The Future of International LawOppenheim, L. (Lassa)
History
The Future of International Law
Oppenheim, L. (Lassa)
International law
69. Science cannot, however, be genuinely positive unless it is
impartial and free from political animosities and national bias. To
believe that it really is at present impartial is a great deception.
Whoever compares the writings of the publicists of the several states
runs up against the contrary at every step. There is no state which in
the past has not allowed itself to be guilty of offences against
international law, but its writers on international law seldom admit
that this has been the case. They perceive the mote in the eye of other
nations, but not the beam in the eye of their own nation. Their writings
teem with ungrounded complaints against other nations, but scarcely
throw the slightest blame on their own country. By such a method
problems are not brought nearer to solution, but only shoved on to one
side. What is wanted, is that an ear should be lent to the principle
_audiatur et altera pars_, that the opponent should be heard and his
motives weighed. It will then often turn out that what was believed to
merit reprobation, as a breach of law, will show itself to be a
one-sided but forceful solution of a disputed question. And even where a
real breach of law has been committed it will be worth while to weigh
the political motives and interests which have driven the perpetrator to
it. It must ever be kept in mind that at the present day no state
lightheartedly commits a breach of the law of nations, and that, when it
does commit such a breach, it is generally because it deems its highest
political interests to be in jeopardy. Such a weighing of motives and
interests does not mean excusing the breach of law, but only trying to
understand it.
[Sidenote: The science of international law must free itself from the
tyranny of phrases.]
70. It is also indispensable that the science should free itself from
the tyranny of phrases. As things are, there is scarcely a doctrine of
the law of nations which is wholly free from the tyranny of phrases. The
so-called fundamental rights are their arena, and the doctrines of
state-sovereignty and of the equality of states are in large measure
dominated by them. Any one who is in touch with the application of
international law in diplomatic practice hears from statesmen every day
the complaint that books put forth fanciful doctrines instead of the
actual rules of law. Now it is often not difficult to push the
irrelevant to one side and to extract what is legally essential from the
waste of phrase-ridden discourse. But there are entire areas in which
the tyranny of phrases so turns the head that rules which absolutely
never were rules of law are represented as such. Two conspicuous
examples may serve to illustrate this statement.
[Sidenote: The meaning of '_Kriegsräson geht vor Kriegsmanier_'.]
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