Legal Positivism

Legal Positivism
Frauke Lachenmann
Content type: Encyclopedia entries

Product: Max Planck Encyclopedias of International Law
[MPIL]
Module: Max Planck Encyclopedia of Public International
Law [MPEPIL]
Article last updated: July 2011
Subject(s):
Theory of international law
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.
Subscriber: Fundacao Getulio Vargas (FGV); date: 26 July 2020
A. Notion
1 The debate concerning legal positivism is characterized by notional uncertainties, more
so than in other debates in legal theory. In the words of Mario Jori, ‘all too often positivism
appears to be something different to its supporters and its enemies, so that the discussion
becomes the slinging of abuse to non-existent villains’ (at xi). In the same vein, François
Chevrette and Hugo Cyr have stated that ‘[d]e tous les concepts dont fait usage la théorie
du droit, le concept de positivisme est … l’un des plus polysémiques’ (at 1).
2 The term ‘positivist’ has been assigned to a number of writers who, however, subscribed
to rather different ideas. Consequently, there is much dissent about what positivism
signifies. As HLA Hart critically noted in his 1957 essay ‘Positivism and the Separation of
Law and Morals’ (at 602–3 fn 25), legal positivism has frequently been said to entail some
or all of the following tenets: a) Laws are commands of human beings; b) There is no
necessary connection between law and morals, or law as it is and law as it ought to be; c)
The contention that the analysis (or study of the meaning) of legal concepts is: (i) worth
pursuing; and (ii) to be distinguished from historical inquiries into the causes or origins of
laws, from sociological inquiries into the relation of law and other social phenomena, and
from the criticism or appraisal of law whether in terms of morals, social aims, ‘functions’, or
otherwise; d) The contention that a legal system is a ‘closed logical system’ in which correct
legal decisions can be deduced by logical means from predetermined legal rules without
reference to social aims, policies, and moral standards; e) The contention that moral
judgments cannot be established or defended in the same way as statements of facts can, ie
by rational argument, evidence, or proof (‘noncognitivism’ in ethics).
3 The positivist paradigm can thus be broken down into two complementary elements. The
first is the ‘command’ or ‘voluntarist’ element—law as emanating from State will. The
second is the ‘unity of sources’ element, which recognizes as law (only) those norms that
can be traced back to one ultimate source and which are generated by a pre-set legal
procedure, independent of their inherent value. Legal positivism thus endeavours to abstain
from any value judgements, asserting that it is possible to have a morally neutral
descriptive theory of law. Thus it rejects the main tenet of its counterpart in legal theory,
naturalism (→ Natural Law and Justice).
4 The lowest common denominator, then, is the critical separation of law as it is from law
as it ought to be—‘law as it is’ being rules made up by the modern State. On this statement,
both supporters and adversaries have rested their argument: positivists have claimed that
this approach allows for the scientific, value-free study of law, while their opponents have
argued that this allegedly non-ideological stance only produces ideology in disguise; namely,
hidden value-judgments in favour of the power of the State.
5 Within the field of legal positivism, one may distinguish certain varieties, although any
classification is necessarily superficial since these partly overlap and sub-categories exist.
One may thus speak of: a) formalist positivism (Hans Kelsen and his students); b)
voluntarists, who think of law as an effect of ‘will’; c) rule-positivists, who believe that only
formal ‘rules’ account as valid law (eg Prosper Weil); d) sociological positivists, who think
law is not abstract ‘will’ but concrete behaviour (eg Wilhelm Lundstedt and Alf Ross); e)
policy-approach lawyers, who think of law in terms of policy (Myres McDougal and the Yale
school); and f) rational choice scholars, who believe law is a rational calculation and
balancing of concrete interests (Jack Goldsmith etc). Some of these will be discussed below.
B. Development and Critique
6 Legal positivism as a concept has had a long and varied history. Thus, only the most
important steps on the way, and the most influential thinkers and tenets, can be described
here.
1. Early Stages: Germany and France

7 Johann Jacob Moser (1701–1785) can be seen as the first German representative of a full-
blooded and programmatic public law positivism (see Walker). Rather than developing a
naturalist-deductive theory of law in the vein of Christian Wolff and Christian Thomasius,
Moser gave a systematic account of positive German Staatsrecht—legislation, case law, and
practice. His international law theory was equally based on empirical findings of inter-State
relations.
8 Thus, legal theory moved from being a philosophical endeavour to a practical study.
Legal positivism in its 18th century beginnings was very much an effort to move away from
the abstractions of natural law and to provide a more concrete and tangible basis for ruling
(European) societies. In contrast to natural law, whose basis was sought from ‘reason’ and
‘nature’, positive law had its origin in legislative ‘will’. Its history is therefore a history of
legislation. This is exemplified by the efforts at German universities in the 18th century to
devise law as an instrument of ruling the absolutist State. Scholars such as Gottfried
Achenwall (1719–1772) and Johann Stephan Pütter (1725–1807) and the many studies on
‘Policey’, aiming at the internal order and the well-ordered (police) State, conceived positive
laws and regulations as predominant instruments of the absolutist State.
9 In pre-revolutionary France, on the other hand, Jean-Jacques Rousseau (1712–1778)

