DATE DOWNLOADED: Wed Sep 14 13:54:34 2022

SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 21st ed.

Olga Butkevych, International Law as a Living Legal System: Eugene Ehrlich's
Conception in Modern Times, 4 Jus GENTIUM: J. INT'l LEGAL Hist. 565 (2019).

ALWD 7th ed.

Olga Butkevych, International Law as a Living Legal System: Eugene Ehrlich's
Conception in Modern Times, 4 Jus Gentium: J. Int'l Legal Hist. 565 (2019).

APA 7th ed.

Butkevych, O. (2019). International law as living legal system: eugene ehrlich's
conception in modern times. Jus Gentium: Journal of International Legal History, 4(2),
565-592.

Chicago 17th ed.

Olga Butkevych, "International Law as a Living Legal System: Eugene Ehrlich's Conception
in Modern Times," Jus Gentium: Journal of International Legal History 4, no. 2 (July 2019):
565-592

McGill Guide 9th ed.

Olga Butkevych, "International Law as a Living Legal System: Eugene Ehrlich's
Conception in Modern Times" (2019) 4:2 Jus Gentium: J Int'l Legal Hist 565.

AGLC 4th ed.

Olga Butkevych, 'International Law as a Living Legal System: Eugene Ehrlich's Conception
in Modern Times' (2019) 4(2) Jus Gentium: Journal of International Legal History 565

MLA 9th ed.

Butkevych, Olga. "International Law as a Living Legal System: Eugene Ehrlich's
Conception in Modern Times." Jus Gentium: Journal of International Legal History, vol. 4,
no. 2, July 2019, pp. 565-592. HeinOnline.

OSCOLA 4th ed.

Olga Butkevych, 'International Law as a Living Legal System: Eugene Ehrlich's
Conception in Modern Times' (2019) 4 Jus Gentium: J Int'l Legal Hist 565

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
International law tends to be treated not as a static quantity of rules
determined once and for all by lawmakers, but as a flexible system
capable of reacting promptly to the changing interests of its
subjects. This approach, which has attracted numerous supporters
in doctrine and legal practice, is made possible by a break with
classical positivism and étatism on the part of international legal
science.1
The flexibility of international law is evident throughout its
history. Created at the time of the first contacts between more or
less autonomous human communities (tribes, families, primitive
groups, etc.) with the aim of regulating those contacts, international
law has come down to our time, modified and transformed in
response to changes in social relations and adapted to
accommodate the historical development of international contacts.
Yet it remains anchored in a permanent foundation of imperative
principles (jus cogens) and methods of legal regulation. No
municipal legal system
– be it primitive or developed, liberal or totalitarian – has ever
exhibited such continuity in its development. No municipal legal
system originating in the time of chiefdoms, proto-States. and
ancient empires has survived down to our day. Internal legal
systems have emerged, developed, and disappeared along with
their States in the wake of coups d’état, revolutions, conquests,
State collapses or dissolution, and other historical events.

*
доктор юридических наук, Vice-President, Ukrainian Association of
International Law; Of the Editorial Board.
1
See Martti Koskenniemi, The Politics of International Law (2011); Paul Schiff
Berman (ed.), The Globalization of International Law (2005); Th. Marauhn and
H. Steiger (eds.), Universality and Continuity in International Law (2011); Rafael
Domingo, The New Global Law (2010).
 By contrast, international law exhibits the continuity and
historical persistence that are the result of the essence of this law:
its purpose is to regulate relations between independent and mainly
sovereign subjects having different forms and natures. To this end,
international law has had to elaborate mechanisms of adaptation to
changing historical conditions and cultivate the ability to adjust
itself to and cope with critical situations in international relations.
In doing so it embodies the living law.

Development of International Law as a “Living System”

in the Era of Globalization
In the age of globalization, changes to étatist and positivist
paradigms, the consolidation of international society as an active
subject of international legal order, and the increasing
interdependence among States and peoples have left their mark on
the characteristics of international law as a living law. Among the
various features of international law in the twenty-first century, one
noted by most researchers and practitioners is the formation of an
international (global) society as a determining factor in the essence
and future development of international law. Some consider this
society to be a weighty actor in international relations; 2 others
consider it to be a potential or future subject of international law.3
Whereas in classical international law the State was the core value
and replaced the individual with itself, global law, on the contrary,
places the human being at the center. International law is in
transition from classical (Westphalian) étatism to humanistic
universalism.
This invites attention to another feature of contemporary
international law noted by Bruno Simma; namely, a turn away
from its basic idea of mostly bilateral relations (“bilateralism
conforms to and protects the principle of State sovereignty”)
towards the interests and needs of international society as a whole.
According to Simma,“[international] community elements are
nowadays overlapping, superseding and sometimes even abolishing
the old-fashioned bilateral structures”.4 The common interests of

2
See Antonio Augusto Trindade Cançado, International Law for Humankind:
Towards a New Jus Gentium (2011).
3
Rafael Domingо, “Gaius, Vattel, and the New Global Law Paradigm”, European
Journal of International Law, XXII (2011), pp. 627-647; Rafael Domingо, “The
New Global Human Community”, Chicago Journal of International Law, XII
(2012), pp. 563-587.
4
Bruno Simma, “From Bilateralism to Community Interest in International Law”,
Recueil des cours, CCL (1997), pp. 234-235.
the world community (erga omnes rules, common heritage of
mankind, and others) are vivid evidence of this change, as is the
whole range of problems that cannot be resolved by exclusively
national or regional means (protection of human rights and
environment, sustainable development, terrorism, ecological
problems, spread of epidemics and pandemics, among others).5
By the beginning of the twenty-first century, international
lawyers had demonstrated the largely non-State nature of the global
community and characterized it as an international civil society:

[The] purely interstate dimension of International Law has surely

been overcome and belongs to the past; international legal
personality has expanded, so as to encompass nowadays, besides
States and international organizations, also individuals – the
human person, – as true subjects (and not only “actors”) of
International Law; the conditions are met for us to move towards
the construction of a new jus gentium, at this beginning of the
21st century, to the extent that account is taken of the social
needs and aspirations of the international community (civitas
maxima gentium), of humankind as a whole.6

Hence international law springs from the demands of the

international community and develops in close connection with its
everyday needs. The following evidence of this may be noted: the
humanistic character of contemporary international law, the
growing number of multilateral (universal) international
instruments, the transformation of the international judiciary so as
to fulfill the needs of international society, proper activity by States
and international organizations in protecting the common heritage
of mankind, global protection of human rights, development of
ergа omnes rules, and so forth. Secretary-General of the United
Nations, Boutros Boutros-Ghali from 1992 to 1996, pointed out in
this regard that

the time of absolute and exclusive sovereignty…has passed. Its

theory was never matched by reality. It is the task of leaders of
states to understand this and to find a balance between the needs
of good government and the requirements of an ever more
interdependent world.7

5
Ibid., pp. 298-301; Domingо, note 3 above (2012), pp. 563-587.
6
Cançado, note 2 above, p. 3.
7
Boutros Boutros Ghali, An Agenda for Peace, Preventive Diplomacy, Peace-
Making and Peace-Keeping. Report of the Secretary General, UN Document No.
A/ 47/277-S24111, 17 June 1992, para 17.
 The aforementioned factors shifted the positivist understanding
of international law as primarily an interstate one. All this shows
that this law can adapt itself to changing circumstances, especially
when new types of its subjects or actors emerge and require legal
regulation of their relations. The regulation of new and complicated
relations becomes possible when international law applies its
qualities of a “living” system, such as adaptability, applicability to
different subjects and types of relations between them.

