Reductionist Legal Positivism in International Law

Proceedings of the 106th Annual Meeting of the American Society of International Law, 2012

13 Pages Posted: 8 Dec 2012  

Jean d'Aspremont

University of Manchester - School of Law; University of Amsterdam

Date Written: December 6, 2012

Abstract

This paper reflects on the possible role of legal positivism in (the cognition of) international law and makes three specific points. First, we need positivism, but only to the extent that it is assigned a few very limited functions. This is the idea of reductionism. Second, positivism should be stripped of all the straw men that are commonly attached to it: voluntarism, state-centricism, rigid and static theories of sources, theories of interpretation and techniques of content determination, etc. This is the idea of emancipation. Third, if restricted to one particular function and emancipated from such approximations, legal positivism can prove to be a useful approach to international law that complements — and can be complemented by — other existing approaches, and which, in that sense, does not claim any monopoly on the cognition of international law. This is the idea of ecumenism. Reductionism, emancipation, and ecumenism are the three prerequisites without which it is not possible to make sense of international legal positivism at all, and short of which international legal positivism cannot make sense of our complex world. They simultaneously constitute three steps that ought to be taken in order to move away from the straightjacket of classical legal positivism. The paper says a few words about each of them.

Keywords: International Law, International Legal Theory, International Legal Positivism, Postmodernism, Herbert Hart, Hans Kelsen, Reductionism, Theory of Sources, Law-Ascertainment, Theory of Interpretation, Treaty, Customary Law, Critical Legal Studies

Suggested Citation

d'Aspremont, Jean, Reductionist Legal Positivism in International Law (December 6, 2012). Proceedings of the 106th Annual Meeting of the American Society of International Law, 2012. Available at SSRN: https://ssrn.com/abstract=2186222

Jean D'Aspremont (Contact Author)

University of Manchester - School of Law ( email )

Oxford Road
Manchester M13 9PL, M139PL
United Kingdom

HOME PAGE: http://www.manchester.ac.uk/research/Jean.daspremont/

University of Amsterdam ( email )

Amsterdam Centre for International Law
P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

HOME PAGE: http://home.medewerker.uva.nl/j.daspremont/

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