  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

^b Centre for Public Law   (United Kingdom)

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EID: 85202501602     PISSN: None     EISSN: 09245332     Source Type: Book Series    
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References (163)

1. A. Nussbaum, A Concise History of the Law of Nations (1947) 277.
2. Reisman, 'Lassa Oppenheim's Nine Lives', 19 Yale Journal of International Law (1994) 256.
3. J. Crawford, 'Public international law in Twentieth-century England' in J. Beatson & R. Zimmerman (eds.), Jurists uprooted: German-speaking Émigré lawyers in Twentieth-century Britain (2004) 697.
4. Brierly, 'Oppenheim, Lassa Francis Lawrence (1858-1919)', rev. by Nathan Wells, 41 Oxford Dictionary of National Biography (2004) 899-900.
5. How far if at all anti-Semitism influenced the move is unknown. Brierly writes that 'His was not a strong constitution, and he felt that the English climate and mode of life would suit him. It was also convenient in that his brother had been living in London for some time.' On Oppenheim, see also Whittuck, 'Professor Oppenheim', 1 British Yearbook of International Law (1920-1921) 1.
6. Oppenheim's obituary was the first article in the first edition of the British Yearbook, a journal he had been involved in founding and first edited by one of his favourite students, Picciotto, on whom see text below. A rich and thought-provoking study of Oppenheim's work can be found in Kingsbury, 'Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim's Positive International Law', 13 European Journal of International Law (2002) 401.
7. For a detailed series of essays on Oppenheim see: Schmoekel, 'The Internationalist as a Scientist and Herald', 11 European Journal of International Law (2000) 699-700;
8. Schmoekel, 'The Story of a Success: Lassa Oppenheim and his 'International Law'' in M. Stolleis & M. Yanagihara (eds.), East Asian and European Perspectives on International Law (2004) 57;
9. Schmoekel, 'Lassa Oppenheim' in J. Beaston and R. Zimmermann (eds.), East Asian and European Perspectives on International Law note 3, 583;
10. Schmoekel, 'Consent and Caution: Lassa Oppenheim and his reaction to World War I' in R. Lesaffer (ed.), Peace treaties and International Law in European History (2004) 270.
11. Whittuck, 'Consent and Caution: Lassa Oppenheim and his reaction to World War I' in R. Lesaffer (ed.), Peace treaties and International Law in European History note 4, 5. Oppenheim dedicates the first edition of his Treatise to Whittuck 'whose sympathy and encouragement have accompanied the progress of this work from its inception to its close'. The London School of Economics and Political Science was founded in 1895 with a bequest of the Fabian Society; Whittuck is the seventh on the list of signatories and guarantors (Sidney Webb being the first) on LSE's documents of incorporation in 1901.
12. Whittuck, 'Consent and Caution: Lassa Oppenheim and his reaction to World War I' in R. Lesaffer (ed.), Peace treaties and International Law in European History 6: 'Oppenheim was not originally a candidate for the post, but on Westlake's insisting on his standing he finally consented to do so and was elected.'
13. R. Roxburgh, International Conventions and Third States: A Monograph (1917). Written in 1913-14, and published by Longmans in 1917.
14. This was edited by Oppenheim and published in a series called 'Contributions to International Law and Diplomacy'. Roxburgh also published a monograph entitled The Prisoners of War Information Bureau in London (1915), again published by Longmans and with a preface by Oppenheim.
15. McNair had applied to study law at Gonville and Caius College in Cambridge because, on enquiring 'as to the best teacher of law in Cambridge, the answer was that 'if you are prepared to gamble on Buckland's precarious state of health you can't do better than go to Caius'': McNair's obituary of Buckland, co-authored with P.W. Duff: 33 Proceedings of the British Academy (1946) 284.
16. McNair was later to co-author with Buckland, Roman law and the Common law (1936), a book based on a series of lectures Buckland had given to small group of fellow academics in 1931.
17. In his obituary of McNair, Gerald Fitzmaurice writes: 'It was really during, and in consequence of, the war of 1914-1918 that his attention was first attracted to international law as a subject' in Fitzmaurice, 'Arnold Duncan Lord McNair of Gleniffer', 47 British Yearbook of International Law (1974-1975) xiii.