Doctrinal Views on International Law

as a “Living System” and its Practice
The “living law” theory is an exceptional model in the
development of legal science. More typical is that a legal
phenomenon arises in practice, and only then does legal science
react to its emergence by recognizing and interpreting it. The
concept of the living law, however, originated as a theory. Half a
century passed before its postulates were implemented and
developed by international judicial practice.
The theory of the living law was developed by Eugen Ehrlich
(1862–1922), a professor at the Universities of Chernivtsi and
Vienna. As a representative of the sociological school of law, he
regarded a legal system as a product of social life, the development
of social relations, and the needs of the social environment.8
Therefore, according to Ehrlich, true law is non-statal: truly
effective legal rules aimed at the interests of the society can be
created only by society itself, and not by State machinery, which is
remote from societal requirements. Therefore, this law is evolutive
(“living”), meaning that it changes according to the needs of
society and responds to changes in the latter.
For some time this theory remained within the general
(sociological) school of law and was not adopted by international
law. International lawyers rarely expressed similar ideas. Thus,
Ernest Nys (1851-1920) regarded international law and its history
as a “living world of law”. 9 Michel Virally (1922-1989) observed
that this law is a “reflection of the society that both oppresses and
assists the individual”.10

8
Eugen Ehrlich, Fundamental Principles of the Sociology of Law (reprint ed.;
2002), p. 541. First published as Eugen Ehrlich. Grundlegung der Soziologie des
Rechts (1913).
9
Ernest Nys, The Papacy Considered in Relation to International Law (1879), p. 5.
10
Michel Virally, “Panorama du Droit International contemporain”, Recueil des
cours, CLXXXIII (1983), pp. 9-382.
 These ideas were developed more systematically by
representatives of the policy-oriented school of thought, who
maintained that international law “is an expression of social policy
and a tool for social engineering”. 11 Since then, adherents of the
policy-oriented school have developed the concept of international
law as “a process of decision making”,12 the occurrence of a
process being evidence of the legal system’s immanent
development and vitality.
Long after its genesis as a scientific concept, living law theory
became more fully implemented in international legal practice in
the second half of twentieth century. It has been applied and
developed mostly by international judicial institutions.

General Principles of Ehrlich’s Sociological Conception

Ehrlich as Foundational Theorist of

the Sociological School Of Law
Given (a) the evolutionary approach to international law and
(b) the increasing role of judicial institutions in the functioning and
development of this law, Ehrlich’s concept merits special attention.
Once taken into account, both mentioned tendencies in
international law could breathe new life into this theory.
The theory of living law is an original and distinctive
conception within the sociological school of law. Ehrlich
developed his concept of law methodologically, criticizing existing
legal approaches and suggesting ways of resolving their
shortcomings. His sharpest criticism was reserved for two
phenomena: the predominant role of the State (étatism), on one
hand, and on the other the absolute authority and dictate of
positivism in law.
“Living” or true law, according to Ehrlich, is mostly non-statal:
“The center of gravity of legal development therefore from time
immemorial has not lain in the activity of the state but in society
itself, and must be sought there at the present time”.13 The same is

11
Werner Levi, Contemporary International Law. A Concise Introduction (2d ed.;
1991), p. 18; Martti Koskenniemi, “Carl Schmitt, Hans Morgenthau, and the
Image of Law in International Relations”, in Michael Byers (ed.) The Role of Law
in International Politics. Essays in International Relations and International Law
(2000), p. 20.
12
Rosalyn Higgins, Problems & Process. International Law and How We Use It
(2001), pp. 8-12.
13
Ehrlich, note 8 above, p. 390.
true of the formation of the law of international society or global
law, which is not created by the State or interstate system, but
above all reflects the interests and needs of international civil
society.14
Ehrlich did not single out legal rules (rules made by the State)
among any other social regulators as more effective, more
legitimate, or more compulsory than the rules created by society
itself. Rather, he equalized the binding nature of all these norms:

A social association is a plurality of human beings who, in their

relations with one another, recognize certain rules of conduct as
binding, and, generally at least, actually regulate their conduct
according to them. These rules are of various kinds, and have
various names: rules of law, of morals, of religion, of ethical
custom, of honour, of decorum, of tact, of etiquette, of fashion.15

The State here, as we see, is just one lawmaker among others.

Moreover,

the fact that a considerable part of social activity has found its
focus in legislation, administration of justice, and civil
administration has not done away with the forces which are
operative in society apart from these things. The church,
economic life, art, science, public opinion, the family and
personal associations, after all, have maintained their
independence over against (sic!, OB) the state either altogether
or to a great degree. They are, indeed, foci of development of
purely social forces with which legislation, administration of
justice, and civil administration by the state must cope at every
moment.16

The State depends on these forces (chiefly economics and

religion in Ehrlich’s time, and nowadays public opinion and civil
society) and must reckon with them. However, this is not always
the case: States often attempt to impose their wills, ignoring social
demands and interests. Hereunder follows another object of critics
of the founder of the “living law” theory.
Ehrlich arrived at many of his sociological ideas as a result of
analysis, critique, and the impact of existing shortcomings in
positive science. At that time, the positivists recognized only
normativism and its methods for the study of law. As Roscoe
Pound (1870-1964), one of Ehrlich’s loyal followers and perhaps

14
Gunther Teubner, “Global Bukowina. Legal Pluralism in the World Society”, in
Gunther Teubner (ed.) Global Law without a State (1997), p. 4.
15
Ehrlich, note 8 above, p. 39.
16
Ibid., pp. 372-374.
the most successful propagator of his ideas (especially in the
United States), aptly explained:

In order to understand any jurist we must take account not only

of the problems of the time, to which his thought is addressed,
but no less of the models of thought of the immediate past, which
as he sees it, are proving inadequate to those problems, and of
the traditional legal dogma and juristic doctrine in which he was
brought up.17

Ehrlich’s chief critique addressed the deficiencies of the

positivist approach to law and its restrictive interpretation of the
legal system. Positivists understood the very notion of law in its
pure form without due attention to the impact made on it by social
factors, including economic ones.18
The main deficiency of positivism mirrors the major weakness
of étatism and the exaggerated role of the State, in that both these
understandings of law fail to consider outside (non-State and non-
legal) factors that nonetheless prove to be influential. A legal
system based exclusively on the letter of the law could hardly be
effective for any prolonged period of time. According to Ehrlich,
the law is effective only when it keeps up with (social) life and
accumulates within itself rules of other systems of social regulation
(religion, economics, set of ethnic customs, and so on). And it
should not be created by an ephemeral fiction – the State – but by
jurists (judges). In this case, according to Ehrlich, it becomes a
truly “juristic law”. The condition of the legal system in general
reflects the extent to which cooperation, interaction or antagonism
between State and society can be regulated and resolved by juristic
law (the law which combines all social norms and aspirations).
Ehrlich’s dissension from the principles of étatism and positivism
provoked a critical response from positivist science, which rejected
his ideas.

