Positivism and development of definition of International law based on the subject

POSITIVISM AND DEVELOPMENT OF

THE SUBJECT BASED DEFINITION OF
INTERNATIONAL LAW
(Project Report)

Submitted to

Mr. Atif Khan

(Faculty Member in International Law)

By

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Abhanpur, New Raipur 493661 (C.G.)
DECLARATION

1
 Positivism and development of definition of International law based on the subject

I hearby declare that the project work entitled Positivism and Development of the subject based
Definition of International Law submitted to HNLU, Raipur, is recorded of an original work
done by me under the able guidance of Mr. Atif Khan, Faculty Member (Public International
Law), HNLU, Raipur. Footnotes of the sources are mentioned wherever required.

ACKNOWLEDGEMENTS

First and foremost, I would like to thank my Public International Law teacher Mr. Atif Khan for
offering this subject, Positivism and Development of the subject based Definition of
International Law and for his valuable guidance and advice. He inspired me greatly to work in
this project. His willingness to motivate me contributed tremendously to my project. I also would
like to thank him for showing me some example that related to the topic of my project.

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 Positivism and development of definition of International law based on the subject

Besides, I would like to thank the Hidayatullah National Law University for providing me with a
good environment and facilities to complete this project.

Last but not least, I would like to thank my family and all my friends who helped me do this
project by sharing their ideas when we combined and discussed together.

_____________________

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 Positivism and development of definition of International law based on the subject

RESEARCH METHODOLOGY

Research Objective:
To understand the concept of legal positivism
To understand positivism as a theory of basis of International law
To understand the development of definition of international law based on positivism

Methodology:
The present study is a descriptive and analytical study based on the critical review of both
primary and secondary sources. Secondary and Electronic resources have been largely used to
gather information and data about the topic. Books and other references have been primarily
helpful in giving this project a firm structure. Websites, dictionaries and articles have also been
referred.

Research Question:

How positivism is basis of theory of international law?

How positivist definition of international law is developing?

Chapterization:

The project report is chapterized in four chapters. The first chapter named Legal Positivism deals
with first research objective. The second chapter named Positivism as Theory of International
Law deals with second objective. The third research objective is dealt is both third and fourth
chapter.

Mode of Citation:

Mode of citation is Bluebook (19th ed.)

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 Positivism and development of definition of International law based on the subject

Scope of Project:

The project report deals with the concept of legal positivism as theory of international law and
how the definition of international law has developed based on the subject. The project report
only shows development through the definition of international law given by Oppenheim.

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 Positivism and development of definition of International law based on the subject

CONTENT

I. DECLARATION2
II. ACKNOWLEDGEMENT..3
III. RESEARCH METHODOLOGY4
IV. INTRODUCTION...7
V. LEGAL POSITIVISM....8
VI. POSITIVISM AS THEORY OF INTERNATIONAL LAW.......10
VII. DEFINITIONS OF INTERNATIONAL LAW ...15
VIII. OPPENHEIMS DEFINITION AND ITS ANALYSIS..18
IX. CONCLUSION.22
X. BIBLIOGRAPHY.....23

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 Positivism and development of definition of International law based on the subject

INTRODUCTION
Positivism means law which is in fact as contrasted with what ought to be. According to
positivists, law enacted by appropriate legislation is binding. Positivists view was in vogue in
18th century. Positivism is also a theory on basis of international law. International law can in
logic be reduced to as system of rules depending for their validity only on the fact that States
have consented to it. Positive international law is majorly base on state will and state
sovereignity.

The first part of the project deals with meaning and understanding of legal positivism. The
second part deals with positivism as theory of international law, the major exponents in this field
and their views and also with the criticism of the theory. The third part provides definition given
by different jurists and also given in different cases. Fourth part is the last and the most important
part of the project it deals with the development of definition of international law through
analyzing and criticizing the Oppenheims definition of international law. This part shows that
how through re-revising the definition a perfect positivist definition of international law has
emerged.

