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The Theorist as Judge: Hersch Lauterpacht's Concept of the International Judicial Function
Iain G.M. Scobbie1
Full text available: PDF format *
An Introduction
For British international lawyers, Hersch Lauterpacht is still a dominant presence. His work is a benchmark, an intellectual paradigm encapsulating an approach to international law which has been profoundly influential and which continues to exert a sway in British institutions. The thesis of this paper is that Lauterpacht's discharge of the judicial function constituted the implementation of his theory of international law.2 Unlike some others, I do not adhere to the view that Lauterpacht contributed to the homicide of international law theory in Britain.3 My core position is rather to the contrary. Lauterpacht was essentially a theorist who found himself in the happy position of being able to practise his theory as a judge of the International Court of Justice. His writings attest that he was acutely aware that theoretical predisposition inevitably affects the practice of international law.4
Following Lauterpacht's death in 1960, a number of assessments of his work have appeared.5 In dealing with his judicial career, these tend to focus on the substance of his judicial performance and generally only make passing reference to his more abstract concept of the international judicial role. I do not propose to reheat these skilful analyses, preferring to examine the conceptual foundations of Lauterpacht's judicial role-performance in which his idea of international law, and of the proper function of the international judge, played a crucial influence. Apparently paradoxically, given his `condemnation as a legal doctrine' of positivism because of its `futility as a legal theory'6 and his ultimate adoption of natural law, Lauterpacht's theoretical construction of international law is rooted in Kelsenite legal epistemology. This is evident in the role and function that Lauterpacht attributed to general principles in international law, and more generally in his concept of the judicial function.
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1 Senior Lecturer in International Law, School of Law, University of
Glasgow, G12 8QQ, Scotland, United Kingdom.
2 In constructing Lauterpacht's theoretical position, I have ignored
the views expressed in the successive editions of Oppenheim's International
Law, edited by Lauterpacht. On this point, I follow Jenks' argument that in
Oppenheim Lauterpacht preserved Oppenheim's positivist theoretical
position rather than state his own. See Jenks, `Hersch Lauterpacht - The
Scholar as Prophet', 36 BYbIL 1 (1960) 67.
3 See Carty, `Why Theory? - The Implications for International Law
Teaching', in P. Allott et al, Theory and International Law: An
Introduction (1991) 75, at 77.
4 See, for instance, H. Lauterpacht, The Function of Law in the
International Community (1933) 57 (hereinafter Function of
Law).
5 For instance, Fitzmaurice, `Hersch Lauterpacht - The Scholar as
Judge. Parts I-III', originally published in BYbIL, (vols. 37-39,
1962-64), reprinted in G.G. Fitzmaurice, The Law and Procedure of the
International Court of Justice, Vol. II (1986) 634, 705 and 788, and
Idem, `Hersch Lauterpacht and his Attitude to the Judicial Function', 50
BYbIL 1 (1979); I. Hussain, Dissenting and Separate Opinions at the
World Court (1984) Ch. 4; Jenks, supra note 1; Jessup and Baxter,
`The Contribution of Sir Hersch Lauterpacht to the Development of International
Law', 55 AJIL (1961) 97; Kelsen et al in 10 ICLQ (1961) 1;
McNair, `Hersch Lauterpacht 1897-1960', 47 Proceedings of the British
Academy (1961) 371; and Rosenne, `Sir Hersch Lauterpacht's Concept of the
Task of the International Judge', 55 AJIL (1961) 825, reprinted in S.
Rosenne, An International Law Miscellany (1993) 781 (subsequent
references are to the reprint).
6 See Function of Law, 65: it should be emphasized that
Lauterpacht was clear that the positivist doctrine of international law which
he attacked `resembles only in name the corresponding tendencies in other
branches of law'. Ibid, 67, see 67-69.
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