18. McNair's obituary of Pearce Higgins in 22 Proceedings of British Academy (1935) 5: 'Pearce Higgins was from the student's point of view a good lecturer, as I can testify.'
19. See Jennings, 'Hersch Lauterpacht: A Personal Recollection', 8 European Journal of International Law (1997) 301;
20. Lauterpacht, 'Biographical note: Sir Hersch Lauterpacht 1897-1960', 8 European Journal of International Law (1997) 313.
21. L. Oppenheim, International Law, A Treatise, vol. I (1928), Preface.
22. A phrase from another elder statesman of public international law, Gerald Fitzmaurice, in his obituary of McNair, International Law, A Treatise, note 10, xi.
23. Holders of the Whewell Chair of International Law in Cambridge (established in 1868 'to lay down such rules and to suggest such measures as may tend to diminish the evils of war and finally to extinguish war between nations'): 1869 Harcourt; 1887 Maine; 1888 Westlake; 1908 Oppenheim; 1920 Pearce-Higgins; 1935 McNair; 1938 Lauterpacht; 1955 Jennings; 1981 Bowett; 1992 Crawford. British judges of the ICJ: McNair 1946-1955; Lauterpacht 1955-1960; Fitzmaurice 1960-1973; Waldock 1973-1981; Jennings 1982-1995; Higgins 1995-.
24. Janis, 'The New Oppenheim', 16 Oxford Journal of Legal Studies (1996) 330-331
25. referring to Westlake, reviewing the first volume of the first edition (21 Law Quarterly Review (1905) 432), on the 'special character' of the book which 'consists of the German mould in which the thought is cast, while the details coincide largely with those to which we are accustomed in English writings'.
26. Brierly, 'Oppenheim', 21 Law Quarterly Review (1905) note 4.
27. Schmoekel, 'The Internationalist as a Scientist and Herald', 21 Law Quarterly Review (1905)note 4, 701.
28. J. Crawford, 'Public International Law in Twentieth Century England', 21 Law Quarterly Review (1905) note 3, 697; for the other reasons Crawford gives for its success, see below, section III.
29. M. Kosekenniemi, 'Hersch Lauterpacht (1897-1960)' in J. Beatson and R. Zimmerman, (eds.), 21 Law Quarterly Review (1905) note 3, 602.
30. For a full list of international law treatises published in the UK between 1800 and 1970, see the appendix to James Crawford's 'Public international law in Twentieth-century England', 'Hersch Lauterpacht (1897-1960)' in J. Beatson and R. Zimmerman, (eds.), 21 Law Quarterly Review (1905) note 3, 702-706.
31. For a discussion of Phillimore, Hall, Holland and Brierly see my 'Three Ways of Writing a Treatise on Public International Law: Textbooks and Teachers as a Contemporary Source of Public International Law' in A. Perreau-Saussine and J.B. Murphy (eds.), The Nature of Customary Law: Philosophical, Historical and Legal Perspectives, (Cambridge University Press, forthcoming 2006)
32. Cf. Reisman, 'Three Ways of Writing a Treatise on Public International Law: Textbooks and Teachers as a Contemporary Source of Public International Law' in A. Perreau-Saussine and J.B. Murphy (eds.), The Nature of Customary Law: Philosophical, Historical and Legal Perspectives, note 2, 259: 'As a title, the word 'digest' is really a misnomer. Digests of international law do almost no 'digesting'. Like the American casebook, they select and reproduce chunks of documents and cases relevant to particular problem areas that the decision maker is likely to encounter. In this sense, the digest is a useful counterweight to rule-oriented treatises. The documents and particularly the diplomatic correspondence show human beings applying policies and adapting institutional arrangements to every-changing situations. So despite its nominal jurisprudence, the digest is much more representative of the actual process of international decision making. On the other hand, the materials that are selected for inclusion and exclusion reflect policy choices. Documents and incidents that could be extremely relevant to subsequent practice may be suppressed or reproduced so selectively that they give the reader quite a different impression of what transpired.'
33. Preface to Oppenheim, 'Three Ways of Writing a Treatise on Public International Law: Textbooks and Teachers as a Contemporary Source of Public International Law' in A. Perreau-Saussine and J.B. Murphy (eds.), The Nature of Customary Law: Philosophical, Historical and Legal Perspectives, note 13, vol. I (1905) ix.