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 Positivism and development of definition of International law based on the subject

CHAPTER 1: LEGAL POSITIVISM

Positivism is based on legal positivum i.e. law which is in fact as contrasted with law which
ought to be. Legal positivism is a school of Jurisprudence whose advocates believe that the only
legitimate sources of law are those written rules, regulations, and principles that have been
expressly enacted, adopted, or recognized by a government body, including administrative,
executive, legislative, and judicial bodies.1 It is the thesis that the existence and content of law
depends on social facts and not on its merits. The English jurist John Austin (1790-1859)
formulated it thus: The existence of law is one thing; its merit and demerit 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.2

Positivism separates law & morality. Unlike Natural Law, which is based on the belief that all
written laws must follow universal principles of morality, religion, and justice, positivists
acknowledge that ethical theories of morality, religion, and justice may include aspirational
principles of human conduct. Positivists emphasie on the fact that if a written law has been duly
enacted by a branch of government, it should be considered as valid and binding, regardless of
whether it offends anyone's sense of right and wrong.3

Positivist philosophy restricts the object of scientific knowledge to matters that can be verified
by observation, and thus excludes from its domain all matters of an a priori, metaphysical
nature.4 Juridic positivism5 transfers this delimitation into the legal sphere. The twentieth century
realist, Hans Morengthau described positivism as,

The juridic positivist delimits the subject-matter of his research in a dual way. On the one hand,
he proposes to deal exclusively with matters legal, and for this purpose strictly separates the legal

1
http://legal-dictionary.thefreedictionary.com/Positivism
2
http://plato.stanford.edu/entries/legal-positivism/
3
http://www.philosophy.hku.hk/courses/law/Positive%20Law%20hnd.htm
4
Ruggiero, Positivism, Encyclopedia of the Social Sciences, Vol. 12, p. 260.
5
Juridic Positivism is that theory which denies moral or normative dimension to the sphere of law, but, equally
refuses to relate its content on the social context of practice, See Derek Robbins, Cultural Relativism and
International Politics

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 Positivism and development of definition of International law based on the subject

sphere from ethics and morals as well as psychology and sociology. On the other hand, he
restricts his attention within the legal sphere to the legal rules enacted by the state, and excludes
all law whose existence cannot be traced to the statute books or the decisions of the courts. This
"positive" law the positivist accepts as it is, without passing judgment upon its ethical value or
questioning its practical appropriateness. The positivist cherishes the belief that the "positive"
law is a logically coherent system which virtually contains, and through a mere process of logical
deduction will actually produce, all rules necessary for the decision of all possible cases. Hence,
his system worship and dogmatic conceptualism.6

Positivism serves two important values. Firstly, all law must be written, it ensures that
government will provide rights and obligations to its citizens. In a legal system run in strict
accordance with positivist tenets, litigants would never be unfairly surprised or burdened by the
government imposition of an unwritten legal obligation that was previously unknown and
nonexistent.

Second, positivism curbs judicial discretion. In some cases judges are not satisfied with the
outcome of a case that would be dictated by a narrow reading of existing laws. For example,
some judges may not want to allow a landlord to evict an elderly and sick woman in the middle
of winter, even if the law authorizes such action when rent is overdue. However, positivism
requires judges to decide cases in accordance with the law. Positivists believe that the integrity of
the law is maintained through a neutral and objective judiciary that is not guided by subjective
notions of Equity.

6
Hans J. Morgenthau, Positivism, Functionalism, and International Law, The American Journal of International
Law, Vol. 34, No. 2 (Apr., 1940), pp. 261,262.

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 Positivism and development of definition of International law based on the subject

CHAPTER 2: POSITIVISM AS A THEORY OF INTERNATIONAL LAW

According to positivists, law enacted is by appropriate legislative authority is binding. The

positivists base their views on the actual practice of states. Positivism developed as the modern
nation-state system emerged, after the Peace of Westphalia in 1648, from the religious wars. 7 It
coincided, too, with theories of sovereignty such as those propounded by Bodin and Hobbes,8
which underlined the supreme power of the sovereign and led to notions of the sovereignty of
states.

