Legal Positivism And International Law
Michael Vossen

Legal-Positivism, the dominant theory of law in the field of international law, motivates and in part justifies many international legal practices. In this paper, I will explain legal-positivism in depth, and access its adequacy in the international arena. The first section of this paper contains a formal characterization of legal positivism as a theory, with the intention of using this model as a target for criticism. In the second section of this paper, I look at some compelling objections to legal positivism as a theory, and consider the legal-positivists response. Finally, in the last section I look at some alterations and alternatives to Legal Positivism, most notably the alternatives presented by Ronald Dworkin, and consider their implications on international law.

Formally, Legal-Positivism can be characterized by three major principles. The first principle is that “what counts as law in any particular society is fundamentally a matter of social fact”1. The method used in identifying these facts is called the pedigree thesis. The second principle is that law is separate from morality in that law does not allow for the existence of moral facts; “What law is and ought to be are separate questions”2. This is known as the separableity thesis. The third principle is that judges create new law when making legal decisions on subjects not covered by the law. This is known as the discretion thesis. Note that this characterization is meant to represent the basic, essential characteristics of Legal-Positivism, and will not represent the wide number of variants that derive from the basic view; the strength and scope of each principle I present is debated among Legal Positivists, so these positions might be interpreted more or less strictly. Since these principles are by no means self-evident, an explanation of each will help flesh out the legal positivist’s position.
According to the first principle of Legal-Positivism, what law is is determined by social fact. This is where positivism gets its name; laws are not found in or derived from nature, but posited by man. Historically, John Austin developed the first social-fact recognizing model, however, contemporary legal-positivism generally uses H.L.A Hart’s method of distinction, for reasons that will soon be apparent. Austin, borrowing from Jeremy Bentham, argued that a valid legal system is distinguished by the existence of a sovereign power that is customarily obeyed by members of its society, but is not subject to any higher sovereign power. 3Austin identifies law using the following model: a rule R is a law in some society S if and only if:
1. R is commanded by the sovereign in S; and
2. R is backed up with the threat of a sanction 4
Austin’s model is a bit too simplistic for practical use. One problem Austin’s model faces is that sometimes it is impossible to trace a rule back to a sovereign. While theoretically the people or the people’s representatives lead democracies and republics, modern governments are generally pluralistic. As such, various special interest groups, including corporate, religious, and ecological entities, factions among political parties, as well as intra-governmental divisions, such as judicial, executive, and legislative branches, and the governmental institutions that enact law interact with each other such that no single individual or group is clearly “the sovereign”. 5
With regards to international law, Austin’s model commits positivism to the claim that, without some sovereign or mechanism to enforce the law, international law is not in fact law. Austin’s conditions for legal validity are thus too narrow, as they prevent many legal systems which seem intuitively to be legally valid as invalid. Under Austin’s model, for international law to be valid, either a single nation, or an entity such as the U.N. must be capable of enforcing all rules it makes. While this may be appealing to the ordinary person, students of international law will recognize that the international community works horizontally, as apposed to the vertical nature of domestic law. This means that no nation has absolute legal authority over another nation. National sovereignty motivates this situation; all nations generally respect each other’s claim to self-governance, as this protects their own sovereign powers. With the importance that nations attach to sovereignty claims, it is unclear whether international law could exist under Austin’s model, as rules created and attempts to enforce them will probably come into conflict with nations’ sovereignty.
With these considerations in mind, H.L.A Hart modified the validating mechanism of legal-positivism as to make it capable of dealing with complex power structures, and more applicable to the international community. Hart criticized Austin’s view by pointing out that there is a difference in being obliged to do something and being obligated to do it. 6 Roughly speaking, force and threat oblige people to do things but does not obligate them to do it. For example, a robber might order somebody to give her all their money, and back it up with a threat of violence. In this scenario, the person being robbed is obliged to give the robber all their money, but not obligated. In other words, even though the robber’s orders meet all Austin’s conditions for law, Hart wants to say that it is not a law. The key aspect that is missing in Austin’s conditions is an appeal to a normative force; Hart notes that obligations are normative because laws appeal to something beyond force to enforce it. Hart fills this “something” out in terms of authority; the difference between a robber and a lawmaker, according to Hart, is that the lawmaker has the authority to make laws, whereas the robber does not. Dworkin gives an apt description of Hart’s sources for law’s authority:

“(a) A rule becomes binding for a group of people because that group through
its practices accepts the rule as a standard for its conduct. It is not enough that
the group simply conforms to a pattern of behavior: even though most Englishman
may go to the movies on Saturday evening, they have not accepted a rule requiring
that they do so. A practice constitutes the acceptance of a rule only when those
who follow the practice regard the rule as binding, and recognize the rule as a
reason or justification for their own behavior and as a reason for criticizing the
behavior of others who do not obey it.

