International Legal Positivism Research Articles

Unpartitionable: C.H. Alexandrowicz, Sovereign Divisibility, and the Longue Durée of the Polish-Lithuanian Commonwealth

AbstractIn recent years, scholars of international legal history have demonstrated much newfound interest in C.H. Alexandrowicz, a Polish jurist renowned for his anti-Eurocentric revisionist account of Asian and African agency within the meta-narrative of international law. Building on efforts to link his Polish origins with his studies of the Afro-Asian world, especially on matters of imperialism and state personality, my purpose in this Article is to explore these connections through a materially grounded historical sociology of international legal thought. Centering the issue of whether sovereignty is divisible, I situate the historic Polish-Lithuanian Commonwealth—extinguished by a series of Partitions in 1772, 1793, and 1795—as a unique divided sovereignty-based polity that provided a basis for Alexandrowicz’s study of the juridical status of non-European sovereigns. This analogy united his overarching critique of nineteenth-century international legal positivism as an unjustifiable denial of both Polish and Afro-Asian sovereignty. In deciphering the materiality of Alexandrowicz’s imagination against this presumption, I build a narrative of the Polish-Lithuanian Commonwealth and the evolution of its distinct approach to sovereign divisibility. Through analysis of the interplay between internal and external factors, I account for the Commonwealth’s medieval origins, its development in opposition to the consolidating indivisible sovereignty of its absolutist neighbors, its attempts to maintain independence in the face of Partition, and the continued assertions of its variegated legacies following its destruction. This, I argue, provides a novel means of assessing Alexandrowicz’s theory, and the materiality of international law more generally.

The Elements of International Legal Positivism

Abstract This article contains a plea for continuing attention to the elements of international legal positivism. Using the language of ‘elements’ deliberately plays on the positivist tendency to describe the legal discipline as a legal science. Yet law’s elements differ in important ways from the usual objects of scientific inquiry. Law’s method does not seek to address the structure and behaviour of the physical world, but that of a particular society with its own political polarities, structure and functions. The fact that international law inherits its positivist method from the domestic legal context therefore presents complications. While the adoption of positivism as international law’s predominant legal method was animated in part by a desire to provide international law with the imprimatur it needs to claim credibility as a legal system, it has also served as an impediment to international law’s development in a distinctive fashion from domestic law. International law’s attachment to the positivist method has at times extended to an attachment to certain presuppositions more closely associated with the development of the modern European state. This article takes the position that it is important to engage with international legal positivism on its own terms. Part I traces the lineage of three important traditions of international legal positivism (‘social thesis’ positivism, ‘system-based’ positivism and ‘teleological’ positivism) highlighting their different emphases and in doing so identifying key elements. Part II interrogates certain presuppositions sometimes associated with these traditions and considers whether it is appropriate to rethink or re-engineer these aspects in their application to the international legal system. While positivism is sometimes associated with ‘purifying’ law as a discipline, the article takes the position that the positivist method can only endure if complemented by a rich legal, political and social discourse focused on understanding its relationship to the elements of the international legal system, in particular, international law’s community, authority and functions.

The Hidden Theology of International Legal Positivism

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.

International Legal Positivist Research Methods

This chapter looks at legal positivism and its methods. In international legal scholarship, we are confronted with a paradox: while most international lawyers would say they employ broadly ‘positivist’ methods to find out what the law prescribes, its methods are among the least reflected. Positivism is seldom practised in a manner that is coherent with the theory of legal positivism. This leads to a bifurcation: default positivism and theoretical positivism. Default positivism is not a deeply reflected theoretical approach, but rather the default solution. Fealty to the law is important, but not in an overly formalist and strict manner. Default international legal positivism is a result of processes of socialisation and adaption, founded on a largely subconscious culture of orthodoxy: a pragmatic mindset of submission to and accommodation of widely accepted practices and methods. Its methods reflect that mindset and I briefly analyse two: precedent-following and interpretation. On the one hand, the power of precedents in international law (acknowledged not to be a common law) is taken so seriously that arguing against the ICJ is virtually impossible – the ICJ cannot err on an important issue. On the other hand, the role which the Vienna rules on interpretation play is curiously formalistic and does not sit well with the idea of interpretation as finding out what a text means. Theoretical positivism, using the Pure Theory of Law as an example, is theory-laden and much less pragmatic. It is primarily a theory of how legal scholarship can stay true to the ideal of (legal-)‘scientific’ cognition. Its methods, in turn, are structural analysis and frame-determination. The analysis of the structure of the international legal order, the relationship of different norms and sources is central to any legal-scholarly enterprise and helps to avoid admixing it with ideological precepts. The frame-determination method of interpretation avoids the impossible task of eliminating the vagueness of natural languages and the inevitable freedom to decide. Scholarly interpretation is not an attempt to tell courts how to decide a case, it rather shows the (structural) limits of the law to be applied.