In international law, unlike the other branches of legal science, positivism is still a determining
influence. Ever since the turn of the century, internationalists have started with positivist
assumptions, have followed the positivist method, and have professed adherence to the principles
of positivism. Neither the opposition of natural law, nor Kelsen's neo-positivist criticism," nor,
finally, the rather implicit criticism of legal sociologists, has been able to affect the
predominance of positivist thought over the science of international law.

The Permanent Court of International Justice still follows the time-honored pseudo-logical
method of traditional positivism which prevailed in the jurisdiction of the domestic supreme
courts at the turn of the century. The annals of this highest international tribunal record no
instance where an advocate, like Brandeis in Muller v. Oregon, 9 dared to break through the
network of positivist formulae, nor of any majority opinion which would not have clung, on a
very high level of technical perfection, to the traditional pattern of positivist argumentation.

When Judge Hudson looked for a realistic decision with respect to international law he has to
turn to the Court of Appeals of the State of New York.10 He said that compared to municipal law,
international law is in a retarded stage of scientific development. As represented by its sanest
elements, the science of international law still stands where the science of municipal law stood in
1910; in terms of its post-World War development, its most spectacular branches, invaded by the

7
L. Gross, The Peace of Westphalia 16481948, 42 AJIL, 1948, p. 20; Renegotiating Westphalia (eds. C. Harding
and C. L. Lim), The Hague, 1999, especially chapter 1, and S. Beaulac, The Westphalian Legal Orthodoxy Myth
or Reality?, 2 Journal of the History of International Law, 2000, p. 148.
8
Leviathan, 1651
9
3 208 U. S. 412 (1908)
10
Techt v. Hughes, 229 N. Y. 222, 241 (1920)

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 Positivism and development of definition of International law based on the subject

political ideology of Geneva, have gone back at least to the point from which positivism started
in the last decades of the nineteenth century.11

The empirical method adopted by the Renaissance was behind the derivation of the positivist
approach. It was based upon the deductions from absolute principles, but rather with viewing
events as they occurred and discussing actual problems that had arisen. The existence of inherent
principles was denied by Locke and Hume 12 and postulated that ideas were derived from
experience. The scientific method of experiment and verification of hypotheses emphasized this
approach.13

From this philosophical attitude, it was a short step to reinterpreting international law not in
terms of concepts derived from reason but rather in terms of what actually happened between the
competing states. What states actually do was the key, not what states ought to do given basic
rules of the law of nature. Agreements and customs recognised by the states were the essence of
the law of nations.

11
OLIVER JUTERSONKE , MORGENTHAU, LAW AND REALISM, (Cambridge University Press), 1st Edition, 2010, p. 246
12
Friedmann, Legal Theory ,pp.2535
13
MALCOLM N. SHAW , INTERNATIONAL LAW, 6th edition 2008, p. 49

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 Positivism and development of definition of International law based on the subject

2.1 CHIEF EXPONENTS AND THEIR VIEWS:

The chief exponents of this theory was Bynkershoek, which was later followed by with more
refinements by other jurists, such as Zorn, Triepel, and Anzilotti. They gave importance to
customary and treaty rules. Both the rules of international law and municipal law are issued by
the will of States and hence are equally binding. It is the will of state that commands the
obedience both in municipal law and international law. Zorn treated it as a branch of State law.

According to Triepel, the obligatory force of international law stems from the agreement
between States. 14 Consent theory was also supported by Soviet jurists. Oppenheim, another
major exponent of this theory is also of the view that common consent of the States is the basis
of International Law.15

The concept of State was first propounded by the German philosopher Hegel and the concept of
Sovereignty by Jean Bodin. The state sovereignty is the basic premise of positivism. The extent
of adoption and implication of rules of international law based on the state sovereignty, i.e , to
the extent state has restricted it s sovereignty This theory is known as auto-limitation or self-
limitation theory. The basic idea of this theory is that a State is absolutely sovereign to the limit
it agrees to restrain. The will of the State is supreme and it cannot be restricted by any external
force. According to Jellinek, the rules of derive their binding force from the consents to the
limitations on it s sovereignty. Unlike conventional law, it is difficult to discern consent for
customary rules. To this, the concept of implied or tacit consent was applied. It means that
the accede to customary rules.