(b) A rule may also become binding in quite a different way, namely by being
enacted in conformity with some secondary rule that stipulates that rules so enacted
shall be binding. If the constitution of a club stipulates, for example, that by-laws
may be adopted by a majority of members, then particular by-laws so voted are
binding upon all members, not because of any practice of acceptance of these
particular by-laws, but because the constitution says so. We use the concept of
validity in this connection: rules binding because they have been created in a manner stipulated by some secondary rule are called ‘valid’ rules.” 7

International law clearly relies on Hart’s model, and many international practices and national policies seem to derive from it. For example, Hart’s model provides an explanation for why the standard hierarchy for sources of law is as it is. Under article 38(1) of the Statute of the International Court of Justice, general or particular international conventions that establish rules recognized by the contesting States, international custom – i.e. evidence of a general practice accepted as law, general principles of law recognized by civilized nations, and judicial decisions plus highly qualified publicists’ teachings are recognized as sources of law. 8The first two sources correspond with (b) and (a) of Hart’s model; treaties represent the secondary rule(s) that stipulate rules which are binding, and customary practices look cultural behavior patterns that represent an acceptance of a law. Due to the use of customary practice as source of law, states are careful about what practices they adhere to. For instance, the United States has repeatedly rejected the International Court of Justices claims to jurisdiction when it conflicts the U.S.’s control of its citizens. This stance can be seen as reacting to the practice of customary law, which was suggested by Hart. Legal positivism also accounts for the forth source, as will be seen after considering the third principle of positivism.
The second principle of positivism is that law is fundamentally separate from morality. This position is motivated by the philosopher David Hume’s skepticism about moral facts. Hume claimed that what is the case is logically distinct from what ought to be the case. For example, if Tina wants to claim that Sam ought not to steal from Ben, she cannot arrive at her claim through the fact that stealing from Ben causes him pain. Tina needs some further claim, such as people ought not to cause other people pain, to argue for her position. Hume’s worry is that such claims cannot be derived from scientific, empirical phenomena. From these considerations, some philosophers following Hume’s example concluded that moral facts are separate from other facts in the world. Historically, Hume used this divide against moralist rivals, arguing that whoever tries to derive laws from moral fact cannot derive law, as no moral facts exist.
Contemporarily, positivists maintain that a legal system does not necessarily rely on moral facts; that is to say, it is possible to have an a-moral or immoral legal system that is still a legal system. However, some positivists think that it is possible for morality to plays a role in a legal system, whether expressed in customs or through moral constraints on legal validity. Here, Legal-Positivism can be divided into two camps:
inclusive positivism, which tries through its rules of recognizing law to include moral constraints, and exclusive positivism, which maintains that “the existence and content of
law can always be determined by reference to its sources without recourse to moral argument.” 9
Hart is an example of an inclusive positivist. Under his rules of recognition, moral claims can be incorporated through a societies customs as criteria for legal validity. If a society accepts the rule that people ought not to steal, or that there should be an equality of voting rights, then that rule becomes law. Here, the legality of the no-stealing and equal suffrage rules are not derived from a moral claim about stealing, but from a societies’ customs and/or accepted secondary rules. Exclusive positivists, on the other hand, do not treat morality as imposing restraints on law. Instead, they argue that equality of voting rights rules force judges to consider certain positions in the process of making decisions, but the judge’s rulings, even if they are based on moral principles, are to be considered law. As such, debate about a moral principle in courtrooms is not an argument about morality, but an argument about law.
In international law, the separability thesis keeps cultural moral relativity from interfering with the creation of law, which makes positivism a more attractive legal system than naturalism on an international scale. For example, under positivism, two nations can differ radically on fundamental moral issues, yet still can create and maintain a legal system. This is because law under positivism does not depend on moral principles. Under a naturalist system, the two nations would need to agree on moral issues to avoid deriving conflicting laws. Few, if any, international laws would result from this system. International law also seems to be inclusive in that, when considering sources of law, judges consider general principles of law, which include notions of fairness and other moral considerations, as constraining a law’s validity. In this way, positivism can be flexible enough to deal with the cultural diversity present on an international scale.
The third principle of Legal-Positivism is that judges create new law when making decisions on subjects not covered by law. Dworkin gives a good explanation: “The set of these valid legal rules is exhaustive of 'the law', so that if someone's case is not clearly covered by such a rule (because their is none that seems appropriate or those that seem appropriate are vague, or for some other reason) then that case cannot be decided by 'applying the law.' It must be decided by some official, like a judge, 'exercising his discretion,' which means reaching beyond the law for some other sort of standard to guide him in manufacturing a fresh legal rule or supplementing an old one.”10 Note that judges have the discretion to create new law in absence of standards. This means that the judge’s ability to create law is contingent, and depends on the lack of a rule found by a rule of recognition (i.e. Austin and Hart’s rule identifying models). As such, this principle is only in place so far as “fuzzy” areas of law exist.
In international law, this principle is reflected in judges use and respect for the standards created by judicial decisions. Judges use all aspects of court rulings as sources of law. Even the statements of judges who dissent in cases can be used as sources of law. Thus, judges must be judicious about the reasons they present for their position. This principle also forces judges to be cautious about the standards created from the legal decisions they make, as the decisions create new sources of law that can be used in alternate cases. For example, judges in the Pinochet hearings must be cautious about revoking Pinochet’s immunity as a diplomatic official and head of state, as the rulings they make count as new law, which can be applied to other diplomatic officials and heads of state.

