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10-1963

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Vol.5-No. I LOYOLA UNIVERSITY SCHOOL OF LAW October, 1963

Natural Law: Foundation For A Community Of Mankind INTERNATIONAL LAWISSUE:

NATURAL LAW & LAW OFNATIONS-

Professor Del Vecchio sees naturallaw at foundation for- internationallaw.

By GIORGIO DEL VECCHIO (Professor Emeritus University of Rome)To examine and if possible find a solution to the fundamentals OIfinternational law, it ds

best to commence with two basic and generally accepted factors which up to a certain pointposs the problem. There is, among all men, a certain natural affinity (otherwise one could not LAW IN -SAMOA-speak of "mankind"), and though in actual fact, man lives grouped into different organizations, Napoleon Tuiteleleapaga, Samoanan effective worldwide unitarian system does not exist. Chief, traces stages of developmentfrom primitive to modern.Yet there do exist between ---------------------~----------:-----------

these organisations more or less If we keep to strict reality weextensive agreements and fur- are bound to recognize the factthermore, without specifically that whereas it is only in indi-agreed pacts, some common ten- vidual States where there is aets which are revealed by usual central power, that decrees thepractioe and constitute the SQl-legislation which is enforcedcall e d international juridical within its 'Own territory, therecommunity. However it is quite is no such similar power yet inobvious that neither the agree- existence which would regulatements concluded between the relationship between the differ-various States nor the usually ent States, The so-called Interna-accepted standards, are suffi- tional Law (which would be bet-dent in themselves to create a ter defined as Interstate Law)perfect system to make life uni- owes its degree of imperfectionform the world Olver. to the very absence of a supreme

power to effectively enforce it. 1£such a power were to be estab-lished, then mankind would be-come one single State and, con-sequently, what today is knownas International Q1rInterstateLaw would develop into a sys-tem Q1fInternal legislature; thusthe present day States would b~come subordina te parts to thissystem and strictly speaking,should not even be defined asStates, if the word State is to beinterpreted as an authority en-dowed with absolute supremacy.All this would be so, we repeat,if we,are to keep to strict prem-ises Q1fpositivism from the start,but if on the other hand we'set out accepting other ante-cedents, then the problem pre-sents dtself in a rather differentmanner, .as we shall see pres-ently..The imperfection and insta-

bility Q1finternational relation-ship at the present moment hasinduced some philosophers todeny that international law isin fact a law at all. Thus for ex-ample, according to Adolf Las-SQln,treaties between States do'not result in a true juridicallink, but only represent a rela-tionship between their powersand would cease to be effectivewhenever one of the States SOlwished and could ignore them."

JUS'TICiE FALLS IN CUBA

Richard Schauer

Loyola Professor,Appointed To Ben,ch

Richard H. Schauer, professorof Personal and Real Propertyand conveyancing, was recentlyappointed to the Municipal Courtbench in Los Angeles by Gov-ernor Pat Brown. ProfessorSchauer has been close to thebench prior to his appointmentin that his father, JusticeSChauer, is a member of theCalifornia Supreme Court. Priorto this time, Professor Schauerhas also been engaged in privatepractic:e as a partner Q1fthe lawfirm Hurley, Glynn, Schauer andCriley.

JOE RODRIGUEZ of Fulgencio Batista's defeated armykneeling before priest in San Severino Castle courtyard atMatanzas, 'He was executed by the firing squad standing by.

(EDITOR'S NOTE: The author is a qualified expert onLatin American affairs. A native of Peru, he interviewed theinstigators of a riot against Vice-President Nixon in Limain 1958. His findings were forwarded to Secretary of State'Dulles-B. A. Murray)

By ERNEST A. VARGASIs it posible that a whole people can subsist lacking their

individual and collective rights? Can the law of men be respected,when the natural laws are not considered? Can a gQlvernmentlacking these principles be maintained?

"V. LASSON. Princip und Zukunftdes Vo ljcer-r-echt s (Berlin. 1871). Fora discussion on Lassnn''S ideas lUYStudi su la guerra e la pace (Milan.1959) may be consulted.

(Continued on Page Five) (Continued on Page Seven)

'.

Page Two LOYOLA DIGEST

International Court:LAW, JURISDICTION, ANDTHE NEED FOR A STRONG ARM

By EDWARD SCHWTMANThe International Court of Justice is the successor of the

Permanent Court of International Justice. Founded in 1946 andlocated in Geneva, its powers and functions are derived from theStatute of the International Court of Justice which is an adjunctof the Charter of the United Nations. Article 1 of the Statutestates that the Court was established as the principal judicialorgan of the United Nations,

Selection Of JudgesThe first area of interest concerning the Court is the method

of selection of the 15 judges. There is both a personal requirementand an international requirement which must be met in order tonominate a person for judge. The personalcharacter- requirementis found in Article 2 of the Statute, namely that the Court be"composed of a body of independent judges elected regardless oftheir nationality from among persons of high moral character whopossess the qualifications required in their respective countries

. for appointment to the highest judicial office 0'1'are jurisconsultsof recogniged competence in International law."

Article 9 of the Statute states that the electors should alsobear in mind that "in the body as a whole the representatives ofthe main forms of civilization and of the principal legal systemsof the world should be assured."

People who fulfill these two requirements are nominated forelection, not by nations nor by the United Nations, but by "Na-tional Groups." These "National Groups" are composed of fourpersons, each chosen by a country as its members on the panelof the Permanent Court of Arbitration: A' nation woo is not amember of the Hague Convention and who wishes a voice in thenominations 'can form 'a Group that conforms to the requirementsof a "National Group" which 'Can then nominate prospectivejudges. "

The members of each "National Group" come from severalcountries besides that Nation which assembled the Group andthey in turn can nominate only 2 persons from their own countriesout of a total 0'f 4 nominations by each Group.

The Secretary General of The United Nations transmits thelist of nominations to The General Assembly and to the SecurityCouncil who elect the judges. Each body must 'elect the samepersons by an absolute majority independently from the otherbody. There can be' no formal communication between the two'bodies. The voting 'Continuesuntil each body has. elected the samemen and enough of them to fill the vacancies.

A judge is elected for 9 years; one third of the Court is upfor reelection every three years. The President and Vice Presidentof the Court are elected for three years. The President, and in hisabsence the Vice President, directs the work of the Court and itsproper administration. When the Court is not sitting the Presi-dent has extensive powers toomake orders for the procedure ofpending cases. He must sign all formal orders, judgments, andadvisory opinions tor purposes of authentication.

In electing the judges a couple of unwritten laws are followed.One is that the 5 permanent members of the Security Councileach have a seat. The other is that the remaining ten must bespread out for the rest of the United Nations. In 1946, Afro-Asia.had one, Eastern Europe two, Western Europe two, Latin Amer-ica four, and the British Commonwealth one. The only changerecorded by 1961 was that Afro-Asia had two and Eastern Europeone.

There can also be up to two more judges sitting on the Courtfor a particular case. Each party to a dispute may nominate andhave appointed a judge to sit during the case if that party is notalready represented on the Court by a judge 'Of its nationality.These are called Judges Ad Hoc and may be of the same or dif-

President's MessageBy VINCENT STEFANO, JR.

For those of you who don't know, don't remember, orwere never told, Loyola Law School of Los Angeles is almostfifty years old, and today is the only accredited, really metro-politan law school in Los Angeles.

The years which have passed have seen peaks andvalleys of development until to-day, which finds the school onthe threshold of a tremendousnew era.We, who have been here, have

seen changes in just two shortyears, and the alumni who lookback on their days of formallegal education find that peoplehave .come and gone, standardshave changed-the observanceof ancient customs being cast bythe wayside to make room forthe new modern trend. A lookinto the future sees a new build-ing, expanded curricula, 'and allthe things connected.with a firstrate law school of national stat-ure.We of the student bar, in

keping with the pace set by ourpredecessors, have dedicated ouryear to the normal things' stu-dents attempt. Above all, how-ever, this year's student bar isdedicated to the communicativeaspects of student life. Too,'oftenlaw students look at their lawschool as a receptable into whichsomeone has placed their destiny-they merely come, take andleave. We are here to becomeattorneys, but the learning proc-ess requires that there be some-thing given as well as taken. Itrequires dedication, and it re-quires that the individual, aswell as learning the law, be ableto apply it according to themores of our society in. keepingwith the ethics 'Of the profes-sion. All these things requiremore than just "book learning."We must inquire of nul' col-

October, 1963

Vincent Stefano, Jr.

leagues, professors, and asso-ciates about that which we donot know and are curious, Inturn, we must be told by thesepeople, and they by us.While the student bar is going

to strive to keep people aware ofwhat is happening, it will be-hoove everyone connected wrththe law school to take it uponthemselves to promote every-thing in this direction. We musttake advantage of every oppor-tunity which presents itself,both in and out of school, tode vel 01 p ourselves and ourschool, whether we be student,faculty, alumni, 0'1' administra-tor.

ferent nationality than the nominating party.Only States Are Parties

In trying a case the Court must decide if it has jurisdictionover the parties and the subject matter .. Only states may beparties to a suit before the International Court of Justice. Thisrule excludes all the international organizations such as SEATO,CENTO, NATO, OAS, at present the European Common Marketand even the United Nations and its Agencies. The Court's juris-diction further depends on the consent of the parties. Article 36,Paragraph 1, of the Statute states that "The Jurisdiction of theCourt comprises all cases which the parties refer to it and allmatters specially provided for in the Charter of the UnitedNations 0'1'in treaties or conventions in force."