The Italian Jurist, Anzilotti mentioned that the binding force of International law is founded on a
supreme principle or norm known, as pacta sunt servanda.16 It means that the agreement between
States are to be respected. It is the fundamental norm and an absolute postulate of international
legal system from which the international law derives its binding force and authority. He holds

14
S.K. VERMA, AN INTRODUCTION TO PUBLIC INTERNATONAL LAW, 2nd Edition ( Satyam Law International), 2012,
p. 13
15
L. Oppenheim, op.cit, 17, p. 14
16
DR. S.K.KAPOOR, INTERNATIONAL LAW AND HUMAN RIGHTS, 18th Edition (Central Law Agency), 2011, p.53

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 Positivism and development of definition of International law based on the subject

that like treaties, consent is present in customary rules of international law which manifests itself
by way of an implied pactum.17

17
S.K. Verma, An Introduction to Public Internatonal Law, 2nd Edition ( Satyam Law International), 2012, p. 14

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 Positivism and development of definition of International law based on the subject

2.2 CRITICISM OF POSITIVIST THEORY OF INTERNATIONAL LAW:

The positivist theory is mostly based on the actual practices of States. But it is a descriptive
generalization, too broad to apply to many of the problems concerning the binding nature of
international law. It is subjected to the following criticism:

1. The concept of State presented by positivists is purely metaphorical. The concept of State
as a personality with will is false. The state functions through individuals, thus, it is
individuals will and not State will.

2. The view that the international law is based on consent of state is not true. According to
Torsten Gihl, custom is said to be evidence of a general practice accepted by law.18

3. International custom constitutes general international law, a real law, for the society of
States. The dictum of pacta sunt sevanda cannot be the basic norm of international law,
it is itself rule of international custom.

4. There are some principles which are applicable on States, even though they have not
consented to it. Such as rule for maintenance of peace and security19.

5. In contemporary law, treaties and customs cannot be considered as only source of

international law. Article 38(1)(c) of the Statute of International Court of Justice accepts
General Principles of law recognized by civilized nations as a source of international
law. According to Manley O Hudson,20 the provision related to general principles of law
recognized by civilized nations serves a useful purpose in that it emphasizes the creative
role to be played by the court. It confers wide freedom of choice that no fixed and
definite content can be assigned to the term employed. It highlights the fallacy of
positivism.

18
TORTSEN GIHL, THE LEGAL CHARACTER AND SOURCES OF INTERNATIONAL LAW ( Stockholm, (1957), pg. 75
19
Article 2(6) of the U.N. Charter provides that non-member States to be in accordance with Article 2 of the
Charter.
20
The Permanent Court of International Justice, 1920-44, (New York: The Macmillian Company), 1943, p.606-
620.

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 Positivism and development of definition of International law based on the subject

CHAPTER 3: DEFINITIONS OF INTERNATIONAL LAW

J.L BARLEY:
The Law of Nations or International Law may be defined as the body of rules and
principles of actions which are binding upon civilized States in their reasons with one another.21

OPPENHEIM:
Laws of Nations or International Law is the name for the body of customary and
conventional rules which are considered legally binding by civilized States in their intercourse
with each other.22

TORSTERN GILL:
The term International Law means the body of rules which apply within the
International Community or Society of States23

HACKWORTH:
International Law consists of a body rules governing the relations between States. It is
a system of jurisprudence which, for the most part, has evolved out of the experiences and the
necessities of situations that have arisen from time to time.24

GRAY:
International Law or the Law of Nations is the name of a body of rules which
according to the usual definitions regulate the conduct of states in their intercourse with each
other.