POSITIVISM AND PRACTICE BEYOND SOVEREIGNTY

This Reply engages with three topics raised in the essays in this special issue on The Sovereignty of Human Rights. The first relates to the book’s enlistment of international legal positivism as a defining feature of what constitutes a human right in international law. The second is the role that practice plays in the account that it offers of the normative mission of human rights in international law – namely, that human rights act as legal instruments that mitigate some of the pathologies associated with how international law organizes global politics into an international legal order. The third inquires into the role that human rights play beyond sovereignty – specifically, in relation to non-state actors such as multinational corporations and international economic institutions.

Positivism and Practice Beyond Sovereignty

This essay is a reply to commentaries on The Sovereignty of Human Rights (New York: Oxford University Press, 2015). Three themes inform the commentaries. Each represents a topic that the book engages with in ways challenged or critiqued in some of these essays. The first relates to its enlistment of international legal positivism as a defining feature of what constitutes a human right in international law. The second is the role that practice plays in the account that I offer of the normative mission of human rights in international law – namely, that human rights act as legal instruments that mitigate some of the pathologies associated with how international law organizes global politics into an international legal order. Finally, some of the essays in this issue inquire into the role that human rights play beyond sovereignty – specifically, in relation to non-state actors such as multinational corporations and international economic institutions.

Introductory Note: Beyond the Identification of International Customary Rules

This is a brief introduction to a special journal issue on international customary law. The note offers information on the studies published in the issue and identifies two (interlinked) threads that connect them, namely state-centrism in custom making and the role of state will/consent (associated with the voluntarist school of thought within international legal positivism). Moreover, the note links the papers published in the issue with the work of the ILC on the identification of international customary law and argues that, to a certain degree, while offering authoritative guidance on the identification of custom, the ILC defines customary international law as a source of law. This, in a sense, overlaps with the function of judges/courts, which also define custom as a source of international law when they employ that source as a means to identify a customary rule. This means that ILC's approach on customary law may limit the power/authority of judges/courts to construct their own definition of custom as a source. The question to be asked then is how flexible or rigid should ILC's definition of customary law be.

Introductory Note: Beyond the Identification of International Customary Rules

This is a brief introduction to a special journal issue on international customary law. The note offers information on the studies published in the issue and identifies two (interlinked) threads that connect them, namely state-centrism in custom making and the role of state will/consent (associated with the voluntarist school of thought within international legal positivism). Moreover, the note links the papers published in the issue with the work of the ILC on the identification of international customary law and argues that, to a certain degree, while offering authoritative guidance on the identification of custom, the ILC defines customary international law as a source of law. This, in a sense, overlaps with the function of judges/courts, which also define custom as a source of international law when they employ that source as a means to identify a customary rule. This means that ILC's approach on customary law may limit the power/authority of judges/courts to construct their own definition of custom as a source. The question to be asked then is how flexible or rigid should ILC's definition of customary law be.

The Doctrine of Occupation: An Analysis of Its Invalidity under the Framework of International Legal Positivism

The Doctrine of Occupation: An Analysis of Its Invalidity under the Framework of International Legal Positivism