This jurisdiction by consent can be conferred in either oftwo ways: by specific agreement between two or more states orby a unilateral.declaration. The specific agreement type of declara-tion is questioned only if one of· the parties challenges the exis-

(Continued 011 Page Eight)

Octobel·, 1963 LOYOLA DIGEST Page Three

1137 SOUTH GRAND CENTURIES OLD SAMOAN INSTITUTIONS tlYEy3:t~;~;;~;~!~;ON DESPITE GOVERNMENTAt VICISSITUDESIn both day and mght divisions,totaling 180 for the first year.Assistant Dean Tevis informedthe Digest that there are manyon waiting lists. This problem'Mill be circumvented by the en-larged facilities planned fool'thenew building soon to be erected.

New Faculty MembersBesides welcoming all new

students who pass through itsportals, the school is pleased toannQunce the addition of fournew members to the faculty: Mr.William Henry Dorsey Jr., fromWashington University; Mr.Richard Rank from the Univer-sity of Toronto, Canada; Mr.Martin Stone, beginning histeaching career at Loyola; andMr. Laurence Packer Simpson,the New York University authorof the first year law school stu-dent's bible, "Simpson on Con-tracts."Interviewing Mr. Rank, Loyo-

la's Law Libranian, I discoveredthat he has studied and taughtlaw in many countries includingEstonla, Germany, Sweden, Tur-key, Canada, and the UnitedStates. He was born and raisedin the small Baltic country ofEstonia. He left there in 1943shortly before the Russians re-established themselves in thatgovernment's seat. He came to'the Uni'ted States in 1952, andhas since become a naturalizedUnited States citizen. Mr. Rankis dedicating his efforts to' thebUilding of Loyola's library intoons of the best in the nation.One of th~ major projects heWillundertake is to' increase thesize of the law library from ItsPresent 40,000 volumes to 130,-000 volume capacity in the newlaw library.

Honors' Writing ProgramA new program has been ini-

tiated at the school this semes-ter. It is the Honors WritingProgram under the direction ofthe ,faculty. The program in-elUdes extensive research andWI1itingin subjects such as Ad-Illinistrative Law, Torts, Con-tracts and Trusts. Five honorstUdents from the third yearbay Division and fourth yearEvening Division will be parti-Cipating. These students havecumulative averages of 81 orhigher.The program wlll extend

(EDITOR'S NOTE: The author is a duly registered and officiall~ recogni~ed Chiefof the Government of American Samoa. Selected as secretary and hason officer to alegislative delegation from American Samoa, he has represented his people in NewZeland, Fiji, and other islands. A stndent of Loyola, he plans to return to Samoa andserve his people and government.)

By NAPOLEON A. TUITELELEAPAGA FOFOGAOALIISamoa, under the purely native legal system, never had a printed code of laws. The l~ws

themselves are synchronous with the existence of the people. T~ey were passed from. generationto generation-at tames repealed or amended, aand at other times enforced=-depending on thediscretion of the ruling chiefs. Each village had its own set of laws, formed, enacted, promulgatedand enforced by the chiefs who formed the legislative bOody,which also was the CO'urtQ1fAppealsand Equity. The maxim, "Every-body is supposed to' know thelaw (of his cQluntry)" appliedalso in Samoa, but with somevariations, Everyone was sup-posed to know the laws Q1fhisown village; and it was a dis-grace for a family to' have oneof its members punished. If theculprits swore before the villagecourt that he never was told ofsuch a law, the judges wouldexonera te him and punish hismatai (chief) instead.

(Continued on Page Twelve)

When a meeting of the legis-lature wa3· called, each chiefpropounded a subject to be de-bated for legislation. A decisionwas reached after heated alter-cations caused by the prevarica-tions of some chiefs based ontheir desire to protect their rela-tives if they felt their peoplewould be implicated in thecrimes in question. The enact-ment of a law was not the resultof a vote of the majority, butthe result of an eloquent andforceful speech by a .chief ororatol'.Amember of the legis-lature who had many membersin Iiis family, and who was well-off, was usually listened to andalways the victor. The "yes" and"nay" system was not known.After members had agreed, thesubject discussed became law,and its punishment was thentaken up. Thusly, both the lawand its punishment were sanc-tioned and became official.Promulgation was effected in

a dual manner; first, each chiefassembled his family and, afteran exhoratory speech in whichhe mentioned the name of theirancestors who did nothing toabuse the family, and toldstories to promote respect andloyalty, he then informed themof the minutiae of the meeting.This was followed first bysolemn declarations of obedi-ence, loyalty arid respect, ob-

servance of and submission tothe law, by individual membersof the family; secondly, by anorator duly appointed by the

District Judge MuIitavadpelo

legislature, or by reason of rankand status such office devolvedupon him, to go around the vil-lage and publicly announce thelaw and its punishment.

Advent Of ChristianityThe advent of Christianity

marked the dawn of a new era inthe legal life in Samoa. Peoplewere struck with fear when theywere told of Hell; terror spreadthroughout the islands, and theapprehensiveness and dread ofthe everlasting conflagrationwas more feared than the old

punishments; the sight of a mis-sionary was the termination ofany altercation, quarrel or anattempted crime.During this epoch a new

method of detecting 'crime andapprehending offenders was in-troduced to take the place of theold system of swearing beforethe village court. This newmethod required the individualto' swear on a bible placed on acoffin-like platform covered witha tapa cloth, this obviously toinstill fear in all those who tookthe stand. Each family sent In alist of their property stolen, andon Saturday Q1feach week the in-habitants from the age of 12 to60, male and female, assembledin a place assigned by the court.All assembled, a chief OIl'oratorappointed by the legislators asthe master of ceremonies ad-dressed the villagers, informedthem of the things stolen fromeach person Oil' family, andemphasized the dismal conse-quences of making a false oath.The people were then called outone by one to take the oath.Squatting near the sacred plat-form, the affiant put his righthand on the bible and spokealoud, "In the presence of Godand the dignified court as wellas our assembled villagers, Ido solemnly swear that I did notsteal any of the things enumer- .ated." "Tell or Hell" was theslogan then, but the conserv~-tives countered with the anti-slogan, "Tell and disgrace yourfamily and matai." Thus, it wasapparent that the SamOian'semotions and Idealisms wereeontrolled more by respect andfear of the chiefs and theirfamilies as well as by culturaland native environments.The old method Qfmaking an

oath was that, one by one, each

(Continued on Page Nine)-

Page Four LOYOLA DIGEST October, 1963

Exams: TEST OF KNOWLE,DGE OR NERVE. By ANTHONY CASE

Each semester it seems to get just a little harder to primefor exams. Each time the student walks up the stairs after theexam bell has rung into either the typing or writing room hecan't help hut think, "Isn't this a tortuous way to be examined?"After spending over fifteen weeks in the 'Classroomand countlesshours outside in preparation and ---------------study he is faced with the unnec e s s 'a r y duplication for"moment of truth," and, not those students, one that causesunlike the corrida, such a test- the evil of the present testinging system often becomes one of system? It would seem that anendurance 'and nerve. accredited law school over a

period of three or four years ismuch more qualified to deter-mine the eligibility of a man orwoman to practice law than anythree day medieval ordeal, In-deed, this three day ordeal seemsto be a return to the MiddleAges, if not the Dark Ages. Itsubstitutes endurance and physi-cal strength for what should bea test over a period of yearsmeasuring the ability of a stu-dent 'to"reason; not merely tosee how fast he can write hisreasoning down in the tension-filled exam room, but rather tosee how well he can reason, andto what depths he can probe.Once the unnecessary duplica-

tion presented by 'the bar isfully appreciated and dealt withthe way could be made clearfor a better and more compre-hensive method of examination.:one not based on a hit or miss,one day affair, but rather onethat measures the 'capabilitiesof the student over the entiresemester, year, or three Dr fouryears. A 'testing system could beused which is based upon dailyclassroom participation as wellas the skill of writing as· evi-denced by a paper writtenby the student in a particulararea of the' course. Such asystem would avoid the cram-ming at the end of the semesterthat ds encouraged by the pres-ent system. The professDrwouldhave a far more representativequantum of the student's workupon which to make his evalua-tioo. .If the necessity for an exam

at the end of the semester isstill thought desirable, it wouldseem that at least some part Df

this exam could or should beoral. The ability to reason outloud, and persuade those withwhom the young a t tor n e yspeaks, is certainly an importantelement which is not now beingtaken into account in the presenttesting system. It would seemthat a conversation of an -hourDr two between the professor

INCOM,ING EDITORS

Assuming that for the worldoutside law SChDOIgrades mustbe used, which itself is a sub-ject which could be the topic ofa rather lengthy treatise, itwould seem that over this fifteenweek period some system ofgrading could be devised which