posited law not as an emanation of sovereign will, but as an emanation of the ‘general will
of the people’, seeing the people as submitting to no other authority than the law they had
given themselves. These legislative ideas had a deep impact on the French Revolution,
which projected positive law as the expression of the will of the nation. Its predominant
fruit was the 1804 Code Napoléon (followed by the 1812 Austrian Allgemeines Bürgerliches
Gesetzbuch), which in Art. 5 forbade judges ‘to pronounce, by way of general and legislative
determination, on the causes submitted to them’—a clear denunciation of judges assuming
the function of law-makers.
2. Idealism
10 Immanuel Kant’s (1724–1804) writings contain the first effort to develop a legal theory
with a determined place for (rational) natural law and for a voluntary (positive) law. Note
the striking delineation of his legal theorem in The Metaphysics of Morals (1797):
[H]owever well disposed and law-abiding men might be, … individual men, peoples,
and states can never be secure against violence from one another, since each has its
own right to do what seems right and good to it and not to be dependent upon
another’s opinion about this. So, unless it wants to renounce any concepts of Right,
the first thing it has to resolve upon is the principle that it must leave the state of
nature, in which each follows its own judgment, unite itself with all others (with
which it cannot avoid interacting), subject itself to a public lawful external coercion,
and so enter into a condition in which what is to be recognized as belonging to it is
determined by law. (‘Metaphysical First Principles of the Doctrine of Right’ in The
Metaphysics of Morals 33, § 44)
11 Kant thus acknowledged the social reality of differing views on right and wrong, the
solution being freely-chosen submission to positive law. He can be seen as an important
influence on legal positivism, not only because of his clear distinction between ‘Sein’ and
‘Sollen’, empirical data and metaphysics, and legal norms and principles they can be
measured by this subjective turn, positing pre-existing concepts for ordering (the
perception of) reality, and his endorsement of the self-legislative function of the will had an
undeniable impact on later theorists such as Georg Jellinek.
3. Post-Kantian Legal Theory

12 The history of positivism in the 19th century is closely related to the history of
nationalism. In Germany, Friedrich Carl von Savigny’s historical school combated rationalist
abstractions by focusing on the ‘juridical conscience of the nation’. Savigny was an early
exponent of the German Historical School of Law which, inspired by Romanticism, denied
the value of natural law (or the law of reason), emphasizing the historicity of law. According
to Savigny, a people’s law can be gathered retrospectively and introspectively, by studying
its history and social order. Law is grounded in the Volksgeist (as the case may be, the
consciousness, character, or spirit of a people), evolving in an organic manner over time,
much like language or customs. This was moved in a programmatically positivist direction
by the German public law theorists Gerber, to whom the State was ‘the highest legal
personality known to the legal order’, and his successor Laband, who transferred Gerber’s
findings to the positive law of the German Reich as a federal State and single legal person
(see Koskenniemi [2007] 182 et seq).
13 The unification of the German Reich gave considerable momentum to positivist
conceptualization. Legislation of the Reich authorities could now be seen as representing
the whole German Volk:
The resulting Gesetzespositivismus opened up the possibility of explaining

international engagements as binding on the same basis as domestic law—as formal
emanations of State will. At the same time, it required distinguishing between the
domestic Gesetz that implied a hierarchical relationship and the international
Rechtssatz that did not. Defining international law as co-ordination, German
lawyers accepted that there was no principle of political legitimacy above the
people …. Above all, they were now able to work with an autonomous system of
legal concepts that avoided collapsing the law into power or humanitarian morality.
(Koskenniemi [2007] 186–7)
14 Arguably the most important German positivist of the 19th century, however, was Georg
Jellinek. Acknowledging the ‘normative power of the factual’, Jellinek developed a ‘two-sides
theory’ that allowed distinguishing between a sociological and a legal perspective on the
phenomenon of the State. From a sociological point of view, norms express the will of those
in power, while legally speaking they emanate from the State. Even more important for
international legal theory may be his ‘Selbstverpflichtungslehre’, which finally squared the
circle of how States can be both sovereign and bound at the same time. In a Kantian turn,
Jellinek defined the sovereignty of the State as ‘the quality of a State to be obligated only
through its own will’ (Jellinek [1882] 32). As Koskenniemi put it:
Acting within the international sphere, the sovereign State … legislates for itself
and its capacity to do so—its autonomy—is the exhaustive explanation for why it is
bound …. Self-legislation translated into international law the Kantian theory of
freedom as the reasonable will. A formal order seems a necessary implication of the
freedom of the single State. (Koskenniemi [2007] 204–8)
4. Anglo-American Formulations

15 Among British theorists who paved the way for positivism were David Hume with his
argument for separating ‘is’ and ‘ought’; and Jeremy Bentham, with his attacks on judicial
law-making and naturalist argumentation in the vein of Sir William Blackstone (on the
development of legal positivism see also Jori). However, it is John Austin (1790–1859) who is
widely regarded as the foremost British exponent of legal positivism. In his seminal 1832
work The Province of Jurisprudence Determined, Austin formulated the concept of legal
positivism thus:
The existence of law is one thing; its merit or demerit is another. Whether it be or
be not is one enquiry; whether it be or be not conformable to an assumed standard,
is a different enquiry. A law, which actually exists, is a law, though we happen to
dislike it, or though it vary from the text, by which we regulate our approbation and
disapprobation (at 157).
16 Austin formulated his criticism of natural law in his so-called ‘command theory of law’.
‘Commands’ involve an expressed wish that something be done, combined with a
willingness and ability to impose ‘an evil’ if that wish is not complied with. Austin identified
legal rules as general commands laid down by a sovereign or its agents. The ‘sovereign’ is
defined as a person or body who receives habitual obedience from the population, but who
does not habitually obey any other.
17 Austin was criticized by HLA Hart, who showed that the command theory was not
adapted to regimes other than absolutism and by Hans Kelsen, who would describe positive
law as a uniform order of social norms and not just a power structure or a set of
behavioural rules. Indeed, other than in criminal law sanctions or administrative
enforcement mechanisms, commands do not play a prominent role in municipal legal
systems. The command theory thus fails to adequately explain the nature of law. In fact, it is
particularly ill-fitted to explicate the legal nature of international law as a system based on
co-ordination and co-operation of equals, without the hierarchical structure displayed by
municipal legal systems.
18 This view of authority was rejected by HLA Hart (1907–1992) in favour of an empirical
view that is closer to Max Weber. If law is not grounded in force, law, or a hypothetical
norm, on what does its authority rest? For Hart, the ultimate criterion of validity in a legal
system is social custom. Hart replaced the ‘basic norm’ by a ‘rule of recognition’, a social
rule differentiating between those norms that have the authority of law and those that do
not. The rule of recognition—a ‘secondary rule’ that determines the sources of law—
specifies the ultimate criteria of validity in the legal system. Hart’s necessary and sufficient
criteria for the existence of a legal system are that
on the one hand those rules of behavior which are valid according to the system’s
ultimate criteria of validity must be generally obeyed, and, on the other hand, its
rules of recognition specifying the criteria of legal validity and its rules of change
and adjudication must be effectively accepted as common public standards of
official behavior by its officials. ([1961] at 113)
19 HLA Hart was most importantly criticized by Lon Fuller. Fuller argued that law had to
conform to some extraneous standards to be properly called law: it had to be at least
minimally clear, consistent, stable, and public in accordance with the principles of the
→ rule of law. One might counter this, as Hart did, by saying these are rules not of ‘inner
morality’ but of efficacy and are thus not in contradiction with the positivist approach.
5. Formalist Positivism

