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15 - Conclusion

Published online by Cambridge University Press:  04 May 2010

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Summary

In his speech of welcome to the present Court at its inaugural meeting, The Netherlands Foreign Minister remarked as follows on the inevitability of judge-made law:

Montesquieu, in a well-known passage of his Esprit des lois, has described the function of a judge as follows: ‘Judges are but the mouthpiece which recites the law – inanimate beings who cannot moderate either its force or its vigour.’ This judgment of the great French philosopher is very far from having met with universal acceptance; it represents too rigid an interpretation of the trias politica and a conception of the administration of justice which was typical of a period in which the importance of written law was exaggerated, but was later subjected to severe criticism. This conception of the judge's function is still less applicable in international law, in which a written, established rule seldom exists. Here the judge finds himself only too often, and whether he wills it or not, obliged to assume the rôle of the law-maker. The increasing difficulties which, in recent times, have hampered the codification of international law have shown the importance of this aspect of a judge's work. The part played by case law in the formation of law becomes ever more vital; the world seems disposed to accept and to generalize a ruling given by a Court of high repute; whereas international conferences, after endless discussion, succeed neither in reconciling divergent standpoints nor in framing uniform rules of law.

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Publisher: Cambridge University Press
Print publication year: 1996

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  • Conclusion
  • Mohamed Shahabuddeen
  • Book: Precedent in the World Court
  • Online publication: 04 May 2010
  • Chapter DOI: https://doi.org/10.1017/CBO9780511720840.017
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  • Conclusion
  • Mohamed Shahabuddeen
  • Book: Precedent in the World Court
  • Online publication: 04 May 2010
  • Chapter DOI: https://doi.org/10.1017/CBO9780511720840.017
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Conclusion
  • Mohamed Shahabuddeen
  • Book: Precedent in the World Court
  • Online publication: 04 May 2010
  • Chapter DOI: https://doi.org/10.1017/CBO9780511720840.017
Available formats
×