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34 Am. J. Int'l L. 260 (1940)
Positivism, Functionalism, and International Law

handle is hein.journals/ajil34 and id is 264 raw text is: POSITIVISM, FUNCTIONALISM, AND INTERNATIONAL LAW By HAws J. MORGENTHAU Assistant Professor of Law and Political Science, University of Kansas City If an event in the physical world contradicts all scientific forecasts, and thus challenges the assumptions on which the forecasts have been based, it is the natural reaction of scientific inquiry to reexamine the foundations of the specific science and attempt to reconcile scientific findings and empirical facts. The social sciences do not react in the same way. They have an inveterate tendency to stick to their assumptions and to suffer constant defeat from experience rather than to change their assumptions in the light of contradicting facts.' This resistance to change is uppermost in the his- tory of international law. All the schemes and devices by which great humanitarians and shrewd politicians endeavored to reorganize the relations between states on the basis of law, have not stood the trial of history. In- stead of asking whether the devices were adequate to the problems which they were supposed to solve, it was the general attitude of the international- ists to take the appropriateness of the devices for granted and to blame the facts for the failure.2 When the facts behave otherwise than we have pre- dicted, they seem to say, too bad for the facts. Not unlike the sorcerers of primitive ages, they attempt to exorcise social evils by the indefatigable repetition of magic formulae. As the League of Nations was a failure, let us have another League. As the first and second Peace Conferences of the Hague did not succeed, let us have a third one. As arbitration never settled a political conflict which otherwise would have led to war, let us have more arbitration for the prevention of war. As the Disarmament Conference was a senseless waste of intellect and time, why not convoke another Disarmament Conference? It is a strange paradox that the lay public has observed a much more sceptical and realistic, therefore scientific, attitude toward international law than the science of international law itself. The laymen were much quicker to recognize the gap between the rules of international law as represented by science, and the rules of international law as they exist in actual experience. The breakdown of the main bulk of post-World War international law has altogether destroyed public confidence in a science which, unmoved by what 'As to this tendency, see Lancelot Hogben, The Retreat from Reason (Conway Memorial Lecture, London, 1936); Lynd, Knowledge for What? (Princeton, 1939). 2See Wild, What Is the Trouble with International Law? Am. Pol. Sci. Rev., Vol. XXXII (1938), p. 479: Too often in the past he has assumed the attitude that the world is out of step with his law, and too seldom has he considered the point that perhaps his science is partly to blame. 260

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