20 By the mid-20th century, imperatival theories with their emphasis on coercive force had
lost their influence in legal philosophy and given way to the study of the systematic and
normative character of law. Likewise, the focus had shifted from legislative institutions to
law-applying institutions such as courts. The concept of law as an effect of the legislative
had come under attack by sociological jurisprudence (Roscoe Pound, but also Rudolf
Jhering); by the → legal realism school (eg Alf Ross and Karl Olivecrona); and by the ‘free
law’ school emphasizing the judge’s lawmaking task (eg Hermann Kantorowicz). Also
positivist institutionalism (in France, Maurice Hauriou) showed the illusory nature of law as
will. The Reine Rechtslehre (Pure Theory of Law) of Hans Kelsen (1881–1973) is essentially
an effort to repair positivism after these critiques—that is, to create a positivism that would
no longer be tied to the idea of the ‘will’.
21 As opposed to Austin, Kelsen emphasized the normative, non-factual nature of law:
might does not make right (or law). Kelsen sought to explain the nature of law by referring
to its systematic unity: all the laws in a legal system constitute links in one chain of
authority. At the end of the chain is the original constitution whose authority is
‘presupposed’. This ‘basic norm’, of course, could not be another legal norm since the
bindingness of law cannot be explained by reference to more law. Nor could it be a social
fact. Kelsen thus tried to trace back the bulk of law to one hypothetical, transcendental
norm that is the condition of all other norms as binding, irrespective of its merits. His
failure to identify this a priori ‘basic norm’, however, left his theory open to the charge of
being circular.
6. Inter-War and Post-War Debate

22 Many lawyers felt that the experience of the two World Wars epitomized all the
shortcomings of legal positivism. Even throughout the 1920s and 1930s Hersch Lauterpacht
had criticized a ‘positivism’ which extolled the virtues of statehood and sovereignty, allied
itself with aggressive nationalism, and which he thus blamed for being responsible for the
1914–18 war (Koskenniemi [1997] 217). Again in 1945, Ben W Palmer in his influential
essay ‘Hobbes, Holmes and Hitler’ felt compelled to utter a warning:
If totalitarianism comes to America it will not come with saluting, ‘heiling’,

uniformed men …. It will come through dominance in the judiciary of men who have
accepted a philosophy of law that has its roots in Hobbes and its fruition in
implications from the philosophy of Holmes …. [Holmes’] principles lead straight to
the abasement of man before the absolutist state and the enthronement of a legal
autocrat. (at 573)
23 However, the most significant post-World War II indictment of positivism came from
German legal scholar Gustav Radbruch. Radbruch, while a confident supporter of positivism
in his early years, modified some of his earlier statements under the influence of the war.
Radbruch identified positivism as the reigning doctrine in Nazi Germany and the ultimate
cause of the atrocities committed under a legal guise up to 1945. In his significant 1946
essay ‘Statutory Lawlessness and Supra-Statutory Law’ (‘Gesetzliches Unrecht und
übergesetzliches Recht’) Radbruch put forward what came to be known as the ‘Radbruch
formula’:
The conflict between justice and legal certainty may well be resolved in this way:
The positive law, cured by legislation and power, takes precedence even when its
content is unjust and fails to benefit the people, unless the conflict between statute
and justice reaches such an intolerable degree that the statute, as ‘flawed law’,
must yield to justice. It is impossible to draw a sharper line between cases of
statutory lawlessness and statutes that are valid despite their flaws. One line of
distinction, however, can be drawn with utmost clarity: Where there is not even an
attempt at justice, where equality, the core of justice, is deliberately betrayed in the
issuance of positive law, then the statute is not merely ‘flawed law’, it lacks
completely the very nature of law. For law, including positive law, cannot be
otherwise defined than as a system and an institution whose very meaning is to
serve justice. Measured by this standard, whole portions of National Socialist law
never attained the dignity of valid law. (at 7)
24 In the recent past, there was some renewed interest in the Radbruch formula as it was
used in the trials against former GDR soldiers, who shot fugitives at the Berlin wall, and
their superiors. The juridical discussion of their criminal accountability came to an end with
the decision by the → European Court of Human Rights (ECtHR), which held that their
convictions by German courts did not constitute a violation of Art. 7 → European Convention
for the Protection of Human Rights and Fundamental Freedoms (1950) Streletz Kessler and
Krenz v Germany [ECtHR] Reports 2001-II 409).
25 It should be noted that Thomas Mertens has recently shown that Nazi Germany could
hardly be described as uniformly positivist; compare the concept of ‘Völkisches Naturrecht’
and also the success of the non-positivist Carl Schmitt, as opposed to the positivist Kelsen.
These findings can serve to show that both naturalist and positivist argumentation may be
and have been instrumentalized. Still, the accusations raised by Radbruch and others have
badly tainted the name of legal positivism. This, together with positivism’s dubitable
reputation as ‘old-fashioned, conservative, continental European nineteenth-century
views’ (Simma and Paulus 302) may account for the fact that many modern-day legal
theorists feel uneasy about embracing positivist terminology even though the concept has a
lingering influence.
7. Recent Developments