34. E.g., Oppenheim, 'Three Ways of Writing a Treatise on Public International Law: Textbooks and Teachers as a Contemporary Source of Public International Law' in A. Perreau-Saussine and J.B. Murphy (eds.), The Nature of Customary Law: Philosophical, Historical and Legal Perspectives, 22.
35. Simpson, 'The Common Law and Legal Theory', in A.W.B. Simpson (ed.) Oxford Essays in Jurisprudence vol. II (1973) 89-90.
36. L. Oppenheim, 'The Common Law and Legal Theory', in A.W.B. Simpson (ed.) Oxford Essays in Jurisprudence note 13, vol. I (1905) 40.
37. L. Oppenheim, 'The Common Law and Legal Theory', in A.W.B. Simpson (ed.) Oxford Essays in Jurisprudence 36.
38. For an international law context see: M. Koskenniemi, The Gentle Civilizer of Nations: the Rise and Fall of International Law 1870-1960 (2002), ch.1 and 2.
39. Having charged Abbé Grégoire to draft the declaration, in 1795 the Convention rejected the principles he laid out as a twenty-one article code.
40. On the Benthamite legislator see: R. Harrison, Bentham (1983) 106-166;
41. D. Lieberman, The Province of Legislation (1989) 257-290;
42. Schofield, 'Jeremy Bentham: Legislator of the World' in M.D.A. Freeman (ed.), 51 Current Legal Problems (1998) 115
43. (reprinted in G. Postema (ed.), Bentham: Moral, Political and Legal Philosophy, vol. II (2002), 126-129);
44. Perreau-Saussine 'Bentham and the boot-strappers of Jurisprudence', 63 Cambridge Law Journal (2004) 346.
45. Cf. G. Postema, explicitly developing Simpson's argument in his study of Bentham: 'what the courts do has an important (though not necessarily decisive) impact on what the law is and what it requires' in G. Postema, Bentham and the Common Law Tradition (1986) 456-457.
46. Simpson, explicitly developing Simpson's argument in his study of Bentham: 'what the courts do has an important (though not necessarily decisive) impact on what the law is and what it requires' in G. Postema, Bentham and the Common Law Tradition (1986) note 25, 97.
47. L. Oppenheim, explicitly developing Simpson's argument in his study of Bentham: 'what the courts do has an important (though not necessarily decisive) impact on what the law is and what it requires' in G. Postema, Bentham and the Common Law Tradition note 13, vol. I (1905) 41.
48. Cf. N. Simmonds, The Decline of Juridical Reason (1984) esp. 117-8;
49. R. Dworkin, Law's Empire (1986). N.B. this point has no necessary link with the doctrine of precedent.
50. On this last point see in particular Goodhart, 'Precedent in English and Continental Law', 50 Law Quarterly Review (1934) 53-54.
51. On the other three accounts, see my 'Three Ways of Writing a Treatise', 50 Law Quarterly Review (1934) note 21.
52. Cf. J. Waldron, 'Legal and Political Philosophy', in J. Coleman & S. Shapiro (eds.), The Oxford handbook of Jurisprudence and Philosophy of Law (2002) 377: 'In the contested issues of politics, objective truth never manifests itself in propria persona; it presents itself always as someone's opinion, usually someone's contested opinion; and it cannot be made politically effective, nor the condition for any political action unless someone's determination is taken for practical purposes as the truth of the matter.'
53. Reisman, 'Legal and Political Philosophy', in J. Coleman & S. Shapiro (eds.), The Oxford handbook of Jurisprudence and Philosophy of Law (2002) note 2, 263 notes that Oppenheim 'largely follows the table of contents of Johann Bluntschli's work on international law'.
54. L. Oppenheim, 'Legal and Political Philosophy', in J. Coleman & S. Shapiro (eds.), The Oxford handbook of Jurisprudence and Philosophy of Law (2002) note 13, vol. I (1905) 91.
55. Thomas Holland (1835-1926) had produced a short volume of explicitly positivist essays on international law, entitled Studies in International Law (1898), three years after Oppenheim's arrival in England - and the year in which Oppenheim was appointed as a lecturer at the LSE.
56. Although Oppenheim lists Holland's Studies in International Law (1898)
57. and his much more famous Elements of Jurisprudence (1882)
58. as books 'very often referred to' in his own Treatise, and as such ones for which he uses abbreviations, he does not discuss Holland in his summary of British Treatises or of the early twentieth century development of international law, (and his much more famous Elements of Jurisprudence 87, 90-93).
