My own approach to the problems raised in Lon Fuller's paper
has been mainly historical and comparative. Difficulties at once arise
when one attempts to project his thesis across the oceans and backward
in time. It is of course no refutation to show that other countries
at other times have had institutions that depart widely from the pat-
terns he describes and, that these institutions seemed to work at the
time to general satisfaction. His argument leaves plenty of room for
imurities and intermixtures and raises rather the question -- at what
point will intermixture lead to impairment of the function? But the
fact remains that the historical record is strewn with intermixtures
of all kinds, so that the problem is to discover whether these are
due to factors peculiar to each of the different cultures, to lacks or
failures in other institutions, or whether, on the other hand, they
suggest that certain kinds of impurity or intermixture are necessary,
desirable, and likely to persist.

I extract from Lon's paper three elements that he considers
crucial. To achieve maximum effectiveness adjudication (1) should
be rational or at least should produce "faith in its essential ration-
ality"; (2) should depend on, and indeed should be scrupulously confined
within the limits of, adversary presentation; (3) should not be accom-
panied by more than an unavoidable minimum of rule-making or legislation.
As to the last point, the adjudicator who plainly announces a new
rule forfeits his moral authority as adjudicator, though he may have
still a separate authority as a legislator.

To select out these three elements is to do less than justice
to a complex argument, which is interwoven with ideas of a much more
general nature going far beyond adjudication as such. One recurring

[10]

-2-

theme is the extent to which adjudication can or must draw on other
sources for validation -- on contract, for example, as in the case of
arbitration or on political authority, what Lon calls elsewhere legiti-
mated power. As I will try to point out later, I think this issue is
more crucial than he makes it appear to be and that the scope, purposes
and functioning of adjudication can differ in important ways in these
different contexts.

There are other essential elements that we now take for granted
and that are not developed, though taken for granted, in Lon's discussion.
Disinterestedness, for example. Surely we would now agree that disin-
terestedness is primary, coming before the adversariness of the presen-
tation. It means something more than the absence of an economic
interest in the outcome on the side of the adjudicator; it means an
absence of bias through personal or emotional ties with one of the
litigants and -- more than this -- a capacity for more than average
objectivity and detachment of mind (I assume complete objectivity not
attainable in this life and I don't know enough about the next one).
Yet disinterestedness, historically, is something that had to be
struggled for. For centuries there was a fairly low ceiling on expec-
tations in this respect: for example, the judges appointed by kings
or feudal lords conceived it their clear duty to defend the interests
of their masters when they opposed the interests of litigants, and
judges in criminal trials were reeking with bias and did not hesitate
to disclose it. Related to this is the question of immunity from out-
side pressures: pressures external to those organized within the
system of adversary presentation. We are now clear that this wall of

-3-

immunity is essential and yet that it is not impregnable, for we want
our adjudicators (state-appointed or by-contract-appointed) to bring
to their tasks a wide knowledge of the social background and to seek
information from outside sources in a guarded way when additional
information is needed. There is a long history on this subject of the
adjudicator's freedom from outside influences, verging into "pressure".

It may be that our present-day solutions are not finally stabilized.

Implicit in the conception of adversary presentation are some broader
requirements of full and fair hearing, and these requirements also
were not developed overnight. In criminal cases especially, the right
to cross-examine and the right to be represented by counsel were long
in being established. Even when established there have been, and are
now, all sorts of gradations as to how much reliance in fact is placed
on the energy and initiative of counsel, as contrasted with energy
and initiative of the adjudicator himself. In speaking of the slow
growth and relativity of the conception of adversariness, I do not
mean to deny that in our modern expectations the *opportunity*, at least,
to be fully heard is of the essence of the process. Or to deny that
the scope of adjudication is limited to those issues that can be
fairly and adequately stated and understood when compressed within the
limits of a two-sided contest. How far the adjudicator is limited in
his own inquiries and reflections to the matters that have been laid
before him seems to me an entirely separate question. Arthur has
gone into this.

[10]

I have said that history is strewn with imurities and
intermixtures. Before sketching some tyoes from medieval and early
modern Europe I would like to mention Roman law. In praetorian procedure,
the procedure around which classical Roman law was organized, we find a
mode of adjudication that seems to fit at least one of Lon's specifica-
tions. The *ludex* of praetorian procedure was not conceived as a rule-
maker, even in the limited sense that the reasons he adopted in a
particular case had some persuasive force in later, similar cases. No
effort was made to record or report them, so far as one can tell from
surviving sources. This would not be surprising, for the *ludex*, like
the praetor who appointed him, would seldom have any training in law
and if he did, only by accident. The *ludex* was usually chosen from a
panel of eligible persons, ranging in size at various times from 900
to 5,000. The eligibles on the panel were chosen from the Roman aris-
tocracy, of wealth if not of birth. What guarantees were there of
impartiality, of rationality, of conformity to rule? There were only
two, I believe. One was the social status of the men on the panel,
carrying with it some assurance of general knowledgeableness and an
expectation of honorable conduct. The other, much more important, was
the consent of the parties to his appointment. Their consent was always
required, not only to the naming of the particular *ludex* but to the terms
of the formula which defined the issues he was authorized to decide.
Most of the time the consent was real, though the praetor had some
powers of coercion. The judgment of the *ludex*, when finally rendered,
was in a very real sense what Wlassak called "a state-reinforced
arbitration award". The principles of adjudication and reciprocity,

[10]

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to use Lon's terms, were completely intermingled. With these two
safeguards, procedural controls were deemed unnecessary. There were
no rules of evidence or trial procedure, there was no appeal, the con-
duct of the trial in every respect was entrusted to the *iudex*. Conformity
to existing rules, if that is an element of rationality, came only
through informal consultation of the jurists, who circulated freely
around the forum and in the baths. But this consultation was purely
voluntary and the jurists' advice did not need to be followed. This
system lasted in operation, so far as we know, through the first century
A.D. and well into the second. It was then gradually displaced by an
imperial procedure, with professional judges permanently assigned. Trial
and appellate procedure then began to be organized, but I repeat that
it was around praetorian procedure that the great classical system was
organized and even the later classical jurists took it as the basis of
their discussions.

In medieval Europe adjudication was very differently organized. The basic element was the community court, Germanic in origin, which spread over the face of Europe, including Anglo-Saxon England. The community courts were in a real sense popular courts, which all law-worthy men were privileged to attend. In these courts discontinue was in no way distinguished from other functions of community self-government, including legislation and administrative action.
These community courts lasted in the manors and towns in England down to the eighteenth century, had enormous influence on the ordering of English life, and so long as they met they retained the medieval mixture of functions. In France and Germany they were displaced by

[Lc]

-6-
professional judges -- in France during the fourteenth century and in
Germany during the sixteenth. But even there the medieval fusion of
powers persisted, being merely transferred to other persons.

It is hazardous to draw many inferences for modern societies
from primitive institutions. Very little is known of the internal pro-
cedures of the early community courts, almost nothing of their motives.
What I have to say is therefore largely based on other evidence as to
the aims and the structures of medieval societies. Whether the inferences
for us are nothing more than a flight of fancy, I leave to you. But I
start with an affirmation that I believe to be true for any society,
early or late -- conflict is potentially dangerous, so that means must
be found to resolve it, but conflict is at the same time a major source
of growth and change. I offer the affirmation to explain some historical
phenomena that seem to be related. The first is that in the early
societies I know about institutions for dispute settlement were the
earliest to be organized and were overwhelmingly the most important
among all the institutions of government. In early medieval societies
it was the danger of unresolved conflict that loomed largest and
brought anxiety, often terror. The settlement of conflict was an end
in itself. But as means were gradually found and their scope extended,
it was through conflict, dispute, the jarring impact of rival claims
that new energies were released, the inertia of ancient practices was
overcome, new purposes and values were asserted. I believe it was
because conflict exposed new needs and compelled reformulation of pur-
poses and values that other functions of government, as they developed,
clustered around the function of dispute-settlement. Most of the

[10]

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human traffic of medieval societies passed through these community courts. After the ancient reluctance to modify settled usage had been overcome and there developed a readiness to undertake conscious change, decisions were often framed in general terms, as legislation. There was/need felt to distinguish general rules from the adjustments made in particular cases in response to individual demands.

It may seem far-fetched to argue from this ancient experience to the functions of our modern judges. But it seems to me equally true for us that conflict is potentially dangerous, so that means must be ready to resolve it, but that it is also creative, so that conflict-resolution must inevitably assimilate within the legal order new meanings, new values, and new human needs. I do not understand that Lon would dispute this. But if one accents the notion that dismut settlement opens avenues for growth and change and makes affirmative contributions of the greatest importance, one's emphasis shifts. Instead of seeking to separate legislation from adjudication altogether or seeking to diminishing rule-making by adjudicators to the inescapable minimum, one would seek to distinguish between types of adjudicators and between types of situations in which rule-making is possible or desirable.

I agree that a social arrangement or procedure has meaning only in relation to its purpose. In other words, adjudication cannot long remain an end in itself. If one defines it merely as a device for settling disputes, one soon runs into such questions as what disputes, how can they stay settled, what purposes are served by settling them?

-8-

I have the impression that in his paper on adjudication, more than in his other writing on the subject, Lon has sought to exclude a full-scale review of the purposes of adjudication. One purpose mentioned in several places is the purpose of securing "acceptance". But if "acceptance" is defined as something other than joyful agreement with the result by the parties themselves, including the losing party, or perhaps a surly decision not to resort to violence after all, then "acceptance" or "acceptability" relates, not to the particular result but to the process itself. It is no great extension to say that a purpose is to achieve "acceptance" or "acceptability", not merely of the parties themselves but of others whose interests may be indirectly affected and then of others who merely desire to see a fair and reasonable adjustment -- an adjustment that because of its fairness and reasonableness has some promise of lasting. By successive extensions of the notion of "acceptance" one can drain from it most of its meaning. In effect, in its widest extension, there is a substitution of a broader and essentially different purpose -- that of using adjudication as a means of disclosing, assessing and adjusting the conflicting interests of a complex society and subjecting to constant revision the general regulations of conduct contained in existing law. This in fact is what we have done. This in fact is what the great industrialized societies of western Europe have been forced to do, reluctantly. I do not think that on the whole, despite the dangers involved, the pursuit of this broad purpose has forfeited the moral authority of the adjudicators. I think much depends on who they are, by what authority they act, and their relations with other agencies of government.