Tony Murray Ernest Vargas would eliminate the gamblingThe Loyola Student Bar, in St d t F II b . h element nDW present in 'the test-. u en e ow, rmgs to t e Ing' system. The student now

an April election named Tony Digest his five years of expert- gambles that he will be preparedMurray and Ernest Vargas as ence on school editorial boards,Editors-In-Chief of the Digest. and journalistic skill gained not only mentally but also physi-Both third year students, they f hi ... lbuti cally, that some emotional dis-rom IS COllen: utions on Latin turbance won't befall him in hishave worked together on past Am e ric a n Affairs to the.Digest publications. UC LAB . personal life that might upset. . .. rum. hi h d hMurray counts among his This year the Digest features im on t crt one ay w en he

writing achievements the J. Rex . f must take the exam. The stu-a new concept In annat, dedi- dent who: might otherwise beDibble Award, first place in thecating each issue to a specificLoyola Moot Court Competition, area of the law. This first issue quite collected gambles that hea Student Fellowship in legal is devoted to the field of "Inter- won't tie up during the examwriting, and brief writing ex- ti I T._ " ith b and, due to worry, miss thingsna rona .u<1W, WI su sequent he knows so well.perience as a Student Legal issues designed to treat theAssistant for the California At- topics of "Politics and the Law," Why should this gambling ele-torney General's Office. "History of the Law," and ment be present? Why shouldVargas,_ also a legal writing "Philosophy of the Law." the whole semester's grade de-____ .::_ pend upon this one evening's

Moot Tearn Faces National Competition r~:rm~~:? o:~~m~s::rt t!~Working feverishly on this year's MODtCourt problem are averaging basis on the perform-

the three members of the Loyola Law School National Moot ance of the whole semester? TheCourt Competition team, Tony Murray, Charles Finney, and answer usually given is that theCharles Liberto. As last semester's finalists in the Scott Competi- bar is just like the testing sys-tion at Loyola, this team will represent the school in the National tem now used; but this answerContest beginning in mid-November. . assumes the necessity of the bar

Participation 'in the Scott Competition is voluntary and is for electing those qualified tobased upon briefs submitted on a problem assigned in the spring practice law and those not. Thissemester of the Legal Writing II course. With practically all assumption is perhaps responsi-second year students p-articipating, the value of this legal train- ble for the cramming, non-ing is not underestimated. Competence in the art of oral advocacy averaged testing system whichcombines with other legal skills to constitute the "total" lawyer. now plagues many law schools.

.From a national standpoint, Loyola has one of the finest Inherent in the method of exam-records in the fourteen year old competition, winning half the inatlon given by the bar are allregional championships during the first decade, The Fifteenth the nerve-rending and non-Region includes the law schools of Loyola, USC, U.C.L.A., and averaging features of law schoolthere is a possibility of expanding it this year to include the exams, compounded by the pres-University 'OfWashington and Willamette University. The teams sure which only the bar itselfprepare briefs and oral arguments forr cases involving controver- can produce.sial topics of national import. This year's problem deals in partwith questions of illegal search and seizure,cDerced confession,and conduct of trial.

Although each school in the national competition writes abrief for only one side of the argument, a true test of oraladvocacy is evident when, during the elimination rounds, a teammay be required 'to present oral argument on what was originallythe opposition's side. This demanding change of position is ofgreat interest to the judges and 'the viewers, although often tryingon the participant.

At this point one may beginto question the bar examinationitself. Is .it necessary for ac-credited law schools within thestate? What does accreditationstand for? Doesn't it mean thatthe law SChODlswhich are ac-credited are qualified for pre-paring students for the practiceof law? It SD, isn't the bar an (Continued on. Page NIne)

October, 1963 LOYOLA DIGEST

"Page Five

•• • lasting peace can only be founded upon a law imposed by reason."(Continued from Page One)

However, the juridical valid-ity of the treaties is accepted bythe majority of authors, most ofwhom, as a matter of fact, con-side this principle as the solebasis for international law. Thisdoctrine goes back to the ideasaffirmed in the Peace of West-phalia (1648), according towhich the States would be com-pletely independent and f r e efrom any enforced bond, exceptthose which they voluntarily ac-cepted. Hence the fundamentalimportance attributed to themaxim: pacta sunt servanda.

Much comment can be madein this regard. The will of theStates, following this doctrine,would be simply arbitrary, to beexercised without any conditionsor limitation, and remain validjust the same. This is In contra-diction to even the most ele-mentary juridical logic, as maybe clearly seen by comparisonwith the dictates of civil law,which subordinate, as is wellknown, the validity of contractsto certain requis.ites: the capa-bility of the contracting par-ties, the absence of faultinessin the consent and the lawful-ness of the subject thereof. Ar-bitrary will in itself is not a ra-tional principle as it can beeither perfectly straight or dis-torted and thus can have noethical value. To adopt it as thefOUndation for international lawmeans to reduce the latter to asequence of accidental and in-definitely changing facts, whichWould not be subject to any cri-terion 'of an universal nature.In other words, it would meandenying the existence of a bondbetween men, based on the i rcommon nature.The maxim regarding the

binding powers of a treaty(Pacta sunt servanda, juris na-turae est stare pactis) is un-doubtedly -plausible if interpret-ed in its correct meaning andWithin its proper limits, but itcannot stand on Its own andmust be deduced from a moregeneral principle, which is theWorth of the human person as a~eing having the power of rea-Son and freedom. That maximtherefore, belongs in a systemof rational truth which is not,however, generally accepted bythe supporters of the doctrinejUst mentioned, who insteadkeep to a mere "positivism."

Given the rejection of a naturallaw and, furthermore, the lackof an organization which has aneffective power over the indi-vidual States, international lawwould be reduced to situationsof mere fact.However, independently from

that faulty theoretical construc-tion, the sane reasoning of themore civilized peoples, especial-ly after the tragic experience ofthe recent world conflicts, hasshown dtself as clearly recog-nizing the dictates of up-rightreason as an imperative law, as'much for home rule as for inter-national relations. It can be stat-ed that the thesis of unlimi tedarbitrary will for the State,though still taught in man yschools, has become behind thetimes in the most progressiveconstitutions as well as in thepolicies of international organ-zations, policies which on theother hand, up to now h a v eonly been partially put into prac-tice. It is enough to recall, forexample, the Universal Declara-tion of Human Rights, approvedby the General Assembly of theUnited Nations om the 10th ofDecember 1948, wherein it isfairly stated that "the recogni-tion of the dignity appertainingto all the members of the hu-man family and of their equaland inalienable rights consti-tute the foundation of freedom,justice and peace in the world."

If, as is apparent from manysigns, man kin d is headingtowards the formation of a uni-tarian juridical order, notwith-standing all the obstacles whichmake the road towards this goalslow and difficult, the fact issurely due to the common as-piration to peace and the belief,which is coming always morewidespread, that a lasting peacecan only be founded upon a lawimposed by reason: a law ofjustice and freedom. Whereas,the world would be condemnedto perpetual instability and vir-tual anarchy if the dogma of,unlimited arbitrary will for eachsingle State, were accepted.

This dogma, which would ex-clude the obligation of the Stateregarding certain principles, al-ready has been rightly adjustedin relation to internal legisla-tion, that is the relationship be-tween the State and the indi-viduals composing it. Ithas beenadmitted, and now even official-

ly ratified by the constitutionsof the more developed States,that the State must recognizethe basic rights of the citizen,and that such recognition is abond and a limitation to its ac-tions, which would become il-legal and therefore juridicallyimpugnable in the event oftransgression. This does notmean that the concept of sov-ereignty has been abandoned;rather that it has been ration-ally adjusted in a sense thatsovereignty must no longer beinterpreted as absolute power.A similar adjustment also

should be made regarding thatwhich concerns the relationshipbetween one State and another.Here, too, sovereignty must beconceived as "constitutional," Q1rin other words subordinated tobonds and conditions which,having a universal value, in noway imply the belittling of oneState in the sight of the others.It is a question of applying tointernatiomal relations the sameprinciples, brought to light bythe theories of natural law,which have already found theirway into the constitutions ofmany States.In all human life individuality

must be commensurate with so-ciality. In the same manner thatthe individual cannot but recog-nize himself as belonging to asociety of his own. kind, thoughhis natural and rational rightsremain intact and even corrob-orated by this fact, so must theState recognize its membershipto an international Q1rinterstateorder, on the unshaken basis ofrespect for the fundamentalrights of mankind. This respectconstitutes an essential obliga-tion as much for every individ-ual State as for the interstatestructure: no State can claimde jure recognition if within itsown dnternal legislation thoserights have been viol a ted;though a partial de facto recog-nition may be possible with res-ervation made for further ad-justment on a' more true andsolid basis.