59. Holland is mentioned only twice in the short bibliographical references, in both cases referring to theoretical (and positivist) discussions in the Studies on the 'Relations between international and municipal law' ( his much more famous Elements of Jurisprudence 25
60. citing Studies at 176-200)
61. and on 'The Science of the Law of Nations' Studies, 76
62. citing Studies 1-58, 168-175).
63. Oppenheim, Studies note 13, vol. I (1905) 92.
64. Oppenheim, 'The Science of International Law: Its Task and Method', 3 American Journal of International Law (1908) 333.
65. Oppenheim, 'The Science of International Law: Its Task and Method', 3 American Journal of International Law (1908) note 13, vol. I (1905) 15.
66. Oppenheim, 'The Science of International Law: Its Task and Method', 3 American Journal of International Law (1908) 4.
67. Oppenheim, 'The Science of International Law: Its Task and Method', 3 American Journal of International Law (1908) 17.
68. Oppenheim, 'The Science of International Law: Its Task and Method', 3 American Journal of International Law (1908) 4 (emphasis added).
69. Oppenheim, 'The Science of International Law: Its Task and Method', 3 American Journal of International Law (1908) 9.
70. Oppenheim, 'The Science of International Law: Its Task and Method', 3 American Journal of International Law (1908) 11.
71. Oppenheim, 'The Science of International Law: Its Task and Method', 3 American Journal of International Law (1908) 91-92, continuing: 'Real positivism must entirely avoid a natural law of Nations.'
72. Oppenheim, 'The Science of International Law: Its Task and Method', 3 American Journal of International Law (1908) 92-93.
73. L. Oppenheim 'The Science of International Law', supra note 41, 355.
74. L. Oppenheim 'The Science of International Law', 329.
75. L. Oppenheim 'The Science of International Law', 330.
76. L. Oppenheim, 'The Science of International Law', note 13, vol. I (1905) 51.
77. For a thought-provoking (and generally sympathetic) discussion of Oppenheim's morals, see Kingsbury 'Legal Positivism', supra note 4
78. Schmoekel's series of essays, 'Legal Positivism', note 4.
79. Cf. Taylor, 'Interpretation and the Sciences of Man', 97 Review of Metaphysics (1971) 3
80. reprinted in C. Taylor, Philosophy & the Human Sciences: Philosophical Papers, vol. 2 (1985) 27. How then is the superiority of one position, one interpretation, one set of common meanings to be shown? Taylor relies on the classical argument that 'from the more adequate position one can understand one's own stand and that of one's opponent, but not the other way around' but he acknowledges that this argument can only have weight for those in the superior position (at 53-4). Those in the less adequate position will be told that it is not simply that they do not understand, but that they will need to change themselves in order to understand: 'Our capacity to understand is rooted in our own self-definitions hence in what we are.'
81. L. Oppenheim, 'The Science of International Law', Philosophy & the Human Sciences: Philosophical Papers, note 41, 355-356.
82. This seems to be the category into which Lauterpacht would place Oppenheim. H. Lauterpacht, Private Law Sources and Analogies of International Law (1927) 33: 'Being unable to afford the consistency of totally ignoring both private and natural law, [modern positivist writers who reject both as sources of international law] put in their place 'the reason of the thing', 'the demands of logic', and 'the principles of general jurisprudence.... There remains, however, the danger that this general jurisprudence might become a purely abstract philosophy of law - the very natural law from which they wish to purify the science of international law'.
83. Cf. J. Brierly, The Law of Nations (1928) 9: 'Modern legal writers, especially in England, have sometimes ridiculed the conception of a law of nature, or they have recognized its great historical influence but treated it as a superstition which the modern world has rightly discarded. Such an attitude, however, proceeds from a misunderstanding of the medieval idea; for under a terminology which has ceased to be familiar to us the phrase stands for something which no progressive system of law either does or can discard'. For Brierly, the range of cases and rival positions which natural law arguments have been used to support is not an argument against the conception of natural law itself, ibid: 'there was nothing arbitrary about the conception itself, any more than a text of Scripture is arbitrary, because the Devil may quote it.'