Сritiques of Ehrlich’s Living Law Theory:

Soviet, Étatist, and Positivist Doctrines

Although Ehrlich was born at and lived most of his life in

Chernivtsi (where he was the Dean and, in 1906–1907, the Rector

17
Roscoe Pound, “Introduction”, in Ehrlich, note 8 above, p. xii.
18
Vitalii Marchuk, «Свободное право» в буржуазной юриспрнденции.
Критика концепции Е. Эрлиха [“Free law” in Bourgeois Jurisprudence. Critique
of the Conception of E. Ehrlich] (Kyiv, 1977), p. 53.
of the university), his name was almost forgotten by the domestic
science of law for two main reasons. First, Soviet legal ideology
rejected the sociological school of law for many years in Ehrlich’s
homeland, where doctrines formulated by that school’s
representatives were rejected or criticized as “eclectic” or pseudo-
legal. Nonetheless, Soviet scholars recognized him as a founder of
this school.19 Western scholars likewise considered Ehrlich to be
the “father” of legal sociology.20
It should be acknowledged that the current Russian science of
law, which remains grounded in positivist and State-centrist
positions, consistently continues the Soviet traditions in legal
doctrine, particularly its critical view of Ehrlich’s “living law
theory”. Contemporary Russian scholars reiterate Soviet postulates,
criticizing the living law “for the blurring of legality,
undervaluation of the State and its legislative activity, and
overestimation of the role of the everyday social relations” 21 or at
least regarding it dismissively:

1913 — the year of publication in Vienna of the Fundamental

Principles of the Sociology of Law — became the official date of
birth of the new discipline — the sociology of law, which had by
all accounts doubtful prospects and the scientific value of which,
even a century later, seems to be dubious.22

Second, and posing a more essential problem of modern

science, Ehrlich’s legacy was overlooked in his native land because
the law there had not rid itself of exaggerated positivism and étatist
interpretation. Even today, scholars find it difficult to see the law in
terms of its adaptability, to acknowledge the legal system’s
flexibility as a means of regulating public relations, and to
comprehend the social determination of law — even though these
qualities are the hallmarks of international law. Adherence to
positivism and étatist approaches makes it difficult to understand

19
Sergey Bobotov, Буржуазная социология права [Bourgeois Sociology of
Law] (Moscow, 1978), p. 13.
20
Jean Carbonnier, Юридическая социология [Legal Sociology] (Moscow,
1986), p. 109, translation of Jean Carbonnier, Sociologie juridique (Paris, 1978).
21
Valentina Lapaeva, Социология права. Краткицй учебный курс [Sociology
of Law. Concise Course] (Moscow, 2000), p. 107.
22
Mikhail Antonov, «У истоков социологии права: Eugen Ehrlich» [At the
Beginnings of the Sociology of Law: Eugen Ehrlich], Russian Yearbook of Legal
Theory (2008), I, pp. 565, 569, 587.
the concept of the living law as a social organism with its own
innate mechanisms of adaptability and change.
For these reasons, few publications have been devoted to this
scholar in his homeland. And although international recognition
was Ehrlich’s rightful due, his doctrine long received even less
attention from scholars of international legal theory. The world-
famous conception was elaborated in the course of the “Institute
(Seminar) for Living Law”, which Ehrlich initiated at the
University of Chernivtsi in 1910. Nowadays, Ehrlich’s ideas hold
appeal mainly in international law — that is, in the study of
modern processes of globalization, fragmentation of this law, the
phenomenon of the evolutionary interpretation of international law,
and, finally, the legal activism of the international judiciary.23

Ehrlich’s Influence on the School of the Sociology of Law

Western science was more eager to develop Ehrlich’s theories:

Ehrlich’s distinctive observations had an impact on lawyers,

especially the legal realists in the United States and Scandinavia
in the thirties, legal anthropologies since the forties, and legal
educators and sociologies of law in the seventies and eighties.
However, each group received a different message from
Ehrlich’s work.24

The renowned American legal sociologist Roscoe Pound

considered Ehrlich “the pioneer of the sociological method in law”.
According to Pound,

Grundlegung der Sociologie des Rechts is one of the outstanding

books of this generation (…). He was able to compare
intelligently the legal and juristic thinking of Roman law, the
English common law, the modern Roman law, and the law of
continental Europe of today, as no one had done before him (…).
He made a significant beginning of a sociological comparative
law which is palpably developing at present (…). It’s quite
understandable that he has had a notable influence in America

23
Teubner, note 14 above; See also: M. Hertogh (ed.), Living Law. Reconsidering
Eugen Ehrlich (2008); J. Christoffersen and M. R. Madsen (eds.), The European
Court of Human Rights between Law and Politics (2011); C. Focarellim
International Law as Social Construct. The Struggle for Global Justice (2012).
24
Klaus Ziegert, “Introduction to the Transaction Edition”, in Ehrlich, note 8
above, p. xxi.
 where we are wrestling with so many practical problems in a
time of legal transition.25

Influenced by the German school of law, Ehrlich in his own

way developed an idea from its historical branch about the impact
of the “national spirit” on the formation of law, suggesting that it
was not legal prescriptions, but the internal order of human
societies, that was the basis and determinant of law.
Ehrlich’s proposed methodology of legal study attracted
immediate interest among contemporary scholars. Having been
invited to present the keynote speech at the 31st annual meeting of
the German Lawyers’ Association in 1912, he devoted it to the
interdisciplinary method of law and proposed that the law be
regarded as a subject of sociology, psychology, and economics.
Modern legal scholars hold Ehrlich in high esteem.26 Nevertheless,
his theory of living law is in need of due attention and proper
research.

The Concept of “Living Law”

The continental Romano-Germanic family of law that prevails
in Europe, combined with the prolonged predominance of
normativist and positivist theory, led to a vast increase of legal
rules and prescriptions. The resulting clashes and incompatibilities
within State legislation marked a setback in legal development. In
the opinion of the French legal scholar Antoine Garapon, a legal
system is much less certain in a society that objectively resorts to
juridicism and to resolution of such uncertainty through new rules
and prescriptions.27A legislature that strives to fill all the gaps in
social regulation actually paralyzes the legal system with a
proliferation of norms.
One consequence of more legal prescriptions is more conflicts
between them, which make effective legal regulation impossible.
One should bear in mind the imperative and often arbitrary State
prescriptions that often do not take social interests into
consideration (and even directly contradict them, under totalitarian
regimes or dictatorships). In these cases, the State’s legal rules
harm the law more than they develop it.