Faith, Ritual and Rebellion in 21st Century (Positivist) International Law

International legal positivism in some of its radical forms in the 21st century operates as theological voluntarism. It is the ambition to translate an overwhelmingly practical art into a of that has squeezed these theories into a theological structure of thought. If such a thing could ever exist, a of ought to reveal the role played by morality in the normative pronouncements about law. However, a can only emerge at the expense of taking the existential decision about identifying with morality or severing from morality. Hans Kelsen writes that law is an order of human behaviours. But is this order founded upon morality or not? This very question articulates a fragmented view of reality falling between fact (morality) and value (law) that we have learned to take for granted. Practitioners know that the correct professional approach is to be interested in the legal aspects of a case and not in its moral aspects. Moreover, both in and practice, one can often limit oneself to act as a morally responsible person. There are, however, several sensitive areas in which even minimal theoretical work calls for the adoption of a moral-normative standpoint. However, the general theory type of thinking urges the theological question - will the punish my immorality or not? The theoretician devising a will lay out the question of morality and in absolute terms. Independently of the answer, articulating this question involves the assumption that the lawyer should take a theological approach, which is also reflected in the non-neutral outcome of the following two absolutist approaches. If is to prescribe what is moral, every legal judgment is a moral judgment about good and evil.

Post-Modern Perspectives on Orthodox Positivism

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.

Reductionist Legal Positivism in International Law

We international legal scholars perceive the world as being growingly complex and intricate. Much of that perception, of course, can be traced back to the fact that our binary legal categories do not fit the world as we have come to see it. It is this very perception that has brought many of us to devise a wide range of innovative approaches to save international law from irrelevance, among them being constitutionalism, global administrative law, new legal realism, legal pluralism, and so on. It is against this backdrop that the question with which this panel grapples should be understood: Could international legal positivism (ILP) constitute a useful tool to approach and understand what we perceive as a growing complexity of this world? I acknowledge that in the land where legal realism was born, such argument might sound either provocative or naively backward, especially since legal positivism-bashing has become an argumentative convention in our professional community, as well as a starting point of many of our scholarly inquiries. Indeed, very often ILP is seen as the very source of our inability to capture and cognize the complexity of the world. This epistemic prejudice toward ILP is what, in my view, has prevented us from seriously addressing the question of what we can expect from legal positivism in our attempts to comprehend and capture the problems of the complex world we live in. To that question, my answer is three-fold. First, it is a qualified yes: we need positivism, but only to the extent that it is assigned a few very limited functions. This is the idea of reductionism. Second, positivism should be stripped of all the straw men that are commonly attached to it: voluntarism, state-centricism, rigid and static theories of sources, theories of interpretation and techniques of content determination, etc. This is the idea of emancipation. Third, if restricted to one particular function and emancipated from such approximations, legal positivism can prove to be a useful approach to international law that complements--and can be complemented by--other existing approaches, and which, in that sense, does not claim any monopoly on the cognition of international law. This is the idea of ecumenism. Reductionism, emancipation, and ecumenism are the three prerequisites without which it is not possible to make sense of ILP at all, and short of which ILP cannot make sense of our complex world. They simultaneously constitute three steps that ought to be taken in order to move away from the straightjacket of classical legal positivism. I will say a few words about each of them. REDUCTIONISM I advocate a reductionist understanding of ILP construed as a theory of identification of international legal rules based on a theory of sources. ILP proves most useful, in my view, if restricted to a theory of legal rules. In that sense, ILP should be geared toward providing criteria of determination of the pedigree of rules, i.e., the membership of norms to the legal system. Nothing less and nothing more. This means that ILP does not claim to provide a tool for the cognition of all international law, but just one aspect: ascertainment. That also means that ILP should not make a claim for authoritative determination of the content of rules and should not encapsulate a theory of interpretation. Such a reductionism is not unprecedented. Unsurprisingly, I owe such a reductionist take on legal positivism to Hart (even though the argument could be made that the New Zealander John Williams Salmond, before him, had advocated such a social-fact approach to jurisprudence). It would be of no avail to discuss Hart here. I only deem it relevant to highlight one single point. Despite Hart's oversimplified reading of international law, a Hartian perspective is relevant for the very reason that it helps us restrict ILP to a mechanism of determination of the mode of existence of norms--that is, validity. …

Universal Human Rights and Cultural Relativism: A Fresh View From the New Haven School of Jurisprudence

This paper examines the issue of cultural relativism versus universal human rights from the perspective of the New Haven school of jurisprudence. It explores the historical and intellectual content of both Western and non-Western human rights and assesses their departures and commonalities. It reviews relevant modern trends in international law, human rights, legal positivism, pluralism and globalization.

Introduction: Mapping 21st Century International Legal Positivism

Introduction: Mapping 21st Century International Legal Positivism