[L]

-9-

I should like to return now to the medieval community courts,
especially those that survived so long in England in the manors and
towns. I mention them chiefly because our picture of English law is
mainly derived from the common law courts, which from an early date
appeared to fit the pattern of highly organized and specialized adjudic-
ation. The common law courts used an adversary procedure, they only
occasionally used language that sounded like legislation, they adminis-
tered with the help of a highly trained bar a tight system of technical
rules (carefully preserving much irrationality through the use of juries).
But actually, for centuries, their work was very limited. The bulk of
it centered on major crime and freehold land (for a long time much less
than half of English land), and a scattering of contract and chattel
cases. The decisions that mattered most to most people were made in
the local courts, which, one must admit, hardly conformed to modern
standards of adjudication. They retained the name and the form of
courts. They acted through juries. But they were perversions in the
highest degree. Not only did they issue legislation with the utmost
freedom, but they issued all kinds of commands to individuals and they
fined for disobedience of both. Their procedure was not only not ad-
versary in nature, but there was no provision for a trial at all --
jury presentments were conclusive in the local courts themselves and
could seldom be traversed in any common law court. As to rationality,
there was resort to the standard of common needs as the juries chose
to define them. It is true that patterns of action developed and
policies took shape, but the abstention of the central government left
the juries free to vote new rules or new punishments without effective

[10]

-10-

limitation. The reason these strange institutions survived so long and had such immense importance for many centuries was not that they were an organized form of adjudication but were rather a clumsy form of direct democracy. Effective powers of decision resided in the jurors, who were a sample chosen at random from the communities themselves. This was the source of their authority; this was the principal reason why the central government and the common law courts left them alone, to pursue the ends that they themselves defined.

The courts of the manors and towns of England were gradually displaced by a very different institution, the justices of the peace. The justices of the peace were clearly magistrates, sitting in courts of criminal law. They exercised royal authority through royal writs and were thus instruments of legitimated power. From their first appearance in the fourteenth century they were drawn from the gentry, the junior aristocracy to whom the central government delegated many other functions of government. They were laymen, of course, and had little guidance from the legal profession. As time went on their powers expanded. They supervised and directed local officials -- the constables, overseers of the poor, the commissioners for highways and sewers. They issued much legislation, effective in their own counties. They were, as Maitland called them, the "rulers of the counties" -- tight little oligarchies, whose enormous and expanding powers derived both from Crown authority and from their wealth and status in their own communities. In their functions as judges in criminal cases -- the central core -- they were tied to a formal procedure, with juries of presentment and trial. But

[L]

-11-

in the tremendous range of their other duties they were increasingly free from control or restraint from any source, least of all from the central government which gave them its benediction.

When one looks across the Channel to France one finds somewhat different phenomena. The displacement of community courts by professional judges, well under way by the fourteenth century, meant a major shift of power and influence in French society. Judicial functions were transferred to professional judges, some of them hired by feudal lords and sitting in seignorial courts, and some appointed by the Crown to exercise royal authority. Their procedure was highly organized on the model of canonist procedure. It was adversary in nature, if one forgets the criminal cases and is willing to describe by the term a procedure that admits a high degree of court control. Decisions purported to conform to rules of custom or Roman law, but in fact there was much free-wheeling and the reasons for decisions in any event were shrouded in utmost secrecy. The combination of adjudication with express legislation was again a standard feature. This was true of the seignorial courts, and a very prominent feature in the highest royal courts, the Parlements. The Parlements issued general rulings (arrets de reglement), were active in administration of their districts as to matters of local police, meddled in general politics and -- we would all agree this was parasitic -- conducted two civil wars against the King.

It might be urged with considerable force that these accretions to the power of the French royal courts and the English justices of the peace resulted from breakdown or failure of other institutions of

[L]

-12-

government. In France the decay of representative legislatures, both
national and local, had left a vacuum that the courts attempted to fill.
In England the vast extension of the powers of the justices of the peace
was only one phase of the shift to government by aristocracy, whose
reverse side was a failure to develop representative local government
as manor and town courts decayed. And yet is this not another way of
saying that organized courts at any particular time and place must be
viewed as part of the whole institutional framework by which society is
organized? If "acceptance" of the product is the purpose, or a measure
of success, these adjudicative agencies succeeded well at the time,
however much later generations were to condemn them. France was to
pay a heavy price for the excessive political pretensions of the
Parlements, whose judges increasingly allied themselves with the high
nobility in resisting needed reforms; modern Frenchmen, in their atti-
tudes toward the judge's role, have been profoundly traumatized by these
ancient excesses. From this there is a lesson to be learned, and no
one now would urge that we revive the French Parlements or the English
eighteenth century justices of the peace. Yet at the time these agencies
were vital parts of the structure of government. The success they
achieved at the time was not because the rationality of their decisions
was exposed to view or because they felt any responsibility to demonstrate
it, but because they borrowed from the main institutions of their
society the aura of authority that surrounded them all. Whatever faith
or trust or sullen acquiescence was inspired by these institutions
tended to invest the adjudicators.

[10]

-13-

Yet I do agree that means, when organized, react on ends and thereby help to shape the scope and limits of adjudication. The problem, in the broadest sense, is to find trust-worthy decision-makers. The need for this form of security -- persons in whom we can place our trust -- is not merely a general social need; we find it also in our private lives. Adjudication is only one form of decision-making and there are so many decisions to be made -- not merely to end strife between particular disputants, but to forestall other strife and to provide standards of conduct that will be in the widest sense acceptable to the largest number of people. In any society, when specialized forms of adjudication have been organized and adjudicators selected for their knowledge, impartiality and training, there appears a tendency to load on them additional tasks. Or through their own self-confidence they may themselves be tempted to take on additional tasks. They may thus be overloaded and in the past, no doubt, they often have. This uses Lon's means-end equation in a sense that works directly opposite to the one he intends. It amounts to saying that having found trust-worthy adjudicators -- impartial, informed and trained -- we should enlarge their functions beyond the limits of what they were appointed for. This impulse, like other thoughtless impulses, should be closely scrutinized. But surely we cannot reach conclusions on these allocations of responsibility without considering the rest of our institutional framework -- for example, feebleness and confusion of our legislatures, the absence of effective alternatives on the great and complex issues of our constitutional law.

[c]

-14-

This leads to my final point, the one I have most trouble
with. I cannot quite seize hold of the concept of "rationality" as used
in Lon's discussion. He starts from the premise that adjudication is
most effective in determining issues presented by (1)/claim of right
by one party on another or (2) a question of responsibility, and the
reason is that "a decision of either of these questions necessarily
implies some standard or principle, though not necessarily one that was
established or articulated before the case came to judgment". The fact
that a standard or principle is impliedly asserted as an incident to
claims by one or both parties does not seem to me to offer any assurance
as to the quality or nature of the reasoning that will be employed by the
adjudicator. Then if it is conceded that the standard or principle
need not have been established or articulated beforehand, the choices
of the adjudicator and the mode by which he will make them are left
at large. He can go beyond extension or qualification of ideas already
contained, expressly or implicitly, in rules already sanctioned. Indeed,
at several points in his later discussion Lon makes it clear that the
essential quality of rationality, and general faith in its presence,
can be preserved when resort is entirely outside the rules already
sanctioned to the shared purposes or common ends of the community. I
think we will all agree that there is constant need to resort to shared
purposes and common ends, even in processes that can be called elaboration
of rules already accepted. But I am unclear how much the scope of
adjudication is restricted or its rationality guaranteed when the
adjudicator is free to appeal to common ends without other restriction.

[10]

-15-

Of course, it is possible to reason about ends or to employ them in reasoning processes. But there is an enormous range of common ends, ends of small or large groups, some ends much more common than others, of widely varying levels of generality, many sharply conflicting. Except to the limited extent that effective choices are made among them through legislatures or other agencies for group decision, common ends do not supply a system of order, certainly not a pre-arranged system of order.

It seems to me that there could be a difference here between arbitrators and other forms of adjudicators. Are not the ends of the parties who choose the arbitrator more readily ascertainable and more narrowly conceived than with judges acting with state authority, having continuity of tenure and a responsibility to society at large? Without attempting to develop that theme let me merely add that with state-appointed judges continuity of tenure makes the published statements of reasons -- the judicial opinion -- an effective device for achieving order. It opens, at least to those judges whose opinions are reported, what Hart and Sacks call the method of reasoned elaboration. It seems to me that the inquiry that is chiefly relevant is whether the area of experience in which the particular dispute is imbedded is one that is reducible to order by the means the particular kind of adjudicator possesses. It seems that the area assigned to the FCC, at least in the manner in which it was assigned, was not thus reducible. The constitutional issues assigned to the Supreme Court have been immensely important, have involved far more difficult choices among common ends,

but on the whole they have been proved to be reducible to order. Having
the means, finding no other agency of government capable of making these
great decisions, the Supreme Court did not forfeit its moral authority
by manufacturing so vast an amount of constitutional law. It would
have forfeited its moral authority if it had not.

LEGAL PHILOSOPHY DISCUSSION GROUP

At our last gathering it was indicated that we would next
meet to discuss the usefulness and limitations of adjudication
in the conflict of nations; Louis Sohn in the Chair, Messrs.
Baxter, Bowie and Katz as planted hecklers.

The meeting was tentatively planned for Tuesday, April 22,
but appropriately enough Louis has to attend the annual dinner
of United World Federalists, so speculation must give way to
political action. However, our meeting will be held on the
Wednesday, April 23rd, again at the Signet; 6:15 cocktails,
7:00 dinner.

Please indicate your intentions below.

CLARK-SOHN-Book Peace-2528
A. ODEY

should as a general rule be re-
ferred by the parties to the Inter-
national Court of Justice in ac-
cordance with the provisions of the
Statute of the Court.

that the continuance of any dis-
pute or situation is likely to en-
danger the maintenance of inter-
national peace and security and
that the dispute or situation in-
volves questions which can be sat-
isfactorily decided upon the basis
of applicable legal principles, the
Assembly or Council may direct
that these legal questions be sub-
mitted to the International Court
of Justice for final determination. If
the nations which are parties to the
dispute or are concerned in the
situation fail, within two months
after the direction by the Assembly
or the Council, to agree on the sub-
mission to the Court of such legal
questions, any nation which is a
party to the dispute or is concerned
in the situation may bring the ques-
tions before the Court by written
application. The Court shall have
authority to pronounce final judg-
ment in accordance with the provi-
sions of the Statute of the Court
on the legal questions submitted
to it under this paragraph. If any
nation fails to comply with a judg-
ment of the Court, the provisions
of Article 94 concerning the en-
forcement of judgments of the
Court shall apply.

