Before and After Legal Positivity: Peremptory Norms from Global and Transnational Social Practice

Abstract

This chapter examines the difficulties legal positivism faces explaining the formation and content of peremptory norms. On the one hand, these norms have a universal, peremptory and non-derogable character, based on the importance of their content, which appears to be in tension with the positivist vision of international law as an artificial creation, grounded on state sovereignty and consent. On the other hand, there is the seemingly paradoxical claim that peremptory norms arise from state practice, requiring acceptance and recognition by the international community as a whole. Unravelling this paradox, requires an explanation that reaches beyond the formal sources of international law, to the normative social foundations for international legal order and obligation. The chapter argues that this requires an enquiry into the social foundations for legal obligation as such, which runs counter to the methodological underpinnings of legal positivism, and touches upon the necessary moral foundations to any legal system. An adequate justification of peremptory norms in any legal order requires the setting aside of mistaken understandings of the relationship between social practice, reasons and rules within the positivist tradition; and the recovery of an account of norms constitutive of social cooperation to achieve common ends. With that recovery, the chapter explores some workable foundations for understanding peremptory norms, as ethical foundations to legal order and evaluative criteria for the integration of global, transnational and national legal orders.