Workshop on Positivism in International Law

Legal positivism has long been a leading theory of law, both domestically and at the transnational level. It has informed much of our underlying presumptions about legitimacy of public authority and institutions, and few could argue about the pivotal role that this theory had played in shaping the transnational legal system as we know it. However, the empirical realities of the globalised world (in particular the preoccupations about growing inequality within and between States) and the rise of new sources of normativity in international law, have put this theory under serious conceptual pressure.

There is an increasing tendency to argue (as indeed one of our proposed speakers does) that the positivistic outlook has in fact greatly contributed to the shortage of global justice – essentially by ‘locking’ democracy and meaningful decision-making within domestic realm. Human rights discourse in particular, alongside other forms of ‘natural law’ reasoning, has been increasingly challenging the main premises of this theory. International legal theorists with a more constructive outlook also seem to be fully aware of this erosion of key theoretical assumptions associated with legal positivism; and one can perceive an urge amongst these academics to rethink the foundational claims of this theory in a light of globalised decision-making and its consequences.

This ‘urge’ to engage in a meaningful debate upon this matter is best exemplified by the fact that very recently international legal scholarship has seen at least two new landmark publications on this subject. One of them is the collection of essays by a range of leading international legal scholars (‘International Legal Positivism in a Post-modern World’, J. d’Aspremont and J. Kammerhofer (eds.), CUP 2014); whereas the other one is a more philosophical monograph by Monica Garcia-Salmones (‘The Project of Positivism in International Law’, OUP 2013). Whilst the former takes a more constructive and practical approach on the matter, trying to revive and rethink the main premises of positivist thought, the latter is largely a critical piece that looks at the intersection of international relations, law and economics, and analyses the role that positivist theory plays in this crossroad of disciplines. The two books broadly represent the opposing sides of the debate on this subject, yet they also complement each other in some important and potentially productive ways.

The members of the International Law Discussion Group (ILDG) and Legal Theory Research Group (LTRG) see the present state of academic literature to be well-suited for further in-depth engagement with this subject. In particular it seems to us that the current debate would benefit greatly from inter-disciplinary scrutiny – bringing together the expertise of international lawyers and legal theorists in a mutually beneficial way.