1. The one publication Fechner is able to quote is Professor Fehr's article Primitives und germanisches Recht. Zur Lehre vom Archetypus, Archiv für Rechts- und Sozialphilosophie, 1954–1955, pp. 37 et seq., in which the author brings out the striking parallels between legal orders of different historical origin.

2. On man's limited freedom, see also Friedländer, , Histoire et psychanalyse (Paris, 1975), pp. 78 and 85.Google Scholar

3. See Professor Fechner's exposé of Jung's doctrine (quoting from his publications) and his own reactions thereto in his Rechtsphilosophie (Tübingen, 1956), pp. 165–177 (the second edition remained unchanged, while the third edition was not available at the time of writing).

4. Comp. Grewe, Spiel der Kräfte in der Weltpolitik — Theorie und Praxis der internationalen Beziehungen (Düsseldorf-Vienna, 1970), Chap. VI (pp. 185–209)Google Scholar: it is impossible to have any genuine understanding of the vital forces at work in world politics without analysing human nature and probing into the obscure labyrinth of human motivation.

5. In England, the Lords of Appeal in Ordinary, sitting as members of the House of Lords “to adjudicate in cases before that house in its legal capacity, and also to aid the judicial committee of the Privy Council in hearing appeals” (14 Enc. Brit. (London, 1962), p. 392), exemplify the psychological subservience of courts generally to the legislator.

6. Many interesting examples of judicial law-making were given by the then Minister of Justice of the Netherlands, C.H.F. Polak, who also noted that the Dutch legislature pays comparatively little attention to the cohesion between its products, leaving the matter to the courts. See Handelingen Tweede Kamer (Acts of the Second Chamber of the States-General), 1969–1970, pp. 51–52. In the view of one member of the Dutch Hoge Raad (Supreme Court), H. Drion, however, “judicial law-making, on the whole, is infinitely less important to modern society than law-making by the legislator” (translation of a proposition made by Judge Drion during an address delivered on 19 October 1973).

7. “Functions” and “powers” should be well distinguished. No attempt is being made, here, at a theory of “powers”, i.e., branches of government (as, e.g., the classic doctrine of the trias politico framed by Montesquieu).

8. Reisman, , Nullity and Revision (New Haven and London, 1971), pp. 680–681.Google Scholar Equally unconvincing is Professor Crince Le Roy's opinion according to which not the nature of an official act decides about its being “legislative”, “executive”, or “judicial” in character, but its being called so in positive law. See his lecture De vierde macht (The Hague, 1969), p. 11.Google Scholar

9. Publications of the Permanent Court of International Justice, Series B, No. 5, p. 29.

10. I.C.J. Reports, 1960, p. 153Google Scholar, later quoted by the same Court in its advisory opinion of 21 June 1971 (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970)), I.C.J. Reports, 1971, p. 27.Google Scholar

11. I.C.J. Reports, 1963, p. 29.Google Scholar The Court referred to this declaration in its judgment of 20 December 1974 (Nuclear Tests Case), I.C.J. Reports, 1974, p. 259.Google Scholar

12. I.C.J. Reports, 1966, pp. 47–48.Google Scholar Neither in its order of 6 December 1930 (Case of the Free Zones of Upper Savoy and the District of Gex — Second Phase), Series A, No. 24, nor in its judgment of 7 June 1932 in the same matter did the Permanent Court clearly refuse to act as a legislator. See on both cases my Conditions du procès en droit international public (Leyden, 1957), pp. 59–60.Google Scholar

13. This term to be understood either in the connotation of “an entity placed above politics and society”, or of “the group of persons, wide and variegated, who in a combined action of great complexity create statutes”. Comp. Professor Van der Burg, Enige aantekeningen betreffende het wetgevingsproces en de vorming van het administratieve recht, in Rechtsvinding (Deventer, 1970), pp. 49–51.

14. On the system behind the law, see Coing, , Geschichte und Bedeutung des Systemgedankens in der Rechtswissenschaft (Frankfort, 1956)Google Scholar, and my inaugural lecture Rondom de codificatie van het volkenrecht (Questions regarding the codification of international law) (Leyden, 1959), pp. 6–7.

15. See Jaspers' address of 13 September 1946 made at the “Rencontres internationales de Genève” as published in L'esprit européen (Neuchâtel, 1947), p. 304Google Scholar: “Ainsi se développe, à la source de la science, le besoin d'interroger Dieu contre Dieu. Cette impulsion, partie du livre de Job, traverse toute la pensée européenne”.

16. McNair, , The Development of International Justice (New York, 1954), pp. 16–17.Google Scholar

17. Comp. Nussbaum, . A Concise History of the Law of Nations, rev.ed. (New York, 1954), p. 167Google Scholar: “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”.

