Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim's Positive International Law
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Is there a normative (ethical) case for positivism in international law? This paper argues that there is, and that the vitality of mainstream positivist traditions in international law has been sustained by a deeply felt commitment to the ethical view that legal positivism provides the best means for international lawyers to promote realization of fundamental political and moral values. The paper will make this argument with particular reference to the positivist tradition associated with Lassa Oppenheim and embraced by many of his successors in the field. It will offer a reading of Oppenheim's writings that is consistent with this interpretation. This reading is proposed as one way to understand Oppenheim, but the aim is not to show that Oppenheim would necessarily have articulated his positions in the manner proposed here. The aim is instead to show that this positivist tradition is grounded in a normative justificatory claim that engages it with political questions, to suggest that the appeal and influence of this tradition has depended on it making such a claim, and to speculate that the implicit sense of making such a claim has been a reason for the appeal of Oppenheim's writings to subsequent generations of readers. Lassa Oppenheim (1858-1919) is a perplexing figure in the history of modern international law. He was respected by his contemporaries for his contributions as professor, jurisconsult and prudent scholar, and above all for his two-volume International Law (1905/1906). This work was immensely well received. The lasting qualities of its format and approach have led a series of eminent British international lawyers to keep it updated, so that its first volume in particular has enjoyed authoritative status over a full century. Yet his writings on international law strike many modern readers as theoretically shallow, and naively positivistic in placing great emphasis on the will of states and in seeking to exclude from international law not only the rights of all individuals and the rights of peoples outside the Euro-American system, but also most considerations of morality, policy and politics. The present paper argues that Oppenheim's separation of law and politics can be read as embedded in a more fundamental view of international law that is premised on his central political ideas, and that one of the most important of his political ideas is that legal positivism is normatively justified as being the best conception of law for the realization of higher normative goals relating to peace, order, certain forms of justice, and the legal control of violence. This paper considers just a sample of Oppenheim's political ideas in arguing that his international law œuvre should be read as advocating three political ideas which he believed were essential for international law: (I) an international society of states as a necessary condition for the existence of international law; (2) a balance of power between states as a requirement for durable international law; and (3) a commitment to legal positivism as a requisite for viable international law. Although Oppenheim's espousal of these ideas is embedded in a textbook that reads as a work of descriptive or analytic legal positivism, it will be argued that Oppenheim's advocacy of these ideas was normative. He did not regard international society, balance of power and positive international law simply as facts to be described and accommodated; he wished readers to embrace his understanding of these as political conditions for effective international law, and to join him in promoting the social and political acceptance—and thus the realization—of these ideas in order that international law could flourish and humanity might advance. The present paper thus seeks to lay a foundation for a modest contribution to the perennial problems of understanding international law as a distinct discipline and practice embedded in a particular politics, the background conditions and social interpretations of which are continuously changing. This foundation rests upon the simple paradox that the positivist separation of law from moral argument and from politics is itself a moral and political position. This point receives less consideration than it warrants within the Oppenheim tradition partly because major works in this tradition have been cautious about legal theory and about moral and political engagement, often confining such matters to short and stylized preliminaries. The result has been a widely held opinion that this positivist tradition neither makes nor could make a claim to ethical justification. It will be argued that the Oppenheim tradition can be better appreciated as one that makes significant political claims, and does so for normative reasons. Whether or not the particular reading of Oppenheim's own works proposed here is one he would have endorsed, it is suggested that some such understanding of them has implicitly informed and sustained this influential tradition. With this understanding of Oppenheim's project, it will be possible to assess more clearly the normative case for basing international law on political propositions of this sort, and to weigh this case against competing modern approaches that emphatically reject the positions ascribed here to Oppenheim. While few modem professional expositors of international law are content to base themselves on the set of basic positions here associated with Oppenheim, it will be suggested that the case for Oppenheim's apparently outmoded approach is more robust than it appears.
Source Publication
East Asian and European Perspectives on International Law
Source Editors/Authors
Michael Stolleis, Masaharu Yanagihara
Publication Date
2004
Recommended Citation
Kingsbury, Benedict, "Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim's Positive International Law" (2004). Faculty Chapters. 995.
https://gretchen.law.nyu.edu/fac-chapt/995
