In the first edition of An Introduction to the Philosophy of Law published in 1922, Nathan Roscoe Pound, the Dean of Harvard Law School from 1916-1936 argued that the law is cyclical in nature, and the evolutionary process that law undergoes reflects a series of reactions and counter reactions by advocates of various jurisprudential theories. Dean Pound asserted that philosophical nature of the debates about the relative merits of the various theories resulted in a process of legal development that is dynamic in nature because, as newer theories develop the older theories attempt to counter them. The ability of older more established schools of thought to reply to the newer schools requires the older schools nullify and disavow outmoded conventions, customs, norms, practices, and traditions. Conversely, for a newer theory to achieve a degree of legitimacy it must abjure the practice of attempting to create a single uniform standard of law universally applicable without the need for exceptions over an indeterminate time Id: (Pound 1982, 1-4).
Internationally an example of the debates described by Dean Pound occurred between Edward Hallett Carr and Sir Hersch Lauterpacht on the relative merits of the Machiavellian realistic tradition, and the Grotian humanistic tradition. In his seminal work, The Twenty Years' Crisis, 1919-1939: An Introduction to the Study of International Relations, Carr argued that law is a series of commands unencumbered by ethical considerations, see: (Carr 1946, 176). Carr’s view of the law recognizes sovereignty as an element of the authority by which, the state compels obedience to the laws of the state. As a response to Carr’s realistic and positivist approach, Sir Hersch Lauterpacht advocated the Grotian view of international law rejecting outright Carr’s legal positivism see (Kwiecień 2011) and (Jeffery 2006).
Lauterpacht argued the inverse asserting that although legal questions are separate and distinct from ethical and moral questions, the three inextricably intertwined as they are renders it impossible to completely divorce, the law from ethics and morals that underpin it. The clearest and most concise statement of Lauterpacht’s humanistic approach to international law essay entitled “The Grotian Tradition in International Law,” which appeared in the British Year Book of International Law published in 1946. Concerning sovereignty Lauterpacht argued that the sovereignty of state derives not from the inherent power and authority of the state but from the law of nations and the natural law. On the law of nations, Lauterpacht maintained that the recognition of the law nations by individual states is by its nature a dualistic construction predicated on the will of the governments and in part on the consent of the citizens of the nation-state. The desire of the nation states to retain at all costs their sovereign status and primacy within the international sphere has engendered the development of a distinction between legal questions concerning the interpretation of international law that are justiciable before international tribunals, and political questions which are generally held to be non-justiciable under international law.
Arguments relating to non-justiciability generally adhere to the following two generally theories. The first theory asserts that a class of purely political questions requiring a political settlement, lacking a legal dimension sufficient to resort to a judicial means of settlement at either the international or national level exists. The second theory used preserve the sovereignty of states maintains that in general the majority of political questions concern the domestic policies of the respective states and affect the honor and the fundamental interests of the state, as such the customary principle of non-intervention into the domestic affairs of states present within international law prohibits the adjudication of political questions. Judge Lauterpacht asserted in his volumes The Function of Law in the International Community, and The Development of International Law by the Permanent Court of International Justice first published in 1933 and 1934 respectively, which were subsequently synthesized within the pages of The Development of International Law by the International Court an expansive revision of his 1934 work published in 1958 that arguments claiming that some disputes were not justiciable under international law because of their characterizations political questions concerning the fundamental interests of the state or the lack of an adjudicable element reflected the inherent desire of the nation-states to retain their sovereignty and primacy within the international sphere and to resist any tendencies towards impingement or limitation. He maintained that the distinction between legal and political questions within international law is an artificial one that is meritless because all disputes of an involving two more nations is an international dispute, and that a possess a legal facet capable of being adjudicated before a competent tribunal Id: (Lauterpacht 1933), (Lauterpacht 1934), and (Lauterpacht 1958).
Judge Lauterpacht’s corpus provided a lucid explanation and reason for accepting the humanist view of international law as one of several viable theories of international law alongside Carr’s realistic positivism through its presentation in Judge Lauterpacht’s separate opinion in the Case of Certain Norwegian Loans . The International Court of Justice employed Judge Lauterpacht’s reasoning in the case concerning the military and paramilitary activities employed by United States against Nicaragua.
Given the cyclical nature of the law as demonstrated above, I would contend that over time a counter reaction develops, in which, the humanist perspective currently holding sway in international at present will give way to another theory. One descended from the twin theories of legal positivism and political realism who advocate positions similar to those norms adopted by Herbert Lionel Adolphus Hart and Hans Joachim Morgenthau norms and standards, which, impart to the state primacy over the individual.
Put simply the near constant state of fluctuation present within international law imparts a greater degree of fluidity and flexibility within international law than is present within municipal law. This flexibility allows the various schools of thought to achieve a greater degree of ascendancy over other theories in a shorter time. For example, the immediate aftermath of the Second World War ushered in a period in which the strict realistic legal positivism advocated by Lord McNair and Hans Kelsen dominated international law. By the 1960's Lauterpacht's neo-naturalistic humanist view of international began to supplant the strict realistic positivism advocated by the Kelsenians. Lauterpachtian Humanism reached its apogee in the mid 1980's, and in the following decades, several realistic theories of international law have been the process of formulating a cohesive response. It is believed, that this response will ultimately supplant Lauterpachtian Humanism as the dominant theory of international law.
Regardless of the theory in ascendancy, there are elements common to all theories that are immutable. For example, all theories of international law accept to varying degrees, the universality principle. The universality principle, all states are granted the right to adjudicate matters involving crimes under international law either within the international judicial system or the national judicial system of the various nation states, piracy, war crimes, crimes against humanity, and crimes against peace as defined within the sources of international public law.
Sources
Carr, Edward Hallett. The Twenty Years' Crisis, 1919-1939: An Introduction to the Study of International Relations. Second Edition. Vol. One. 1 vols. London, England: Macmillan, 1946.
Case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits Judgment of June 28, 1986, p. 14. General List No. 70 (International Court of Justice, The Hague June 28, 1986).
Case of Certain Norwegian Loans (France v. Norway) Judgment of July 6, 1957. General List No. 29 (International Court of Justice, The Hague July 6, 1957).
Case of Certain Norwegian Loans (France v. Norway) Judgment of July 6, 1957, Separate Opinion of Judge Sir Hersch Lauterpacht. General List No. 29 (International Court of Justice, The Hague July 6, 1957).
Jeffery, Renée. "Hersch Lauterpacht, the Realist Challenge and the 'Grotian Tradition' in 20th-Century International Relations." European Journal of International Relations (Sage) 12, no. 2 (June 2006): 223-252.
Kwiecień, Roman. "Sir Hersch Lauterpacht's Idea of State Sovereignty - Is It Still Alive?" International Community Law Review (Nijhoff) 13, no. 1/2 (January 2011): 23-41.
Lauterpacht, Hersch. The Function of Law in the International Community (Oxford, 1933), xxiv and 452 pages
The Development of International Law by the Permanent Court of International Justice (London, 1934), ix and 111 pages
The Development of International Law by the International Court (London, 1958), xix and 408 pages
"The Grotian Tradition in International Law." British Year Book of International Law: 1946 (Oxford University Press ) 23 (1946): 1-53.
Pound, Nathan Roscoe. An Introduction to the Philosophy of Law. Third Edition. Vol. 1. One vols. New Haven, CT: Yale University Press, 1982.
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