Sir Hersch Lauterpacht, The Function of Law in the International Community

Abstract

Almost eight decades after its publication in 1933, Oxford University Press recently republished Hersch Lauterpacht's book, The Function of Law in the International Community, with a new preface by Martti Koskenniemi that situates the work within the German legal tradition.1 The Function of Law is a significant work for several reasons and its renewed accessibility therefore very much welcomed. First, the work is an impressive piece of scholarship, regarding the stringency of argumentation and depth of analysis. In his attempt to dispel arguments for the non-justiciability of certain international disputes, in particular due to their allegedly political nature, and in making the case for compulsory adjudication, Lauterpacht not only surveyed the existing provisions on third-party dispute settlement in numerous arbitration treaties, the Covenant of the League of Nations, and the Statute of the Permanent Court of International Justice; he also analysed a vast amount of state practice and case law, as well as doctrines of municipal private law, such as �abuse of rights� or �rebus sic stantibus� � always informed by the existing international law literature and works on Roman, Italian, German, French, and English law. Last but not least, Lauterpacht tackled the fundamental question of the philosophy of international law, the question as to the concept of international law, the origin of international law's normativity. Criticizing the doctrine of co-ordination as exposed by Georg Jellinek and Erich Kaufmann, as well as Heinrich Triepel's doctrine of international legal obligation as based on law-making agreements between states, he agreed with Hans Kelsen that the binding force of law could not be derived from either the individual or common will of states, but instead originated in an �