Beruflich Dokumente
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POSITIVISM AND MONISM IN INTERNATIONAL LAW
321
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322 POSITIVISM AND MONISM
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ANTHONY H. O'BRIEN-THOMOND 323
(1) status;
(2) dominium (property);
(3) debitum (debt);
(4) delictum (tort).
This sequence clearly indicates Zouche's dependence on Roman
private law.
Within this organizational framework,more than two hundred
varied issues are briefly dealt with. Many do not belong to
what is today considered as international law proper. For
instance, Zouche treats problems of private international law
(e. g., whether a foreigner may inherit real estate situated in
the forum) and of municipal public law (e. g., whether one
may leave one's country without permission). He is especially
interestedin the question of succession to the throne, which like-
wise forms part of municipal public law (more specifically, of
constitutional law). In the latter case the alleged connection
with the jus inter gentes seems to consist merely in the fact that
contests over succession to a throne sometimes lead to war. The
discernmentshown in the choice of the title has not been carried
throughin the details of the discussion.
Furthermore, the numerous issues discussed in the book are
prepared one after the other, without relation in thought or
even in phrasing. The most striking peculiarity of Zouche's
treatment, however, consists in the fact that the controversial
issues are simply set forth as such, with Zouche not venturing
to offer a decision- a method which rather sophistically he tries
to excuse as "socratic." Certainly one has to take into con-
sideration the tradition of the English common law which
attributes to legal writers a much more modest position than
does the tradition of the civil law. In fact, there is a general
inclination on the part of common-law jurists to shun discussion
of unsettled issues, which is considered to be the prerogative of
the courts. But even if this fact is fully taken into account,
Zouche's reticence remains puzzling, especially since he touches
only in a few instances upon mattersbelonging to the jurisdiction
of the courts.
The only theoretical statementsby Zouche are found in some
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324 POSITIVISM AND MONISM
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ANTHONY H. O'BRIEN-THOMOND 325
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326 POSITIVISM AND MONISM
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ANTHONY H. O'BRIEN-THOMOND 327
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328 POSITIVISM AND MONISM
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ANTHONY H. O'BRIEN-THOMOND 329
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330 POSITIVISM AND MONISM
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ANTHONY H. O'BRIEN-THOMOND 331
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332 POSITIVISM AND MONISM
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ANTHONY H. O'BRIEN-THOMOND 333
and was translated into French and Spanish.16 Still its value has
been questioned for various reasons, the main one being that it
is too much given to elaborate disquisitions on familiar contro-
versies of a highly academic character,and does not offeradequate
factual information. The markedly abstract and diffuse treat-
ment is typical of Italian juridical learning of the nineteenth and,
to a great extent, of the twentieth century.
Russia entered the European literature on internationallaw in
the second half of the nineteenthcentury. The Russian situation
differedfrom that of the other continental countries, not simply
because Russia had joined the family of nations only at a relatively
late date but because the scholastic teachings on the law of
nature and on just war, in which the doctrine of the law of
nations originated,had no validity in the domain of the Orthodox
Church. Hence, Russian thought lacked the centuries-old tradi-
tion of the European countries in matters of international law.
Grotius' De jure belli ac pads was never translated into Russian
17
except for extracts published in 1909, and until 1880 the only
systematic treatise on international law translated into Russian
was the one written in 1819 by the German Klueber.18 Never-
theless, in the nineteenth century some minor studies on inter-
national law were published by Russian writers.19
The Livonian Fedor Fedorovich de Martens (1845- 1909) 20
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334 POSITIVISM AND MONISM
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ANTHONY H. O'BRIEN -THOMOND 335
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336 POSITIVISM AND MONISM
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ANTHONY H. O'BRIEN-THOMOND 337
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338 POSITIVISM AND MONISM
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ANTHONY H. O'BRIEN-THOMOND 339
34. Halleck,International
Law (New York,1861).
35. Stockton,A ManualofInternational
Law (New York,1914).
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340 POSITIVISM AND MONISM
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ANTHONY H. O'BRIEN-THOMOND 341
Still, the resurgence of the just-war notion did not mean the
revival of the old doctrine that the belligerent who considered
his cause to be just and the cause of his adversary to be unjust
was exempt from the strictestobservance of the rules of warfare
with regard to prisonersof war, or to wounded and sick enemies,
or with regard to the keeping of military agreements with the
enemy. Only very few writers maintained that the rights and
duties of the neutrals should vary under international law,
depending upon their belief or disbelief in the justness of the
cause of one or the other belligerent. All this, however, had
been consequences of the just-war doctrine.
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342 POSITIVISM AND MONISM
Apart from Austin, who had not been very successful in this
respect, Georg Jellinek (1851-1911), Professor of Public Law
at Heidelberg,40 had tried to explain the binding force of inter-
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ANTHONY H. O'BRIEN-THOMOND 343
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344 POSITIVISM AND MONISM
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ANTHONY H. O'BRIEN-THOMOND 345
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346 POSITIVISM AND MONISM
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ANTHONY H. O'BRIEN-THOMOND 347
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348 POSITIVISM AND MONISM
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ANTHONY H. O'BRIEN-THOMOND 349
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350 POSITIVISM AND MONISM
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