Review Essay: Lücken im Völkerrecht. Zu Rechtscharakter, Ouellen, Systemzusammenhang, Methodenlehre und Funktionen des Völkerrechts: I Ulrich Fastenrath, Lücken im Völkerrecht. Zu Rechtscharakter, Ouellen, Systemzusammenhang, Methodenlehre und Funktionen des Völkerrechts, Duncker & Humblot. Berlin (1991) 299 pages (incl. English summary), list of sources and index. I Aside from its obsession for detail, the scientific mind also seeks to comprehend an object under study as an entire system, rather than a mere totality of individual instances. Law is no exception. On the contrary, the quest for systemic relations between individual norms (rules, principles) as well as between norms and behaviour has been central to the law: if not so much with regard to the application of the law, but to its doctrine. What else is doctrine but an explanation of detail by reference to the whole, or the whole by reference to its individual parts? But systems can only be comprehended - or at least argued - by means of a paradox: by directing attention to that which does not belong, which is outside and against which the system has a distinct identity. The idea of a legal system - in any of its numerous senses - is premised upon a delimitation between that which is and that which is not law. In this primal sense, as Ulrich Fastenrath shows in his Lücken im Völkerrecht, legal systems are dependent on theories of law, not vice versa. What one understands as a `gap' in law is dependent on what one's theory of law is. For a strict positivist, gaps tend to become identified with areas where legislation is absent. For a Dworkian naturalist, there really are no proper gaps at all: even in what first appear to be cases where no legal rules are applicable, a right legal answer can always be found by extrapolating it from the system's background principles. Fastenrath's approach to the problem of lacunae differs from the classical treatments of the topic by Lauterpacht,1 Stone2 and Siorat3 in that his concern is not primarily that of the judge facing a hard case. Fastenrath looks at gaps from an external, systemic perspective, aiming to throw light on their character and function within the legal system as a whole, or what from his hermeneutical standpoint seems to amount to the same, the legal systems proposed by various authors. Nonetheless, the topic has a practical import. The approaches employed have a bearing on whether it is possible to accept that international law has universal application, and what should be seen as its proper legal sources, the political points of entry for the legal argument. Such an approach aims to vindicate the fundamental character of legal theory for international law as social practice. One may disagree with such a programme and continue to stress, as I do, the primacy of law as practice as opposed to law as doctrine and theory, and at the same time applaud the elegance of Fastenrath's demonstration that views regarding the mechanistic, non-political, value-free character of the international lawyer's job are completely unfounded. Certainly, even our most routine legal practices rely upon (and need constant backing from) unstated theories of law and its place in human society. But I have two comments on this overall programme. First, is this demonstration really needed? The mainstream international lawyer is probably not an `unreflective positivist' as theorists have the habit of assuming but rather a pragmatic problem solver for whom Fastenrath's analysis only provides a complicated vocabulary for something that they have known all along: namely, that particular theories, principles and interpretations of the law always refer back to larger world-views and prejudices.4 To stop there, however, as Fastenrath does, and to declare all these world-views and prejudices as simply verschiedene Dimensionen of the law, is surely an anti-climatic conclusion. The interesting follow-up question about the relative merits of the various prejudices is neither raised nor answered. Nor can it be, if, as Fastenrath assumes (though he is not absolutely clear on this point) there is no way of surpassing, even momentarily, the interpreter's own prejudices. Second, why these legal prejudices, this Vorwissen, would be adequately reflected in a limited number of classical positivist/naturalist/hermeneutic/Marxist legal theories remains unclear. A more broadly cultural, or anthropological approach might have produced a more exciting legal sub-conscious, and a more realistic basis for linking decision making in hard cases into the general patterns of legitimation of authority in the international society. This might have provided a sharper and more evidently political contrast between the various `legal' theories and approaches. With these general caveats, however, the book provides a welcome tour d'horizon of conventional international legal theories and proposed systems through the idiosyncratic style of the German academic tradition: full of analytic rigour and interesting notation. The introduction of certain classics of German hermeneutic legal theory (Alexy, Esser, Larenz, Viehweg) into a text on international law is particularly welcome. Compared with certain recent Central European dabblings in legal method and international law (e.g. Bleckmann, Bos5), this book is simply a pearl. 1 See especially H. Lauterpacht, The Function of Law in the International Community (1933). 2 Cf. Stone, `Non-Liquet and the Function of Law in the International Community', 35 BYbIL (1959) 124. 3 L. Siorat, Le problème des lacunes en droit international (1959). 4 I use the word here in its positive sense, a sense `that was driven out of our linguistic usage by the French and the English Enlightenment', H. Gadamer, Philosophical Hermeneutics (1976, translated and edited by D. Lange) 9. 5 A. Bleckmann, Grundprobleme und Methoden des Völkerrechts (1982); M. Bos, A Methodology of International Law (1984).
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