26 Among contemporary critics of positivism, especially of HLA Hart, is Ronald Dworkin.
Dworkin not only denies that there can be any general theory of the existence and content
of law but he also rejects the institutional focus of positivism. Rather than from legislation,
Dworkin proceeds from adjudication. According to legal positivism, Dworkin claims, legal
rights do not exist prior to legislation; thus, rights can be taken away by the legislator,
leaving the individual exposed to legislative arbitrariness. Thus, in court the individual
cannot invoke rights that are rooted in human dignity or equality. By concentrating on legal
rules, Dworkin says, positivism fails to acknowledge the role of legal principles that come
into play in those ‘hard cases’ that are not clear-cut and not to be solved by mere
subsumption. Such principles (eg fairness) may guide the judge’s discretion. In Dworkin’s
opinion, rules and principles together make up the legal system.
27 Recently, the debate has been carried further, for example by Joseph Raz. Raz
subscribes to ‘exclusive’ positivism, denying that a legal system can incorporate moral
constraints on legal validity, thus going beyond HLA Hart. Another recent representative is
Norbert Hoerster who, inter alia, has debated and rejected the Radbruch formula as
methodologically flawed. Legal positivism has also been challenged by, among others, legal
hermeneutics; many (though not all) types of legal realism; law and economics; critical legal
studies; postcolonial and feminist approaches to law; and types of new natural law. What
unites these is their effort to look away from law as the effect of legislative ‘will’ as well as
the conceptualization of law as ‘rules’. Some of these currents stress the practice of law as
a type of practical reasoning, some highlight the constructive aspects of legal
interpretation, whilst others emphasize the links between law and political or economic
interests.
C. A Positivist Approach to International Law

28 Positivist theories in → international law proceed from the model of State → sovereignty
as enshrined in the → Westphalian System (see also → History of International Law, 1648 to
1815). The Westphalian treaties of 1648 were a turning point in that they centred the
international order on States. Even before that, Francisco Suarez—though still in the
naturalist tradition—had paved the way for positivism by separating international law from
natural law, thus anticipating Hugo Grotius. In 1625, Grotius wrote the first systematic
treatise on international law, De iure belli ac pacis, which dealt with the laws of war and
peace. Here, Grotius no longer based international law exclusively upon natural law, but
also accepted that States among themselves can create binding rules of law (ius
voluntarium). In the 17th and 18th centuries, the idea of natural law as a basis for
international law remained influential, and was further elaborated by Samuel von Pufendorf
and Christian Wolff, until in the 19th century a shift arguably occurred towards positivism in
international law (→ History of International Law, 1815 to World War I); a tendency which
lasted well into the 20th century, though naturalism resurged in the 1920s (→ History of
International Law, World War I to World War II) and again after World War II (→ History of
International Law, since World War II). In view of the rapid developments in recent decades,
there is now a renewed interest in whether classic positivism is still able to account for
modern international law.
1. Law as Emanating from States’ Will

29 For natural law theorists, treaties did not create law but only obligations between
parties. However, in the 18th century, especially owing to the publications of Abbé de Mably
in France and Moser and Georg Friedrich von Martens in Germany, the view became
widespread that international law is essentially a collection of treaties (Droit public de
l’Europe). This made international law a matter of State will just like other ‘valid’ law in
positivist eyes. But this also meant (as Martens acknowledged) that there would be no
general international law, only specific treaty relations between particular States. Non-
European States, insofar as they had no treaty relations with Europeans, thus fell fall
outside the realm of international law.
30 In 1899, Heinrich Triepel published his influential Völkerrecht und Landesrecht (1899),
acknowledging that international treaties were binding on States only to the extent that
States had signed and ratified them in accordance with their constitutions. This was the
basis for the (positivist) doctrine of ‘dualism’—the theory that domestic law and
international law were separate legal orders and that the former was applicable in domestic
law only to the extent that domestic law provided for this.
31 This view became the predominant constitutional view in continental European
countries. An important representative was the Italian Dionisio Anzilotti (1867–1950), who
propagated it during his long term as a judge at the → Permanent Court of International
Justice (PCIJ). The voluntarist paradigm as applied to international relations was most
famously formulated in the 1927 Lotus judgment (→ Lotus, The), which was taken by the
vote of a strict majority including Judge Anzilotti:
International law governs relations between independent States. The rules of law
binding upon States therefore emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims. Restrictions upon
the independence of States cannot therefore be presumed. (The ‘Lotus’ [France v
Turkey] [1927] PCIJ Series A No 10at para. 44)
32 This State-centred model (which was importantly criticized by Hersch Lauterpacht in
The Function of Law in the International Community [1933]) finds expression in all those
norms which are based on State sovereignty, such as the right to → self-defence (Art. 51 UN
Charter); the prohibition to interfere with internal affairs (Art. 2 (7) UN Charter); the norms
on → State immunity; the requirement of a State’s consent to international adjudication; etc
(→ States, Sovereign Equality).
33 In recent decades, the orthodox positivist emphasis on States as → subjects of

international law has come under scrutiny with the advent of international organizations. As
other actors such as → non-governmental organizations move into the international arena,
the focus of international law may shift even further away from the Westphalian paradigm.
Juliane Kokott argues that this development, especially the increasing emphasis on the
individual’s rights and duties in the international context, can be traced back to naturalist
influences in modern international law (at 19). Simma and Paulus, on the other hand, argue
that a modernized form of positivism might focus on the will of States less than previously
(at 306).
34 But it is not only the ‘State’ element that is being questioned. The ‘will’ criterion has
also been relativized in recent years. Of course, treaty law still requires the → consent of
the participating parties. However, some multilateral treaties, especially in the field of
environmental law, today provide for treaty development methods that involve attenuated
forms of consent, such as consent that is presumed subject to opt-outs. Consent is very
often presumed concerning amendments (see also → Acquiescence; → Tacit Consent/Opting
Out Procedure). From the positivist point of view, consent to the original treaty can hardly
be said to cover such presumptions.
35 Most obviously however, the will criterion is called into question by the rise of → ius
cogens. The notion of peremptory norms obligating everybody without even the possibility
to opt out cannot be reconciled with the consensual paradigm. The → Vienna Convention on
the Law of Treaties (1969) tried to sidestep this charge by giving a decidedly voluntarist
account of the existence of peremptory norms:
For the purposes of the present Convention, a peremptory norm of general