A very ancient mistake, mhis .time proved by PIa to, is stilldeeply rooted, which is to putfaith into things whieh comeunder the senses and not underthe universal ideas that tran-scend them. This fundamentalerror keeps cropping up in dif-ferent forms even in the field

of juridical science. It is thusthat many jurists consider as"real" onlv the imperatives is-sued by States, or visibly exist-ing authorities, and not thosewhich come from human reasonor human nature. It is remark-able, however, that even thosewho on account of this preju-dice deny natural law, admit,implicitly, the imperatives Q1flogic, grammar and often eventhose of morals, even thoughthese have never been ratifiedby any government or any as-sembly.As a result of this deplorable

prejudice, some schools haveturned deaf ears to the substan-t i a 11y concurrent assertionsmade by very many philoso-phers, including the greatest ofthem, who in the name of rea-son affirmed the sound value ofsup-reme human ideals. It wouldtake too long and be superfluousto repeat those assertions here;let us recall just a few, withoutforgetting to note that they areentirely consonant with the mostinspired teachings of the Gos-pel, which proclaim the brother-hood of all men. The idea of thenecessity for a society of man-kind appeared, as is well known,as early as in the philosophy ofthe Stoics, and was magnificent-ly expresed by Cicero in thefamous lines, "Est quidem veralex recta ratio, naturae con-gruens, diffusa in omnes, con-stans, sempiterna ... Nee eritalia lex Romae, alia Athenis,alia nunc, alia posthac, sed etomnes gentes et omni temporeuna lex, et sempiterna, et im-mutabilis continebit." Equallymemorable, for example, are theanalagous maxims pronouncedby Seneca, ("aliquod esse com-mune jus generis humani" etc.)and later, by Dante Alighieri("totum humanum genus ordi-natur ad unum"), by Francis deVitoria .("totus orbis aliquo·modo est una respublicai') andby many other philosophers,who, though taking differentroads to reach their goal, never-theless arrived together at theirconclusions, affirming in thisway the postulate of "una grancitta del mondo" (Vieo) , or"c i v ita s gentium maxima"( W 01 If f ), or "Weltrepublik"(Kant). It is not even necessaryto recall other doctrines, eventhe most recent, which confirmthis concept, and which have

(Continued on Page Six)

Page Six LOYOLA DIGEST

uOctober, 1963

if justice should perish, n would no longer beworth their while for men to live upon the earth

• • •

(Continued from Page Five)

never been effectively over-thrown by the arguments ofthose who do not accept them.

In the contrast between thereign of arbitrary will and thereign of reason, there are no in-termediary solutions. If becauseof anti-philosophical prejudice,already proved erroneous by log-ical criticism, the u n i v e r saltru ths dicta ted by reason are re-jected and not even the "heav-enly voice" of conscience is heed-ed; if only the arbitrary resolu-tions of those in government are,admitted, and the validity of themanifesta tions of their "wander-inig" will considered, whateverthese may be, then to build ajuridical organisation of man-kind on such foundations is adesperate enterprise as wouldbe the building of a house onquicksands.

The thesis put forward bysome of the ancient writers:"exeundurn esse e statu naturae"is surely mistaken if taken tothe letter, in as much as it ap-pears to imply the hypothesis ofa primitive extra-social state,which in actual fact has neverexisted; but it expresses a truthif taken in its. deeper meaningas an assertion of the rationalneed for individuality being con-temperate with sociality.

This need-worthy of repeti-tion-is as valid with referenceto the individual persons as withref ere n c e to the dndividualStates; and as the participationof the individual to the Statedoes not diminish, but ratherconfirms his intrinsic dignity, sodoes membership of a universalsociety bring about no reduction,but rather an affirmation, of theauthority Q1fa State accordingto its true nature. Yet all of thismust be on condition that theState, as much as the society ofthe States, both recognise andpractice within themselves therights based on human nature,which are summarised by theidea of Justice. This idea is atrue category (a priori) of thespirit, and is not at all indeter-minate or indeterminable as

some have opined; but correctlyunderstood, contains a series ofprecise prescriptions, valuable asnorms for all intersubjective orsocial relations. By this one doesnot, of course, wish to state thatmistakes are not possible evenin this subject, as much as inany other, because the humanmind is never infallible, and it isoften misdirected and dimmedby the most diverse passions.Thus it is the task of philoso-phers to point out the straightpath which complies with thedeepest vocation of our spirit.

Above all, justice wants thehuman being to be recognisedand treated by others as if en-dowedwith freedom, that is witha natural right, with respectto which there is perfect equal-ity between all men. Accordingto the same idea of justice, thevarious directions of human ac-tivity must receive specified pre-cepts of that basic law, in otherwords, of harmonised freedomraised to a universal degree withregard to a possible co-existence(Freedom of thought, of speech,of work, of meeting, of associa-tion, etc.).

In accordance with all this thefunctions of the State must bedetermined, as it is the Statewhich has the duty to confirmand protect the validity of therights above mentioned, as un-deniable reason for its very ex-istence, as f.irst and foremostreason for its activity, as limitand essential condition for itslegitimate authority over the in-dividuals. Justice thus presentsitself in dts various aspects, dif-ferent but always c 0 her e n tamong themselves: as political,assistential, contributional, eco-nomic, educational, 'trade union-ist, rewarding, remedying, inter-national or cosmopolitan.'

If we wonder up to what pointany positive steps have been tak-en regarding these principles,especially regarding internation-al law, we would find that such

'Regarding these concepts one mayconsut], my study On La Giustizia, theSIxth Italian edition of which has re-cently been issued, An English edi-tion (Justice) was published, withnotes by A. R .. Campbell. by the Edin-burgh Univer sl ty Press in 1952.

up to the present time, havebeen very imperfect. Even themost remarkable of attempts inthis regard, and that is the Unit-ed Nations Organisation, is notfree from serious defect. Thoughit has solemnly declared in itsCharter and then more exten-sively in the Universal Declara-tion of Human Rights its inten-tion "to reaffirm faith in funda-mental human rights, in the dig-nity and worth of the humanperson", it has not hesitated inaccerptingmembership of Stateswhich openly fail to recognisesuch principles, both in theirown internal legislation and intheir relationship with otherStates. What is more, the sameCharter, while it affirms that"the organisation is based onthe principle of the sovereignequality of all its members", inevident contradiction grants aprivileged p 0 sit ion to someStates and places others .in apermanently in.ferior situltion;a contradiction even moreseri-ous and unfair as amongst theprivileged States: there are somewho do not in fact respect hu-man rights at all; whereas in thesecond category there are thosethat do,

It would be in vain, if onewere to examine that documentin the hope of finding a specificreference to natural law, whichnevertheless. is the logical prem-tse to a universal soc fe t y ofStates: that law which conse-crates the unity of mankind,thus imposing on each individualState the categoric obligationof ,adhering to' a just interna-tional organisation, Erroneouslyhowever the Charter of the Unit-ed Nations considers such ad-hesion as facultative. The rootof the error is in having mistak-en, here as well, arbitrary forfreedom, having forgotten thatfreedom can only exist in har-mony with reason and with itslaw.

In my opinion (I briefly pointout here what I have al-rea d y sustained elsewhere) aperfect international organisa-tion should register all existingStates (either following upon a

"•••request or ex officio), but not togrant them all equal rights andequal functions, but rather toclearly distinguish the legitimateor in justitia States from thosewhich are despotic. Only thefirst should enjoy the raght totake part in the debates andresolutions by vote. With all dueregard to justice towards. thepersonality both of the individ-uals as well as of the States, Ithink that, at least for the de-liberations 0 f greater impor-tance, a double approval shouldbe required, that is from themajority of the States and fromthe majority of the populationsby the m represented, alwaysbearing firmly in mind the prin-ciple that to both pollings onlythe legitimate or in justitiaStates would be admitted.

It is obvious that there isroom for much debate regard-Ing specific questions. What isof paramount importance is notto mistake the accessory for theessential, and essential is onlythat the world must be gov-erned by reason, within the spir-it of humanity, and not lefthelpless to the blind impulse ofpassion. Therefore we r e j e c tthose doctrines which followinga false concept of freedom, man-age to bring about every possibleabnormality. .

Everyone knows and sees thatnot only justice and peace, butthe existence of mankind itselfis today placed in jeopardy bythe will of the few who findtheir backing in those false doc-trines. '

We are not prophets, so we can-not foretell the events throughwhich the world must go, how-ever we stoutly trust that goodwill finally prevail over evdl,right over might; for if, bygreat ill-fortune, justice shouldperish, (we quote Kant's words)it would no longer be worth theirwhile for men to live upon theearth.

-Giorgio Del' VecchioEmeritus professor ofthe University of Rome

Address:Via Appennini 52Rome (Italy)

Octobel', 1963 LOYOLA DIGEST Page Seven

Tyranny Reigns

' ... Senores, I Feel As Though I Were In A Roman Coliseum'(Continued from Page One)

Why An, Exodus?

, We have only to turn to thevolumes Q1fhistory to find thedilemma af the Latin Americanpeople beginning with their serf-dom under the yoke of theSpa ni s h conquistadores, onthrough the at roc it y-riddenrevolutions that have convulsedher in her surge for freedom.

One would conclude then thata people so oppressed would intime become 'hardened and en-dowed with a certain courageand faith in the future so as togive them the incentive to liveon, or even an indifference to-wards the anarchy surroundingthem. W~y, then, in this periodof history, and within our ownhemisphere, do we find a massexodus of thousands upon thou-sands of Cuban people?

