The Future of International LawOppenheim, L. (Lassa)
History
The Future of International Law
Oppenheim, L. (Lassa)
International law
45. But even if international legislation attains the degree of success
suggested, there still remains another great difficulty which must
indirectly influence legislation itself, and that is the interpretation
of international statutes once they have been enacted. It is notorious
that no generally received rule of the law of nations exists for the
interpretation of international treaties. Grotius and his successors
applied thereto the rules of interpretation adopted in Roman law, but
these rules, despite their aptness, are not recognized as international
rules of construction. It can scarcely be said, however, that
insurmountable difficulties have arisen hitherto out of this situation,
for the majority of treaties have been between two parties, and the
interpretation thereof is the affair of the contracting parties
exclusively, and can be ultimately settled by arbitration. But in the
case of general or universal international enactments we have to deal
with conventions between a large number of states or between all states,
and the question, accordingly, now becomes acute.
[Sidenote: International differences as regards interpretation.]
46. The difficulty of solving this question is increased by the fact
that jurists of different nations are influenced by their national
idiosyncrasies in the interpretation of enactments, and are dependent on
the method of their school of law. Here are contrarieties which must
always make themselves powerfully felt. The continental turn of mind is
abstract, the turn of the English and American mind is concrete.
Germans, French, and Italians have learnt to apply the abstract rules of
codified law to concrete cases; in their abstract mode of thought they
believe in general principles of law, and they work outwards from these.
English and Americans, on the contrary, learn their law from decided
cases--'law is that which the courts recognize as a coactive rule' is an
accepted and widely current definition of law in the Anglo-American
jurisprudence; they regard abstract legal rules, which for the most part
they do not understand, with marked distrust; they work outwards from
previously decided cases and, when a new case arises, they always look
for the respects in which it is to be taken as covered by previous
cases; they turn away as far as possible from general principles of law,
and always fasten on the characteristic features of the particular case.
If continental jurists may be said to adapt their cases to the law,
English and American jurists may be said to adapt the law to their
cases. It is obvious that this difference of intellectual attitude and
of juristic training must exercise a far-reaching influence on the
interpretation and construction of international enactments.
[Sidenote: Different nations have different canons of interpretation.]
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