Post-Modern Perspectives on Orthodox Positivism

Abstract

This contribution explains the travails of international legal positivism (ILP) from post-modern perspectives. It identifies conventional precepts of orthodox ILP and shows how variants of post-modern thinking unravel them. The focus rests on three main such precepts and their critique: first, orthodox ILP works against the backdrop of a given language that stands stable and unsoiled from the operation of the law. Second, it embraces a political philosophy that gives the legal subject – traditionally the sovereign state – a foundational role. Third, orthodox ILP sees but a small space for politics in international law that is confined to law’s creation through legal sources. These three basic precepts relate to linguistics (the location and generation of meaning), to subjectivity (the place of state consent), and to politics (here understood as the struggle for power and its exercise). Three key concepts of post-modern thinking are introduced in order to question each of these precepts: the vivacious concept of performativity embodies lessons of the linguistic turn. Deconstruction suggests unveiling conflicting diversity underneath harmony and unity of any subject. Governmentality, finally, exposes the many faces of power. In sum, law and politics are much more entangled than ILP would traditionally have it.