Hart and Postmodern Positivism in International Law
Revue générale de droit international public, Vol. 113, pp. 635-654, 2009
22 Pages Posted: 22 Oct 2009 Last revised: 19 Nov 2015
Date Written: October 20, 2009
This article argues that, in the context of international law, Hart can really be considered a post-modern positivist. Hart has not only refined the source thesis of Hobbes, Bentham and Austin by shedding the command-based understanding of law. Hart has also overcome the difficulties of Kelsen’s hypothetical grundnorm by devising a concept of validity based on social facts. In doing so, Hart has paved the way for a modernization of legal positivism which is of particular relevance in international law. The article submits that the social thesis of Hart has generally been overlooked by international legal scholars, for they have not come to terms with the fact that Hart demoted international law to a very primitive set of rules. The only aspect of Hart doctrine to which international legal scholars really paid attention is his famous distinction between primary and secondary rules – a dichotomy which he did not devised himself but borrowed from other authors like Ihering. It is argued in this paper that international legal scholars should be more amenable to Hart’s social thesis because it offers some theoretical solutions to the contemporary objections to legal formalism, and in particular to those elaborated by scholars affiliated with critical legal studies. Hart’s (modest) use of ideas of Wittgenstein and other scholars of the Philosophy of language, although being insufficient to capture all the special and subtle features of domestic legal system, provides insighful conceptual tools for a modernization of the source thesis in international law. (Note: the paper is in French).
Keywords: International Law, International Legal Theory, Legal Positivism, Legal Formalism, Hart, Wittgenstein, Critical Legal Studies
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