21
SIR HUMPHERY WALDOCK, THE LAWS OF NATIONS, Sixth Edition, p.1
22
OPPENHEIM, INTERNATIONAL LAW(Newyork, Longsman, Green & Co., 1905), p.1-2
23
supra n. 18 at pg. 53
24
HACKWORTH: DIGEST OF INTERNATIONAL LAW, Vol. (1940), p.1

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 Positivism and development of definition of International law based on the subject

HALL:
International law consists of certain rules of conduct which more civilized states
regard as binding on them in their relations with one another with a force comparable in nature
and degree to that binding the conscientious person to obey the laws of his country and which
they also regrd being enforceable by appropriate means in case of infringement.25

CHARLES G. FENWICK:
International law may be defined in broad terms as the body of generl principles and
specific rules which are binding upon the members of international community in their multiple
relations.26

WHITEMAN:
International law is the standard of conduct, at a given time,for states and other
entities subject thereto.

KELSEN:
International Law or the Law of Nations is the name of body of rules which-according
to the usual definition-regulate the conduct of the States in their intercourse with one another.27

J.G. STARKE:
International Law may be defined as that body of law which is composed for its
greater parts of the principles and rules of conduct which States feel themselves bound to
observe, and , therefore, do commonly observe in their relations with each other, and which also
include:
a. The rules of law relating to functioning of international institutions or organizations, their
relations with each other, and their relations with States and individuals; and
b. Certain rules of law relating to individuals and non-states entities so far as the rights or
duties of such individual and non-state entities are the concern of the international
community.28

25
International Law, Eighth Edition, pg.1
26
International Law, (Third Indian Reprint, 1971), pg.31
27
Hans Kelsen, Principles of International Law, pg. 3

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 Positivism and development of definition of International law based on the subject

QUEEN V. KEYN:
The law of nations is that collection of usages which civilized States have agreed to
observe in teir dealings with one other.29

WEST RAND CENTRAL GOLD MINING LTD. CO. V. KING:

The form of rules accepted by civilized States as determining their conduct towards
each other and towards each others subjects.30

S.S. LOTUS CASE:

International law governs relations between independent States. The rules of law
binding upon States therefore emanates 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. Restriction upon t he independence of States cannot be therefore
presumed. 31

28
STARKE, INTERNATIOANL LAW, Eleventh Edition, pg. 3, Butterworth (September, 1994),
29
2 Ex. D. 63, 153, 154 (1876)
30
(1905) 2 KB. 91.
31
(1972) P.C.I.J Series A. No. 10, pg. 18

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 Positivism and development of definition of International law based on the subject

CHAPTER 4: OPPENHEIMS DEFINITION AND ITS ANALYSIS

Laws of Nations or International Law is the name for the body of customary and
conventional rules which are considered legally binding by civilized States in their intercourse
with each other.32

Lassa Oppenheim (18581919) 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).

ANALYSIS OF THE DEFINITION:

This definition of international law was given by Oppenheim in 1905. There are three political
ideas which he believed were essential for international law:

1. 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.

INTERNATIONAL SOCIETY OF STATES:

Oppenheims most basic idea was that international law is the law of an international society of
mutually recognized states, which he called the Family of Nations.33
He believed that community was a requisite for law. The international community, i.e,
Vlkerrechts-gemeinschaft in German is the Family of Nations, which in his view consisted
exclusively of states. He believed that states are the immediate members of international society,

32
supra n. 22
33
Benedict Kingsbury , Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa
Oppenheims Positive International Law, EJIL (2002), Vol. 13 No. 2, 401436

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 Positivism and development of definition of International law based on the subject

human beings are the ultimate members. The duties and rights of states are only the duties and
rights of the men who compose them.34

BALANCE POWER:
Oppenheim argued that balance of power is a political principle indispensable to the existence
of International Law in its present condition.35 He believed that the distribution of power is a
fundamental condition for international law. The power should be balanced to maintain
international rules. In the absence of balance, then one state becomes preponderant, that state
will pursue anti-formalist approach. Oppenheims argument for legal school as against the
diplomatic school of international jurists was based on mistrust of anti-formalism.36 This shows
his positivism.