84. L. Oppenheim, The Law of Nations (1928) note 13, vol. I (1905) 24
85. L. Oppenheim, 'The Science of International Law', The Law of Nations (1928) note 41, 354 (emphasis added).
86. Schmoekel, 'Consent and Caution', The Law of Nations (1928) note 4, 288 and footnote 27.
87. E.g., L. Oppenheim, 'Consent and Caution', The Law of Nations (1928) note 13, vol. I (1905) 8.
88. Kingsbury, 'Legal Positivism', The Law of Nations (1928) note 4, 411
89. quoting A. Carty, The Decay of International Law (1986) 90.
90. Since those very principles will be central principles of procedural fairness or equity or of the law of murder, theft, marriage or contract, she is unlikely to need to establish that the principle is just in order to establish that it is part of the law - even though, a natural lawyer would argue, it is the justice of the principle that makes it so central to a particular branch of law.
91. Oppenheim, supra note 13, vol. I (1905) 26.
92. Oppenheim, 25-6.
93. Oppenheim, 'The Science of International Law', supra note 41, 340.
94. On Oppenheim's notion of civilised States and on the role assumed for power politics in his account of international law, see generally Kingsbury, 'Legal Positivism', supra note 4.
95. Oppenheim, 'The Science of International Law', supra note 41, 339.
96. Oppenheim, 'The Science of International Law', supra note 41, 340-341.
97. L. Oppenheim, The League of Nations and its Problems (1919) 12.
98. Oppenheim, 'The Science of International Law', The League of Nations and its Problems (1919) note 41, 340-341.
99. He offers a few to US domestic practice and law as an example of a state which he argues has 'adopted' the law of Nations.
100. L. Oppenheim, supra note 13, vol. I (1905) 28.
101. The British case of The Franconia (R v Keyn) often cited by 'transformationists' as the leading case on this question Oppenheim treats as wrongly decided, arguing that where a state has not renounced its rights under international law - as here, concerning maritime jurisdiction - 'its courts ought to presume that, since by the Law of Nations the jurisdiction of a State does extend over its maritime belt, their Sovereign has tacitly consented to that wider range of its jurisdiction.'
102. The British case of The Franconia (R v Keyn) 29.
103. 'The English courts must enforce rights given by international law as well as those given by the law of the land in its narrower sense, so far as they fall within their jurisdiction in respect of parties or places, subject to the rules that the king cannot divest or modify private rights by treaty (with the possible exception of treaties of peace or treaties equivalent to those of peace), and that the courts cannot question acts of state (or, in the present state of the authorities, draw consequences from them against the Crown). The international law meant is that which at the time exists between states, without prejudice to the right and duty of the courts to assist in developing its acknowledged principles in the same manner in which they assist in developing the principles of the common law.' Westlake, 'Is International Law Part of the Law of England?', 22 Law Quarterly Review (1906) 14, reprinted in L. Oppenheim (ed.), Collected Papers (1914) 518.
104. Brierly, 'International Law in England', 51 Law Quarterly Review (1935) 31.
105. W.S. Holdsworth, A History of English Law, vol. X (1938) 372-3.
106. Collier, 'Is International Law really part of the Law of England?', 38 International and Comparative Law Quarterly (1989) 935.
107. Main cases invoked by 'transformationists': R. v Keyn (The Franconia) (1876) 2 Ex D. 63;
108. West Rand Gold Mining Co. v R. [1905] 2 KB 391;
109. Mortensen v Peters (1906) 8 F. (JC) 93 (Scottish High Court of Judiciary);
110. Commercial and Estates Co. of Egypt v Board of Trade [1925] 1 KB 271;
111. Chung Chi Cheung v The King [1939] AC 160.
112. Main cases (up to Trendtex) relied on by incorporationists: Barbuit's case (1737) Cas. temp. Talbot 281;
113. Triquet v Bath (1764) 3 Burr. 1478;
114. Heathfield v Chilton (1767) 4 Burr. 2015;
115. Dolder v Lord Huntingfield (1805) 11 Ves. 283;
116. Viveash v Becker (1814) 3 M.& S. 284, 292, 298;
117. Wolff v Oxholm (1817) 6 M.& S. 92, 100-6;
118. Novello v Toogood (1823) I B.& C. 554;
119. De Wütz v Hendricks (1824) 2 Bing. 314, 315;
120. Emperor of Austria v Day (1861) 30 LJ Ch. 690, 702 (reversed on appeal on different point);
121. In re Ferdinand, Ex-Tsar of Bulgaria [1921] 1 Ch. 107;
122. Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529.