4. In case the General Assembly
or the Executive Council, if acting
in the matter pursuant to authority
from the Assembly, decides that
the continuance of any dispute or
situation is likely to endanger the
maintenance of international peace
and security and that the dispute
or situation involves questions
which cannot be satisfactorily de-

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[Lc]

CLARK-SOHN-Book Peace-2528

A. ODEY

[lc]

cided upon the basis of applicable legal principles, the Assembly or the Council may refer such non-legal questions to the World Conciliation Board. The Board shall thereupon, in accordance with the provisions of its Statute contained in Part C of Annex III, conduct such investigations as it may deem necessary and shall endeavor to bring the nations concerned to an agreement.

5. If no agreement is reached within six months from the date on which such nonlegal questions were referred to the World Conciliation Board pursuant to the foregoing paragraph 4, or within such extension of that period as the nations concerned assent to, the Board shall notify the General Assembly of this fact.

6. Thereupon the General Assembly may, by a three-fifths majority vote of all the Representatives then in office, whether or not present or voting, refer such non-legal questions to the World Equity Tribunal; provided that if any important legal questions involved in the dispute or situation have been referred to the International Court of Justice, the nonlegal questions shall not be referred to the Tribunal until the legal questions have been decided by the Court.

7. Alternatively the General Assembly may, by a three-fifths majority vote of all the Representatives then in office, whether or not present or voting, refer such non-

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[L.C.]

legal questions directly to the
World Equity Tribunal without
first referring them to the World
Conciliation Board; provided that
if any important legal questions in-
volved in the dispute or situation
have been referred to the Interna-
tional Court of Justice, the nonle-
gal questions shall not be referred
to the Tribunal until the legal ques-
tions have been decided by the
Court.

8. When questions have been referred to the World Equity Tribunal under either paragraph 6 or paragraph 7 of this Article, the Tribunal shall, in accordance with its Statute contained in Part B of Annex III, conduct public hearings and make such investigations as it may deem necessary, and shall submit to the General Assembly such recommendations as the Tribunal may deem reasonable, just and fair for the solution of the questions referred to it.

9. The General Assembly shall promptly consider any such recommendations of the World Equity Tribunal and shall vote upon them in their entirety. If the Assembly, by a four-fifths majority vote of all the Representatives then in office, including a three-fourths majority of the Representatives then in office from the member Nations entitled to thirty Representatives in the Assembly and a three-fourths majority of the Representatives then in office from the member Nations entitled to sixteen Representatives in the Assembly, approves the recom-

94

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mendations of the Tribunal in their entirety and declares that the dispute or situation is likely to continue unless the recommendations are carried out and that such continuance is in fact likely to endanger peace, the Assembly shall call upon the nations concerned to comply with the recommendations so approved. If any nation fails to comply with any recommendation of the Tribunal so approved by the Assembly, the provisions of Article 94 concerning the enforcement of approved recommendations of the Tribunal shall apply.

10. If the recommendations of the World Equity Tribunal are not approved in their entirety by the General Assembly by the special majority required by the preceding paragraph, the Assembly may refer the questions involved back to the Tribunal for further consideration; or the Assembly may itself make such recommendations in the light of the recommendations of the Tribunal as it shall consider appropriate; or the Assembly may propose to the nations concerned some other procedure for the settlement of the dispute or adjustment of the situation.

**Comment.** As already noted in the General Comment on this Chapter VI, it is fundamental to domestic order that individuals shall be required to use some means other than violence for the settlement of all their disputes. And since the time has come when the world can no longer neglect the application of this simple principle to international controversies, the purpose of Chapter VI, as revised, is to create a comprehensive and flexible system for "pacific settlement" in order to provide fully adequate alternative means to deal fairly and peacefully with any international controversy.

In harmony with this purpose, revised Article 33 would bind all the nations (including any nonmember nations) to seek the settlement of all controversies

95

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CLARK-SOHN-Book Peace-2528

A. OBEY

"which might lead to international friction or give rise to a dispute" by "peaceful means of their own choice". Revised Article 33 would also authorize the General Assembly (or the Executive Council "if authorized by the Assembly") to "call upon" the nations concerned to employ "such means". Revised Article 34 would empower the Assembly (or Executive Council) to investigate any "dispute", or troublesome "situation", while revised Article 35 would authorize any nation to bring any "dispute" or any such "situation" to the attention of the Assembly (or of the Council).

The function of this revised Article 36 is to supplement these obligations to seek solutions through means chosen by the nations themselves by providing procedures whereby in serious controversies which are "likely to endanger" peace, the nations concerned, if unable to agree on peaceful methods "of their own choice", can be required to settle their controversies without violence.

This is done: (a) by requiring all nations to submit to the International Court of Justice for final decision all legal issues involved in dangerous disputes or situations; and (b) by authorizing the General Assembly (or Executive Council under authority of the Assembly) to refer any dangerous non-legal dispute or situation to either or both of the two proposed new organs for "pacific settlement", namely the World Conciliation Board and the World Equity Tribunal.

By reason of these new compulsory procedures, revised Article 36 is of prime importance; and the circumstances in which these procedures would apply require careful explanation.

As above indicated, revised Article 36 takes into account that international controversies fall into two main categories which should be dealt with in different ways, namely: (a) controversies wholly or partly dependent upon legal questions, i.e., questions which are susceptible of decision upon accepted legal principles; and (b) controversies which are wholly or largely dependent upon nonlegal considerations.

The first category includes controversies which depend solely upon legal questions and also controversies which, while not wholly dependent upon legal questions, involve one or more legal questions the final adjudication of which would facilitate the settlement of the controversy. For example, there may be an international dispute which depends entirely upon the interpretation of a treaty and involves nothing more than a strictly legal issue. Or there may be a controversy in which, although the authoritative interpretation of a treaty would not settle the whole dispute, such interpretation would narrow the issues and open the way to a settlement. (The legal questions, still unsettled at the end of 1957, as to rights of access to the Gulf of Aqaba furnish a good example; and one may also note that, in the dispute between France and the United Kingdom concerning the nationality decrees in Tunis and Morocco in 1923, an agreed settlement was reached following an advisory opinion by the Permanent Court of International Justice on a jurisdictional legal issue.)

Even if the adjudication of the legal questions in a particular "dispute" or "situation" did not settle the entire controversy, a final decision of these questions might well lead to a full settlement by negotiation; and that settlement might be all-important to the maintenance of peace. Accordingly, paragraph 3 of this revised Article provides that where in any international

96

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"dispute" or "situation" questions capable of determination on legal principles are involved, the General Assembly (or the Executive Council, if so authorized by the Assembly) may "direct" that such legal questions "be submitted" to the International Court of Justice "for final determination", provided that in the opinion of the Assembly (or Council) "the continuance" of the dispute or situation is "likely to endanger" the maintenance of peace.

It is sometimes forgotten that, under the present Charter and Statute of the International Court of Justice, there is no compulsory jurisdiction whatever. Accordingly, no matter how clearly a dispute endangers the peace of the world and no matter how plainly it is susceptible of decision upon purely legal principles, no provision of the present Charter or Statute of the International Court obliges the parties to submit to a judicial determination. In so far as such jurisdiction exists, it is solely by virtue of declarations made under the so-called "optional clause" of the Statute of the International Court or by special treaties. And although as of July 1, 1957, thirty-three nations had accepted compulsory jurisdiction under the optional clause, these acceptances were often subject to such weakening reservations that there is in practice no assurance that even the most dangerous international legal dispute between these nations can in fact be judicially determined.

It should be emphasized, therefore, that the proposed power to "direct" the judicial determination of "legal questions" in cases where, in the opinion of the General Assembly (or Executive Council), the dispute endangers the peace of the world, would constitute a new departure in that all nations would be obligated to submit such legal questions without reservation to final and binding decision by the International Court of Justice.

In respect of the enforcement of judgments of the International Court of Justice, the last sentence of paragraph 3 prescribes that Article 94 shall apply. This means not only that diplomatic and economic sanctions would be available (under revised Article 41) but also, in the last resort, military sanctions through the United Nations Peace Force (under revised Article 42).

It is obvious that the proposed authority to direct the submission of legal questions for final adjudication by the International Court of Justice, together with the provisions for the enforcement of the Court's judgments, would definitely establish the principle of compulsory jurisdiction in respect of all legal issues substantially affecting international peace, and would constitute a great step forward in the acceptance of the rule of law between nations.

It may be noted that this authority to direct the submission of legal questions to the International Court of Justice is supplemented by the further authority of the General Assembly (or the Executive Council), pursuant to Article 96, to refer the legal questions involved in a dispute or situation to the Court for an advisory opinion whenever the disputing nations refuse to submit their case directly to the Court.

Of at least equal importance with the proposals for the enlarged jurisdiction of the International Court of Justice are the new paragraphs 4-10 of revised Article 36, providing for the reference to the World Conciliation Board or the World Equity Tribunal of dangerous international disputes or situations which are primarily not of a legal nature.

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The proposed methods, under paragraphs 4-10, for dealing with these nonlegal disputes and situations take account of the fact that they vary greatly in character and need to be handled in diverse ways. With regard to these paragraphs, it should be stressed that the procedures therein provided for are in no way intended as a substitute for the voluntary settlement of non-legal controversies, but only as alternative methods in case the nations concerned cannot agree on some procedure to achieve a settlement or, having agreed on a procedure, nevertheless fail to reach a settlement.

Thus revised Article 33 envisages various voluntary methods which might be agreed upon by the disputants themselves among which are "negotiation", "enquiry", "mediation", "conciliation", "arbitration", "judicial settlement", and "resort to regional agencies or arrangements". Moreover, the General Assembly (or Executive Council) would continue to have ample power to "recommend" such methods and to "call upon" the nations concerned to use any or all of them (revised Article 33, paragraph 2, and revised Article 36, paragraphs 1 and 2). Accordingly, the proposed power under paragraphs 4-10, whereby disputes or situations "likely to endanger" peace could be referred to the World Conciliation Board or the World Equity Tribunal without regard to the consent of the parties is not to be understood as discouraging the use of voluntary methods. Rather, this power is an all-important alternative in cases where the nations concerned either fail to employ any agreed upon procedure at all, or where such a procedure has been tried but has failed to produce a solution.