Legal-Positivism naturally has its critics. Foremost among these is Ronald Dworkin, who has challenged practically every principle of positivism. Gustavo Zagrebelsky, in his essay “Ronald Dworkin’s principle based constitutionalism: an Italian point of view” summarizes Dworkin’s complex position well. Gustavo notes that the target of Dworkin’s criticism is the positivist’s claim to “(a) the existence of discretion on the part of the judge who is said to operate (b) pursuant to the norms proposed by the legislator in (c) the space that the latter leaves “empty of law”.” 11Guastovo then summarizes Dworkin’s position, writing:
“There is an “open space” (corresponding to (c)...) of norms but not of law,
in the so-called hard cases ... The law governing hard cases consists of legal
principles (see (b), above) that are placed “above” the norms proposed by the
legislator, and it circumscribes the decisions of judges (see (a), above) by pointing
them in a certain direction. On this basis, the idea of judicial discretion [i.e. the
third principle of positivism] may be contested but only with the aid of an extensive
concept of law that transcends the “normative factors” (or in European parlance
the “sources of the law.” ...) formally grounded on what Hart calls the “rule of
recognition” or what others call “law of law” or “sources of the production of law.”
The refusal simply to consider the legal norms as written down in a public text of
official rules reveals the anti-positivistic nature of this theory and highlights its
reliance on a level of law lying deeper than the one carved out by any legislator.
It is within this deeper level of law, moreover, that judges can find the best answer
to legal questions left unsolved by the legislator’s law – though this does not mean
necessarily the clearest or most obvious answer.”12

