International Legal Positivism In A Post Modern World

The first comprehensive study of international legal positivism and how this theory operates in twenty-first-century international legal scholarship.

A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified (that is, conceptualised and operationalised) and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we (think we) know about, among other things, law, legality, sovereignty and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism. Making an important contribution to the scholarly debate on the subject, this volume features original and much-needed essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflect on whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation (significantly, de-formalisation) reinforce or weaken legal positivists’ assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the ‘new international legal positivism’; Hartian legal positivism and the ‘normative positivist’ account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations.

The Nature of International Law provides a comprehensive analytical account of international law within the prototype theory of concepts.

The book explores the main characteristics of contemporary theory in international law. It examines in an analytical fashion 32 schools, movements, and trends as well as the works of more than 500 authors on substantive issues of international law.

Focusing on how states have utilized the persistent objector rule in practice, this volume details how the rule emerged and operates, how it should be conceptualised, and what its implications are for the binding nature of customary international law.

This book explores the question of how the multiplication of judicial decisions on international law has influenced the way in which legal findings in international law adjudication are justified. International law practitioners frequently cite judicial decisions to persuade. Courts interpreting international law are no exception to this practice. However, judicial decisions do much more than persuading: they enable and constrain interpretive discretion. Instead of taking the road of the sources of international law, this book turns to the somewhat uncharted terrain of legal argumentation. Using international criminal law as a case study, it shows how the growing number of judicial decisions has normalised courts' resort to them in legal justification and enabled some argumentative practices to become constitutive of international law. In so doing, it critically revisits the implications of an iterative use of judicial decisions, and reassesses the influence of the 'judicialisation turn' on the ways in which the meaning of international law is formed, shaped and reshaped by reference to judicial decisions.

Histories -- Approaches -- Regimes and doctrines -- Debates

International legal positivism has been crucial to the development of international law since the nineteenth century. It is often seen as the basis of mainstream or traditional international legal thought. The Project of Positivism in International Law addresses this theory in the long-standing tradition of critical intellectual histories of international law. It provides a nuanced analysis of the resilience of the economic-positivist theory, and shows how influential its role was in shaping the modern frameworks of international law. The book argues that the rise of positivist international law was inseparable from philosophical developments placing the notion of conflict of interests at the centre of collective life. Where previously international thought was dominated by notions of the right, the just, and the good, increasingly international relations became viewed as 'interests' in need of harmonisation. In this context, international law was re-founded as the universal law that could harmonise the interests of both public and private international entities. The book argues that these evolutions in philosophical thought were bound up with the consolidation of capitalism, and with the ideas about human existence and human nature which emerged in that process. It provides an innovative analysis of the selected biography of ideas which it presents, including a detailed focus on the work of Hans Kelsen, one of the leading positivist thinkers of the twentieth century. It also argues that the work of Lassa Oppenheim should be included within this analysis, as providing some of the key founding texts of positivism in international law. This book will be a fascinating read for scholars and students of international legal theory, historians of ideas, and legal philosophers.