123. Dickinson, 'Changing Concepts and the Doctrine of Incorporation', 26 American Journal of International Law (1932) 239.
124. Picciotto was to be the first general editor of the British Yearbook of International Law.
125. C.M. Picciotto, The Relation of International Law to the law of England and of the United States: A Study (1915) 15-16.
126. C.M. Picciotto, The Relation of International Law to the law of England and of the United States: A Study (1915) 104-5.
127. Trinity College, Cambridge: Add. ms. a338. The references appear in footnotes to section 21a, referring readers (on English law and international law) to Blackstone, Westlake, 'but chiefly Picciotto' - references that are then published in A. McNair, Oppenheim's International Law, A Treatise, vol. I (1928) 31 footnote 1.
128. E.R. Adair, The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries (1929) 38-39.
129. E.R. Adair, The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries (1929) 2. On Mansfield's argument in Triquet v Bath that the act of 7 Anne, cap. 12, was not occasioned by any doubt 'whether the law of nations, particularly the part relating to public ministers, was not part of the law of England, and the infraction criminal', Adair writes that 'both parts of this opinion are entirely unsound':
130. On Mansfield's argument in Triquet v Bath that the act of 7 Anne, cap. 12, was not occasioned by any doubt 'whether the law of nations, particularly the part relating to public ministers, was not part of the law of England, and the infraction criminal', Adair writes that 'both parts of this opinion are entirely unsound': before 1709 violation of an ambassador's special immunities was not criminal, punishment for such violation was a matter for prerogative action, and this part, at any rate, of the law of nations was not part of the common law.' (E.R. Adair, The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries (1929) 241).
131. 'executive action was, and to some degree still is, the only protection an ambassador can invoke, and reprimand of the over-zealous official may often be the beggarly cloak under which the government hedges its own connivance in the breach of international customs or its impotence to override the laws of the land.' (E.R. Adair, The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries (1929) 243).
132. Cf. W.S. Holdsworth, The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries (1929) note 77, 373, footnote. 3 & 4: Blackstone's view (agreeing, if less sweepingly, with Mansfield) 'is historically incorrect; but if Mansfield is right in his report of Holt's, Talbot's and Hardwicke's dicta, it was in accordance with the prevailing trend of legal opinion.'
133. 'It is probably perfectly just to say that ambassadors established their immunities more as a result of political pressure than of any very strong respect for international law; but what of that? The fact that they were established is enough, for precedents make law.' (E.R. Adair, The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries (1929) note 84, 251).
134. E.R. Adair, The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries (1929) 253.
135. Cf. L. Oppenheim, The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries (1929) note 13, vol. I (1905) 53, 59: 'The Law of Nations supplied the crutches with whose help history has taught mankind to walk out of the institutions of the Middle Ages into those of modern times.... We know nowadays that a Law of Nature does not exist.... Only a positive Law of Nations can be a branch of the science of Law.'
136. B. Simpson, The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries (1929) note 32, 96.
137. (Crawford, 'Case No. 9', 48 British Yearbook of International and Comparative Law (1976-1977) 353: 'Probably the dicta which have been regarded as embodying the 'doctrine of transformation' have been attempting to convey two distinct propositions, both qualifying rather than displacing the basic principle that international law is part of the law of England. First, attention is drawn to the need for clear and satisfactory evidence that the customary rule is as contended for, and that it has according to its terms legal effects as part of the municipal law.
138. (The real point in Thakrar [Regina v. Secretary of State ex parte Thakrar [1974] QB 684 CAJ]).
139. Secondly, emphasis is placed on the status of any such rule, once incorporated, as a distinct and independent rule of English law, subject to the normal rules of stare decisis'; I. Brownlie, Principles of Public International Law (2003) 41, 44: 'The dominant principle, normally characterized as the doctrine of incorporation, is that customary rules are to be considered part of the land and enforced as such, with the qualification that they are incorporated only so far as is not inconsistent with Acts of Parliament or prior judicial decisions of final authority.... The authorities, taken as a whole, support the doctrine of incorporation, and the less favourable dicta are equivocal to say the least.... Where it is appropriate to apply international law [...] the courts will take judicial notice of the applicable rules, whereas formal evidence is required of foreign (municipal) law.'
