The Theorist as Judge: Hersch Lauterpacht's Concept of the International Judicial Function

The Theorist as Judge: Hersch Lauterpacht's Concept of the International Judicial Function

Another Introduction

I was raised in the Lauterpacht tradition of international law. Iain MacGibbon, who first taught me public international law at Edinburgh, had been a graduate student of Lauterpacht and had fallen under his spell. MacGibbon's admiration for Lauterpacht was manifest. My graduate studies at Cambridge continued in this vein. In particular, there I was fortunate to be taught by Elihu Lauterpacht, whose lectures raised issues I subsequently pursued in my doctoral dissertation. He also partly supervised this work, and in doing so afforded me the opportunity to break with the tradition. His advice that I should read all International Court cases, combined with the more theoretical work I was pursuing in tandem, led me to disagree with Lauterpacht's view of the judicial function which attempts to impose a normative objectivity⁷ on an essentially argumentative enterprise.

I remain indebted to Eli, even within the specific confines of this paper. Going beyond kindness, when I was unable to visit him in Cambridge, as I had planned, in order to consult his father's unpublished papers, Eli sent the most important one⁸ to Glasgow. It is perhaps as well that these personal and intellectual debts know no currency for repayment, otherwise I would be bankrupt before I managed to pay off even a fraction of my reckoning with Eli. While I am confessing these liabilities, it would be unfair if I did not also particularly thank Philip Allott, Rosalyn Higgins, Neil MacCormick and Iain MacGibbon for their stimulus, help and encouragement.

7 Although Lauterpacht recognizes that there is a subjective aspect to the discharge of the judicial role, he is equally clear that this should not be exaggerated: see Function of Law, 102-103; see also M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989) 35-36, and 424-425.

8 This was Lauterpacht's `Provisional Report on the Revision of the Statute of the Court', dated 1 September 1955. This was prepared for consideration within the International Court and comprises a 104-page typescript, double-spaced, with some manuscript annotations. This document has been previously mentioned by Jenks, supra note 1, at 97-98; and by E. Lauterpacht, Aspects of the Administration of International Justice (1991) 4-5. It appears from internal evidence (3, para.4) that the report was motivated by the possibility of a General Conference for the Revision of the Charter being held after the Tenth Annual Session of the General Assembly. In the event, GA Res. 992 (X) of 21 November 1955 decided, in principle, that a Review Conference should be held, and established a Preparatory Committee to make the necessary arrangements. This Committee met regularly, invariably to postpone the Review Conference, until the General Assembly's Twenty-Second Annual Session in 1967 and then ceased to function. See B. Simma (ed.), The Charter of the United Nations: A Commentary (1995) 1184.

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