Secure Your Copy The Basis Of Obligation In International Law And Other Papers Produced By James Leslie Brierly Accessible As Paper Copy

thought I would say something in this space about Brierly's fine collection of papers in "The Basis of Obligation in International Law", The book contains a paper by that title, which constitutes aboutof the content the rest of the pages are filled by other papers of Brierly's with similar subject matter, such as issues to do with domestic jurisdiction, the Lotus Case, codification, prohibition of war, the Covenant versus the Charter, and so forth, all written in the deliberative style.
I thought I would say two things about Brierly's book, first on substance and second on approach,

Lauterpacht opens the memorial collection of Brierly's writings with an introduction that identifies four areas constituting the essential teachings these are: the moral foundation of international law the individual as a subject of international law the unity of international and municipal law and the special understanding of the sovereignty of states.
There is something to this summary of Brierly, but in the main I have to respectfully disagree, Lauterpacht has confused incidental results for deeper strains of thought that run Brierly's papers, which are distinctly there, The context will do a lot to help explain this, Writing in thess, Brierly was commenting foremost on the rise and fall of the League of Nations and the first effort to fully regulate the domain of international law, witnessed most spectacularly with the attempt to outlaw war.
No doubt this was a remarkable time for international law, as it was for the world in general and Brierly indicates clear concern with the tenor and trajectory of things in his essayswell before the system of law was evidently doomed to fail.
His writings then contain both a confident optimism, and a deep respect for tradition and power of international law but this confidence is also joined with a deep concernbordering on dyspepsiaabout the contemporary forms and iterations that international law was being given.
He argues persuasively that it is not within the power of international law to reconcile all disputes, and that legal scaffolds in the form of treaties and compulsory dispute tribunals were a false edifice upon which to build the law.
His flagship paper, for which the book is named, on the basis of obligation in international law is, by its conclusion, a repudiation of the

treaty method for creating this kind of legal relation.
He says "an essential part of the function of law must be to limit the wills of those to whom its precepts are addressed, and its binding force cannot possibly be derived from the wills that it limits.
A selfimposed limitation is no true limitation at all" as much is done again in his paper "Some Considerations on the Obsolescene of Treaties", "The Shortcomings of International Law", and several other papers that I won't list.
It is right then to view Brierly as a skeptic about the proactive, ambitious progressivism that was overtaking the development of international law,

This I think does for a better summary of Brierly, rough though it is, and I want to add one more comment about his approach, It follows in an important way from the forgoing discussion, His writings are deliberative and eminently philosophical, and you needn't read beyond the first paper to get a heavy dose of Bodin, Grotius, Hobbes, Locke, Rousseau, Hegel, et al, to be convinced of this.
Brierly puts it better himself that international law is "an essentially customary system of law actually in operation and this is a phenomenon which we can otherwise only investigated by laborious historical research into legal origins, if not into anthropology.
. . " and "these are the considerations which lead me to think that for the philosophic study of law there is no medium so valuable as international law, " But though this approach may be in part compelled by his subject matter it is also a consequence of his aforementioned skepticism, Though not so bold to say it forthright, Brierly is convinced that traditional natural law theories, especially that of Suarez, best explain the legal relations of states and their reciprocal rights and duties.
Here lies the disparity for Brierly between law as it ought to be and law as it is and only an elevated, philosophic inquiry can reach the lofty inscrutable heights that he needs to support his skepticism.
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