Protection Of Citizens Abroad And Change Of Original Nationality, 43 Yale Yale Law Journal 359 (1934)
Precedent and time are the creators and preservers of customary law. So strong is the force of habit in human behavior that man in doubt or distress instinctively turns to past experience to see how his forbears dealt with similar problems. The law, which is the cement holding together the social structure, is, in its evolution as a conservative force, of necessity driven to search for precedents and to profit by them in building certainty and thereby security. Without landmarks there is no system; and for the very reason that international law is deficient in its lack of a legislature, it must rely on precedent and practice even more than must municipal law. It is an interesting fact that international law, though it had its birth and much of its intellectual inspiration in civil-law countries, where judge-made law has always occupied a secondary place, has, nevertheless, in the establishment and growth of arbitral (judicial) tribunals, followed the methods of the Anglo-Saxon common law in considering the decisions of courts as a major and primary source of law. Perhaps this modern development was foreshadowed, if not largely aided, by the publication by John Bassett Moore of his monumental archives of governmental practice and the awards of arbitral tribunals-the Digest of International Law and of International Arbitrations. At all events, the habits and behavior patterns of society in its international manifestations are now sought with greatest confidence and authority in the decisions of arbitral tribunals, which are subjected to minute analysis and criticism just because they have acquired so great a force in the structure of international law. They reflect the impartial view of what is soundest and best in the living law, when put to the test of conflict; and while constituting only one manifestation of international life, such decisions are likely, on the whole, to be as detached as so political a subject permits.
Date of Authorship for this Version
John Bassett Moore, customary law, Institute of International Law
Borchard, Edwin, "Protection of Citizens Abroad and Change of Original Nationality" (1934). Faculty Scholarship Series. Paper 3472.
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