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Some Remarks on the Factors Influencing the Emergence and Evolution of International Law

Published online by Cambridge University Press:  21 May 2009

Marion Mushkat
Affiliation:
Faculty of Law, Tel-Aviv Branch, Hebrew University
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Extract

Scientific enquiry has shown that no branch of law can be attributed to a supernatural, natural or any other cause detached from the economic design of society. The concept of positive law is variously interpreted: It is spoken of as a man-made system; as a law applied to and respected by man; as an inevitable consequence of every superior authority and an element intrinsic to its functions; as a law arising out of the competence of only some of the organs of state and as one medium of expression of the will of states. Positive law is held to be based on either formally recorded enactments or on unwritten accepted practices. It is considered to be a category of conduct applied to and observed within the frameworks of individual social groupings described as states (domestic law), or to some or all of these groupings collectively (international law). But whatever the concept applied to positive law, every single interpretation suggested affirms that it is, and has never been anything but, a socio-historic phenomenon evolved and shaped over the course of time out of the crucible of human behaviour and is in a perpetual state of flux.

Type
Articles
Copyright
Copyright © T.M.C. Asser Press 1961

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References

1. Compare with the considerations of R. Ago in his “Positive Law and International Law”. Am. Journ. of Intern. Law 1957 p. 625.Google Scholar

2. See for instance the dominant point in the “Abendlaendische Rechtsphilosophie- Ihre Grundlagen und Hauptprobleme in geschichtlicher Schau” /1958/ of A. Verdross.

3. Compare with the considerations of Jenks, C. W., The Common Law of Mankind, New York 1958, p. 85, passim.Google Scholar

4. See the polemic between Bos and Röling in Varia Juris Gentium, Liber Amicorum presented to Jean Pierre Andrien François”, Leyden 1959, p. 62.Google Scholar

5. See U.N. Doc. A/c. 3/SR. 1008 p. 8–9.