international law is a norm accepted and recognized by the international community
of States as a whole as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of general international law having the
same character. (Art. 53)
36 One might counter this, as Weil did (at 426), by saying that Art. 53 only shifts the
problem to the definition of the ‘international community of States’. This community would
really have to comprise all States in order to meet positivist standards.
2. Formal Criteria of Validity
37 From the positivist point of view, there are other problematic aspects to ius cogens.
According to positivism, only such norms qualify as law which come into existence by
means of certain predetermined procedures. Once established, the validity of such norms
does not depend on their content or inherent value. Ulrich Fastenrath formulated the
positivist stance thus:
Legal validity, based either upon another legal proposition (Rechtssatz) superior in
rank (corresponding to HLA Hart’s secondary rules) or upon acceptance by the
legal community, is decisive as to whether a legal proposition forms part of the legal
system or not…. A legal proposition cannot be valid to a greater or lesser extent and
thus constitute more or less law. (1993 at 307)
38 Validity knows no hierarchy—laws are either valid or not. Thus, Prosper Weil argued,
the notion of ius cogens, of norms that have greater weight than others, may destabilize the
international law system as it entails a relativization:
There is now a trend towards the replacement of the monolithically conceived

normativity of the past by graduated normativity …. [T]he theory of jus cogens, with
its distinction between peremptory and merely binding norms, and the theory of
international crimes and delicts, with its distinction between norms creating
obligations essential for the preservation of fundamental interests and norms
creating obligations of a less essential kind, are both leading to the fission of this
unity. Normativity is becoming a question of ‘more or less’: some norms are now
held to be of greater specific gravity than others, to be more binding than others (at
421).
39 Of course, positivism acknowledges that there may be a conflict of norms. Such cases
would have to be solved through the application of formal conflict rules, such as the lex
posterior, lex specialis, and lex superior rules. Norms that are superior to others by dint of
their content, on the other hand, are a concept alien to positivism. Yet this is exactly how
the UN ILC in its commentary on Art. 50 Draft Articles on the Law of Treaties ([1966] GAOR
21st Session Supp 9, 20) defined ius cogens: ‘It is not the form of a general rule of
international law but the particular nature of the subject-matter with which it deals that
may, in the opinion of the Commission, give it the character of ius cogens.’
40 ‘Graduation’ of normativity may even increase with the growing prominence of → soft
law, as shown by the heated debate (especially during the 1960s and 1970s) on the legal
effects of certain resolutions of the UN General Assembly. Their undeniable influence on the
development of international law certainly raises questions of the ‘relative normativity’ of
such resolutions.
3. Unity of Sources

41 Lacking a constitution, the international legal order relies on the → sources of
international law listed in Art. 38 ICJ Statute, to clarify what qualifies as an international
legal norm. The list has long been regarded as exhaustive, establishing what is positive
international law. In recent years, there has been some debate on whether the list also
enshrines or allows for naturalist influences on international law.
42 Certainly, the reference to ‘international conventions … establishing rules expressly

recognized by the contesting States’ in Art. 38 (1) (a) ICJ Statute may be seen to epitomize
the classic voluntarist paradigm of positivism. Treaties are here envisaged as the express
formulation of States’ will.
43 Art. 38 (b) and (c) are more problematic. As Ulrich Fastenrath said,
In contrast to international treaties, both international customary law and general

principles of law … lack an authentic wording. Instead, such rules are formulated by
international and national judges, organs of States and international organizations,
or in scholarly writings through induction on the basis of State practice, of
enunciated legal opinions, or through comparison of domestic law. Legal positivism
would only be able to maintain its (purely positivist) approach if it were possible to
draw unambiguous legal propositions (Rechtssätze) from this factual substratum.
However, the simple fact that lawyers differ in their formulation of rules of
customary law and general principles proves this to be impossible (1993 at 316).
44 Fastenrath is certainly right. Beyond linguistic openness, however, Art. 38 (c) can
actually be seen as embracing naturalist notions. The → general principles of law, if defined
as shared principles embodied in national legal systems, such as equity or → good faith
(bona fide), allow for the inclusion in law of moral considerations (→ Equity in International
Law). The general principles can thus become a gateway for meta-legal considerations into
international law. This was acknowledged by the ICJ in the Continental Shelf (Tunisia/Libya)
case:
Equity as a legal concept is a direct emanation of the idea of justice. The court
whose task is by definition to administer justice is bound to apply it. In the course of
the history of legal systems the term ‘equity’ has been used to define various legal
concepts. It was often contrasted with the rigid rules of positive law, the severity of
which had to be mitigated in order to do justice. In general, this contrast has no
parallel in the development of international law; the legal concept of equity is a
general principle applicable as law. ([1982] ICJ Rep 18at para. 71)
45 In the → Corfu Channel Case, the Court likewise referred to ‘certain general and well
recognized principles, namely: elementary considerations of humanity’ (Corfu
Channel[United Kingdom of Great Britain and Northern Ireland v Albania][Merits] [1949]
ICJ Rep 4 at 22; → Humanity, Principle of ). International Law is here envisaged as an
amalgam of naturalist and positivist influences.
46 But one might go further. Art. 38 (b) ICJ Statute refers to ‘international custom, as
evidence of a general practice accepted as law’. → Customary international law, in addition
to → State practice, is founded on the subjective element of opinio iuris. The latter has been
interpreted by the ICJ in the following way:
The need for such a belief … is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to
what amounts to a legal obligation. (→ North Sea Continental Shelf Cases [Federal
Republic of Germany/Denmark; Federal Republic of Germany/Netherlands] [1969]
ICJ Rep 3 para. 77)
47 Opinio iuris thus rests on a feeling—a conviction of what the law is—not on a knowledge
of positive law. Arguably, moral considerations may, over time, harden into such convictions.
Opinio iuris may therefore be the idea of a legal obligation that corresponds to a perceived
moral duty. Consequently, customary international law may become another gateway for
meta-legal considerations into the international legal system and thus also for change,
absorbing legal opinions that are only just evolving. Positive international law may
consequently be the offspring of meta-legal considerations; but once it has come into
existence it lives a life of its own, making it indeed the ‘stronger son’ of natural law (Arthur
Schopenhauer).
48 In recent years, with the growing → fragmentation of international law, doubts have
been voiced concerning the established list of sources. It has been argued that different
parts of international law may have different sources and that there may not be a single
hierarchy of sources after all. Also, those who would move away from the statehood
paradigm, discussing concepts such as ‘peoples’, sovereignty’, and ‘shared sovereignty’,
also have different ideas of what the sources of international law should be. Any positivist
theory of international law would have to address this growing systemic insecurity.
4. Separation of Law and Morals

