James Brown Scott’s International Adjudication between Tradition and Progress in the United States

in Journal of the History of International Law / Revue d'histoire du droit international
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Martti Koskenniemi, ‘The Ideology of International Adjudication and the 1907 Hague Conference’, in Topicality of the 1907 Hague Conference, the Second Peace Conference/Actualité de la Conférence de La Haye de 1907, Deuxième Conférence de la paix, ed. by Yves Daudet, Leiden/Boston: Brill, 2008, p. 128.


See Carl Landauer, ‘The Ambivalences of Power: Launching the American Journal of International Law in an Era of Empire and Globalization’, Leiden Journal of International Law, 20, 2007, pp. 328–336.


Koskenniemi, ‘The ideology of international adjudication’, supra note 10, p. 137.


See Edward S. Corvin, ‘Book Review. The United States of America: a Study in International Organization’, University of Pennsylvania Law Review, Vol. 69, No. 4, 1921, pp. 393–394.


In 1933, in providing the text of his first public speech of 1897 on international arbitration to his younger colleague Manley O. Hudson, at the time head of Harvard international law department, to be preserved in the law school’s library, Scott would confess: “Between ourselves, I have been delivering that address ever since” (Quoted in George A. Finch, edited by William E. Butler, Adventures in Internationalism. A Biography of James Brown Scott, Clark: Lawbook Exchange, 2012, p. 5).


W. T. Brantly, ‘Of the Influence of European Speculation in the Formation of the Federal Constitution’, Southern Law Review, New Series, Vol. vi, 1880, p. 351, quoted in Scott, The United States, supra note 3, p. 1.


See James Brown Scott, ‘The Study of the Law’, The American Law School Review, Vol. 2 Issue 1, pp. 3–4 and John Hepp, ‘James Brown Scott and the Rise of Public International Law’, Journal of the Gilded Age and Progressive Era, 7, 2008, pp. 162–164.


Ibid., pp. 2 and 5–6.


Scott, ‘The Legal Nature of International Law’, American Journal of International Law, 1, 1907, pp. 831–866.


Elihu Root, ‘The Sanction of International Law’, in Addresses on International Subjects by Elihu Root, collected and edited by Robert Bacon and James Brown Scott, Cambridge: Harvard University Press, 1916, pp. 25–32.


Ibid., pp. 27–28.


Ibid., pp. 30–31.


Ibid., pp. 31–32.


Ibid., p. 30.


Ibid., p. 28.


Ibid., p. 45. Scott refers to the power of Congress under the Articles to decide boundary disputes between States and to create courts to determine prize cases.


Ibid., p. 46.


Scott’s book of 1916, The Status of the International Court of Justice (Oxford: Oxford University Press) was the reprint of a pamphlet for the American Society for Judicial Settlement of International Disputes “published but a few weeks . . . before the outbreak of the great war in August 1914” (op. cit., p. iii). In the preface to the reprint, Scott remarked how Root had urged that the text appear “in a permanent book form” in view of “a new departure after the war . . . of peaceable settlement” (pp. iii–iv).


Ibid., p. 278.


Ibid., p. 211.


See in this sense Scott, ‘Aim and Purpose of an International Court of Justice’, Annals of the American Academy of Political and Social Science, 96, 1921, pp. 100–102.


Ibid., p. 269.


See Landauer, ‘The Ambivalences of Power’, supra note 12, pp. 345–351.


Landauer, ‘The Ambivalences of Power’, supra note 12, pp. 351–352.


Ibid., p. 294.


James Brown Scott, ‘The Progress of International Law during the last Twenty-Five Years’, Proceedings of the American Society of International Law, 25, 1931, p. 33.


Charles Fenwick, ‘International Law: the Old and the New’, American Journal of International Law, 60, 1966, pp. 475–483.


Ibid., pp. 476–477.


Charles Fenwick, ‘International Organization – Judicial’, Proceedings of the American Society of International Law, 11, 1917, p. 72.


James Brown Scott, ‘International Organization: Executive and Administrative’, Proceedings of the American Society of International Law, 11, 1917, pp. 101–118.


Stephen Humphreys, Theatre of the Rule of Law. Transnational Legal Intervention in Theory and Practice, Cambridge University Press, 2010, p. 30. “An Englishman naturally imagines that the rule of law [. . .] is a trait common to all civilized societies. But that supposition is erroneous”. (Dicey, Introduction, supra note 100, p. 190.)


See in the same sense Landauer, ‘The Ambivalences of Power’, supra note 12, p. 353.


Scott, ‘The Progress of International Law’, supra note 90, p. 5.


See Fenwick, ‘International Law: the Old and the New’, supra note 92, especially pp. 480–483.


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