25
Roscoe Pound, Jurisprudence (reprint ed.; 2000), I, pp. 334-336.
26
Ziegert, note 24 above, p. ix.; See also Eugen Ehrlich, “Living Law and Plural
Legalities”, Theoretical Inquires in Law, IX (2008), pp. 443-471.
27
Antoine Garapon, Le Gardien des Promisses. Le juge et la démocratie (1996).
 Ehrlich was one of the first scholars to remark on the
inefficiency of the huge number of norms and declare the need to
find another solution to the problem of social regulation. His theory
of “the living law” aimed, inter alia, at resolving this problem by
reducing the shortcomings of positivist jurisprudence. While
developing this theory, Ehrlich was guided by knowledge he
already held as a professor of Roman law. Based on Roman
sources, primarily the ideas of Ulpian, Ehrlich regarded the law as
a product of social life and social relations, and observed that
development of the latter requires more prompt reactions and more
flexible regulation than the law provides for. He held these
considerations in mind when addressing the issue of how law is
created and what it looks like, arguing that changes in social
relations and the needs of the social environment are the basis of
historical changes in the law and legal institutions.
Ehrlich regarded doctrinarian normativism as a major
shortcoming of positivist jurisprudence:

The modern practical jurist understands by the word “Law”

generally only Legal Provisions because that is the part of Law
which interests him primarily in his everyday practice. Is a legal
system possible without Legal Provisions? In other words, is a
legal system imaginable which consists of nothing other than the
Social Order?28

Noting that legislation is commonly considered not only the

peculiar task of the State but also its oldest duty, Ehrlich pointed
out that

even the popular assemblies of the ancient city-states made no

statutes, but only rules for certain particular cases, for war and
peace, the imposition of taxes, treaties, reception and sending
away of foreign representatives. True legislation we come upon
for the first time in Athens where an accurate distinction was
made between a decision concerning a particular rule and a
decision containing a Legal Provision and then in perfect
development in ancient Rome (…). The state is older than the
state law.”29

28
Ehrlich, “The Sociology of Law”, in Kahei Rokumoto (ed.), Sociological
Theories of Law (1994), p. 96.
29
Ibid., p. 103.
 Here we encounter an idea about two types of law: the legal
system, which predates the State; and legislation, which the State
makes upon reaching a particular stage of its development. The
former is the higher and the true law; society is regulated by this
law and is based on it. Ehrlich regarded it as a “living law” that
develops in close connection with social relations and under their
influence. As an example, he cited Turkey, whose legal system was
developed mainly via judicial interpretation.
These and other ideas of Ehrlich’s were taken up later on by
radical sociologists who denied the very necessity of law and saw
“how unimportant law can be” as decidedly impressive.30 For
example, an experiment conducted by Ellickson in Shasta County,
California, demonstrated that the organization of social life and
social interaction in the county could be regulated exclusively by
social prescriptions instead of legal rules. According to Ellickson,
social control proved to be no less effective than legal regulation.
In particular, all disputes arising there, including territorial
conflicts, were subject to purely social, rather than legal,
settlement. That was grounds for Ellickson’s finding of “order
without law” and his related assertion that “in many contexts, law
is not central to the maintenance of social order”. 31 He insisted that
social self-regulation remains outside of the legal field. It is true
that even primitive societies without a State or State apparatus
carry out effective self-regulation based on social rules, moral
rules, and ethics. Ellickson confused the traditional idea of
connection between law and State with absence of the law itself,
even as he conflated the law itself and the legal system with what
Ehrlich called State prescriptions. In claiming that social order can
be established with the help of social but not legal rules, Ellickson
did not acknowledge that the legal rules that emerge in the absence
of a State are a self-regulating factor in society.
While analyzing the legal efficiency of Austro-Hungarian
legislation in Bukowina, Ehrlich concluded it was only partially
effective. He was working with a wealth of material, as a
conglomerate of legal customs and prescriptions prevailed in
Bukowina at the time. Later on lawyers, regarding this
phenomenon of different, coexisting legal systems (typically
customary or religious) alongside the official (State), would label it
“legal pluralism” or “polyjuridicism”.The phenomenon is often
characteristic of federal States or States with multiple national and

30
R. C. Ellickson, Order without Law. How Neighbors Settle Disputes (1991), p. vii.
31
Ibid., p. 280.
religious minorities or indigenous people who have their own
traditional customary systems. According to Pound,

Professor Ehrlich lived and taught in a place where modern law

and primitive law came together and a modern complex
industrial society jostled with groups of much older types. Thus,
he had exceptional advantages which he did not fail to improve.32

Ehrlich himself wrote that

In Bukowina, for example, many nationalities live together:

Ruthenians, Romanians, Germans, Jews, Russians, Slovaks,
Hungarians, Gypsies. An old-style jurist will probably say that
all they have the very same law which is in force throughout
Austria. However, a mere glance at the matter will show him that
each of these peoples bases its everyday legal relations on
different principles of law.33

Thus, according to Ehrlich, a society itself consists of a number

of smaller societies, each with its own law (customary, traditional,
ethnic, religious, and so forth).
The larger part of the law in effect, therefore, remains outside
the legislative arena. It is this law that is the true or “real law” —
and the law that is real is a living one, for Ehrlich, who used the
example of family law to demonstrate in detail the conflicts
between actual customary law and State legislation: in some cases,
customs and rules of peoples living in Bukowina were absolutely
incompatible with norms and principles of the Austrian Civil
Code.34 That is natural, insofar as the field of family relationships
is closest to the specific features of legal consciousness and legal
culture in a given social group. Such law is based mainly on legal
fact instead of State will. Tradition and custom are the predominant
sources of its norms.
Ehrlich considered living law the result of spontaneous
lawmaking process in the society. To understand the law that
governs social relations, one must study the order of the society
itself. Consequently, the most effective legal regulation of social
relations is grounded not in State law (a more static, less flexible

32
Roscoe Pound, “An Appreciation of Eugen Ehrlich”, in Rokumoto, note 28
above, p. 94.
33
Ehrlich, «Про живе право» [On the Living Law], Проблемы философии
права [Problems of the Philosophy of Law], III, no. 1-2 (2005), p. 194.
34
Ehrlich, note 8 above, pp. 370-371.
legal source), but in court decisions. The latter type of normative
acts have the greatest capacity to regulate social relations, swiftly
responding to social changes and necessities. Society also regards
them as more authoritative than the will of the State.
In this light, the living law as a concept has also been called the
“free law” or judicial discretion, since its judges who should be
ruled by the living law of society in their decision making. The
courts themselves, according to Ehrlich “do not come into being as
organs of the state, but of society”.35 Nowadays such an approach
is observable in the doctrine of legal activism of international
courts.
The “living law”, according to Ehrlich, is law that

dominates life itself even though it has not been posited in legal
propositions. The source of our knowledge of this law is, first,
the modern legal document; secondly, direct observation of
life, of commerce, of customs and usages, and of all
associations, not only of those that the law has recognized but
also of those that it has overlooked and passed by, indeed even
of those that it has disapproved.36