49 Legal Positivism claims that rights and obligations need to be determined without the
importation of material criteria into law. Still, Art. 31 (1) Vienna Convention on the Law of
Treaties requires that ‘[a] treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light of
its object and purpose’.This can also be seen in the ICJ’s statement in the Continental Shelf
(Tunisia/Libya) case:
[W]hen applying positive international law, the court may choose among several
possible interpretations of the law the one which appears, in the light of the
circumstances of the case, to be the closest to the requirements of justice. (at para
71)
50 Such statements are certainly indebted to naturalist thinking; however, law is here
understood not so much as a reflection of justice than an order that is essentially committed
to the value of justice (Fastenrath 1993 330). This conception reappears in the exhortatory
and programmatory formulations that abound in recent treaties. International law is here
becoming avowedly value-oriented.
51 It is probably in the area of humanitarian law (→ Humanitarian Law, International) that
meta-legal arguments have been expressed most strongly until recent times. This notably
applies to the debates concerning the distinction between the legal consequences of
international and internal conflict. This can be seen, for example, in the statement of the
→ International Criminal Tribunal for the Former Yugoslavia (ICTY) in Tadić:
Indeed, elementary considerations of humanity and common sense make it

preposterous that the use by States of weapons prohibited in armed conflicts
between themselves be allowed when States try to put down rebellion by their own
nationals on their own territory. What is inhumane, and consequently proscribed, in
international wars, cannot but be inhumane and inadmissible in civil strife.
(Prosecutor v Tadić [Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction] IT-94–1-AR72 [2 October 1995] para. 119)
52 In fact, much of the recent positivist–naturalist debate turns on the case of → Kosovo. In
the eyes of Juliane Kokott, the fact that the NATO intervention, notwithstanding its
problematic legal foundations, was not universally condemned can be seen as proof of
naturalist influences in international law (at 9). Equally, she argues, the establishment of
the ICTY would have been impossible without recourse to unwritten law or natural law (at
18—9).
53 Simma and Paulus, however, choosing international humanitarian law as a test case for
the strength of the positivist paradigm, argue in favour of an ‘enlightened positivism’ (at
307) claiming that ‘the vision of an international law more amenable to the realization of
global values remains compatible with the regime of traditional sources’ (at 316). Classic
positivism, however, all these scholars agree, offers no satisfactory answers to the problem
of → humanitarian intervention.
54 Thus, there are those who would argue that international law ought not to be value-
neutral, else it would become stale, inflexible, and irresponsive to global problems. On the
other hand, however, there are many theorists who argue that international law has, in fact,
never been value-neutral but has frequently bent to ideology. Third World approaches in
particular, highlight the historical and present role of international law as an instrument of
European, or nowadays Anglo-American domination (see, eg, the works by Anthony Anghie
and Bhupinder Chimni; → Developing Country Approach to International Law). Marxist
scholars also see international law’s value-neutrality as a veil over the way it supports the
more powerful (capitalist) States (see eg works by Susan Marks and China Miéville;
→ Marxism). Feminist scholars have highlighted the role of international law in upholding
forms of male domination (see eg Hilary Charlesworth and Christine Chinkin; → Feminism,
Approach to International Law). Critical legal studies, lastly, see international law more
broadly as a type of liberal, cosmopolitan ‘politics’ (see eg David Kennedy and Martti
Koskenniemi).
D. Concluding Remarks

55 Arguably, positivism—albeit not necessarily in its classic form—still strongly influences
international legal thinking. Many legal scholars and practitioners would probably confirm
the words of Simma and Paulus: ‘[I]n reflecting on our day-to-day legal work, we realized
that, for better or for worse, we indeed employ the tools developed by the ‘positivist’
tradition’ (at 302).
56 Judicial references to explicitly naturalist arguments, such as can be found in the Corfu
Channel Case or the North Sea Continental Shelf Cases, are often-quoted exceptions that
prove the rule. Mostly, within modern day international adjudication, judges strive to refer
to norms that are recognized as systemically valid rather than morally valid. At least on the
face of it, there still seems to be consensus that global values may be realized as long as
they find ‘sufficient expression in legal form’ (South West Africa [Ethiopia v South Africa;
Liberia v South Africa] [Second Phase] [Judgment] [1966] ICJ Rep 6, 34 para. 49). However,
as has been shown above, the positivist approach fails to adequately account for many
developments in contemporary international law. In fact, strict positivism might deny that
modern international law qualifies as law.
57 With pressing issues arising, especially in the areas of human rights and humanitarian
laws, since the mid-20th century legal scholars have again become more open to naturalist
concepts, even though the terminology may have changed. As new actors on the
international plane make themselves heard, new instruments are developed, and new
concepts such as constitutionalism are being discussed, the focus may shift even more.
58 A recurrent question of international legal theory concerns the universality of