In respect of nonlegal questions involving world peace, it is of no less vital consequence than in respect of legal questions which endanger peace that the United Nations shall not be helpless to require their final settlement. And to this end there must be well-defined peaceful procedures which the nations concerned can be required to employ just as under paragraph 3 they could be required to submit legal questions of the same consequence to the International Court of Justice.

With these considerations in mind, paragraph 4 would authorize the General Assembly (or the Executive Council) to refer to the World Conciliation Board any dispute or situation, even over the opposition of the nations concerned, provided that the Assembly (or the Council) had first determined: (a) that the continuance of that particular dispute or situation "is likely to endanger the maintenance of international peace and security"; and (b) that the dispute or situation "involves questions which cannot be satisfactorily decided upon the basis of applicable legal principles".

The World Conciliation Board would then be required to make "such investigations as it may deem necessary" and to "endeavor to bring the nations concerned to an agreement." If those nations should reach a mutually acceptable solution, the Board would inform the General Assembly (or the Executive Council) of its terms and declare the matter closed. If, however, the Board should not succeed in bringing about an agreement within six months, the Board would so notify the Assembly. The Assembly might then decide that no further action need be taken,—for example if the controversy had in the meantime lost its dangerous character. But if the "dispute" or

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"situation" continued to be "likely to endanger" peace, in the Assembly's opinion, the Assembly could and presumably would refer the controversy to the World Equity Tribunal by the three-fifths vote required by paragraph 6.

In contrast to the World Conciliation Board, which would be strictly confined to efforts to bring the parties to a voluntary agreement, the World Equity Tribunal would have authority itself to recommend a solution; and that solution, if approved in its entirety by the General Assembly by the preponderant special majority required by paragraph 9, would become enforceable under revised Article 94 through precisely the same diplomatic, economic and military sanctions available for the enforcement of judgments of the International Court.

The proposal should here be noted (paragraphs 8 and 9) that, in order to avoid conflicts of jurisdiction between the World Equity Tribunal and the International Court of Justice, the Tribunal would be empowered to deal with the nonlegal questions involved in any dispute or situation referred to it only after the legal questions therein involved had been decided by the Court. In this way simultaneous consideration by the Court and the Tribunal of the same dispute or situation would be carefully avoided.

On the other hand, there seems to be no objection to the simultaneous consideration of different aspects of a dispute or situation by the International Court and the World Conciliation Board, since a settlement or adjustment by agreement arrived at with the assistance of the Board would make it unnecessary for the Court to render a judgment in the case. As between private litigants, there is no reason why negotiation and mediation should not proceed simultaneously with the trial of the case; and if an agreed settlement is reached before the court decides the issues, it is often to the best interests of all concerned. Similar considerations apply to international controversies, and would make it unwise to forbid mediation or conciliation merely because the Court has the case under consideration.

The practical application of the alternative procedures provided for in paragraphs 4-10 can best be envisaged in relation to some of the more urgent international problems which actually threatened world peace in 1957 or may do so unless taken in hand.

A list of such problems, made late in 1957 and by no means complete, would include: the division of Korea and of Vietnam, where large opposing armies stand on guard; the problem of Formosa (Taiwan) and of Quemoy and Matsu; the Kashmir problem; the question of assured access to the oil of the Middle East; the problem of international control of vital passages between seas and oceans, such as the Turkish Straits, Suez and Panama; the problem of fair apportionment of the water of various international rivers; the question of an international regime for Antarctica; the struggle for independence in Algeria; the division of Germany; the question of Soviet domination of nations in Eastern Europe; the problem of the repression in South Africa of the nonwhite majority by the white minority; and the acute Israeli-Arab hostility.

It may well be that a peaceful solution of some of these problems can only be expected when the disarmament plan, which is so vital a feature of these

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proposals, is completed or is well under way. For example, it is hardly to be supposed that any Soviet government would think it safe while the arms race continues to relinquish its position in East Germany, Poland, Czechoslovakia, Romania and Bulgaria. And until national armaments are well on their way to abolition, it is hard to see how Korea or Vietnam can be reunited, or how Communist China and Nationalist China can be reconciled.

On the other hand, certain other problems could be adequately dealt with under revised Article 36 soon after the adoption of the revised Charter and without waiting for disarmament. One of these would be the Israeli-Arab problem; and it will illustrate the application of revised Article 36, especially the procedure for referring a complex and hard controversy to the World Equity Tribunal, to consider how a nonviolent and permanent settlement of that long-standing problem could be achieved.

Let us assume that the revised Charter has been in force for some years and that while disarmament is by no means complete, the new institutions which would function under revised Article 36 are well-established, i.e., the General Assembly on its new basis, the new Executive Council, the strengthened International Court of Justice, the World Conciliation Board and the World Equity Tribunal. Let us also assume that the United Nations Peace Force has been organized to the point that it has sufficient strength to police all the borders between Israel and its neighbors.

Let us further assume that the hostility between Israel and certain Arab states continues to be so acute that it would be futile to urge direct negotiations between them, and even futile to invoke the good offices of the World Conciliation Board.

In these circumstances, the normal remedy would be to refer the entire "situation" to the World Equity Tribunal by the three-fifths vote of the General Assembly required by paragraph 4. This vote would be upon the ground that the continuance of the situation would be "likely to endanger" International peace, as would certainly be the case. Simultaneously the Assembly might well order the United Nations Peace Force to patrol all the borders between the hostile nations pending the recommendations of the Tribunal and action of the Assembly thereon.

The World Equity Tribunal, acting under paragraph 8, would then hold hearings, conduct its own investigation and review all aspects of the situation, —subject to the proviso that if any legal questions had been referred to the International Court of Justice, the Tribunal would suspend its proceedings until the Court's decision was rendered.

The World Equity Tribunal's function would be, after full inquiry and fair hearing of all sides, to recommend a comprehensive solution on the basis of what is "reasonable, just and fair" to all the nations concerned. Accordingly, the Tribunal could and would consider the problem of the resettlement of the Arab refugees, the problem of the use of Jordan River water, the problem of access to the Gulf of Aqaba and of Israel's rights of transit through the Suez Canal in the light of any decision by the International Court, and the whole question of workable boundaries as between Israel and all its neighbors.

The World Equity Tribunal would then present to the General Assembly

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a comprehensive set of recommendations for a "solution" on the basis of what is "reasonable, just and fair".

At this point, Israel and all the other nations concerned would have the opportunity to accept the recommended solution, in which event the matter would be deemed closed. Failing such acceptance, however, the General Assembly would consider the World Equity Tribunal's report and could act on that report in several ways: (1) The Assembly could vote a nonacceptance of the report, in which case the situation could, at the Assembly's option, be returned to the Tribunal for further consideration (paragraph 10). (2) The Assembly could accept the report, in whole or with modifications, but by no more than the normal majority required on important questions (i.e., by a majority of all the Representatives), in which case the proposed solution, as so approved by the Assembly, would go to the nations concerned as a recommendation only, although necessarily a powerful one. (3) Or finally, the Assembly could approve the solution recommended by the Tribunal "in its entirety" by the preponderant majority of four fifths of all the Representatives, including three fourths of the Representatives from the largest nations, in which event that solution would become enforceable by all the available sanctions.

If, as could normally be expected, the General Assembly did approve the World Equity Tribunal's report even by no more than the ordinary majority of all the Representatives, it could be expected that the moral effect would be such as to bring about voluntary acceptance. And in case the approval were by the very large preponderant majority which would automatically authorize the use of sanctions against any noncomplying nation, the pressure, for voluntary acceptance would be almost irresistible.

While, therefore, it would be important to have the possibility of sanctions in reserve, it is reasonable to expect that Israel and all other nations concerned would voluntarily comply with the World Equity Tribunal's proposed solution either at the point when the Tribunal's report was made, or at the later stage of its approval by the General Assembly.

In this way, there is every reasonable prospect that even so complex and embittered a situation as the Israeli-Arab problem could and would be peacefully adjusted,—through the use of machinery which is lacking under the present Charter.

What applies to the Israeli-Arab problem applies also to various other disputes and situations in the world "likely to endanger" peace. Some of them would be easier of solution than the Israeli-Arab conflict because less bitter and prolonged; while some would be still more difficult of solution and could, indeed, yield to the procedures of revised Article 36 only when national disarmament is well under way and the fears and tensions engendered by the arms race have subsided.

In the supposed Israeli-Arab case, it is assumed that no "domestic jurisdiction" question would be involved. But in several other of the existing dangerous situations, matters would certainly be involved in which, under the present Charter (Article 2, paragraph 7), the United Nations would not be

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clearly authorized to intervene, no matter how serious they became. For example, in the Algerian problem and that of racial repression in South Africa, it would probably be a valid objection under the present Charter that these situations are no concern of the United Nations. This objection could be made no matter what world-wide emotions were stirred or how much world peace was actually endangered, so long as the actual events causing the disturbance were confined to the territory of Algeria or of the Union of South Africa.

It is to meet this difficulty that the amendment of Article 2, paragraph 7, is proposed whereby it is expressly provided that the principle of nonintervention by the United Nations in matters of "domestic jurisdiction" shall not prejudice the employment of the procedures for pacific settlement under revised Article 36 when the General Assembly has decided that the situation, even though ordinarily "domestic", has so developed that it is in fact endangering world peace.

Thus, the impotence of the United Nations in such "domestic jurisdiction" matters would be abolished, although only in exceptional circumstances and subject to the most careful safeguards. Through the modification of Article 2, paragraph 7, together with revised Article 36, it would be established, in effect, that a situation, which would be "domestic" if it did not affect world peace, ceases to be such when its effect is actually to create danger of international violence.

In summary: The new system provided by this revised Article 36 for the pacific settlement of disputes and situations which are "likely to endanger" peace embodies three main concepts: First, there should be such comprehensive and flexible world machinery for peaceful settlements on the basis of fair hearing, law and equity that no nation could any longer have even a plausible reason to plead the lack of such machinery as an excuse for violence; and this machinery should include mediation, the compulsory adjudication of legal issues and authoritative recommendations on nonlegal questions. Second, when a particular international controversy has been judged dangerous to peace by a vote of the world's representative body (the revised General Assembly), there should be workable practical means (through the enforcement of judgments of the International Court of Justice and of solutions proposed by the World Equity Tribunal, when overwhelmingly approved by the Assembly) to deal effectively with threatening situations before they erupt into international violence. Third, while the United Nations would have no power to deal with troubles within a nation, no matter how hideous, unless those troubles clearly endanger world peace, there should be no "domestic jurisdiction" dogma so rigid as to prevent United Nations intervention as a last resort if and when the peace of the world is plainly involved.