18. See pp. 3–4 supra

19. Comp. Fitzmaurice, , Judicial Innovation — Its Uses and Its Perils — As exemplified in some of the Work of the International Court of Justice during Lord McNair's Period of OfficeGoogle Scholar, in Cambridge Essays in International Law (London, 1965), p. 24: “It is axiomatic that courts of law must not legislate: nor do they overtly purport to do so. Yet it is equally a truism that a constant process of development of the law goes on through the courts, a process which includes a considerable element of innovation (…). Modern experience shows that even in fully developed legal systems this process is necessary”. It should, however, stay “within permissible legal limits” (p. 25) and not involve “too great a derogation from previously received legal norms to be acceptable” (p. 31). Judicial innovation made “at the sacrifice of the integrity of the law” is “too dearly purchased” (p. 47). The International Court of Justice in its advisory opinion of 11 July 1950 (International Status of South-West Africa) gave a decision which, in Lord McNair's opinion, amounted to “a piece of judicial legislation” (I.C.J. Reports, 1950, p. 162Google Scholar). As to arbitration, in the present context the well-known expression of “legislative arbitration” should be borne in mind.

20. Professor Tammes most rightly pointed at the profound difference in spirit between political organs on the one hand, judicial organs on the other hand, with regard to their conception of the legal system to which they are subject. As one eloquent example out of many, be quoted the interpretation placed upon the text of art. 4, para. 1, of the United Nations Charter by some Member States and rejected by the International Court of Justice in its advisory opinion of 28 May 1948 (Conditions of Admission of a State to Membership in the United Nations — Article 4 of the Charter), I.C.J. Reports, 1948, pp. 57Google Scholaret seq. See Tammes in Handelingen van de Vereniging voor Wijsbegeerte des Rechts (Acts of the Association for the Philosophy of Law), XXXIX, first part (1954), p. 50.

21. In so far as they do not themselves bring legal disputes to an end, of course. Comp. Brown, , Comparative Lawyering: A Proposal for the Study of the Function of Lawyers in Different JurisdictionsGoogle Scholar, Revue hellénique de droit international, 1970, p. 4: “it can safely be stated that lawyers resolve more disputes than do the courts”.

22. Oliver, , Historical Development of International Law: Contemporary Problems of Treaty Law, Rec. A.D.I., 1955–II, p. 492.Google Scholar

23. At p. 494, footnote 2, Professor Oliver in fact speaks of “attitudes”.

24. Stone, , Problems Confronting Sociological Enquiries Concerning International Law, Rec. A.D.I., 1956–1, p. 68.Google Scholar

25. Carlston, , Law and Organization in World Society (Urbana, 1962), pp. 165–166.Google Scholar

26. Falk, , Law, Morality, and War in the Contemporary World (New York, 1963), pp. 35–36.Google Scholar

27. Schwarzenberger, , The Province of the Doctrine of International Law, Current Legal Problems, 1956, pp. 244, 240, 250, and 244.Google Scholar

28. Bos, , Rondom de codificatie van het volkenrecht (see footnote 14 supra), pp. 3–7.Google Scholar

29. See p. 4 supra

30. Op. cit., p. 259.

31. Ibid.

32. Ibid., pp. 249–250.

33. Op.cit., p. 250.

34. Ibid., p. 259.

35. Ibid., p. 260.

36. Ibid., p. 260.

37. See footnote 19 supra.

38. Ch. de Visscher, Cours général de principes de droit international public, Rec. A.D.I., 1954–11, p. 500.

39. Montesquieu, De I'esprit des his, XI, 6: “Les juges de la nation ne sont que la bouche qui prononce les paroles de la loi; des êtres inanimés, qui n'en peuvent modérer ni la force ni la rigueur”. Judge Drion (see footnote 6 supra) held that, actually, in the bulk of their decisions, published and unpublished, courts rather than as law-makers appear as “la bouche qui prononce les paroles de la loi”.

40. Van Vollenhoven is a curious example of a scholar applying two different normative concepts to national and international law, respectively: to the Indonesian adat (local customary law) he applied a normative concept which he might also have applied to international law, but to the latter he, actually, applied a very different normative concept abusively borrowed from modern national legal systems. See Erades, and Van den Steenhoven, , Cornelis van Vollenhoven 1874–1974, Nederlands Juristenblad, 1974, pp. 566 and 573.Google Scholar

41. Comp. footnote 40 supra.

42. Fehr, , Die Tragik im Recht (Zurich, 1945).Google Scholar

43. Fehr, , pp. 10–19 and 19–21, respectively.Google Scholar

44. Ibid., pp. 16 and 20. And comp. Immink and Maris, , Registrum Guidonis (Utrecht, 1969).Google Scholar

45. Fitzmaurice, , The General Principles of International Law Considered from the Standpoint of the Rule of LawGoogle Scholar, Recueil de l'Académie de Droit International, 1957–11, p. 59.

46. Comp. Erades, and Gould, , The Relation between International Law and Municipal Law in the Netherlands and in the United States (Leyden, 1961), pp. 371–372.Google Scholar

47. Ibid., pp. 232 and 351.

48. The question is left aside, here, whether “transformation” is not always there, also under the Netherlands Constitution (article 65 of which would then “transform” all future international agreements as described there) or in Netherlands judicial practice (which, under this assumption, would “transform” from case to case).

49. See lately Van Panhuys, , Het recht in de wereldgemeenschap (Groningen-Leyden, 1974), p. 60.Google Scholar In the author's opinion, the principles expressed in the United Nations Charter, and particularly its prohibition of aggression, also belong to general international law and, consequently, remain unimpeached in case the latter's decentralized institutions for law enforcement would revive. It is difficult to understand which in this view are the real differences between the two legal orders, if not differences of a merely quantitative character.