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The Project of Positivism in International Law

March 31, 2014

By Mónica Garcia-Salmones Rovira, Post-Doctoral Research Fellow at the Erik Castrén Institute of International Law and Human Rights (University of Helsinki), and author of The Project of Positivism in International Law, available through Oxford Scholarship Online.

The Project of Positivism in International Law

The existence of a norm presupposes a common political project or political conflict. When there is valid legislation on an issue, a state, an individual or a corporation can act and invoke the protection of law. Many of the political conflicts of society are therefore resolved by the very act of creating norms.  While the previous statement appears both rational and reasonable, simultaneously,The Project of Positivism in International Law adds something fundamental about this type of thinking: that commonality of interests and conflicts about interests are distinctly different from common political projects or political conflicts.


The book examines the substance and form of 20th century positivist international law; in particular the way in which each determines the other. The political and philosophical aspects of the foundations of international law were transformed in a process which developed in the last decades of the 19th century. On the one hand, it was felt that an internationalist sense of economic interdependence had to come to the foreground in the discipline of international law. On the other, the economic Weltanschauung of several influential international lawyers inaugurated a new style of formulating theory. The books firstly describes the turn to interests in international law, which evolved slowly in scope and depth. By examining Lassa Oppenheim’s focus on ‘common interests’ that united states and Hans Kelsen’s focus on the ‘struggle of interests’ that constituted politics, the book studies two phenomena produced by the foundational role taken by interests during the 20th century. Firstly, this role contributed to putting an end to the moral discussion about the treatment of native populations. Secondly, it curbed debate about a common political project for a global order, thus creating conformity characterised by abuse of power – all in the name of the neutrality of positivist law. This book suggests that the work of leading theoreticians in the field has contributed to the shaping of the legal theory of mainstream positivist international law, and seeks to foreground discussions about the different theories on the role of law in politics. In this manner it aims to help reconceptualise law in such a way as to bring about a situation in which discussions of a common political project for the international arena are more central.
 

Discover more: the 'Introduction' to The Project of Positivism in International Law is now free and available to read for one month.