In a letter to the Digest, J,Arthur Lazell, deputy directorof the Miami Refugee Center,related that,

"The number of .Cubanscorning in here weekly isabout 2,000. The figure is ap-proximate because data isvague on the considerablequantity corning in in smallboats~ a veritable derring-doadventure, for many of thoseboats are not more than 12feet long. And they get intoopen water, without chartsmany times, and without com-pass. Our Coast Guard picksthem up as they can whenthey get adrift which is alltoo often. Castro's gang doeseverything it can to preventthese clandestine exits, and 'ifthe emigrants are caught theyare gunned down like rabbits.It never will be known howmany of them have beenkilled, either on the shore orin the water, for they also useairplanes to do the job, Butstill they come, and it hasbeen said that if the waterfrom here to there were onlyneck deep, instead of therebeing a hundred thousand Q1rso Cubans here, there wouldbe more than five million,"

In spite of the anarchy, theblOOdletting, and the years ofterror and oppression under theBatista regime, no such flight

'"

Quoting a great American quinas:"A law that is not is a

law in name only. Everyhuman law has just so muchof the nature of law as it isderived from the law of na-ture. But if in any point itdeparts from the law of na-ture, it is no longer a law buta perversion of law."

A law which has no founda-tion other than the will of agovernment may have the coer-cive force of law but it wouldlack moral authority. It wouldbind men, not through con-science but only through theirfear of punishment tor dis-cbedience. "That force andtyranny may be an element inlaw," wrote Hegel, ",is acciden-tal to law, and has nothing todo with its nature."

was ever experienced, nor didthe people feel a need for it.That there was terror is un-questionable, especially for thosewho opposed the dictator openly.Hector Beijar, student leader ofthe Communist party in theUni-versity Q1fSan Marcos of Lima,Peru, in 1958, related to us thathis close friend, 'the StudentCovemment President of theUniversity 'OfHavana, had beenshot in the back for leading ananti-Batista campaign.

"Tools Of Persuasion"The present regime has not

been unlike that of its predeces-

members of the present rulingclass there. The basis for thisstatement has its roots in aninterview with a refugee" wholeft his homeland, his wife andchildren to come to a countrywhere "the rights of the indi-vidual are still supreme.""There no longer exists a Su-

preme Court; there no longerexists any system of justice,"he informed us, "People are notgiven the right to defense. Law-yers cannot defend anyone with-out being "automatically deemedcounterrevolutionaries. "

IDENTIFIES MAJOR AT WAR CRIMES TRIAL-MariaJacinta .Galvez points to Maj. Jesus Sosa Blanco as she iden-tifies him as commander QifCuban army troops in her neigh-borhood in Oriente Province during her testimony for theprosecution at the war crimes trial. She was the first witnesst'0 testify against Blanco as his trial began in the huge cir-cular shaped Indoor sports stadium.

lawyer and patriot, AlexanderHamilton, he explained that:"Laws are dead letters withoutcourts to expound and definetheir true meaning and opera-tion."

sors in the use of "tools of per-suasion" and special "retrain.ing" and "treatment" facilitieswhich consist of nothing morethan medieval torture chambers.Why then the sudden Exodus?Why the undertaking of suchrisk which may end in death? The sentiment of the Cuban

patriots toward the present sys-tem of law under the Castroregime was typically portrayedby a defendant gene'ral underfire, in 'One of the first public

"Laws Are Dead"One of the prime contributing

factors may be the breakdownand disrespect of the law by the

trials held in the main boxingarena of Havana, when he ut-tered the words: "Senores, Ifeel as though I were in aRoman Coliseum."

Hundreds of new decrees issueforth from the seat of govern-ment describing new crimes, themajority of which are punish-able by death within 48 hours ofcapture. These laws, however,are not to promote justice, butto prevent insurrections. It iscertain that Castro's Judiciaryand law enforcers are unawareof the words of Thomas Ac-

People seek to subject them-selves to control by a govern-ment in order to find an estab-lished, settled, known law, re-ceived and allowed by commonconsent to be the standard ofright and wrong, and the com-mon measure to decide all con-troversies between them; andthey seek an indifferent judgewith authority to determine alldifferences according to thatlaw. When this breaks down,their purpose is defeated andthe government is, no longeruseful to them. Instability thensets in as the certainty and pre-dictability of a well establishedsystem 'Of justice deteriQiratesand is converted into absolutedespotism."Where the law ends, tyranny

begins."-(WiIIiam Pitt.)* Bd's Note~Re{ugee's identity not

revealed as members of his family. stillresdde in Cuba.)

Page Eight LOYOLA DIGEST October, 1963

Ex Attorney General_Discusses Defense OfUnpopular Client at St. More Luncheon

Oarrying on the tradition of the past, the St. Thomas MoreLaw Society will present, once again, the Speakers-Program atLoyola. One Df thcfdrst of many to talk to interested studentswas Mr. Robert W. Kenny, past California Attorney General.

Mr. Kenny, of Stanford University and University of SouthernCalifornla SChOiDIof Law, ispresently engaged in the generalpractice of law in the Los An-geles area. His record includesterms of service Q1nthe Munici-pal and Superior Court Benches.His topic covered the controver-sial area of "Defending the Un-'popular Client."

The Speakers-Programyear will be conducted duringluncheon meetings on selectedWednesdays, from twelve '101 twoin the afternoon, in local restau-rants. During the precedingscholastic penlod, past PresidentTony Murray directed the acti-vities of the Society at dinnermeetings, which were attendedby students of the law, alumni,and faculty members.

Dinner topics have coveredthe areas of "The Morality ofTort Money Judgments," givenby Mr. George West, attorney inthe personal injury field; "TheMoral ROlleof 'the Attorney asCounsel, as Opposed to Advo-cate," presented by Mr. ThomasLeSage, President of the Pasa-dena Bar Association; and "TheFunction of the Oatholic LawSchool," interpreted by FatherRichard A. Vachon.

Robert Kenney

Thomas White presented the an-nual Thomas' MOire Award toLOYOIlaProfessor and SuperiorCourt Judge J. Howard Ziemann.The guest speaker Rev. WillisJ. Egan, S.J., an authorityon the life and literature ofMore, commented upon RobertBolt's play "A Man for All Sea-sons." This year's activities forrthe Society will terminate inlike manner.

Culminating last year's pro-grams for the Society was theAnnual Communion Breakfast,held in the Student Union Build-ing of the Westchester Campusof Loyola University. In thename of the Society, retired Cali-fornia Supreme Court Justice

Directing the programs will bePresident Tom Girardi and Vice-President Tony Murray. Repre-sentatives Marty Blake, TimSargent, Lyle Herrick and TomKestler will assist.

BERNARD ANTHONY MURRAYERN'ESTA. VARGAS

Editors- in -Chief

THOMAS V. GIRARDI, LYLE HERRICKAsststanes to the Editors

GUES·T WRITER: Pr-ofessoc Giorgio De'l VecchioCONTRI BUTORS: R. Anthony Case, Charles Finney, Edward Schlot-man, Henry Seligso,hn, Vincent Ste·fano, Thomas Stockard, NapoteonTuiteleleapaga, Murray Zaretsky. .Opinions expr-essed, in the Loyo+a Digest are those of the write·rs anddo not necessarily reflect the views of the Loyola D,igest, t.he Uni-versity, the Law Scho·o·1or th<>Student Bar Association.Permiss·ion is given for r-eproductto n of any part of an article appear-ing her-ern, prov lded, that credit is given to both the Lo yola Digestand the author of the article.

International Court:

JURISDICTION BY CONSE:NT AtONE(Continued from Page Four)

tence of an agreement. Thus in effect the agreement can be in-formal. The Court merely wishes to be satisfied that the partiesare in agreement that the Court should hear the case.

Compulsory JurisdictionThe second way to confer jurisdiction, a unilateral declaration

emanating from a state and deposited with the Secertary Generalof the United Nations accepting the Jurisdlctlon of the Court fordefined types of legal disputes in accordance with a special pro-cedure contained in the Statute, has been given the misnomer ofCompulsory Jurisdiction. The authority for it is found in Article36, Paragraph 2, of the Statute, "The states parties to. the presentstatute may at any time declare ipso facto and without specialagreement in relation to any other state accepting the same obli-gation the Jurisdiction of the Court in all legal disputes con-cerning: A) the interpretation of a treaty; B) any question ofinternational law: C) the existence of any fact which if establishedwould constitute a breach of an international obligation : D) thenature or extent of the reparation to be made for the breach ofan international obligation."

As can be seen this Article also sets forth part of the sub-ject matter jurlsdictdon Q1fthe Court. The other part is, anycase referred to the Court by 'a state. This would allow a stateto act for an individual citizen by espousing the claim in theexercise of its right of diplomatic protection of its citizens.

At the present 38 out of 107 states have accepted compulsoryjurisdiction. The United States is one of the 38, but has qualifiedits acceptance by the Connally Amendment which in a practicalsense means no acceptance at all.

Advisory OpinionsThe third area of the Court's Jurisdiction is its competence

to hand down advisory opinions. This is a power seldom seen inAmerican Courts but one' which has been used by the UnitedNations fairly often. Both The Security Council and the ,GeneralAssembly have the right to request such an opinion on any legalquestion. This power is granted 'by the Charter of the UnitedNations. Other organs of the United Nations have the right torequest an opinion if so authorized by the General Assembly.Today all principal organs of the United Nations except theSecretary General, the specialized agencies, the Interim Committeeof the United Nations, and the Committee for the Review of Ad-ministrative Tribunal Judgments have been authorized.