140. L. Oppenheim, Principles of Public International Law (2003) note 13, vol. I (1928) 31, footnote 3
141. referring readers on 'the whole subject' to his article in 9 British Yearbook of International and Comparative Law (1928) 59.
142. A. McNair, 'The Method whereby International Law is made to prevail in Municipal Courts on an Issue of International Law', XXIX Grotius Soc. (1944) 21.
143. H. Lauterpacht, 'Is International Law part of the Law of England?', XXV Grotius Soc. (1939) 51
144. reprinted in E. Lauterpacht (ed.), Collected Papers of Hersh Lauterpacht, vol. II (1975) 459, 555: 'The doctrine of incorporation... does not imply the supremacy of international law. For it is through the will of the State that the general act of incorporation has taken place. The State may, with an effect binding upon municipal courts, set aside the Law of Nations thus generally incorporated. [...] But so long as that overriding will has not been clearly manifested, the universal law of the civitas maxima is part and parcel of the law administered by the courts.... The doctrine of adoption is not concerned with the question of the supremacy or otherwise of international law. Its essence is expressed in the fact of the direct operation of the Law of Nations. Statutes may override the common law. It has not been asserted on this account that the common law is not part of the law of the land.'
145. L. Oppenheim, Collected Papers of Hersh Lauterpacht, note 13, vol. I (1948) at s. 21a.
146. L. Oppenheim, Collected Papers of Hersh Lauterpacht, 20, footnote 1.
147. L. Oppenheim, Collected Papers of Hersh Lauterpacht, 41-42.
148. L. Oppenheim, Collected Papers of Hersh Lauterpacht, note 13, vol. I (1928) 121.
149. L. Oppenheim, Collected Papers of Hersh Lauterpacht, 7-8 (citing Vinogradoff).
150. L. Oppenheim, Collected Papers of Hersh Lauterpacht, 100 (citations omitted).
151. L. Oppenheim, Collected Papers of Hersh Lauterpacht, note 13, vol. I (1948) 102, footnote 2 explaining that this 'was also the view of the author of this book.'
152. Kingsbury, 'Legal Positivism', Collected Papers of Hersh Lauterpacht, note 4, 436.
153. Kingsbury, 'Legal Positivism', Collected Papers of Hersh Lauterpacht, 418 referring to A. Carty, supra note 63.
154. Kingsbury, 'Legal Positivism', Collected Papers of Hersh Lauterpacht, 419.
155. Kingsbury, 'Legal Positivism', Collected Papers of Hersh Lauterpacht, 401-2.
156. Kingsbury, 'Legal Positivism', Collected Papers of Hersh Lauterpacht, 103.
157. On which see my chapters on J. Raz and G. Radbruch in my Old Questions for New Natural Lawyers, (Princeton, forthcoming 2007).
158. Kingsbury, 'Legal Positivism', Old Questions for New Natural Lawyers, note 4, 427 (emphasis added).
159. See similarly, but with less philosophical sophistication, Schmoekel, 'The Internationalist as a Scientist and Herald', Old Questions for New Natural Lawyers, note 4, 703: 'Mankind's only chance is in the constant struggle for perfection. In this goal he is justified by the belief in the constant progress of mankind for the better.
160. The primary sources of law and the subsidiary means have accordingly to be seen together: the analysis of the present is necessary for criticism; criticism is necessary for the evolution of law; [Theorie der Rechtsqueelen (1929, reprinted 1989)] calls this overt politics. I find this evaluation to be exaggerated and evolution is necessary for the acceptance of the present law.'
161. J. Crawford, 'Public International law in Twentieth-Century England', Theorie der Rechtsqueelen note 3, 692, 699, 700-701.
162. L. Oppenheim, 'Public International law in Twentieth-Century England', Theorie der Rechtsqueelen note 13, vol. I (1948) 103.
163. Cf. A. Carty, 'Public International law in Twentieth-Century England', Theorie der Rechtsqueelen note 63, 95-96: 'One cannot simply study the practice of States as evidence of law because it is logically inconceivable to examine any evidence without a priori criteria of relevance and significance.'