The essence of the theory of living law proposed by Ehrlich is

that such a law is a law of constant evolution. Living law is a
product of human life and social development, and at the same
time is an incentive to the latter. In Ehrlich’s view, such a law has
little in common with the State: “The law changes because men
and things change (…). The reason why the law is in perpetual
state of flux is that men, whose relations the law is designed to
regulate, are continually posing new problems for it to solve”. 37 In
this respect, the role of custom and agreement (contract) in
lawmaking takes on extreme importance. Both these sources
originate in the regularities and needs of the society and its
relationships. The true law is a multidimensional phenomenon. It
should not ignore other rules of social conduct, especially “norms
of morality, ethical custom, good breeding, tact”.
Ehrlich proposed to fill the gaps in positive legislation with
court practice, which, being more flexible, is well suited to regulate
changing social relations. From this point of view, the judge is
closest to the real relations between parties and consequently more
competent to decide the case. As of the second half of the twentieth

35
Ibid., p. 121.
36
Ibid., p. 493.
37
Ibid., pp. 392, 393, 399.
century, international judicial institutions would take the
predominant role in establishing international law as a living law.
Implementation of court decisions, as an alternative to legal acts
based on the will of the state, has become most consistent in the
international legal field.

Ehrlich’s Views on International Law as a Legal System

The Origin of International Law, according to Ehrlich.
Ehrlich’s works contain few references to international law, even
though many of his ideas are characteristic of precisely that system.
He mentioned international law just once in his major treatise
Fundamental Principles of the Sociology of Law, saying that “even
today there are two legal systems which are absolutely independent
of the State, or, to be more accurate, independent of State
legislation, State adjudication, and State administration. These are
ecclesiastical law and international law”.38
As to the question of the origin of law, the founder of the living
law concept considered it necessary to reject the idea prevalent in
European jurisprudence that the law is made by the State. The State
becomes its creator only at a certain stage of historical
development, Ehrlich argued. In this respect, the theory of the
living law coincides with the concept of the formation of
international law. International law developed during the pre-State
period in sequence with the emergence of first social communities
and their mutual contacts. The sociological school of law
considered the existence of a society or social organization to be
the main condition for the creation of law (ubi societas ibi ius). For
this reason, Ehrlich associated the origin of law with the period
when families, tribes, and phratries came into being in primitive
societies. These social groups elaborated the first legal rules and
codes of social conduct in their mutual relations.
Regarding the emergence of law in general, Ehrlich is closely
associated with the so-called conciliatory theory of the appearance
of international law. One factor that caused international law to
come into being was the need to avoid military conflict, peacefully
settle international disputes, and establish a system and procedures
of international adjudication. The need to settle international
conflicts was a main catalyst for the emergence and functioning of
international law in antiquity. For this purpose, institutions arose in
the early stages of peoples’ interaction to govern the conduct of

38
Ibid., p. 162.
war, the legal status of enemies’ official (diplomatic)
representatives, and settlement of conflicts by treaty. This function
of international law gave rise to the development of the
conciliatory theory of law. International law’s function in settling
disputes and reconciling conflicts, even at the very outset of human
history, was so obvious to scholars (H. J. Berman and Е. Anners,
among others) that they began to apply conciliatory theory to the
emergence of any legal system – international and municipal. They
regarded the creation of domestic law as a result of the functioning
of intertribal conciliatory law, which was based on the “primary
treaty of conciliation”. Thus, the Roman legal process adopted
international conciliatory procedures, and legis actiones of Roman
private law was analogous to the procedure for declaring war
attributed to the jus gentium.39 The first prescriptions of ancient
international law required that each party to a conflict refrain from
the use of force and initiate conciliatory procedures.40
The same functions remained characteristic of international law
in subsequent periods. In the Middle Ages, time-tested
international conciliatory procedure was furthermore applied by
analogy to solve internal disputes. Ehrlich regarded the origin of
law from the same perspective:

in the so-called pre-history of law there are as yet no courts (...).

When the parties under the pressure of their environment reach
the point of taking it for granted that their quarrel must be
peacefully settled and yet cannot arrive at an agreement as to the
compensation for which the injured party should abandon the
feud, they submit to the judgment of one or more men in whom
they repose confidence.41

Regulation under municipal law, which concerns relations in a

relatively homogeneous society, is made possible by means of
State prescriptions (though these are often distinct from the real
needs of society), as well as norms of religion, ethnical customs,
local morality, ethics and so forth. In international law, where the
subjects represent various societies with different legal, religious,
political, and cultural systems, the situation is completely different,
for three main reasons. First, it is impossible to regulate different

39
Alan Watson, International Law in Archaic Rome. War and Religion (1993),
pp. 20-21.
40
See Harold J. Berman, Law and Revolution: The Formation of the Western
Legal Tradition (1983), I.
41
Ehrlich, note 28 above, pp. 97-98.
societies’ relations on the basis of a supreme legal prescription that
is equal for everyone, because international legal subjects are
mostly sovereign — there is no supreme power over them. Second,
international legal actors adhere to different religions (which
themselves have been in conflict in certain periods of history), so
their conduct cannot be regulated by religious norms. Third, ethnic
and national traditions cannot apply to the international legal field
because the peoples all differ in this respect too. From its inception,
international law had to elaborate more liberal and coordinative
means of social regulation on the basis of compromise. Hence,
many legal categories and rules, like the aforesaid conciliatory
procedures, have spread from the international domain.
Nature of International Law, according to Ehrlich. Ehrlich’s
aforementioned criticism of positivism for paying attention to legal
provisions alone without studying the greater social environment is
close to the essence of international law. To uncover the nature of
law, one should analyze it from the viewpoint of the whole legal
life and its regularities as well as social and economic
developments.
By providing a contrast, international law reveals the
deficiencies of a purely juridical (normative) approach to the
essence of the legal system and its institutions. Inasmuch as the
international legal system is designed to regulate various
relationships among different subjects, it should accumulate in
itself these subjects’ moral and religious rules and other non-legal
norms, alongside purely legal rules. It includes purely positivist
legal methods, as well as methods from economic, political, social,
and historical fields. Thus, an application of Ehrlich’s approach to
international law is quite appropriate.
There is a standpoint from which Ehrlich’s theory of living law
looks suited only to the field of private law because it presupposes
the absence of central higher authority. But international law also
lacks any higher authority, which is why most arguments of the
living law theory prove to be applicable to purely public branches
of international law as well as to the private ones.
The living law theory has been criticized for significantly
expanding the scope of the law. Indeed, this theory includes all
elements of social life in the legal system. Ehrlich pointed to such
phenomena of social life as morality, custom, good manners, and
fashion, underlining that they have an impact upon and even
permeate the law and the legal order. 42 These features, which are
peculiar to international law and its normative system, are a
product of the specific nature of the international legal undertaking
to accumulate rules from other systems of social regulation and
make them legally binding.
To be sure, in formulating this concept Ehrlich mainly
analyzed municipal legal systems and did not address international
law. The same holds for this aspect of the concept of the living law
as a theory of the judicial finding of law. Over time, however,
things fell into place: the theory found its practical application in
the international legal sphere, and international judicial institutions
affirmed the position that this law is a living law. Everything was
arranged as Ehrlich had predicted, though he would probably have
needed more than one lifetime to finalize his theory. He wrote in
this regard that the “theory of the judicial finding of law is just the
beginning of the scientific comprehension of jurisprudence. Only
in future centuries will legislators, lawyers and judges have a
scientifically grounded foundation. But nevertheless everything has
to start somewhere”.43 In less than a half a century his theory was
being applied in international law.
The author of the living law theory actually came close to
identifying living law with international law. Ehrlich suggested a
consideration of a system that is universal and intrinsic to all
peoples, asking,

