The Future of International LawOppenheim, L. (Lassa)
History
The Future of International Law
Oppenheim, L. (Lassa)
International law
68. It is indispensably requisite that this science should be positive
in character. What natural law and natural law methods have done for the
law of nations in the past stands high above all doubt, but they have
lost their value and importance for present and future times. Now and
onwards the task is, in the first place, to ascertain and to give
precision to the rules which have grown up in custom, and in the second
place to formulate the enacted rules in their full content and in their
full bearing. In doing so it will come to light that there are many gaps
not yet regulated by law. Many of these gaps may be successfully filled
up by a discreet employment of analogy, but many others will remain
which can only be remedied by international legislation or by the
development of customary law in the practice of the courts or otherwise.
What science can do here is to make proposals _de lege ferenda_ of a
politico-jural character, but it cannot and may not fill up the gaps.
Science may also test and criticize, from the politico-jural standpoint,
the existing rules of customary or enacted law, but, on the other hand,
it may not contest their operation and applicability, even if convinced
of their worthlessness. It must not be said that these are obvious
matters and therefore do not need special emphasis. There are many
recognized rules of customary law the operativeness of which is
challenged by this or that writer because they offend his sense of what
is right and proper. As an example thereof let us take the refusal by
some well-reputed writers to include annexation after effective conquest
(_debellatio_) among the modes, known to international law, of
acquisition of state territory. They teach that _debellatio_ has no
consequences in point of law, but only in point of fact; that it rests
on naked might and brings the annexed area under the power of the victor
only in point of fact and not in point of law. Here they are putting
their politico-jural convictions in the place of a generally recognized
rule of law.
[Sidenote: The science of international law must be impartial.]
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