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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