The Hidden Theology of International Legal Positivism

Abstract

This essay is a study in the critical deconstruction of one of the most popular theoretical paradigms in modern international law and its basic ideological impact on international law as a discipline. The paradigm in question is voluntarist positivism (aka classical international law positivism) and its general impact on the discipline of international law, I am going to argue, has been to encourage the rise and spread within it of what one might call a theoretical culture of ‘bad faith’ – a mix of false consciousness and self-censorship – particularly, in what concerns international law’s relationship with natural law and Christian theology. More specifically, I will argue that: voluntarist positivism, despite its pretense to the contrary, is really just a species of natural-legal thinking. In terms of its basic theoretical structure it shares the exact same metaphysical design as Immanuel Kant’s theory of morals and Adam Smith’s theory of free market economics, both of which are Enlightenment-era adaptations of Christian theology. One of the most influential attempts to develop the basic theoretical paradigm that underpins this metaphysical tradition can be found in the work of the medieval Franciscan scholar John Duns Scotus, and in particular his discussion of the problem of free will and the possibility of free will for the ‘blessed in heaven’. In addition to this unacknowledged Scotist legacy, the theoretical structure behind voluntarist positivism, I am going to argue, also exhibits a rather uncanny similarity to early Christological debates regarding the human/divine nature of Christ. Through a close reading of various international law texts, such as the Lotus and Nicaragua judgments, and scholarly works – Bruno Simma, Louis Henkin, Vaughan Lowe, Roberto Ago, Ian Brownlie – this essay proceeds first to uncover the essential contours of voluntarist positivism’s operative theoretical model, before exploring the structural parallels and similarities between voluntarist positivism, Kant, and Smith. The basic theoretical challenge which it identifies first as the problem of international law’s absent centre is shown to have its direct equivalent in Kant’s theory of the categorical imperative/universal morality and Smith’s theory of market adjustment (invisible hand)/natural prices. Unlike Kant’s moral theory and Smith’s political economy, voluntarist positivism, because of its ideological commitments to ‘scientificity’ and ‘secularism’, has not been able to afford a direct copying of the Christian paradigm. Thus where the concept of the categorical imperative and the theory of the invisible hand provided a direct replication of the Christian conception of God, voluntarist positivism has simply elected to ignore the issue of closure and structuration it raises altogether. The result has been the emergence of an extremely contradictory and illogical theoretical structure – not unlike that described by Nietzsche in his critique of Victorian liberalism – and a disciplinary economy of power/knowledge that is openly based on a politics of bad faith.