What Useful Role (if any) Could Legal Positivism Play in the Study or Advancement of International Law?

Abstract

What useful role (if any) could legal play in study or advancement of law? For most of those who remember this once fashionable term at all, international legal is redolent of early years of twentieth century--of Lassa Oppenheim (1) at best, and at worst of his model, John Austin, who famously denied that law is or ever could be genuine law at all, properly so called. (2) law in its central and most usual sense is law set by a sovereign individual or a sovereign body ... to a person or persons in a state of subjection to its author, (3) and legal positivism is doctrine that there is and can be no law but law. (4) Seen in this way, law, which rests substantially on opinio juris and the general principles of law recognized by civilized (5) will never fit positivist paradigm. (6) So why revive legal positivism? I would suggest that despite its longstanding antipathy toward legality and its radical failure as a general theory of law, legal has always played a useful role in progressive development of legal institutions. Positive law has been part of law from beginning and will become increasingly important as institutions become stronger. Legal is a powerful tool for bringing greater clarity into law. The better and more just constitution of society becomes, more important and useful legal will be. INTERNATIONAL LAW The traditional understanding of law was well-stated by Henry Wheaton when John Austin made his first positivist attack on law of nations: International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from nature of society existing among independent nations; with such and as may be established by general consent. (7) The basis of law rested for Wheaton, as for earlier great publicists Hugo Grotius (8) and Emer de Vattel, (9) on reason and human nature, subject to specification by agreement. The clarifying provision of definitions and modifications by consent is basis of positive law. Modern law began with Hugo Grotius, whose turn to reason and common good supplanted earlier sectarian conceptions of law of nations. All of this would still be true, Grotius insisted, even if there were no God. (10) Grotius found law in social nature and mutual obligations of humanity, applied to states. (11) Emer de Vattel, who revised and restated in accessible French Latin doctrines of Grotius and Christian Wolff, (12) asserted that precisely because society has no authority capable of commanding its members and forcing obedience, (13) states are bound first and foremost by laws that arise from natural society of human beings. (14) Vattel identified four varieties of law. The law of nations arises directly from reason, applied to nature of men and states. (15) The law of nations protects zone of liberty and independence within which states may depart from reason, provided they do no injury to others or common good. (16) The conventional law of nations concerns obligations that nations assume by treaty, binding only on contracting parties. (17) And law of nations is founded on tacit agreement among those nations who choose to observe it. (18) Nations may be presumed to consent to voluntary law of nations, making it in a sense positive law, but treaty law and customary law, while both law as to those who choose to accept them, are also arbitrary, and therefore subordinate to necessary and voluntary law of nations. …