Is there such a thing as a worldwide Law? Or are there Laws,

differing in various states, among various peoples? (…) over and
above all of these varieties there must exist some universal legal
ideas, they would answer that this is a conception which goes
with the long-exploded Law of Nature in which no scientific
jurist believes any more.44

Can the nature of international law as a law common to all

peoples, as even Roman jurists described it, be seen in the living
laws’ propensity to spread itself via social relationships and
belonging in common to every nation, in contrast to municipal
law? The answer to this question should be referred to Ehrlich
himself, who treated this issue as follows:

42
Marchuk, note 18 above, p. 55.
43
Ibid., p. 50.
44
Ehrlich, note 28 above, pp. 94-95.
 Those who proclaim a multiplicity of Laws understand by ‘Law’
nothing other than Legal Provisions, and these are, at least today,
different in every state. On the other hand, those who emphasize
the common element in the midst of this variety are centering
their attention not on Legal Provisions but on the Social Order,
and this is among civilized states and peoples similar in its main
outlines (…). The Social Order rests on the fundamental social
institutions: marriage, family, possession, contract, succession.45

Current Approaches to International Law as a Living Law

Contemporary international law tends to interpret a treaty as a
“living instrument” instead of a positivist requirement to follow
States’ strictly changeless agreements. Certain manifestations of
the evolutionary interpretation of international law and the
approach to this law as a dynamic law appeared as early as the
1950s in the practice of the International Court of Justice (ICJ), a
number of whose judgments found for the interests of a party
despite existing legal acts.
In the Anglo-Norwegian case (1951), the ICJ decided the case
not according to provisions in the national laws and international
commitments of the parties (in particular, the 1882 North Sea
Fisheries [Police] Convention), but on the basis of “certain
economic interests peculiar to a region, the reality and importance
of which are clearly evidenced by a long usage”. The ICJ also
stated that “rights, founded on the vital needs of the population and
attested by very ancient and peaceful usage, may legitimately be
taken into account”.46
In deciding the North Sea Continental Shelf cases (dispute
between Germany, Netherlands, and Denmark) in 1969, the ICJ did
not rely on Article 6 of the 1959 Geneva Convention on the
Continental Shelf, which provides that

where the same continental shelf is adjacent to the territories of

two adjacent States … in the absence of agreement, and unless
another boundary line is justified by special circumstances, the
boundary shall be determined by application of the principle of
equidistance from the nearest points of the baselines from which
the breadth of the territorial sea of each State is measured.

45
Ibid., p. 95.
46
See the decision available online; See also: ICJ, Gabcikovo-Nagymaros Project
(Hungary/Slovakia), Judgment of 25 September 1997, ICJ Reports (1997), p. 78, §140.
 Instead the Court decided the case:

taking account of all the relevant circumstances, in such a way as

to leave as much as possible to each Party all those parts of the
continental shelf that constitute a natural prolongation of its land
territory into and under the sea, without encroachment on the
natural prolongation of the land territory of the other.

It also concluded that in the course of further negotiations, “the

factors to be taken into account are to include (…) the element of a
reasonable degree of proportionality, with a delimitation carried
out in accordance with equitable principles”.
This case has become an example of the equity praeter legem
principle or “equity beyond the law” (that is, “when fairness
supplements the law or fills in its gaps”). 47 This task is not an easy
one for a judge because

permissible modifications to a treaty that take into account the

passing of time thus often require a new interpretation of its
terms. To this end, a judge is often requested to redefine the
meaning of a treaty without altering its nature. Such a manner of
interpreting treaties, sometimes called an evolutionary
interpretation, is no mean feat … It is not a matter of giving a
meaning to the text that was unintended by its authors; rather, it
is the task of the judge to ensure that a new reading is undertaken
in such a way as to reflect the common desire of the parties as if
they had renegotiated the same agreement taking into account the
circumstances that have since evolved.48

Also noticeable here is the approach to international law as

living law. In such judgments the ICJ is guided by Article 38(2) of
its Statute, which provides that alongside positive prescriptions and
custom, it should also “decide a case ex aequo et bono, if the
parties agree thereto”. The provision reflects another aspect of the
living law, namely the judicial finding of law:

the practice of evolutionary interpretation is another expression

of the art of judging, which is constantly balanced between
providing for stability based on respect for the principle of

47
Mark Weston Janis, “The Quest For a Higher Law”, Yale Law Journal, CXVI
(2006-2007), Pocket Part, p. 317.
48
Pierre-Marie Dupuy, “Evolutionary Interpretation of Treaties: Between
Memory and Prophecy”, in Enzo Cannizzaro (ed.), The Law of Treaties Beyond
the Vienna Convention (2011), pp. 125, 126, 132.
 autonomy of the will of the parties, and a quest for the necessary
flexibility to keep a treat afloat by meeting the objectives it was
designed to address.”49

However, the European Court of Human Rights (ECtHR) most

persistently applies the concept of the living law in its practice:

the Court has reiterated that the ECHR is a ‘living instrument’.