The rationale of these proposals is that the world can no longer afford to be without adequate institutions not only to suppress international violence after it occurs, but also, so far as reasonably possible, to prevent it from occurring. The provisions of this revised Article 36 (together with interrelated provisions of other Articles and Annexes) have this sole purpose in view. They would, it is believed, be effective to achieve that purpose.

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Legal Philosophy Discussion Group

LEGAL AND POLITICAL DISPUTES

H. Kelsen, The Law of the United Nations (1950), pp.477-83.

The Charter does not obligate the Members to submit legal disputes to a tribunal. It expresses only a wish that legal disputes be submitted to the International Court of Justice. Neither the Member nor the Security Council is bound to comply with this wish. If it deems it advisable, the latter may recommend that the parties settle a legal dispute by means other than those of arbitration or judicial settlement. It may even recommend that the parties submit a legal dispute to a permanent court other than the International Court of Justice in case such other court has been established by the parties. And if this court -- according to its statute -- has compulsory jurisdiction the parties may not be allowed to submit their dispute to another tribunal. But it is doubtful whether the Security Council has to respect such obligation.

According to Article 36, paragraph 1, of the Statute, "the jurisdiction of the Court comprises all cases which the parties refer to it." That means that the parties may bring before the Court any dispute whatever. In so doing the parties make the dispute a legal dispute. According to the usual terminology "legal" disputes are distinguished from non-legal, i.e., "political" disputes. The legal or non-legal, that is political, character of a dispute does not depend on its substance, i.e., the subject matter with respect to which the parties are in conflict, but on the norms which are to be applied to it. The dispute is legal if it is to be decided according to the norms of positive law; it is non-legal, i.e., political, if it is to be decided according to other norms, especially according to the principles of justice or equity. Whether legal or other norms are to be applied to a dispute depends on the parties, or on the authority competent to decide the dispute. Any dispute consists in that one party claims a certain conduct of the other party and the other party refuses to comply with this claim. If one party justifies its claim or its rejection of the other party's claim by referring to positive law, the dispute is -- from the point of view of this party -- a legal dispute. If a party justifies its claim or its rejection of the other party's claim by referring not to norms of positive law but to other norms, such as justice or equity, the dispute is -- from the point of view of this party -- a political dispute. If the parties submit their dispute to an agency for settlement the dispute is a legal dispute if this agency is authorised to settle it by applying to it the rules of positive law; otherwise it is a political dispute. But if the agency concerned is authorised by a norm of international law, especially by an international agreement to decide a dispute according to principles of justice or equity and the like, these principles, delegated by international law, assume the character of international law in being applied by the agency. Its decision, binding upon the parties, has legal character. The agency -- if independent: a tribunal -- creates law for the concrete case. Hence the difference between so-called "legal" and so-called "political" disputes is only a difference between two kinds of legal disputes: disputes

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to be settled in accordance with pre-existent law, that is the law as it exists at the time the dispute arises, and disputes to be settled in accordance with the law to be created by the competent authority for the settlement of the dispute. The latter way may be chosen when the pre-existent law is considered to be not satisfactory.

That the existing law is considered by one or the other party, or even by both parties to the dispute, as unsatisfactory, does not mean that the dispute cannot be settled in accordance with this law. It is always possible to settle a dispute under the law as it actually exists at the time the dispute arises. For it is always possible to answer the question as to whether the claim of one party is justified and, consequently the rejection of this claim by the other party is unjustified under the existing law, or vice versa. In other terms: it is always possible to decide, in applying the existing law, which of the two parties is right and which is wrong. For there are always only two possibilities: either there exists a norm of existing law imposing upon one party the obligation to behave in the way claimed by the other party; then the latter is right and the former is wrong. Or there exists no such norm; then the one which rejects the claim is right and the one which makes the claim is wrong. A third possibility is logically excluded. If the fact that a dispute can be decided under existing law is expressed by the statement that the dispute is "justiciable," then all disputes are justiciable. However, though it is always logically possible to settle a dispute under existing law, it may not always be politically desirable to do so. Existing law as applied to a dispute may be, from one or the other point of view, unsatisfactory. Then one or the other party, or both, may wish to have the dispute settled -- not by application of existing law and, if courts are authorised only to apply existing law, not by a court, but by another agency. Such disputes are called political, not "legal" disputes.

If it is correct that a dispute is legal if it is to be settled according to existing law, any attempt to define the concept of "legal dispute" in contradistinction to that of "political dispute" by referring to the subject matter of the dispute must fail. This is true even with respect to the definition of legal disputes as "disputes with regard to which the parties are in conflict as to their respective rights . . . ", the well-known formula of the Locarno Treaties. As a definition of legal disputes this formula is of problematical value because it is not clear enough whether "right" means right in the sense of positive law and whether both parties must justify their claim or counter-claim by referring to their "right" under positive law, or whether it suffices that only one party does so whereas the other party may refer to a "natural" right and the like; and finally, because a dispute concerns in the first place not the rights, but the obligations of the parties; and the obligations as well as the corresponding rights are established by norms of positive law, so that the dispute, if it is a legal dispute, refers, in the last analysis, to the question whether

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a norm of existing law establishes the disputed obligation and, only secondarily, also the corresponding right.

Whereas the Charter (in the narrower sense of the term) uses the term "legal disputes" (in Article 36, paragraph 3) without defining this concept, the Statute contains a provision which, although it is not exactly a definition, tries to specify it. Article 36 of the Statute after stipulating in paragraph 1 that the jurisdiction of the Court comprises "all cases which the parties refer to it" -- which means: refer to it by agreement -- provides in paragraph 2:

"The states parties to the present Statute may at any time declare that they recognise as compulsory *ipso facto* and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

(a) the interpretation of a treaty;

(b) any question of international law;

(c) the existence of any fact which, if established, would constitute a breach of an international obligation;

(d) the nature or extent of the reparation to be made for the breach of an international obligation."

The declaration by which the "compulsory" jurisdiction of the Court is to be recognised in conformity with this paragraph shall be discussed later. In this connection only the concept of legal disputes as specified by the enumeration in clauses (a) to (d) is of interest. . . .

If the legal character of the dispute and hence the jurisdiction of the Court is disputed, paragraph 6 of Article 36 applies:

"In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court."

But how shall the Court decide the question as to whether the dispute is, as paragraph 2 requires, a "legal" dispute? Which criterion shall the Court choose? It is, of course, within the power of the Court to choose any criterion whatever. The Court may declare any dispute to be a legal dispute. Then paragraph 2, in connection with paragraph 6, of Article 36, is to be interpreted to mean that legal disputes are disputes which by the party referring the dispute to the Court and by the Court are deemed to be suitable for being decided according to existing law. But the Court may also declare a dispute to be a legal dispute only if both parties justify their claims and counterclaims by referring to positive international law. Then each party, in spite of having made the declaration referred to in Article 36, paragraph 2, and in spite of the fact that the dispute concerns one of the subjects enumerated in clauses (a) to (d), may withdraw such dispute from the jurisdiction of the Court by justifying its claim or rejection of the other party's claim not by positive law, but by other norms, that is to say, by declaring the dispute to be a political one. . . .

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In order to avoid any doubt as to when the Court has to consider a dispute as concerning a question of international law and hence as a "legal" dispute, it would have been advisable to formulate instead of "disputes concerning any question of international law": disputes in which at least one party refers to international law. Any dispute between states concerns a question of international law if the dispute is to be settled according to international law and hence can be settled by a decision of the Court. A dispute concerns a question of international law only for one party if this party, not the other, refers to international law. Hence the essential point is whether a dispute which concerns a question of international law for one party, or only a dispute which concerns a question of international law for both parties, is within the jurisdiction of the Court under Article 36, paragraph 2. Only if the Court has jurisdiction in all disputes which for one party concern a question of international law, and that means in all disputes in which one party, and not necessarily also the other, refers to international law, the other party is not in a position to exclude the jurisdiction of the Court by refusing international law to be applied to the dispute and thus depriving the dispute of its legal character. That a party to a dispute refers to international law is implied in the fact that it refers the dispute to the Court which has to apply international law to it. Hence the declaration referred to in Article 36, paragraph 2, would have best achieved its purpose if formulated: the states declare that they recognise the jurisdiction of the Court . . . in all disputes in which one party refers the dispute to the Court.

INTERNATIONAL DISPUTES

J.L. Brierly, The Law of Nations (5th ed., 1955), pp. 273-92.

DISCUSSION of the problem of settling inter-national disputes has been confused by the unfortunate practice of using the word 'arbitration' as though it meant nothing more than the peaceful settlement of a dispute. Actually arbitration is a definite legal process, and only one among several methods of peaceful settlement; it is not the only alternative to war. The loose usage of the word is more than a mere matter of terminology; it leads to loose thinking about the problem, for controversy passes unconsciously from one meaning of the word to the other, and gives a false impression of simplicity to what is really a most complicated question of international relations.

The problem of effecting the peaceful settlement of a dispute either between two individuals or between two states admits of two alternative methods of approach; we may either induce the disputing parties to accept terms of settlement which are dictated to them by some third party, or we may persuade them to come together and agree on terms of settlement for themselves. In the international field the former of these methods takes the form either of arbitration

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or of judicial settlement, the latter either of good offices, or mediation, or conciliation.

§ 2. Arbitration and Judicial Settlement

These two procedures are closely allied; indeed the former is only a species of the latter, for an arbitrator is a judge, although he differs from the judge of a standing court of justice in being chosen by the parties, and in the fact that his judicial functions end when he has decided the particular case for which he was appointed.¹ The distinction is important, because a standing court is able to build up a judicial tradition and so to develop the law from case to case; it is, therefore, not only a means of settling disputes, but to some extent a means of preventing them from arising. But so far as the parties are concerned, they are as likely to get a satisfactory decision from a court of arbitration as from a court of justice, and there may even be special circumstances which make the former a preferable tribunal; for example, some special technical skill in the members of the court may be more important than a profound knowledge of law. Arbitrators and judges are alike bound to decide according to rules of law; neither possess a discretionary power to disregard the law and to decide according to their own ideas of what is fair and just. No doubt the parties, if they choose, may confer such a power

¹ Cf. the provisions of Art. 37 of Hague Convention I of 1907: 'International arbitration has for its object the settlement of disputes between States by Judges of their own choice and on the basis of respect for law. Recourse to arbitration implies an engagement to submit in good faith to the award.'