In the General Assembly a two-thirds vote is the most neededfor a request. In the Security Council seven out of eleven areneeded, subject to the veto. The duty of the Court to. hand downan opinion when requested is not absolute but discretionary.

Intangible PowersThe actual powers of the Court are somewhat intang.ible,

necessarily so because of the sovereign nature of the members ofthe United Nations. The Court may, in the preliminary stages ofa case, issue an Interim Measure of Protection. This is used topreserve the respective rights of either party. The Court mustgive, notice of the measure which it suggests not only to theparties but also to the Security Council.

While a request for an indication of such measures may bemade at any time in the course of the proceedings the Court willnormally accede only if there is the possibility that the object ofthe Litigation will be prejudiced by the action of the defendantstates. It is quite similar to a preliminary injunction.'

The power to have its orders executed is equally vague.Article 94 of the Statute states that, "Each member of the UnitedNations undertakes to comply with the decisions of the Inter-national Court of Justice in any case to which it is a party." NOonmember states must give a similar undertaking before being ad-mitted to the Court fora particular case.

Article 94 further states that "if any party to a case failsto perform thedbligation incumbent upon it under a judgmentrendered by the Court the other party may have recourse to the

(continued on Pi!~ Ten)

October, 1963 LOYOLA DIGEST Page Nine

IF I STOLETHE THING-MAY I SPEEDILY.DIE'

Samoa,• • •

(Continued from Page Three)

of the suspects laid a handful ofgrass on a stone supposed to bethe representative of the villagegod and said, "In the presenceof our chiefs assembled, I laymy hand on this stone. If I stolethe thing may I speedily die."The meaning of grass was silentimprecation that he and hisfamily may all die and grassgrow over their graves. If allSwore, 'and the CUlpritremainedundiscovered, the chiefs thenWoundup the affair by commit-ting the case to the village aituor ghost, and solemnly invokinghim to hasten the destruction ofthe guilty party.

Fear A WeaponA very potent factor in the

maintenance of peace and orderand control of the crime rate,Was superstitious fear. Insteadof appealing to the village courtand calling for an oath, manyWere contented with their ownindividual schemes and impreca-tions to frighten away thethieves. When a man went tohis plantation and saw thatsome coconut or a bunch ofbananas . had been stolen, heWould stand and shout at thetop of his voice two or threetlmes, "May fire blast the eyesof the person who stole mybananas! May fire burn his eyesand the eyes of his god too!"This rang through the adjacentplantations, making the thieftremble and finally confess.Others cursed more privatelyand called in the aid of a devilpriest or a medicine man.

In common disputes to testeach veracity it was customaryfor one to say to the other"Touch your eyes, if what yo~say is true." If he touched hiseyes, the dispute was settled. ItWas as if he had said, "May Ibe cursed with blindness if whatI say is not true." Or the doubt-er would say to his opponent,"who will eat you? Say thename of your god." He whoseWord was doubted would thenname the household god of hisfamily, as much to say, "Maygod so-and-so destroy me, ifWhat I say is nottrue." Or the

Exams:

Oral Or Written?

person whose word was doubtedmight adopt the more expressivecourse 'Oftaking a stick and dig-ging a hole dn the ground as if tosay, "May I be buried immedi-ately if what I say is not true."But there was another extensiveclass of cursed, which were alsofeared, and formed a powerfulcheck on stealing, viz., the silenthieroglypic taboo 'or tapui (ta-pooee),

local authorities by relying onthe common sense and experi-ence of the leaders. In suchcases, the solution lies in strik-ing a balance between protectingthe old power of the matais andenforcement of the new codesso as to bring the Samoan be-havior increasingly in line withthat of the western society.

(Continued from Page Four)

and the student would reveal a,lot more of the student's knowl-edge than any written exam,Present would be the opportuni-ty for the professor to probemore deeply certain areas, andalso for a more effectively com-municated exam on the part ofboth the professor and the stu-dent. Such a system would bemore flexible and would allowthe student and the professor toreason with each other ratherthan having the student tryingto guess what the professorwants on the more formal writ-ten exam. Such a system wouldalso eliminate the necessity ofhaving the professor decipher inthe y;ee hours of the morningthe hieroglyphics turned in bythe written scrawling hand ofthe student.There is, of course, the ob-

jection raised by the oral exam-ination that perhaps a certainamount of the teacher's bias to-ward ..the ..particular ..studentwould be evidenced in the gradeand that the grade should bebased upon a totally objectives tan dar d. But doesn't thistotally objective standard reallymiss an element which shouldbe included in the grading sys-tem-even though it might onlybe a small element? Isn't theability to deal with people im-portant too? Don't many clientscome to lawyers because theyhave confidence in them and intheir own particular way of do-ing business? Isn't personalityan inseparable part of the law-yer-a part upon which peopleoften place great importance?The greatest legal brain could bestored in an unethical lawyer,one with whom no one wouldwant to do business, and onewho, for all his knowledge, coulddo the profession a great dealof harm. Hence, it is suggestedthat this personality elementshould be Interjected into thegrading system.Some day, perhaps, there will

be a testing system which elimi-nates this gambling element ofthe one or three day hit-or-misssystem, and in its place a sys-tem which is based upon a test-ing of the many talents of thelawyer Olver a period Q1ftimewhich will allow the professorto more adequately judge thecapabilities of the student.

Whether the recent change inEuropean System the political and legal Hfe of the

Samoan people will supplantAfter Christianity came the materially the principles and the

American and European form 'Of spirit of the stablest and mostgovernment, and thus Samoa solid legal systems that thehad to undergo another legal world has known, remains formetamorphosis. This new change the future to disclose. In con-put the people ina considerable trast to the High, District. andstate Q1fbewilderment and dis- Village Courts, the old Villageturbance as the shadow 'Ofwest- Council, source of justice 'Oftheern law loomed over their lives. Samoan people, may for theThe old judicial ideas 'and insti- moment, to the modern-mindedtutions had to be modified S'Oas person, seem an anachronismto allow for the new codes and and, a fantastic survival of thecourts, for, the impersonal ma- past. The peaceful and solemnchine Q1fwhite justice with its circle of the Samoan chiefs intraditional mummery and fixed which the autocrats and his-precedents often requiring eso- torians 'Of the modern worldterie exposition by the bench and once studied the complicatedby lawyers. Two kinds of delin- Samoan life, may now appear toquencies then emerged, the one be relics of a discarded era. Socomprising deviations -from the also the theatre-like style Q1fthecorrect patterns of Samoan be- interior fitting and the seatinghavior, the accepted standards in the modern courts sessionof the native community, the rooms are in strange dishar-other deviations from the alien mony with the old solemn andand superimposed rules of con- smoke-filled Assembly Houseduct. Thus, the Samoan did not where the cultural, social andknow which law to obey, the PQllitical pronunciamentoes ofSamoan, Christian, or Papalagi the old patriots received con-(European), However, with the tinuous homage from time im-tenacious encroachment of west- memorial.ern law 'and the evolution oftime, and sparked by education,the people have now becomeaware of the efficacy of thePapalagi laws.

The earliest tradition of theSamoan legal system far ante-dates the arrival of the firstwhite man on .the shores of theLesiles des Navigateurs; yet theMalayan and Indian system werelong forgotten and buried underthe sands of the various islandswhere the ancestors of theSamoan people called and restedduring their migration to theseSouth Seas. The institutionsand assemblies of Samoa, dnspite of repeated and continuousgovernmental and religious con-vulsions and vicissitudes, stilllive, in a virile country approxi-mately ten centuries old.

At present, the machinery ofjustice is operated exactly as i~England and the United states,though not quite as up to date.We have Village, District, Pro-bate and High Court as well asCourts of Appeals and Equity.There are numerous Samoancustoms for breach of which theformal law has provided no re-dress. It is the policy of thecourts to let as many as possibleof these matters rest with the

Page Ten LOYOLA DIGEST October, 1963

International Court ... PROFESSOR GOLDIE PRESENTS PAPERWEAKN,ESS LIES IN SOVER:EIGN TO Vlth COLLOQUIUM ON SPACE LAWNATURE OF ITS DISPUTANTS

(Continued on Page Eight)

Security Council, which may, if it deems necessary make recom-mendations Q1rdecide upon measures to be taken to give effectto the judgment." It has been said that the Corfu Channel case(Great Britain v. Albania) is the only case where a party hasfailed to follow a decision of the Court; specifically, Albaniarefused to pay Great Britain some 800 thousand pounds. In theSecunity Council to which the case was referred no action wastaken.