The rights enshrined in the Convention have to be interpreted in
the light of present day conditions so as to be practical and
effective. Sociological, technological and scientific changes,
evolving standards in the field of human rights and altering
views on morals and ethics have to be considered when applying
the Convention.50

That approach informs its concept of evolutionary

interpretation of the 1950 European Convention for the Protection
of Human Rights and Fundamental Freedoms (ECHR). The ECtHR
treats the Convention as dynamic and developing, preferring the
aim and essence of the Convention over its text (for instance, in
Pichkur v. Ukraine (2014), Vallianatos and others v. Greece
(2013), and others).51 Even when two authentic texts of the
Convention conflict, the Court has to decide which text is more
adequate to the relations in question. Sometimes the difference
between the texts can significantly alter the legal nature of the
proper provisions. For example, in the Sunday Times case, the
Court decided:

The expression ‘prescribed by law’ appears in paragraph 2 of

Articles 9, 10 and 11 of the Convention, the equivalent in the
French text being in each case ‘prévues par la loi’. However,
when the same French expression appears in Article 8 (2) of the
Convention, in Article 1 of Protocol No. 1 and in Article 2 of
Protocol No. 4, the English text as ‘in accordance with the law’,
‘provided for by law’ and ‘in accordance with law’, respectively.
Thus confronted with versions of a law-making treaty which are
equally authentic but not exactly the same, the Court must
interpret them in a way that reconciles them as far as possible

49
Ibid., p. 137.
50
ECHR Info. Available online.
51
It should be noted that the evolutionary approach is often criticized for lacking
consistency in case law, legal certainty, and predictability. See Kanstantsin
Dzehtsiarou, European Consensus and the Legitimacy of the European Court of
Human Rights (2015), pp. 130-141.
 and is most appropriate in order to realise the aim and achieve
the object of the treaty [italics mine – O.B.].52

The ECtHR reiterated this approach in subsequent judgments:

since the Convention is first and foremost a system for the

protection of human rights, the Court must have regard to the
changing conditions within the respondent State and within
Contracting States generally and respond, for example, to any
evolving convergence as to the standards to be achieved (…) it is
of crucial importance that the Convention is interpreted and
applied in a manner which renders its rights practical and
effective, not theoretical and illusory.53

This striking example of ECtHR legal activism demonstrates a

non-formal approach to legal provisions that is comparable to
Ehrlich’s concept of the judicial finding of law. 54 One result has
been an observable equalization of the roles and places of ECHR
norms, on one hand, and the judgments, standards, and principles
elaborated by the Court, on the other.
The ECHR is the legal basis of the regional system of human
rights protection of the Council of Europe. Yet with the
development of both this organization and the framework of human
rights protections it introduced, the ECtHR judgments and its legal
principles and standards elaborated on the basis of the Convention
are coming to the fore.
Moreover, ECtHR decisions and judgments appear to be
important sources in the interpretation of ECHR provisions. For
several decades the Court has regarded the Convention as a “living
instrument” and been guided in its practice not by static, once
accepted norms, but by actual legal relationships. This approach
has been highlighted in several cases since the 1970s. Thus, in
Tyrer v. United Kingdom the ECtHR came to the following
conclusion: “The Court must also recall that the Convention is a
living instrument which must be interpreted in the light of present-

52
See The Sunday Times. – Judgment of 26 April 1979, §48. Publications of the
European Court of Human Rights. Serie A. Judgments and Decisions (1979),
XXX, p. 30.
53
See the case: Goodwin v. UK, Judgment of 11 July 2002. (available online).
54
Lee Ka Yee R, “Expansive Interpretation of the European Convention on
Human Rights and the Creative Jurisprudence of the Strasbourg’s Court”,
Mercury – HKU Journal of Undergraduate Humanities, I, no. 1 (2014).
day conditions”.55 Thereafter this approach came to be categorized
as a “method of evaluative interpretation of the Convention”,
whereas the Convention was regarded as a “living instrument”. It
was in this period that the international judicial system and the
ECtHR in particular were transformed.
Researchers have remarked that if there was one common
trend in its judgments,

it was that they pushed the ECtHR beyond the mere

intergovermentalism of the previous period. Within the limited
field of European human rights, the only viable way out of the
hegemony of national sovereignty marking the initial period was
by granting individuals – and individual rights – more
importance in the balancing act between European human rights
and national sovereignty (…). Key notions such as ‘living
instrument’ and ‘practical and effective’ developed in a flow of
successive cases where the Court was not shy of finding
violation.56

In other words, ECtHR actually rejects the basic rule of justice

— the precedent-binding nature of its judgments — in favor of
recognizing international law (in this case, the ECHR) as a “living
system” and its norms as flexible ones (“if the Court is satisfied
that evolutive interpretation should be deployed, a previous
judgment or judgments may be overruled”). 57 At the same time,
though, this is only done when necessary: “the Court does not
depart from precedents without good reason. The reasons for a
departure from preceding case law are rooted in phenomena such
as development in law, societal changes and technical progress”.58
Today the evolutive approach to the ECHR as a “living
document” that should be interpreted as still developing is one of

55
See: Tyrer case, Judgment of 25 April 1978, §31. Publications of the European
Court of Human Rights. Series A. Judgments and Decisions (1978), XXVI, p. 15;
See also: Marckx v. Belgium (1979), §41; Matthews v. the United Kingdom, §39;
The Loizidou v. Turkey (1995), §71; Van der Mussele v. Belgium, §32; Kress v.
France, §70; Stes Colas and others v. France. §41; Mamatkulov and
Abdurasuloviс v. Turkey, §94, and others.
56
Mikael Rask Madsen, “The Protracted Institutionalization of the Strasbourg
Court: From Legal Diplomacy to Integrationist Jurisprudence”, in Jonas
Christoffersen and Mikael Rask Madsen (eds.) The European Court of Human
Rights between Law and Politics (2011), p. 53.
57
Dzehtsiarou, note 50 above, p. 139.
58
Ibid., p. 140. See also: Eirik Bjorge, “What is Living and What is Dead in the
European Convention on Human Rights? A Comment on Hassan v. United
Kingdom”, in Questions of International Law, XV (2015), pp. 23-36.
the cornerstones of the ECtHR practice. It is embodied in many
judgments of the Court. On one hand, it expands in tandem with
changing societal values; on the other, it is influenced by the
extension of the Council of Europe itself and accession of new
members with their original legal cultures. Professor Luzius
Wildhaber, a former President of the ECtHR, determined the roots
and effects of this approach that

developed in light of changing conditions and societal values …

The ECtHR’s hallmark has been the idea of continuing
development and the evolutive interpretation of the ECHR…an
evolutive interpretation of human rights may often be rather self-
evident … Far less than half the present 47 Member States of the
ECHR had a say when the Convention was drafted. From a
democratic standpoint it is not very satisfactory to consider all
newcomers bound to rules which they did not shape … evolutive
interpretation would seem to encourage judicial activism.59

Thus, the theory of the judicial finding of law is already

embodied in international law. Moreover, the role of judicial
decisions as a source of modern international law has tended to
grow. At least it is evident in the legal activism of the ECtHR,
which can adjust provisions of the Convention to changing social
needs by means of its interpretation. This phenomenon is treated in
the doctrine that posits international law as a “decision-making
process”:

those who have to make decisions on the basis of international

law – judges, but also legal advisers and others – are not really
simply ‘finding the rule’ and then applying it. That is because the
determination of what is the relevant rule is part of the decision-
maker’s function.60

In the increasingly interdependent modern world, current

international law and Ehrlich’s theory leave the determinacy of this
law to international society itself. Like Ehrlich, modern scholars
stress the significant role and impact of the law of the international
community, and its role has only expanded since the process of
globalization began. One can even discern the creation of new
influential global community that will determine its law in the near
future alongside or even instead of the States:

59
Luzius Wildhaber, “Rethinking the European Court of Human Rights”, in
Christoffersen and Madsen, note 56 above, p. 214.
60
Higgins, note 12 above, p. 3.
 the international community under the impact of globalization, is
being transformed into a new community made up of new
members, inspired by new principles, and based on new ideas
and ideals. There are deep conceptual differences between the
current international community and this new global community.
The most important one is that the current international
community is a community of nation-states; the new global
community, however, is a community of individual persons. The
implications of moving the primary subject of international law
from the nation-state to the human person are so profound that
they will change the very legal foundations of public
international law … law must emanate from the person.61

The formation of an international society and its influence on

lawmaking are connected above all with the international
protection of human rights. This close link is consistent with the
idea that international law is a living law that antedates municipal
legal systems. The international protection of human rights has
revealed the non-statal character of international law at certain
periods of its history. The notion that certain rights inhere in the
individual and the possibility of legally protecting them are
products of international law. State legal systems adopted such
norms only after they were established in international law in
ancient times, when the domain of the law of war became the
birthplace of the first legal rules of human rights protection
(exclusion of certain categories of people from warfare, humane
treatment of prisoners of war and the wounded, other rules of
humanization of war).
Nowadays human rights protection effectively limits the
arbitrariness of States by means of the direct effect of international
law. Created in international law long before the appearance of the
State, rules on human rights protection have been most
successfully realized in the purely international domain. Today the
idea of human rights is central to the concept of the law of
international society: “there already exists a legal community
composed of all human beings insofar as they are bearers of human
rights, which can only exist in the context of a human
community”.62 The contemporary concept of the law of
international society affirms that this law derives from and is based
on the interests and needs of a global society. It is therefore a direct
extension of Ehrlich’s ideas.

61
Domingо, note 5 above, pp. 567, 568.
62
Ibid., p. 570.
 Conclusion

The foregoing has shown that the concept of living law is

applicable to many aspects of international law, and that many of
Ehrlich’s ideas have been realized in the modern international legal
system. Thanks to its distinctive historical continuity, international
law is capable of adjusting itself to enable effective regulation of
variable international relations — hence Louis Henkin’s (1917-
2010) definition of this law as “law that changes in a changing
world”.63 The mechanism of adaptability to changing historical
conditions or “self-preservation” so characteristic of international
law is highlighted by the fact that no national legal system in
history has managed to endure over time as the international one
has. Ever since its emergence in antiquity (and some theorize that it
regulated even intertribal relations), international law has survived
across history as a living law. International law and living law
further resemble each other in the nature of their sources. Custom
(long a basic source of international law and its imperative
principles) and tradition, which reflect social consciousness and are
firmly embedded in social life, have been crucial to international
legal regulation throughout its history.
The ability of international law to regulate the conduct of
different social entities while connecting different legal subsystems
is visible in the process of fragmentation. Ehrlich’s living law
represents a union of laws created in different types of legal
systems. Similarly, international law in the age of globalization is
characterized by the increasing impact of self-contained regimes.
Here one may notice an analogy between fragmented international
law and the phenomenon of legal pluralism. At the same time, the
fragmentation of international law is regarded as evidence of its
adaptability and vitality: “it reflects the rapid expansion of
international legal activity into various new fields and the
diversification of its objects and techniques”.64
Unlike municipal legal systems, international law benefits from
the ways its characteristic features (for example, recognition of
universal values, in particular the primacy of human rights and
their protection) contribute to its adaptability and historical

63
Louis Henkin, “The Future of International Law”, in International Law. Classic
and Contemporary Readings (1998), pp. 551-553.
64
Fragmentation of international law: difficulties arising from the diversification
and expansion of International law. Report of the Study Group of the International
Law Commission (2006), §14. Available online.
continuity. Thus, even as it guarantees basic values, international
law has to adapt their protection to the mutable human
consciousness, as the evolutionary approach illustrates: “stability
presupposes adaptability; durability requires change”.65
Meanwhile, the interpretive and explanatory activities of
international judicial institutions (especially the ICJ and ECtHR)
have established both an understanding of international treaties as
“living instruments” and the need to interpret them as “dynamic”
and “in development”. These features of the present international
order suggest that contemporary international law could ultimately
function as a transitional stage between positivist interstate law and
a new type — the law of the world community.

65
Dupuy, note 48 above, p. 123.
592 New from Talbot Publishing

John Marshall in
the Supreme Court
Herbert A. Johnson

A collection of essays by a leading Marshall

scholar, three previously unpublished, that
consider John Marshall’s leadership role
in the U.S. Supreme Court during the
forma- tive period of its institutional
development from 1801 to 1835. The
collection includes a historiographic essay,
a statistical analysis of Supreme Court
opinions in the Marshall era, and
biographies of Associate Justices William
Cushing, William Johnson, and Bushrod
Washington.

ADVANCE PAISE
“This collection of engaging and wide-ranging essays
on Chief Justice Marshall, his colleagues and his
xiii, 358 pp. court is rich in keen insights that validate Herb
ISBN 978-1-61619-581-6 Johnson’s reputation as one of our leading
Hardcover 2019 $75. authorities on early national legal history.
Established scholars and begin- ning students alike
will find them rewarding.”
HERBERT A. JOHNSON is a Distinguished Pro-
R. KENT NEWMYER
fessor Emeritus at the University of South Carolina University of Connecticut School of Law,
School of Law. A past president of the American So- author of John Marshall and the Heroic Age of the Supreme Court (200l)
ciety for Legal History, he was co-author with the
late George L. Haskins of Foundations of Power: John “John Marshall in the Supreme Court brings
Mar- shall, 1801–15 (1981), the second volume in together the exemplary scholarship of Herbert A.
the Oli- ver Wendell Holmes Devise series on the Johnson pub- lished during the past half century.
history of the Supreme Court. Johnson is also Deeply learned in early American legal and
General Editor of the University of South Carolina constitutional history, John- son has contributed
Press series he Chief Jus- ticeships of the United States immeasurably to our understand- ing of the Supreme
Supreme Court. His earlier monographs include he Court as led by ‘the great chief justice.’ No one has
Chief Justiceship of John Mar- shall, 1801–1835 (1997) been more diligent in chipping away encrusted myths
and Gibbons v. Ogden: John Marshall, Steamboats, and purging anachronisms from Marshall
and the Commerce Clause (2010). He also served for historiography. These essays by a master prac- titioner
ten years on the Papers of John Mar- shall editorial of the crat retain their vitality and freshness.”
project, with primary responsibility for volumes 1 CHARLES F. HOBSON
and 2 (1974 and 1977). Omohundro Institute of Early American History and Culture

33 Terminal Avenue, Clark, NJ 07066-1321

TO ORDER: Phone: (732) 382-1800 or (800) 422-6686 Fax: (732) 382-1887 E-mail: law@lawbookexchange.com
www.lawbookexchange.com