INTERNATIONAL DISPUTES

on an arbitrator, or they may agree on special rules
which he is to apply to the exclusion of the ordinary
rules of law, but they may also confer a special power
of this kind on a judge, as is expressly provided in
Article 98 of the Statute of the International Court of
Justice. It should be added, however, that this purely
judicial character of an arbitrator's function is not
always recognized; the Continental view of it has
been less strict than our own, and arbitrators have
sometimes claimed and exercised a discretionary
power to give what they regard as a just, rather than
a strictly legal, decision. In practice also, courts of
arbitration have not always in the past given the
reasons on which their decisions were based, so that
it is impossible to be sure what view they may have
taken of their function.

Arbitration was a fairly frequent method of settling
international disputes in medieval times, but with the
rise of the modern state system it fell into disuse until
its revival in the nineteenth century, largely through
the example of Great Britain and the United States
in submitting the Alabama Claims to arbitration in
1871. Many different ways of constituting the court
have been used; sometimes the head of some foreign
state has been appointed, and the award is given in
his name, though he is not expected to act personally;
sometimes the arbitrators have consisted of represen-
tatives of the disputing states, with or without the
addition of other members. In the present century
a very large number of standing arbitration treaties
have been entered into, the earliest being one between

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INTERNATIONAL DISPUTES

Great Britain and France in 1903, which provided that 'differences of a legal nature or relating to the interpretation of treaties' were to be referred to the Hague Permanent Court of Arbitration, provided 'they do not affect the vital interests, the independence, or the honour of the two states, and do not concern the interests of third parties'. In each case a special agreement had to be concluded defining the matter in dispute and the scope of the arbitrator's power. This model was largely followed, but when the United States has made such a treaty, the Senate has insisted on treating the special agreement as a treaty, thus refusing to give a general consent to arbitrate differences, and making its own special consent a necessary condition of each proposed reference.¹

It is clear that the 'vital interests' clause in these treaties seriously weakened their practical force, for in effect it left the parties free to refuse to arbitrate whenever they thought fit. But this clause only gave a rather crude expression to the fact, not always sufficiently realized by its advocates, that arbitration is not, and cannot be made, a suitable method for settling disputes of every kind. On the whole, however, such value as the treaties had lay rather in expressing the general sentiment of most states in favour of peaceful settlement than in any practical influence on events, for it is improbable that any dispute has ever been arbitrated in virtue of one of these treaties which would not have been arbitrated in any event. A more useful side of the modern movement for

¹ Cf. Cory, *Compulsory Arbitration*, p. 53.

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478 INTERNATIONAL DISPUTES

decide some question which was not submitted to it,
or by not applying the rules of decision agreed to by
the parties, it follows that the award is a nullity
without binding force. It is, in fact, not an award at
all. Unfortunately if, after the award has been given,
one of the parties should allege that it is null and void
on this ground, for *exces de pouvoir* as it is commonly
expressed, international law does not yet provide any
means of determining whether the allegation is or is
not well founded. Occasionally the departure from
the terms of the *compromis* has been so evident that the
parties have agreed to regard the award as null,¹ and
sometimes they have agreed to refer the question of
nullity itself to a further arbitration.² But in default
of such an agreement there is a deadlock; there is a
gap in the law, or rather in the machinery for apply-
ing the law. Fortunately it is not easy for a state to
reject an award on the ground of nullity, and so long
as arbitration remains a voluntary procedure states
count the cost of a possibly adverse decision before
they submit to it. Instances of the repudiation of
awards on grounds of nullity have therefore not been
very common. A remedy might be provided by con-
ferring on the International Court of Justice an
appellate jurisdiction in such cases, but though this
has often been suggested it has not yet been done.

The Permanent Court of International Justice was

¹ e.g. the award of the King of Holland in the *Maine Boundary* dispute between Britain and the United States in 1891.

² e.g. in the *Orinoco Steamship Co.* case between the United States and Venezuela (*Scott's Hagus Court Reports*, p. 226).

INTERNATIONAL DISPUTES 279

created by a treaty, generally called the 'Statute' of
the Court, in 1921. Under the Charter of the United
Nations it is now replaced by the International Court
of Justice, but the Statute of the new Court, which
forms part of the Charter, is identical with that of the
old, except for a very few and not very important
changes. The judges are appointed by the following
procedure: Each of the national groups of members
of the Permanent Court of Arbitration nominates
not more than four persons, who must be qualified in
their own country for the highest judicial office or be
juris-consults of recognized capacity in international
law, and not more than two of whom may be fellow
nationals of their nominators, as candidates for ap-
pointment as judges. Apparently the object of this
step in the procedure is to reduce the likelihood of
political influence by giving the power of nominating
candidates to persons who would be independent of
their governments, but it is probable that this result
has not been achieved, and indeed there is no very
strong reason why the nominations should not be
governmental. From the list of candidates so made up
the Security Council and the General Assembly each
separately choose fifteen judges. Any person who is
chosen by a majority vote in both bodies is elected,
except that, if two persons of the same nationality are
chosen, only the elder becomes a member of the
Court. There are detailed provisions to meet the event
of the Security Council and the General Assembly
being unable to agree on the full number of judges;
and in the event of a deadlock between the two bodies,

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280. INTERNATIONAL DISPUTES

in the last resort vacant places are to be filled by the
judges already elected. This double election was in-
tended to secure that each of the Great Powers, who
in 1921 formed a majority in the Council of the
League, should be assured of a judge on the Court,
but as the Great Powers have no majority in the
Security Council it no longer serves that purpose; in
any case the protection is unnecessary, because there
has hitherto been no tendency among smaller Powers
to wish to deprive a Great Power of its judge. Five
judges are elected every three years; they serve for
nine years and are re-eligible; they can be dismissed
only if in the unanimous opinion of the other members
of the Court they have ceased to fulfil the required
conditions. For a sitting of the Court the quorum of
judges is nine; but a smaller Court may sit to hear
certain classes of cases, such as those in which the
parties desire a speedy decision by summary proce-
dure. A judge of the same nationality as one of the
parties retains the right to sit, but if a party has no
judge of its nationality on the Court, it may nominate
one for the particular case. This provision for ad hoc
'national' judges can only be defended if it is necessary,
as perhaps it is, for political reasons. It is a concession
to the vicious theory that in some sense a judge ought
to 'represent' the parties, and it places the 'national'
judge himself in a difficult position.

The Court is open to all the states which are parties
to its Statute, and to others on conditions laid down
by the Security Council. Its jurisdiction covers 'all
cases which the parties refer to it and all matters

INTERNATIONAL DISPUTES 281

specially provided for in treaties and conventions in
force', and 'in the event of a dispute as to whether the
Court has jurisdiction, the matter shall be settled by
the decision of the Court'. In principle, therefore,
the jurisdiction arises only when the parties have
agreed to submit a dispute to it; but the Court also
possesses a quasi-compulsory jurisdiction in two ways:
(i) a large number of treaties have provided in general
terms for submission to the Court of disputes arising
under them; and (ii) Article 36 of the Statute contains
an 'optional clause', whereby members may declare
'that they recognize as compulsory *ipsa facto* and with-
out special agreement in relation to any other state
accepting the same obligation, the jurisdiction of the
Court in all legal disputes concerning (a) the inter-
pretation of a treaty, (b) any question of international
law, (c) the existence of any fact which, if established,
would constitute a breach of an international obliga-
tion, (d) the nature or extent of the reparation to be
made for the breach of an international obligation'.
But neither the treaties nor the clause affects the
voluntary basis of the Court's jurisdiction; they merely
make it possible for states to accept it in anticipation
of their being involved in a dispute.

The 'Optional Clause' has been accepted by a
large majority of the members of the Court, but many
of these have attached reservations to their accep-
tances. There are some ambiguities in the wording of
the clause itself,¹ and there are many others in the

¹ For a discussion of these, see Fischer Williams, *Chapters on Current International Law*, p. 38.

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282 INTERNATIONAL DISPUTES

various reservations, so that it may conceivably be
difficult to define the precise obligation which any
particular state has undertaken. Article 36, however,
goes on to provide that 'in the event of a dispute as to
whether the Court has jurisdiction, the matter shall
be settled by the decision of the Court'.

The British acceptance of the clause, which was
first given in 1929, applies only to 'disputes arising
after the ratification of the present declaration with
regard to situations or facts subsequent to the said
declaration'. It would be difficult to devise a more
indefinite formula; but one thing at least is clear
about it, that it most seriously limits the scope of the
undertaking. The British declaration then excepts
four classes of disputes, those in regard to which the
parties agree on some other method of peaceful settle-
ment, those with other members of the British Com-
monwealth, those with regard to questions which by
international law fall exclusively within the jurisdic-
tion of the United Kingdom, and those arising out of
events occurring when the United Kingdom is at war.
The first of these is not a very serious limitation; the
second is a matter of imperial policy; the third seems
to have been added, *ex abundanti cautela*, to exclude a
class of dispute which the Court would in any case
not have had jurisdiction to decide, since it could only
say that by international law the question referred to
it was exclusively within the jurisdiction of the United
Kingdom. Finally, the British acceptance is subject
to a condition that by giving notice we may require
proceedings in the Court to be suspended in respect of

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INTERNATIONAL DISPUTES 283

any dispute which has been submitted to the Security Council, such suspension being limited to twelve months, unless the parties agree, or the Council decides, to extend it. The object of this provision was apparently to provide an opportunity for settlement by conciliation, but the short time-limit makes it not very important.

The United States accepted the Optional Clause in 1946, but subject to reservations which go far towards nullifying the effect of the acceptance, and unfortunately these reservations have since been imitated by several other states in their acceptances of the Clause. It is not to apply to disputes with regard to matters which are essentially within the domestic jurisdiction of the United States, but this is to be determined not, as in the British declaration, by the Court, but by the United States itself; nor to disputes arising under a multilateral treaty unless either all the parties to the treaty affected by the decision are parties to the case before the Court, or the United States specially agrees to jurisdiction. The meaning of the words italicized in this latter reservation is very obscure.