international law. International law, linguistically as well as conceptually, cannot deny its
European heritage, despite the fact that it has always imagined itself as a ius gentium, also
applicable beyond Europe. The question whether international law is able to move beyond
its particularistic origins is today the centre of interest for an institutional cosmopolitanism
that tackles State sovereignty; liberal and neo-liberal writings which share a predominantly
instrumental view of international law; and feminist or Third World approaches which stress
the political nature of law and its bias in favour of hegemonic preferences (see
→ International Legal Theory and Doctrine).
59 With international law moving from bilateralism to → community interest, and from
coordination to co-operation (Simma; Wolfrum; Abi-Saab), the international community
increasingly focuses on concerns which not only transcend geographical boundaries, but
also generational ones. Calls have been raised for an international economic system
accommodating the interests of all States. There is awareness of a growing need for an
effective and reasonable use of common spaces beyond national jurisdiction. Concepts such
as → sustainable development and → intergenerational equity reflect a concern for
generations not involved in, but ultimately affected by, current legal decisions. Recent
scholarship points to a principle of solidarity (→ Solidarity, Principle of ) underlying, in
particular, the international system on the protection of peace, international environmental
law, and international economic law. Thus, international law is not only moving further away
from the State-centred voluntarist paradigm towards embracing a multitude of actors; it is
also, at least in parts, becoming an avowedly value-oriented system. This growing
commitment to extralegal considerations not based on the particular interests of individual
States recalls the notion of a ‘community of Christian nations’ and comparable concepts in
other denominations and naturalist thinking. Even if enshrined in non-binding instruments
and phrased in appellative rather than imperative language, it cannot fail to influence the
interpretation and further development of international law. One may recall the words of
Prosper Weil who, even as he warned against a possible relativization and thus
destabilization of the international normative system, conceded that:
In view of the multiplication of states and their increasing diversity, this will to
transcend the traditional international society made up of juxtaposed egoisms, and
to forge an international community animated by the quest for the ‘common good’
and common ‘values,’ is all the more precious. One could even see in it an
unexpected return to the historic sources of international law: to ‘irreducible
natural law,’ no doubt, but also to that fundamental unity of the human race
expressed in the 16th century by Vitoria’s famous ‘Totus orbis, qui aliquo modo est
una res publica,’ of which the ‘international community of States as a whole’ is,
after all, simply a modernized version. (at 423)
60 Those who are wary of meta-legal considerations in international law may just fail to
acknowledge natural law thinking’s greatest merit, namely that it can function as a critical
point of view to positive law—as an engine of legal change. International law develops in
shifts. Naturalist and positivist thinking in international law may thus complement each
other and indicate certain phases an international regime is going through. Arguably, any
legal regime that has gained some stability will strive to prove that it rests in and on itself
without extraneous support—then again, social conflict and change will give rise to calls for
increasing attention to meta-legal considerations. The debate is kept alive as legal regimes
oscillate between consolidation and self-critique.
Select Bibliography
JJ Moser, Neues Teutsches Staatsrecht vols 1–20 (Mezler Stuttgart 1766–75).
J Bentham, Of Laws in General (1782) (HLA Hart [ed]) (Athlone London 1970).
GF von Martens, Précis du droit des gens moderne de l’Europe: Fondé sur les traités
et l’usage vols 1–2 (Dieterich Göttingen 1789).
GB de Mably, Collection complète des œuvres de l’abbé Mably 15 vols (Desbriere
Paris 1794–95).
I Kant, The Metaphysics of Morals (1797) Mary Gregor (tr) (CUP Cambridge 1991).
GWF Hegel, Grundlinien der Philosophie des Rechts oder Naturrecht und
Staatswissenschaft im Grundrisse (1821, reprinted by Frommann Stuttgart 1928).
J Austin, The Province of Jurisprudence Determined (1832) WE Rumble (ed) (CUP
Cambridge 1995).
G Jellinek, Die rechtliche Natur der Staatenverträge. Ein Beitrag zur juristischen
Construction des Völkerrechts (Hölder Vienna 1880).
G Jellinek, Die Lehre von den Staatenverbindungen (Hölder Vienna 1882).
K Bergbohm, Jurisprudenz und Rechtsphilosophie: Kritische Abhandlungen vol 1 Das
Naturrecht der Gegenwart (Duncker & Humblot Leipzig 1892).
Heinrich Triepel, Völkerrecht und Landesrecht (Hirschfeldt Leipzig 1899).
L Duguit, L’état, le droit objectif et la loi positive (Fontemoing Paris 1901).
G Jellinek, Allgemeine Staatslehre (3rd ed Springer Berlin 1922).
M Hauriou, ‘La théorie de l’institution et de la fondation’ (1925) 4 Cahiers de la
Nouvelle Journée 2–45.
D Anzilotti, Corso di diritto internazionale (3rd ed Athenaeum Rome 1928, reprinted
by Athenaeum Rome 1955).
H Lauterpacht, The Function of Law in the International Community (Clarendon
Oxford 1933).
H Morgenthau, ‘Positivism, Functionalism and International Law’ (1940) 34 AJIL 261–
84.
BW Palmer, ‘Hobbes, Holmes and Hitler’ (1945) 31 ABAJ 569–573.
G Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law’ (1946) (B Litschewski
Paulson and SL Paulson [tr]) (2006) 26.1 Oxford Journal of Legal Studies 1–11.
G Scelle, Manuel de droit international public (Domat-Monchrestien Paris 1948).
AV Lundstedt, Legal Thinking Revised: My Views on Law (Almqvist & Wiksell
Stockholm 1956).
