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10 Brit. Y.B. Int'l L. 65 (1929)
Decisions of Municipal Courts as a Source of International Law

handle is hein.journals/byrint10 and id is 69 raw text is: DECISIONS OF MUNICIPAL COURTS AS A SOURCE OF INTERNATIONAL LAW By H. LAUTERPACHT, LL.D., Assistant Lecturer in International Law at the London School of Economics and Political Science. THE function of decisions of municipal courts as a source of international law has hitherto been obscured by four factors: by the current preoccupation with decisions of prize courts and their identification with decisions of municipal courts in general; by the rigid predominance of the positivist doctrine; by the so-called dualistic conception of the relation between international law and municipal law; and by the confusion enveloping the conception of sources of international law on the one hand, and the nature of the function of municipal judges on the other. The fact that prize courts dispense international law on behalf of the territorial sovereign and that the law which they administer is ultimately determined by their national legislature and the imperative national interests in time of stress has had the result of creating a sceptical consensus of opinion to the effect that decisions of prize courts must necessarily be tainted by national bias and as such be of doubtful value for the creation of general international law. In a time when the laws of war occupied the major part of treatises on international law, this view tended to affect adversely the estimation of the value of decisions of munici- pal courts in other fields. They were either ignored or made to share the charge of unavoidable partiality levied against prize courts. However, the proper approach to the question discussed here does not lie through a proof of the truly international charac- ter of the latter. Lord Stowell did much in this country to vindicate the independent position of British prize courts, and his judg- ments in The Maria, The Recovery, and The Fox1 will certainly rank among the most eloquent efforts to impress their decisions with the character of pronouncements emanating from free judicial agencies impartially administering international law. But these pronouncements should be read both in the light of the accompanying historical events 2 and of the subsequent history of 1 1 Chr. Rob. 350; 6 Chr. Rob. 348; 1 Chr. Rob. 312, respectively. 2 The judgment in The Maria, in which the universality and the impartiality of the law administered by British prize courts was proclaimed for the first time and in a most solemn manner, was given on June 11, 1799. It will be observed that between the years

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