The law that the Court is to apply is, as already stated, laid down as follows: (1) international conventions, (2) international custom as evidence of a general practice accepted as law, (3) the general principles of law recognized by civilized nations, (4) judicial decisions and teachings of publicists as subsidiary means for the determination of the law, and (5) if the parties agree, it may decide ex aequo et bono.¹

¹ Supra, p. 57.

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284

INTERNATIONAL DISPUTES

Besides its contentious jurisdiction over disputes referred to it by states, the Court, under Article 96 of the Charter, may be requested by the General Assembly or the Security Council to give an advisory opinion on any legal question; other organs of the United Nations and Specialized Agencies may also request advisory opinions on legal questions arising within the scope of their activities, if authorized to do so by the General Assembly. The Court has consistently treated this advisory jurisdiction as a judicial function, and it has assimilated the proceeding in most respects to that used in the contentious jurisdiction. In 1923 the Council of the League, at the instance of Finland, requested an opinion on the obligations of Russia in Eastern Carelia under the Treaty of Dorpat, 1920; the Soviet Government, however, refused to take part in any discussion before the Court, and in these circumstances the Court declined to give an opinion, holding that to do so without the co-operation of both parties would be to depart from the essential rules guiding its activity as a court of justice. In practice the advisory jurisdiction proved unexpectedly important, for the Council of the League, which was a political body, was often glad to avoid the embarrassment of having to make a decision, by referring a legal issue to the Court. It is true that the opinion of the Court when given, being only advisory, was not actually binding on the Council, but it would not have been easy for the Council to reject it, and it never did so. The organs of the United Nations have been less disposed to use the advisory

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INTERNATIONAL DISPUTES 285

jurisdiction of the Court than were those of the
League.¹

Other points of interest in the Statute of the Court are, that cases must be heard in public unless the Court decides otherwise or the parties demand a private hearing; that reasons for the decision are to be stated, and dissenting judgements may be given; that the official languages are French and English, but the Court may authorize other languages; that decisions are only binding between the parties and for the particular case. This last provision merely means that the binding authority which Anglo-American law attaches to precedents does not apply to the decisions of the Court; it does not mean that the decisions may not be quoted as precedents, or that the Court will not strongly incline to follow them, for no court can be indifferent to its own previous decisions.

§ 3. *The Limits of Arbitration and Judicial Settlement*

It has been a common assumption among international lawyers that not all disputes between states are 'justiciable', that is to say, susceptible of decision by the application, in an arbitral or judicial process, of rules of law. This is a mere truism in one sense,

¹ In an article in the *Transactions of the Grotius Society for 1952* Sir G. G. Fitzmaurice shows that this is symptomatic of a tendency in the United Nations to treat the legal aspect of questions with scant respect. Perhaps the most flagrant instance is contained in the proceedings in the Security Council over the Anglo-Persian oil dispute in 1951. When the International Court had ordered the parties to take certain interim measures of conservation pending a decision by the Court on its own jurisdiction, and Persia had entirely disregarded this order, the Council declined even to call upon her to obey it.

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286

INTERNATIONAL DISPUTES

because it is obvious that, so long as states are not
compelled to submit to legal process, no dispute is
'justiciable' unless the parties have made it so by
undertaking an obligation to treat it as such. But the
distinction between 'justiciable' and 'non-justiciable'
disputes usually implies more than this; it implies the
belief that international disputes are of two distinct
kinds, one of which, the justiciable or legal, is in-
herently susceptible of being decided on the basis of law,
while the other, the non-justiciable or political, is not.

International lawyers, at any rate until recently,
have generally agreed that this distinction exists, but
they have not been agreed on its content. One view
commonly held has been that a justiciable dispute is
one for which a rule of law applicable to the dispute
exists. This implies that for other disputes, the non-
justiciable, no applicable rules exist in the law, and
accordingly that a court of law called upon to deal
with such a dispute would find itself unable to pro-
nounce a decision. It has already been shown¹ that
this difficulty is imaginary. It is a corollary of the
extreme positivist view of the nature of international
law, according to which, since nothing is law except
the rules that states have consented to, the number
of legal rules is necessarily finite. It overlooks the
dynamic element, which the international like every
other system of law reveals as soon as it ceases to be a
merely academic study and begins to be applied to
factual situations by the accepted processes of judicial
reasoning.

¹ *Supra*, p. 68.

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INTERNATIONAL DISPUTES

287

International law then is never formally or intrinsically incapable of giving a decision, on the basis of law, on the respective rights of the parties to any dispute, and if that is so, we must look for the difference between justiciable and non-justiciable disputes elsewhere than in some assumed specific quality which distinguishes that law from other systems. Probably today most writers would regard it as depending upon the attitude of the parties: if, whatever the subject-matter of the dispute may be, what the parties seek is their legal rights, the dispute is justiciable; if, on the other hand, one of them at least is not content to demand its legal rights, but demands the satisfaction of some interest of its own even though this may require a change in the existing legal situation, the dispute is non-justiciable. It is certain that many disputes, probably most of the serious disputes, of states are of this kind, and this is an important fact in the relations of states, of which, whether we like it or not, we must take account. But it does not supply what the controversy on the subject has assumed to exist, an objective test whereby we may classify disputes into two kinds; it does not enable us to predict, merely from a knowledge of the subject-matter of a dispute, that it will be justiciable or that it will be non-justiciable; it merely reminds us of an already known fact, namely that states do sometimes regard a decision on the basis of law as a satisfactory method of disposing of their disputes, and that sometimes, for whatever reason, good or bad, they or at least one of the states concerned does not.

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288

INTERNATIONAL DISPUTES

No lawyer is likely to doubt the desirability of a much greater readiness on the part of states than they at present show to accept the settlement of their disputes on the basis of law. The present unlimited freedom of states to reject that method of settlement is entirely indefensible; it makes possible the grossest injustices, and it is a standing danger to the peace of the world by encouraging the habit of states to regard themselves each as a law unto itself. On the other hand, the problem is not a simple one, and it is not likely to meet a quick solution, such as was aimed at in the General Act of Geneva of 1928, by the acceptance of existing law as a universally applicable basis for the settlement of all disputes. A declaration of their legal rights when states are quarrelling about something other than their rights is not in any true sense a 'settlement' of their dispute: it may occasionally facilitate a settlement by subsequent agreement, but it may not improbably have exactly the opposite effect by making a compromise seem unnecessary to the party that is satisfied with the declaration. It is tempting to appeal to the analogy of the individual and his relation to the courts of the state, but this is in many respects misleading. International law at its present stage of development gives a far less effective protection to the reasonable interests of states than does the law of a civilized constitutional state to those of individuals, both because the substance of the law is defective relatively to the interests which it ought to be able to protect, and because the circumstances in which it has to be administered are more difficult.

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INTERNATIONAL DISPUTES 289

Thus of many anti-social acts which affect the per-
fectly reasonable interests of another state, inter-
national law, if appealed to, could only say that they
are matters exclusively within the domestic jurisdic-
tion of the state whose conduct is in question, and
therefore that no legal right of the injured state has
been violated. A national court, again, is normally
supplied with a body of well-established doctrine; its
judges share the traditions and sentiments of those
to whom they administer justice; and a regular sys-
tem of appeals exists to correct their mistakes; but
none of these safeguards exists in the international
system.

These differences are not likely to be overlooked,
but there are also certain limitations on the poten-
tialities of judicial procedure in general which it is
well to bear in mind. One is that a dispute does not
necessarily receive its quietus because a court of law
may have pronounced upon it. There are historical
instances in which the decisions of courts have had
exactly the reverse effect, and have been contributory
causes of the outbreak of war. This is true of Hamp-
den's case in 1637, in which the Court declared the
law on the question of ship-money, and of the Dred
Scot case in 1857, in which the American Supreme
Court declared the law on the question of slavery;
each of these cases had its sequel in a civil war which
was fought in part to determine afresh the very issues
which the courts had decided.

Further, it ought never to be forgotten that law is
not merely a convenient device for the settlement of

8776

U

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290 INTERNATIONAL DISPUTES

disputes; it is not something that can be made an
effective instrument at a crisis and left out of account
at other times; it is useful as a means of settlement
only when, and so far as, a society has accepted the
rule of law as its way of life. It is only because the
judicial organs of a state are part of the whole com-
plicated machinery of a state's government that they
are able to work with the relatively high degree of
efficiency to which we are accustomed. In fact the
example of the state, if it is examined more closely, is
discouraging to the view that all disputes ought to or
can be settled on the basis of existing law, for inter-
national disputes find their nearest analogy not in the
disputes of individuals at all, but in a class of disputes
which the practice of states itself tends to treat by
political rather than judicial methods. By their very
nature they are differences between large associated
groups; and when such a group of persons within the
state is discontented with its existing legal rights, a
wise government does not merely refer them to the
courts of law; it considers the arguments for and
against a change of the law. When states are so
minded and so organized that they too can deal with
the more difficult disputes in this spirit, not only will
peace be more secure than it is at present, but the
judicial system itself, within its proper sphere, will be
established on a firmer foundation.

Some of these difficulties of devising an all-inclusive
scheme for the settlement of disputes would doubtless
not apply if arbitrators or judges, instead of being
required to give decisions based on existing law, were

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INTERNATIONAL DISPUTES 291

given a discretion to decide ex aequo et bono when the
legal situation seems to them to be in conflict with the
justice of the case. Proposals for a so-called 'equity
tribunal' on these lines have often been made in
recent years. It has already been mentioned that the
Statute of the International Court provides for a de-
cision of this kind 'if the parties agree'; and though
this particular provision has not yet been used, the
method is frequently used with advantage in the
settlement of differences of secondary importance.
After the proceedings before the Permanent Court in
the *Free Zones* case,¹ France and Switzerland, being
dissatisfied with the position established by the deci-
sion for the commerce between the Free Zones and
Switzerland, but unable to agree on the changes to
be introduced, empowered an arbitral tribunal to lay
down a 'more liberal and legally more stable regime',
and the regulations laid down by this tribunal them-
selves contain a provision that, in default of agree-
ment, an arbitral tribunal, deciding ex aequo et bono,
might in the future adapt them to new economic
conditions.² It would, however, be a very different
matter to extend this method of settlement by making
it compulsory, even in the last resort, for all disputes.

A judge or an arbitrator applying legal principles
is an expert, and his opinion that such and such are
the rights of the parties has a special value; but an
arbitrator's opinion of what is fair and just cannot be

¹ *Supra*, p. 261.