Cases Before CourtTwo cases which the Court has been working on and which

are more Dr less typical of the type of case tried before the Inter-national Court of Justice are the South West Africa Cases(Ethiopia v. South Africa, Liberia v. South Africa). Ethiopia andLiberia Instituted proceedings against South Africa relating "tothe continued existence of the Mandate for South West Africaand its duties and performance of the Union as Mandatory there-under" (The Mandate of the League of Nations of 17 Decemberr1920 for German South West Africa). Ethiopia and Liberia Al-leged that the Mandate was a treaty in force and that SouthAfrica is subject 1'0 the international obligations set forth in theCovenant and Mandate of the League and that the United Nationscan exercise legally 'the supervisory functions previously exercisedby the League. They further alleged that apartheid violates theCovenant and Mandate; that South Africa has changed the termsof the Mandate' without permission; has: arbitrarily and un-reasonably suspended the rights and liberties of the inhabitantsof the territory; that it has failed to give the United Nationsannual reports; that it has failed to transmit petitions of theinhabitants to the United Nations General Assembly.

South Africa countered these accusations with a preliminaryobjection to-the Court's Jurisdiction, maintaining that Ethiopiaand Libenia had no locus standi since neither was a member ofthe League of Nations; and further maintaining that the Mandatewas not a treaty or convention in force because of differencesbetween the League Mandatory System and its successor theUnited Nations Trusteeship system, and therefore South Africawas not under the Jurisdiction of the Court.

On 21 December 1962 the Court decided that these differenceswere not such as to disable the Mandate; that it was still in forceand consequently the Court was competent 'to decide the merits.The Case rests at that juncture at present.

Weaknesses

We have seen the Court as it exists, a select body of juristsnominated 'and elected under a complex system to ensure an inter-national flavor sitting on the bench of a Court with wide jurisdic-tion to decide 'all manner of disputes between Nations. This is theIdeal International Court. It is well to note now some of its weak-nesses; weaknesses which are inherent due to the sovereign natureof the disputants before it. The greatest weakness perhaps is thelack Df a 'true 'compulsory jurisdiction Dver the parties before it.Corollaries of this are that states who institute 'Suits 'can havethem dismissed at any time withDut prejudice; and lack Df abilityto see that its orders 'are enforced. A further weakness is thatlegal disputes which are heard tend too ofen to have heavy inter-national pDHtical 6,vertDnes. The South West Africa Cases forinstance have strong connotations of political action in such areasas embargo, isolation, expulsion from the United Nations; revolu-tion, and' even war.

This is the Court, an essentially worthwhile body, bnt onewhich needs more respect and authority before it will ever be aforce in the world.

Mr. L. F. E. Goldie, member of this Law School's Facultyhas recently returned from the VIth Colloquium on the Law ofOuter Space held September 27-0ct'Ober 1 in Paris. The CO'l-loquium is a gathering of the International Institute of SpaceLaw and is held in conjunction with the XIVth Congress of theInternational Astronautical Fed- ---------.------eration. This year the meetings fault, Dr a compliance with re-of the Federation were con- quisite standards on his ownducted in the UNESCO building part. The relevant analogies inin Paris. this proposal are to be found,

amongst others.. in the develop-In addition to general topics,and a number of old favorites ing English concept of substan-which 'can be designated underthe general heading of "HowHigh Is Up?", several special

consolidated a number of civilsubjects were discussed, includ-aviation rules.ing problems of liability for in-

juries occasioned by space,. ac-tivties.

tive res ipsa loquitur, and inArticles 17, 18, and 20 of theWarsaw Convention, 1929, which

Thirdly, he suggests that,asbetween space vehicles, only

"Some fault liability should prevail. InMr. Goldie's paper,Problems of Liability for Space contrast with the other sets of

relations Mr. Goldie discusses,Activities," fell into this cate-gory. He argues that the stand-ard of liability should vary withthe type of relation-e-but notwith some imaginary "zone."He suggests that strict liabilityshould apply when the injuryoccurred on the 'surface of the the chances and possible harmsEarth. That the various inter- of activities in outer space, and

an equality of exposure to thenational agreements relating toliability for. nuclear caused unknown.harms, and the concept of Although Russian scholars"channelling" to which they give were not present, papers werepractical effect,shDUld provide sent to the Colloquium to' bethe relevant analogies and prin- read at appropriate times. Theseciples, formed the basis. of his tended 1:'0 reflect a hardening ofargument.

in which individuals seem help-lessly exposed to the effects ofspace activities, here there is, anidentity of the types of risksassumed, an equivalence ofskills, a reciprocal acceptance of

"The R u s s ian s todayshowed they were determinedto wliite their own book 'Ofspace rules, which will laydown who owns what in theuniverse.

ideas in the Soviet Union ad-vocating the legal validity ofSecond, he argues that, in a

contest arising out 'Of Injuries assertin gterritorial claim overcelestial bodies. This was alsocaused by a space vehicle '1'0 an

aircraft, the proceedings should reported in the news item in theDaily Mail, London, Septemberbe weighed in the latter's favor

-but nDt to the extent of im- 27, 1963 p.2, cols 3 and 4 whichpDsing the type Df strict liability said, in part·:envisaged in the first type ofs.ituation, Le., that of a spacevehicle injuring people or prop-erty Dn the Earth's surface. Ac-cordingly he proposes that liabil-ity should be assumed againstthe space vehicle, but that liabil-ity should be subject to the rightof the defendant operatDr tDexculpate or exonerate himselfby showing, for example, theplaintiff's or a third party's

Their oode would allow theGagarins and TitDvS t'Oplantthe SDviet flag on the moonand the planets in the O'Olum-bus-Co'Ok~tyle."

October, 1963 LOYOLA DIGEST Page Eleven

'Twas a field day, plus and prolonged, for the "Do it your-self" addicts, who mobilized in mid-August amid the plush sur-roundings of the Palladium to joust with the problems served upby that valiant 'race of men, the Bar Examiners of California,Who 'assume nothing not in evidence. . . . They were there threedays, sans the distinction normally identified with this center ofHollywood culture .... There were no bouncy blasts of maestroWelk nor 100-Dollar-Plate_Dinners, with the mahogany groaningbeneath the weight of luscious hors-d'oeuvres and political sig-nificance. . . . They were there on business unalloyed, each onhis own, determined to demonstrate to a scrutinizing committee,their competence to practice law in the most populous State inthe Union.... Patience must be their chief stock in trade untilthe results are announced in mid-December, - and of course,'twould be different if the word came gift wrapped and breath-ing Christmas cheer In the meantime HELEN LOUISEGALLAGHER, '55 She chose the Division of Corporationsto be the beneficiary of her Loyola training. . . . Via the e'xamroute, she recently moved into a vacancy caused by the appoint-ment to the Bench of a supervising deputy commissioner. . . .It's all a progressive pattern of her record in Law School. ...Wherever know-how is evaluated she'll be always out rin front.... And wha:t's that bit of wisdom.c-vComlng events cast theirshadQowbefore," ... And with what a glow of judicial wisdomshe'd ennoble the ermine .... The unveiling of the portrait ofthe Chief Justice of the U. S., in Dept. I of the Courthouse, onlya day agO--Qirso it seems, the way time is moving at the double,brought out a distinguished gathering of Loyolans .... LOUISEBURKE, '26, gave an 'added touch of quality to. the representa-tion. . . . He was appointed to. the Court by the Chief JusticeWhile he was Governor .... Like so many other unusual featuresin the career of this eminent jurist, the Bench sought out theman and the wisdom of his choice has been amply confirmedwith the years ... his appointment as Presiding Justice of theDistrict Court of Appeal was 'a natural, following his record atthe trial level. . . . Another first was his serving for three yearsby vote of his confreres, as Presiding Judge of the Superior Court,. . . BILL- BRANDON, '50, dosed up shop for the afternoon andoccupied a seat on the fifty-yard line for the ceremonies ... whilehis former associate of the same professional vintage, FRANCIS anaemic .... After giving two of the best years of his life toX. MARNELL, represented the Judicial District of Huntington the JAG in the Philippines, Bill Falkenhainer is quite satisfied toPark .... And, by the way, that "X" doesn't stand for an un- resign from the military to practice law in the grand manner ofknown quantity ... he's been doing famously since climbing on the Kelly firm .... The Symposium 'at the State Bar as usual wasthe Bench.... Recently serving on the Superior Court he voted the high spot of the Convention .... Largely responsibleleft behind him an LP record, "Everybody happy." The fQr this year's successful party was Prexy JIM COLLINS, '31,p'resence of HON. JOHN SHIDLER, '35, gave an added touch personally present with his sage comments and all-season humour'of solemnity to the gathering .... He was in complete accord ... the first to arrive and the last to leave.... JOHN MALONE,with the entire proceeding and couldn't find even a tiny techni- '50 and HENRY GRATTAN BODKING, JR., '48, were able lieu-cality, that might 'provide the basis of a dissent .... Inglewood tenants who turned in a professional performance neitheris the locale of his judicial ministrations, where sympathetic un- hurry nor flurry ... just tranquility and happy results Toderstanding 'is always recognized as. an "Amicus Curiae". . . . be sure, the country lawyers from the hinterland were representedFRED O. FIELD, '41, was an avid notetaker in the beginning by two of the most eligible bachelors among the Alumni. ...Years' of his law school days ... and keeping up with Walter LOUIE LaROSE, '48, and JOHN T. HOURIGAN, '49, are soCook in Contracts almost makes him a pro..... He's still doing wedded to their -profession and so infatuated with rural life, thatit as General Counsel of the Los Angeles Medical Association only a miracle could entice either of them to change over to. liv-and only a short time ago was the recipient of the accolade of ing on a community property basis or to exchange the abundantthe medico-legal Fraternity for making his notes available in .Iife in the open spaces for the classic chaos of the Civic Center.the "Physicians Law and Consent Manual." ... Herein is pub- . '.' Between Westwood and the Southwest MARY HERTRUD~lished the legal know-how of the medical profession and provides CREUTZ, '54, is doing her noblest to' meet the problem of bi-a ready answer to the queries 'of the busy practitioner .... And location ... with more space in the phone book than "Standardthere's TOM vIOLA, '62, and BILL FALKENHAINER, '59, .who Oil of New Jersey" she has the problem almost licked.... Anow make two more in the office of Gilbert, Thompson and Kelly, delegate to the State Bar from the Southwest L.. A. Bar, she