LEGAL POSITIVISM AS REQUISITE:

Oppenheims international law positivism was jurisprudentially grounded, and that his
commitment to his positivist approach had a normative basis. He believed that the best way to
advance the substantive normative values to was to adopt and propagate his particular positivist
conception of law. For the development of an effective international law, he saw numerous
advantages in features associated with positivism in law: the distinctive formulation and
interpretation of legal rules as a basis for clarity and stability; their reduction to writing to
increase certainty and predictability; the elaboration of distinct legal institutions; the
development of ethically autonomous professional roles, such as that of international judge; and
the separation of legal argument from moral arguments as a means to overcome disagreement.37

34
John Westlake, Collected Papers, (1914) 78
35
OPPENHEIM, INTERNATIONAL LAW , vol. 1 (2nd ed., 1911) 193
36
supra n. 33
37
Ibid

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 Positivism and development of definition of International law based on the subject

3.2 CRITICISM OF THE DEFINITION:

Oppenheims definition has outlived its utility and is obsolete now. Following are few criticism
of the definition:
1. The definition recognizes only State as subject to international law, but in present
scenario international organizations are also dealt under international law. In fact, the
future of international law is the one with future of international organization.38

2. The use of term, civilized state was also criticized as there was no definite demarcation
between a civilized and uncivilized states. Thus, in the 8th Edition of the book, the word
civilized was omitted.39

3. Individuals and private persons are also not included in the definition. It is no longer
possible to regard international law as subject matter of state only. This is the most
important change since the Second World War; it changed the structure of international
law.40

4. International law not only consists of customary and conventional rules but also General
principles. Oppenheims definition only considers customary and conventional rules as
source of international law.

The editors of Ninth Edition of Oppenheims book, Sir Robert Jennings and Sir Arthur Watts
revised his definition.
International Law is the body of rules which are legally binding on States in their
intercourses with each other. These rules are primarily those which govern the relation of states,
but States are not the only subjects of international law. International Organizations and to some
extent, also individuals may be subjects of rights conferred and duties imposed by international
law.
Hence, the revised version of Oppenheims definition overcome all the challenges imposed on it.

38
Percy E. Corbett, Law and Society in the Relation of States
39
L. OPPENHEIM, INTERNATIONAL LAW-A TREATISE, VOL. I PEACE, Eighth Edition, Edited by H. Lauterpatch, p.4-5
40
W. Friedmann, The Changing Structureof International Law (1964), p. 54

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 Positivism and development of definition of International law based on the subject

CONCLUSION

Legal positivism means what law is and not what it is ought to be. Unlike natural law, it separate
morals and law. One of the earlier exponents of legal positivism is Grotius. The concept of legal
positivism can also be applied to the theory of international law. In this theory, there are two
basic sources of international law, i.e., customs and treaties. It is based on state will or consent. It
is agreement of sovereign states. The definition of international law developed with time. From
the third chapter, it can be concluded that International Law is a body of rules and principles
which regulate the conduct of members of international community. International community not
only includes States but also international organizations and individuals.

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 Positivism and development of definition of International law based on the subject

BIBLIOGRAPHY

Hachworth, Digest of International Law, Vol. (1940)

L. Oppenheim, International Law-A Treatise, Vol. I Peace, Eighth Edition, Edited by H.
Lauterpatch
Malcolmn Shaw , International Law, 6th edition 2008
Oliver Jutersonke , Morgenthau; Law and Realism, (Cambridge University Press), 1st
Edition, 2010
Oppenheim, International Law, (Newyork, Longsman, Green & Co., 1905)
Percy E. Corbett, Law and Society in the Relation of States
Sir Humphery Wedlock, The Laws of Nations, Sixth Edition
Starke, International Law, Eleventh Edition, Butterworth (September, 1994),
Tortsen Gihl, The Legal Character And Sources of International Law, ( Stockholm,
(1957)
W. Friedmann The Changing Structureof International Law (1964)

22