² For references see Habicht, 'Power of the International Judge to give a decision ex aequo et bono', pp. 78 and 84.

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292

INTERNATIONAL DISPUTES

based on any objective standard and is worth intrinsically neither more nor less than that of any other equally fair-minded and intelligent person. The dissatisfaction of a state with the *status quo* raises a question which is not a judicial one, and cannot be turned into a judicial question by adopting judicial methods of procedure; it raises a question which is essentially *political*, susceptible of amicable settlement no doubt, but only by appropriate *political* methods, by negotiation, by compromise, by mediation, or conciliation; and when it relates to a matter which the states concerned regard as vital to their interests there is not the smallest chance that it will or can be settled by the *ipse dixit* of an arbitrator.

The true nature of the power which would be entrusted to an 'equity tribunal' should be understood; a power to decide *ex aequo et bono* is a power to abrogate or modify existing legal rights, and essentially that is a power to *legislate*. However urgent it may be to create a procedure for the orderly modification of international legal rights in proper cases, it is inconceivable that the solution will be found in the simple plan of handing over to arbitral tribunals, responsible for their decisions only to their own consciences, a function which states are not yet prepared to concede to an international legislature. Legal rights ought not to be immutable, but a system in which one state could be required, on the mere demand of another, to put in issue its legal rights on any matter about which the two were in controversy would be as unreasonable as it is improbable.

TO MEMBERS OF THE LEGAL PHILOSOPHY DISCUSSION GROUP:

Our next and final meeting will be on Tuesday, May 6th
at the Signet. Cocktails at 6:15; dinner at 7:00.

Henry Hart will discourse upon law-making as a byproduct
of adjudication.

Please let me know whether you plan to attend.

Kingman Brewster, Jr.

To: K. Brewster, Jr., Langdell Hall.

do

I plan to attend the meeting of the Legal Philosophy
do not

Discussion Group on Tuesday, May 6th.

[LC]

THE AMERICAN SOCIETY FOR POLITICAL AND LEGAL PHILOSOPHY

Tentative Program for Third Annual Meeting

Chicago

December 29 and 30, 1958

First Session - December 29, 3:00 p. m., Edgewater Beach Hotel (In conjunction with the American Association of Law Schools)

General Topic: Responsibility - Definitions, Distinctions, and Applica-
tions in Various Contexts.

Paper: Professor John L. Austin (Oxford; Phil.)

Discussants: Professor Hector N. Castaneda (Wayne State U. ; Phil. )
Professor Ludwig Freund (Roosevelt U. ; Pol. Sci.)
Professor Max Rheinstein (Univ. Chicago; Law)

Dinner of Council - place to be announced at first session.

Second Session - December 29, 7:30 p. m., Edgewater Beach Hotel.

General Topic: Conditions of Criminal Responsibility.

Paper: Professor Edgar Bodenheimer (Univ. Utah; Law) "Is Punishment Obsolete?"

Discussants: Professor Richard B. Brandt (Swarthmore; Phil.)
Professor Joel Feinberg (Brown; Phil.)
Professor Henry Weihofen (Univ. New Mexico; Law)

Third Session - December 30, Morning, Booth Hall, Northwestern University Law School
Chicago

General Topic: Responsibility in the Modern State

Paper: Professor Frank H. Knight (Univ. Chicago; Econ.)

Discussants: Professor Thomas I. Cook (Johns Hopkins; Pol. Sci.)
Professor Harry W. Jones (Columbia; Law)
Professor Arnold S. Kaufman (Michigan, Phil.)

Luncheon - Place to be announced.

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-2-

Fourth Session - December 30, Afternoon, Booth Hall.

General Topic: Responsibility in the Modern State (continued)

Paper: Professor Norton E. Long (Northwestern; Pol. Sci.) "Institutional Framework for the Development of Responsible Citizenship".

Discussants: Professor John W. Chapman (Smith; Pol. Sci.)
Professor David Easton (Chicago; Pol. Sci.)
Professor Wolfgang Friedman (Columbia; Law)

Room numbers and exact starting times for the Third and Fourth Sessions will be posted at the meeting.

A notice about dues will be sent out immediately following the annual meeting.

22 January 1959

Dear Fellow Member:

The third annual meeting of our Society was held in Chicago, on De-
cember 29 and 30. Four sessions were devoted to discussion of various as-
pects of the problem of "Responsibility". The following matters were set-
tled at the business meeting:

1. Election of Officers

President - Charles W. Hendel, Department of Philosophy, Yale University

Vice President and Chairman of the Nominating Committee -
Frederick M. Watkins, Yale University

Vice President - Jerome Hall, University of Indiana Law School

Secretary - John Ladd, Department of Philosophy, Brown University

Chairman, Program Committee - Sebastian de Grazia, Department of Political Science, Princeton University

Chairman, Membership Committee - Edgar Bodenheimer, University of Utah Law School

2. Honorary Members. Upon recommendation of the Membership Committee, William Ebenstein, chairman, the following were elected honorary members of our Society:

Sir Ernest Barker

Judge Learned Hand*

Professor Charles Howard MacIlwain*

Professor Reinhold Niebuhr*

Dean Roscoe Pound*

Professor George H. Sabine

Professor Hans Kelsen

* Already accepted

3. Future Meetings. Our next meeting will take place in New York in conjunction with the annual meeting of the Eastern Division of the American Philosophical Association, December 29 and 30, 1959. It is the regular practice of our society to meet every third year with the American Political Science Association, every third year with the American Philosophical Association, and every third year with the American Association of Law Schools. Under that system of alternation, we should be meeting in 1959 with the political scientists. However, the American Political Science Association will meet in September, 1959, and it was decided by the Council that we do not have sufficient time to plan and arrange a program for that early date. Consequently, it was decided that we will meet (out of the normal order) with the American Philosophical Association in December, 1959, and with the American Political Science Association in September, 1960. The Program Committee will begin planning programs for both 1959 and 1960 immediately.

4. Topics for 1959 and 1960. At the business meeting, members suggested various topics for our next two meetings. Please return to me as soon as possible the enclosed ballot with your vote for these topics. Please notice that the enclosed ballot also contains a place for your vote on a proposed amendment to our constitution.

5. Treasury Report. As of December 30, 1958, our treasury shows a balance of $113. There are still some members who have not yet paid their dues ($5.00) for the period from July 1, 1958, to June 30, 1959. A form for remission of dues is attached to this letter.

6. Publications Report. Our next volume, Nomos II, on "Community" will be published in April or May, 1959. The following volume, Nomos III, on "Responsibility" will probably be published early in 1960. Anyone interested in submitting an essay to be considered for inclusion in Nomos III is invited to do so. Please send your essay to Professor Carl Friederich, Littauer M-31, Harvard University, Cambridge 38, Massachusetts, before March 1, 1959.

Yours truly,

Joel Feinberg, Secretary Pro Tem
Department of Philosophy
Brown University
Providence 12, Rhode Island

Name: ____________________
(please print)

Address: ____________________

I am enclosing my dues for the year July 1, 1958-June 30, 1959

By: check ____________________
cash ____________________

Please make checks payable to: The American Society for Political and Legal Philosophy.

Please send to: Professor Carl J. Friederich, Treasurer
Littauer M-31
Harvard University
Cambridge 38, Massachusetts

BALLOT

The annual meeting of the Society is dedicated to the discussion of a topic in the area of political and legal philosophy. This topic is selected by vote of the membership.

It has been suggested by some of our members that since 1959 is the centennial of the publication of John Stuart Mill's *On Liberty*, it would be especially appropriate to devote our next meeting to a consideration of some of the issues and problems raised by that great book. Accordingly, several of the topics on the ballot below are concerned with Mill or *On Liberty*.

It has also been suggested by some of our members that instead of bas-
ing our program on some "topic" which can be denoted by a single word (e.g.,
"Authority", "community", "responsibility"), we select a "problem" which
can be expressed in an interrogative sentence. Notice that some of the "topics"
listed on the ballot have the interrogative form.

Because of the necessity of coordinating our fifth annual meeting (Sep-
tember, 1960) with the program planning of the American Political Science
Association, it is requested that members rank their choices (1) and (2) with
the understanding that (2) - the second choice - represent the choice of topic
for the fifth annual meeting in 1960.

Topics for the Fourth and Fifth Annual Meetings (suggested by the mem-
bership at the Third Annual Meeting). Please rank (1), (2).

( ) EQUALITY

( ) HOW DO WE DETERMINE THE "PUBLIC INTEREST"?

( ) "MANKIND" AND THE PROBLEM OF WORLD LAW
(What does it mean to speak of a "crime against mankind" or "loyalty to mankind" or "an obligation to mankind"?)

( ) POLITICAL AND LEGAL OBLIGATION
(This topic was runner-up in last year's voting)

( ) POLITICAL PRUDENCE AND THE PROBLEM OF JUDGMENT

( ) POWER

( ) JOHN STUART MILL'S ON LIBERTY
(If you opt for this general topic, please indicate below your pref-
erence for one of the following more specific formulations)

( ) On Liberty, 1859-1959

( ) Liberty in 1859 and 1959

( ) What is living in the political philosophy of John Stuart Mill?

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CONSTITUTIONAL AMENDMENT

On December 29, 1958, an amendment to our constitution was proposed by the Council. The proposed amendment would create the office of a second Vice-President to be joined with the office of Chairman of the Nominating Committee. The procedure for voting on amendments is specified in article IX, Section 3:

"(A) After the annual meeting at which an amendment has been proposed and discussed / by the Council T, the Secretary shall mail to each member of the Society a ballot which sets out the proposed amendment. (B) The proposed amendments to the constitution which receive a favorable vote from a majority of the members voting shall be incorporated into and become part of the constitution. (C) The Council shall fix the time limit within which ballots on proposed amendments must be returned to the Secretary in order to count in the official voting."

The Amendment Proposed:

(1) Article IV, Sec. 1: Strike "Vice-President" and substitute "two vice-presidents"

(2) Article IV, Sec. 5: Insert in sub-section (B) "one of the Vice-Presidents", and strike "the Vice President"

(3) Article V, Sec. 1: Strike "Vice-President" and substitute "two Vice-Presidents".

( ) I am in favor of the proposed amendment

( ) I am opposed to the proposed amendment

We urgently request that you return the enclosed ballots within
two weeks. Please send them to: