REVIEWS
| Published date | 01 September 1959 |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00559.x |
| Date | 01 September 1959 |
REVIEWS
TEE
BASIS
OF
OBLIGATION
IN
INTERNATIONAL
LAW
AND
OTHER
PAPEBS
BY
THE
LATE
JAMES
LESL~~E
BBIERLY.
Selected and
Edited by
SIR
HEBSCH LAUTERPACHT, Q.c.,
w.D.,
F.B.A.,
Judge
of the International Court of Justice, and
C.
H.
M.
WALLDOCK,
c.M.G.,
o.B.E.,
Q.c.,
D.c.L.,
Chichele Professor of Public
International
Law,
Oxford. [Oxford
:
Clarendon Press.
1958.
xxxvi and
876
and (index)
11
pp.
50s.
net
in
U.K.
ody.]
THE
death of Professor Brierly is
a
great loss and this publication of his
collected papers is
a
fitting tribute to one of the most humane, penetrating and
lucid exponents of international law in the first half of the twentieth century not
only in this country but throughout the world,
a
worthy successor to
a
long
line of distinguished British international lawyers.
Regarding
a
platitude
as
often
“a
truth that no one denies but everyone
forgets” (p.
260),
the late Professor Brierly was not one who disdained
the homely truths, but strove in all his writings to hammer home the funda-
mentals of international law, eschewing, in that process, any juristic aerobatics
or stunts in words, terminology, theories, ideological causes
or
purely emotional
appeals. He addressed himself not
80
much to other international lawyers
as
to the world
at
large. But it would be equally wrong
to
think of him
as
a
populariser, even if his
Law
of
Nations
and
Outlook
for Internationd
Law,
which have not been included in the present collection, besides being invaluable
works for students, are probably two of the most suitable books in any language
to be recommended to an intelligent layman wishing to gain an adult introduction
to the subject. In reading or re-reading his works, one cannot help being
repeatedly struck
by
his deep humanity and sincerity. He talked to his
readers or audience but never talked down to them; he enlightened but never
dazzled or dazed them with his own learning. There is
a
total absence of
special pleading or playing to the gallery.
The present collection publishes for the
drat
time the English text of his
lectures
at
the Hague Academy in
1928
on the “Basis of Obligation in Inter-
national Law,” previously available only in French.
This
is probably his moat
theoretical work. In it he rejected voluntarism
as
a
rational explanation of
the binding force of law, whether in the form of consent or that of the “sense
of right”
(conscience
juridiqw
de
Phomme),
but found the true basis of law
in
a
rule of morality:
“
If we ask why we ought to obey rules of law simply because they
are
rules of law, the answer
is
that there is
a
rule
of morality of which
this
is
the content” (p.
66).
But
it
may be questioned if this represents Brierly’s ultimak view
on
the
subject. His original conclusion might have been influenced by
ib
being
doubtless correct in an exceptionally homogeneous and law-abiding
society
such
as
England. That Brierly subsequently became aware of this fact may
be
inferred from the following passage in an address delivered in
1946
:
“At the time of the General Strike
in
England in
1926
a
court of
law decided that the strike was
fflegal,
and some people thought that
that was one of the
causes
that led to the collapse of
the
strike.
I
am not sure that they were right, but, even if they were,
it
only showed
that the law-abiding sentiments of Englishmen had placed
a
reserve
power of moral influences behind English law. That does happen
in
559
560
TEE MODERN LAW REVIEW
VOL.
22
a
socicty where respect for law is of long standing and has struck deep
roots into the life of
a
people, but the sentiment which thus becomes
attached to the law
is
still something added to
it
from outside the law
itself.
“Now unfortunately in the international field we have not yet got,
except in an attenuated form, this moral power to
act
as
a
substitute
for physical power, because we have not got the sense of community which
alone can produce it. Instead we have
a
situation in which, though
States
do normally obey the
law,
they do
so
with
a
sort
of implied gentlemen’s
understanding that it must not be too exigent in its demands upon them,
and that they reserve the right to evade it if its claims
are
pitched too
high” (p.
834).
It
is only in
a
highly integrated community that force recedes
to
the back-
ground and morality comes
to
the fore
as
the mainspring of the legal system.
Already in
1936,
writing in the
Acta
Bcandinavico,
Brierly rccognised
that
:
“
Law
. .
. is the conscience of
a
community expressing itself in rules
of
conduct appropriate
to
the conditions in which the members of the
community have to live their common life. Those conditions differ
greatly for the individual members of the Statecommunity and for the
States
members
of
the international community. The former, because they
are
very numerous and because they
are
for the most part homogeneous,
develop
a
vast number of rules of law of general application; the
latter,
because they
are
few and because each is unique, do not. Yet in both
spheres the law has the same fundamental purpose of maintaining
a
scheme of order within which the relations
of
the members of the
community with one another, individuals
or
States
respectively, can be
carried on and their differences
be
resolved without intolerable friction;
in both the strength
of
the law depends on the support
it
receives from
the community; but the forms and methods in which this spirit of
legality is manifested cannot be quite the same” (p.
259).
At this point, Brierly’s dissent from the consensual theory of the positivists
and the sociological school’s postulate of the
“
conscience
juridique
”
becomes
merely
a
matter of degree; for “support” differs but little from consent
and “spirit of legality” from the sense of right.
In an illuminating introduction, Sir Hersch Lauterpacht has rightly
pointed to Brierly’s conception of the unity of international and municipal
law (pp. xxi
et
seq.),
but it is with respect submitted that, in Brierly’s mind,
this unity was not
a
normative one involving identity in the subjects of both
branclics of the law, but merely
a
sociological one in that they
are
both means
of social rrgulation possessing largely the same statics and dynamics, but
operating in different social environments.
The chief differences in the social environment in which international
law and municipal law operate werc, in Brierly’s view,
first
the smaller
numher of suhjects of international law
as
compared with any municipal
legal
system-thus rendering the former
far
less impersonal-secondly that,
although powerful subjects did exist also within
a
State,
in international
socicty they were proportionately far more numerous and immensely more
fomiidahle and, finnlly, the lack of
a
comniunity sense and
its
accompanying
institutions in international society.
“If
a
systrm of law is to be really effective it must be something
more than merely
a
hody of rules; that in effect is what international
law is
at
present,
a
body of rules, but not get,
as
it should be,
a
true
legal order.
For
a
true
legal order implies-besides rules for the
bchavioirr
of
those. whether States
or
individuals, who
are
subject to
it-
the existence of institutions for organising the relations of the members of
the community which it holds’togcther
”
(p.
311).
SE~.
1969
REVIEWS
561
In the initial inter-war period, Brierly did believe peaceful change to be
an essential part of this international order
(cf.
pp. 72
et
rep.)
when he said
in
1924
:
“We may grant that every State wishes to
see
its own interests
protected; yet to believe that States actually prefer the protection of their
interests by extra-legal means, rather than by law, if the choice is offered,
would be an exaggerated cynicism
”
(p.
71).
Subsequent events forced him to revise his earlier over-charitable interpretations
of the behaviour of States. By 1942, he wrote
:
‘‘
Demands for
a
‘
Place in the Sun,’ for
L-ebenrrawn,
for
Yare
Nostrum,
for New Orders, these are not the sort of demands that can be met and
satisfied by offering to the claimants merely what they are entitled to
in reason and justice. They can be met only in one or two ways, by
yielding, or by opposing to them a preponderance
of
power.
. . .
That
is perhaps the greatest of all the mistakes that we have made in the
struggle to stabilise peace in these years between the wars
”
(pp. 278-279;
cf.
also pp.
834-886).
Doubtless the same reasons induced Brierly in later years to modify
his earlier belief in the integrating force of modem economic and technological
developments
(cf.
pp.
76,
80).
In an address delivered in 1948 he said
:
“
It is easy to assume that the growing interdependence of States in
material things, the triumphs of modem science in reducing distances.
in creating and satisfying new demands for the products of other nations,
must automatically create new links of community and make the ideal
of
a
world community easier to realise. Perhaps if human affairs were
more wisely ordered than they are, if men were clearer-sighted in seeing
their own true interests, that might be
so.
Unfortunately,
as
things are,
if this material dependence of our nations one upon another is left
to
develop unguided, it is
at
least as likely to aggravate as to mollify the
frictions to which it inevitably gives rise” (p.
868;
cf.
also p. 278).
But these changes of view,
far
from casting any reflection on Brierly’s
sense of realism and judgment, are in fact evidence of his qualities of inherent
fairness, humanity, and,
as
Sir Hersch Lauterpacht has pointed out (p. xxix),
intellectual integrity, to which may be added his moral courage. For bold
would he be who can confidently maintain that the events of the thirties could
have been and should have been foreseen in the early twenties
!
But there can be little controversy on the fundamentals of Brierly’s teachings,
-“
The dependence of international law, first upon the establishment of
international order, and secondly upon international organisation
”
(p.
887).
Here,
it
should be pointed out that Brierly used the latter term
to
mean
not legal organisation-sole emphasis on which Brierly regarded
as
not
only
a
delusion, but
a
dangerous one
”
(p. 812)-but social organisation.
“If [international low]
is
destined
to
go forward,
it
will be because
it
can draw strength from the establishment of an assured international
order and from the knitting of the nations into
a
true community rather
than from any purely juridical approach to
its
problems.
For
law
in
essentially
a
by-product of an integrated social order” (p.
837).
While he conceded that functional co-operation and institutions might be made
a
starting point (pp. 874-876), it would be well not
to
forget his strong
deprecation of “the impression that progress can be made without giving up
anything substantial
of
the liberty of independent action which States have
hitherto insisted
on
reserving for themselves” (p. 812) and his reminder
of
the ultimate
need
for “moral regeneration” (p.
870).
It
is
perhaps typid
To continue reading
Request your trial