Contemporary Positivism and the Jus Ad Bellum

Abstract:     
The paper assesses the legal regime governing recourse to force from the perspective of 'contemporary positivism'. It provides a basic introduction to positivist international law and its critique and charts how positivism, faced with decades of anti-positivist critique, has adjusted itself. More specifically, it analyses how in response to criticism, positivism has embraced a more 'liberal' approach to the identification of sources.

Applying these findings to the specific problem of military force, the paper outlines the main challenges facing a positivist understanding of the jus ad bellum. These are (i) the loss of predictability of the legal rules (''anything goes"), which is a consequence of the liberalisation of sources; and (ii) the attraction, even among positivist scholars, to invoke "quasi-legal" arguments based on legitimacy, morals or political necessity.

Number of Pages in PDF File: 23

Keywords: jus ad bellum, use of force, UN Charter, humanitarian intervention, self-defence, positivism, method in international law, Security Council, General Assembly, United Nations, terrorism

JEL Classification: K33, K42, H77

Accepted Paper Series