, popularly known on Spring Street as Roger Kelly's Loyola in- made a speech in the general assembly that would have been a"tegrated firm .... Tom recently entered into one of those "for winner in any forensic competition .... THOMAS V. LeSAGE,better or worse" mergers ... after a 'Coupleof weeks in Hawaii, '37, Prexy of the Pasadena Bar Association, established an :xecl-he discovered that all this gossip about two living as cheaply as lent record In his law school days .... The second generatl?n ofone is just so much chatter .... So to make ends meet, he's now this distinguished House is on the Honor List ... A .C?nflrma-Operating" on a schedule that would make a 40-hour week 10Qoktion of the Mendelian Law ... or heredity runs in t\lmlheS,

"

JUSTICE CLA,RK ENCOURAGES EXPANDEDlRIAL WOR:K AT ALSA CONFE'RENCE

Addressing delegates representing 98 of the 120 law schoolsacross the nation, Justice Tom C. Clark of The Supreme Court ofThe United States urged more lawyers to go. into trial practice.He proposed that students be used to interview litigants, locatewitnesses, prepare trial briefs, research cases, and even attendcourt, all under the direct super-vision of a lawyer, of course.Justice Clark emphasized this

point and said that we shouldeven have law students act asinvestigators in indigent cases.This would give the studentlawyer an interest in a real caseas well as afford him an oppor-tunity to develop courtroompresence. The contact with areal, rather than a moot case isthe most important single abill-ty that young lawyers shoulddevelop.The occasion for this gather-

ing was the 15th annual conven-tion of the American Law Stu-dent Association, held in Chi-cago, Illinois in conjunction withthe American Bar Associationconvention. Student Board ofBar Oovemors Secretary ErnestA. Vargas represented Loyola atthe August meeting.Justice Clark was one of many

speakers who addressed thegroup on professional responsi-bility and ethics. Other aspectsof 'the' convention includedseminars on legal writing andlabor relations, and general ses-sions of the voting body.The three principal objectives

Justice Tom Clark

of the American Law StudentAssociation 'are to introduce lawstudents to the activities of thenationally-organized legal pro-fession; to assist law school stu-dent bar association officers inplanning their programs for thebenefit Qiftheir local member-ship; and, to transact the neces-sary business of the Associa tion.

Page Twelve LOYOLA DIGEST October, 1963

Benjamin Carrlozo:ANALYSIS OF LEGAL STYLEBy MURRAY ZARETSKY throughout the Fall and Spring

Ev t d t fl' kl . semesters, and the purpose is, e:y s u en a aw qmc. y dl~cove.rs while reading cases that a certain justice shines

more brightly than all ather~_ m. lOgIC,wisdom, and particularly, literary style. The excellence to give the participants an op-and be~uty of ~he latter qua~lty IS so wonderful that a reading or his opinion is not unlike the portunity to engage in a majoraesthetl~ ex.perlence of reading a well written short story or poem. research and writing project un-

B N C d hider the supervision and guidanceenjamm .' ar 000, t e ate and revered Chief Justice of the New York Court of Appeals of' a member of the full-time

and member of the SupremeCourt of the United States was types are closely related. The must be wholly subordinate to faculty. The goal is the composi-a student of 'the literary styles use of maxims and proverbs is substance. They would have us tion of a thesis or article of lawof the judiciary. One of his in- characteristic of legal system in believe that the two are divisible review quality; an incidentalteresting insights involving the the early stages of development. and independent. But, cogent hope is that some Q1fthese ar-writing of legal opinions con- The maxim has declined in pre- analysis reveals that form is not ticles may be published.cerns the differences between valence and importance because superfluous verbiage adorning The student members of thismajority and minority opinions. now the truths of the law have the essence of judicialopinions. program and their respective re-The style of the spokesman of b~c~e too complex to be forced It is rather an integral aspect search and writing fields arethe court is cramped and para- within a sentence. But there has of the essence itself. Insofar as Tom Girardi-Torts, Mike Le-lyzed. He is cautious and timid, been no abatement af recourse substance is made strong or Sage-Contracts, Tony Murrayeven fearful of the vivid word to the laconic or sententious weak by form which is respec- -Constitutional Law, Leslieor the heightened phrase. The phrase. The English judges were tively strong or weak, the two Newlan Jr-Torts, and Bill Ry-dissenter. on the other hand, is masters of the epigram and exist as an inseparable entity. laarsdam-Constitutional Law.a gladiator making a last stand ho~ely illustration, OUT own One need look no further than Teaching Fellowsagainst the lions, In his inner- Oliver Wend~ll I:Iolmes,. how- to the opinions written by Jus- Recently Title Insurance andmost soul he maintains the Im- ever, could VIe WIth their best tice Cardozo himself to' observe Trust Company presented Loyo-pression that in spite of every- its merits, but also its dangers; the profound effect which form la Law S6hool with two grantsthing, he was'right. In a dissent, .("sm~Uing of the 'lamp") has has on substance. The:legal con- of $10,000each. One grant is forthere is a looseness of texture m this style. ceptcreating the basis for a the building fund. The secondand a depth of color rarely The refined or art i f ,ic j a 1, judgment may be explained in a grant has made possible thefound in the majortty opinion. unless it is kept in hand, often dreary manner, as it probably legal writing program which wasSometimes, of course, there is a approaches over-refinement or has been in the past, or it may initiated this semester with sec-suspicion of acerbity, but this, an artificial elegance of lan- be given its due articulation. Of on, third and fourth year stu-after all, is rare. More truly guage. Properly employed, how- the styles he noted, Cardozo was dents as the instructors. Thecharacteristic of the dissent is ever, it lends itself to cases skilled in employing that one grant from Title Insurance anda dignity, 'an elevation of mood, where there is a need for deli- which served best to illustrate Trust will supplement the in-thought, and phrase. Deep con- cate precision. and urge his position. Wh~n dif- comes of these Student Fellows,viction and warm feeling are The demonstrative or persua- ficult and complex constructs Professor Goldie is the full-saying their last say with knowl- sive type ds 'Of a more robust can be defined to their simplest time faculty member in chargeedge that the cause is lost. The and virile nature. It is not unlike terms and placed in a framework of the program, and he will bedissenter speaks to the future. the magisterial or imperative, of clarity, the substance has assisted by Professor Rank.Observing the form of prede- yet it differs in a freer use of been enhanced and our law is The student fellows are Doug

cessors and contemporaries, Car- the resources of illustration and richer for it. The beauty of Car- Gray and Bob Charbonneaudozo found a variety 'Ofmethods analogy and of the history of dozo's prose is undeniable but from the 2nd year day 'Class,which lent themselves to a divi- precedent. A more scientific ap- its greatest contribution is in Bob Jagiello, Mike LeSage,sion into six distinct categories: proCl'ch,is suggested rather than helping us to understand the Ernest Vargas, and Tony Mur-(1) the magisterial or impera- the devine revelation character principles which have led to the ray from the 3rd year day class,tive, (2) the laconic or senten- of the former. The opinions of decision. When we have been so and Fred Louer an\l Bill Ry-tious, (3) the conversational or Charles Andrews of the New informed, the cause for justice laarsdam from the 4th yearhomely, (4) the refined or arti- York Court of Appeals are good advances. night students.ficial, (5) the demonstrative or examples of this method. Apersuasive, and (6rthe tonsorial sense of clarity' and sanity isor agglutinative. apparent to the reader. Here,The magisterial or imperative also, we are able to see the fus-

type is one which eschews orna- ing or unification of form andment, lacking almost completely substance.in ,illustration and analogy. Its Finally, there is the tonsorialstrength is derived from its or agglutinative style. This ,issyllogistic nature. The sense of characterized' by a dreary suc-mastery and power which it con- cession of quotations which closeveys is demonstrated by such with a brief paragraph express-great opinions of John Marshall ing a firm convicHon that judg-as Marbury v. Madison, Gibbons' ment for the plaintiff or de-v. Ogden, and Mc Cull 0 c h v. fendant, as the cas.e may be,Maryland. The magisterial jus- follows as an inevitable conc1u-tices were at once aware of their sion. Happily, this style is slow-role as interpreters of legisla- ly but steadily disappearing.tive-made law and, conversely,of a need to protect againstjudge-made law.The laconic or sententious and

the conversational or homely

1137 South Grand(Continued from Page Three)

There are dull and unimagina-tive men who say that opinionsin the law should be austereand condensed to their essentialstatement. Form, they maintain,

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