L Fuller, ‘Positivism and Fidelity to Law—a Reply to Professor Hart’ (1957–58) 71
Harvard Law Review 630–672.
HLA Hart, ‘Positivism and the Separation of Law and Morals’ (1957–58) 71 Harvard
Law Review 593–629.
A Ross, On Law and Justice (Stevens London 1958, reprinted by University of
California Press Berkeley 1974).
HLA Hart, The Concept of Law (Clarendon Oxford 1961).
HLA Hart, Law, Liberty and Morality (Stanford University Press Stanford 1963).
H Kelsen Pure Theory of Law M Knight (tr)(University of California Press Berkeley
1967).
RM Dworkin Taking Rights Seriously (Duckworth London 1977).
J Raz The Authority of Law (Clarendon Oxford 1979).
M Walker Johann Jakob Moser and the Holy Roman Empire of the German Nation
(University of North Carolina Press Chapel Hill 1981).
P Weil ‘Vers une normativité relative en droit international?’ (1982) 86 Revue
générale de droit international public 5–47.
P Weil ‘Towards Relative Normativity in International Law?’ (first published in 1982 in
the Révue Générale de droit international public) (1983) 77 AJIL 413–442.
B Schumacher Rezeption und Kritik der Radbruchschen Formel (Göttingen 1985).
J Raz The Morality of Freedom (Clarendon Oxford 1986).
G Abi-Saab ‘Cours general de droit international public’ (1987) 207 RdC 9–463.
D Kennedy, International Legal Structures (Nomos Baden-Baden 1987).
U Fastenrath Lücken im Völkerrecht: Zu Rechtscharakter, Quellen,
Systemzusammenhang, Methodenlehre und Funktionen des Völkerrechts
(Duncker&Humblot Berlin 1991).
J Feinberg Freedom and Fulfillment: Philosophical Essays (Princeton University Press
Princeton 1992).
G Gaja ‘Positivism and Dualism in Dionisio Anzilotti’ (1992) 3 EJIL 123–138.
M Jori (ed) Legal Positivism (Dartmouth Aldershot 1992).
U Fastenrath ‘Relative Normativity in International Law’ (1993) 4 EJIL 305–340.
SL Paulson ‘Lon L Fuller, Gustav Radbruch and the ‘Positivist’ Theses’ (1994) 13 Law
and Philosophy 313–359.
B Simma ‘From Bilateralism to Community Interest in International Law’ (1994) 250
Recueil des cours 221–384.
J Finnis ‘The Truth in Legal Positivism’ inRP George (ed), The Autonomy of Law
(Clarendon Oxford 1996) 195–214.
M Koskenniemi ‘Lauterpacht: The Victorian Tradition in International Law’ (1997) 2
EJIL 215–263.
JHH WeilerAL Paulus ‘The Structure of Change in International Law or Is There a
Hierarchy of Norms in International Law?’ (1997) 8.4 EJIL 545–565.
B Simma and A Paulus ‘The Responsibility of Individuals for Human Rights Abuses in
Internal Conflicts: A Positivist View’ (1999) 93 AJIL 302–316.
A PaulusH Charlesworth and C Chinkin The Boundaries of International Law: A
Feminist Analysis (Manchester University Press Manchester 2000).
JA Frowein ‘Konstitutionalisierung des Völkerrechts’ (2000) 39 Berichte der
Deutschen Gesellschaft für Völkerrecht 427–447.
J Kokott ‘Naturrecht und Positivismus im Völkerrecht—sind wir auf dem Weg zu einer
Weltverfassung?’ in CJ Meier-Schatz Recht und Internationalisierung (Schulthess
Zürich 2000) 3–21.
S Hall ‘The Persistent Spectre: Natural Law, International Order and the Limits of
Legal Positivism’ (2001) 12 EJIL 269–307.
M Koskenniemi The Gentle Civilizer of Nations: the Rise and Fall of International Law
1870–1960 (CUP Cambridge 2001).
B Kingsbury ‘Legal Positivism as Normative Politics: International Society, Balance of
Power and Lassa Oppenheim’s Positive International Law’ (2002) 13.2 EJIL 401–436.
L Green ‘Positivism’ in Stanford Encyclopedia of Philosophy (2003).
T Mertens ‘Nazism, Legal Positivism and Radbruch’s Thesis on Statutory
Injustice’ (2003) 14 Law and Critique 277–295.
BC Chimni ‘International Institutions Today: An Imperial Global State in the
Making’ (2004) 15 EJIL 1–37.
A Anghie Imperialism, Sovereignty and the Making of International Law (CUP
Cambridge 2005).
M Koskenniemi From Apology to Utopia: The Structure of International Legal
Argument (CUP Cambridge 2005).
C Miéville Between Equal Rights: A Marxist Theory of International Law (Brill Leiden
2005).
N Hoerster Was ist Recht? (Beck München 2006).
F Chevrette and H Cyr ‘De quel positivisme parlez-vous?’ in L Rolland P Noreau (eds)
Mélanges Andrée Lajoie (Montréal Themis 2008).
S Marks (ed) International Law on the Left (CUP Cambridge 2008).
J von Bernstorff and T Dunlap The Public International Law Theory of Hans Kelsen:
Believing in Universal Law (CUPCambridge 2010).
M Koskenniemi The Politics of International Law (Hart Oxford 2011).
R Wolfrum ‘Enforcing Community Interests through International Dispute Settlement:
Reality or Utopia?’ in U Fastenrath (ed), From Bilateralism to Community Interest:
Essays in Honour of Judge Bruno Simma (OUP Oxford 2011).

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Legal Positivism

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1. Early Stages: Germany and France

9 In pre-revolutionary France, on the other hand, Jean-Jacques Rousseau (1712–1778)

3. Post-Kantian Legal Theory

The resulting Gesetzespositivismus opened up the possibility of explaining

4. Anglo-American Formulations

5. Formalist Positivism

6. Inter-War and Post-War Debate

If totalitarianism comes to America it will not come with saluting, ‘heiling’,

7. Recent Developments

C. A Positivist Approach to International Law

1. Law as Emanating from States’ Will

33 In recent decades, the orthodox positivist emphasis on States as → subjects of

For the purposes of the present Convention, a peremptory norm of general

There is now a trend towards the replacement of the monolithically conceived

3. Unity of Sources

42 Certainly, the reference to ‘international conventions … establishing rules expressly

In contrast to international treaties, both international customary law and general

4. Separation of Law and Morals

Indeed, elementary considerations of humanity and common sense make it

D. Concluding Remarks

58 A recurrent question of international legal theory concerns the universality of

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