Legal Positivism as Tekhnē: Postnational Normative Ontology and the Positivist Effectual Temporality

Abstract

When discussing the nature and functioning of global and transnational modes of regulation, scholars embark upon what may be defined as ‘postnational normative ontology.’ While the debate on this subject has proved to be insightful from several perspectives of inquiry, global and transnational legal theorists have not concerned themselves with three fundamental interrogatives regarding the relationship between legal positivism, state law, and postnational regimes. These are: whether positivist theories of law are informed by a peculiar form of temporality; if so, what kind of temporality that is; and finally, whether such temporality also underpins the working logic of global and transnational regulatory dynamics. This theoretical shortage reveals a ‘meta-ontological’ difficulty, being meta-ontology the study of the questions with which ontology—even in its normative fashion—concerns itself. Using modern secularisation and social conventionalism as case studies, this chapter engages with this difficulty by taking the first step towards a postnational contextualisation of legal positivism’s temporality. In doing so, it argues that legal positivism is a technique of world-construction (tekhnē) in the sense that it interprets social facts constructively (i.e. it transcends them rationally and systematically) to tell what the (concept of) law is. Further, it shows that in producing (or positing) social facts, the positivist law-ascertaining method is never merely descriptive but always regulatory. Finally, it contends that legal positivism’s metaphysical and epistemological constructions are informed by an effectual (i.e. progressive and future-oriented) form of temporality which global and transnational legal theorists should start exploring. Uncovering the meta-ontological dynamics which inform the conceptualisation and functioning of modern (i.e. positivist) law will, in turn, help scholars reflect on how the performativity of postnational regulatory mechanisms is theorised and operationalised.