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The Material Source Of International Law: Manifestations Of The Universal Juridical Conscience

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Chapter Summary

The attitude, adopted in the last decades, by part of the international legal doctrine, of limiting itself, as from an essentially positivist outlook, to consider only the formal sources of International Law, has deprived the consideration of the matter from an in-depth examination of the legal foundations, and, ultimately, of the validity itself, of the norms of International Law. The need of the prevalence of the recta ratio has been pointed out in face of the considerable sufferings inflicted upon human beings as well as of the divorce between sciences and humanities. The universal juridical conscience is, ultimately, the material source of International Law. A clause of major transcendence deserves to be singled out: the so-called Martens clause, which counts on more than a century of history. The universal juridical conscience, unlike the voluntarist conception, has consistently given expression to the fundamental principles of International Law.

Keywords: International Law; Martens clause; material source; recta ratio; universal juridical conscience



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