General principles of law recognized by civilized nations: method, inductive-empirical analysis and (more) ‘scientific’ results

Abstract

Lassa Oppenheim wrote in 1921 that ‘[h]e [or she] who would portray the future of international law must first of all be exact in his [or her] attitude towards its past and present’. His earlier quasi-manifesto on The Science of International Law in 1908 inspired the adoption of a more scientific approach in researching a well-known ‘mystery’ of international law, namely the ‘general principles of law recognized by civilized nations’ (the ‘general principles’) as codified in Article 38(1)(c) of the Statute of the International Court of Justice. Article 38(1) provides that ‘[t]he Court . . . shall apply . . . (c) the general principles of law recognized by civilized nations’. Although part of the Court’s Statute since 1920, scholars have not yet come to an agreement as to what general principles are. Some authors even argue that general principles do not belong among the sources of international law. The combination of the empirical research and inductive analysis presented in this chapter seeks to (1) provide a more accurate and objective image of what general principles are and (2) contribute towards an agreement on the definition of general principles, a century after their inception as part of Article 38(1)(c).