An example will help clarify Dworkin’s position. When Dworkin speaks of “hard cases” he means “...those that cannot be decided by application of a recognized norm, either because such norm does not exist, or because it is unclear or not completely relevant, or in contradiction with other norms - bearing in mind that cases can end up “hard” while initially seeming “easy”, when social, ideological, or cultural conflicts muddy the waters in which rules are embedded, with the consequence that they become difficult to recognize.”13These seem correspond with areas of law in which judges are said to create new law.
Dworkin uses the U.S. cases Riggs v. Palmer and Henningsen v. Bloomfield Motors, Inc. as examples of “hard” cases.14 In Henningsen v. Bloomfield Motors, Inc , a New Jersey court was asked to rule on a case in which the plaintiff, Henningsen, had bought a car, signing a contract which stated that the manufacture’s liability was limited to replacing defective parts. Henningsen argued that the manufacturer, in his case, should be also at least be responsible for the medical expenses suffered as a result of the car’s defects. While Henningsen had no standard practice or other legal position to refute the contract, the court ruled in his favor, sighting among other reasons “Is there any principle which is more familiar or more firmly embedded in the history of Anglo-American law than the basic doctrine that the courts will not permit themselves to be used as instruments of inequity and injustice?”15Dworkin takes remarks like these to show a judge’s decision in cases where no legal standard exists is not in fact at his discretion in the sense that he freely creates laws. Dworkin thinks that principles bind judges into making certain decisions, and that this is revealed by the practice of criticizing judges who ignore principles in their decisions. For example, if a judge allowed a criminal to profit from their crimes in a case where legal precedent is absent, then their decision can rightly be challenged, even though new law is supposedly created by the judge’s decision. Dworkin thinks that these principles should be treated as a sort of law.
Finally, Dworkin explains why principles are binding, and argues that his view undermines positivism. Dworkin thinks that principles obtain authority (in the same sense Hart uses) and become binding when they make the best moral justification for a society's legal practices considered as a whole. Kenneth Himma summarizes Dworkin’s view, writting “According to Dworkin, a legal principle maximally contributes to such a justification if and only if it satisfies two conditions: (1) the principle coheres with existing legal materials; and (2) the principle is the most morally attractive standard that satisfies (1). The correct legal principle is the one that makes the law the moral best it can be.”16From these considerations, Dworkin concludes that the pedigree and judicial discretion principles of Legal-Positivism should be rejected. This is because principles are to be considered law, and are not capable of being recognized by a rule of recognition, according to Dworkin. This is also because judges are not free to posit law, but are instead bound by principles. 17
Dworkin’s position has clear analogs in international law. In the Pinochet trial, judges faced a hard decision in that two conflicting principles existed: diplomatic sovereignty and the enforcement of human rights. If either principle were ignored in the creation of new law, criticisms of the judge’s decisions would seem unjustified. Also, international law generally favors principles over rules, as principles do not necessarily conflict with state’s sovereignty and allow for more flexibility in international relations. As such, Dworkin’s criticism seems particularly applicable to international law.
One way inclusive positivists such as Hart respond to Dworkin is by arguing that principles can be incorporated into the law when they are explicitly or implicitly included by rules of recognition. Recall that inclusive positivists allow for constitutional amendments such as the 14th amendment, which calls for an equality of voting rights, to be incorporated by judges in determining whether something is legally valid. In cases involving these amendments, judges are expressly commanded by the legislators to consider moral principles in determining legally validity in a case. Positivists also note that judges can incorporate principles in through their customary practice. For example, by having multiple judges refer to some principle in their cases decisions, such as the “people shouldn’t profit from their own crimes”, that principle can become law through customary practice. The key to this response is that the moral principles are not to be considered law on their own right, but because made so by the correct social force. 18
Some other problems with Dworkin’s theory exist. One consequence in Dworkin’s theory, which seems to motivate the inclusive positivists use of judges and social practices as the real sources of law, is that if principles are to be treated as laws before formally being created by judges or lawmakers, then ex post facto protection can justifiably be revoked. People are thus obligated and bound by principles before social forces recognize the principle as law, since the principles constitute law. Also, Dworkin seems to think that a “best” or “most morally attractive” principle always exists, such that all cases involving principles can be decided. Dworkin does not give a reason as to why this is the case, and it is not self-evident either. Dworkin may think, and suggests at places with his reference to a “Herculean” judge, that after examining all principles in every type of situation, a judge will be able to come up with some hierarchy of principles that proceeds over all cases. There is no evidence that such a hierarchy exists or that conflicts between certain principles can only be solved in one way, or even that moral conflicts can non-arbitrarily be solved.
Further, these problems with Dworkin’s theory would be especially troublesome on an international scale. It is unclear whether treating principles as law in international law would break down already tentative international relations or result in analysis of the principles. While it might seem nice to clarify internationally held principles through discussion in court, it seems unlikely that countries would treat principles that go against their policies as legally binding. Dworkin’s theory seems more suitable to national legal systems, as a common cultural background would make some principles seem better. On the international scale, Dworkin’s theory is subject to the very problems legal positivists seek to avoid with the seprability thesis; different cultures treat principles with different importance. For example, one culture could treat success as a higher goal than happiness, while another treats this vis-versa. While these differences might be worked out at a local level, Dworkin will need to assume that one correct model of the hierarchy of principles exists that is common to all people if law is to be dealt with in terms of principles at an international level. Again, there is no reason to believe that only one correct model exists; it is entirely possible that multiple orderings of principles exist, such that one cultures ordering is equally valid as another cultures. Dworkin’s model does have the benefit of allowing crimes against humanity be prosecuted by appeal to principle and not to a specific law, but this comes at the price of allowing any country to prosecute based on the principles they hold, which seems detrimental to international law. Thus, even if Dworkin’s model is correct, it would be prudent for the international community to wait for a recognized “best” or “most-moral” ordering of principles before changing its sources of law.
After researching Legal-Positivism thoroughly and looking at its responses to Dworkin, my initial criticisms and worries about positivism seem less problematic. One of my initial worries about Legal-Positivism was how, using only its custom recognizing function, positivism could deal with statistical anomalies in cases? For example, I worried that some abominable practice or doctrine, if upheld and practiced enough, could become law. For instance, if the majority of countries upheld the “preventive” attack doctrine, then it seems like it can become a lawful practice. My worry was that positivism would be incapable of developing a model such that law can reject certain practices, even though those practices might be culturally dominant or establish certain practices as legal, even though the majority of nations do not act accordingly.
This worry is partially diminished through Hart’s discussion of sources of law. Recall that for Hart, “It is not enough that the group simply conforms to a pattern of behavior: even though most Englishman may go to the movies on Saturday evening, they have not accepted a rule requiring that they do so.”19 This shows that Hart’s recognition of customary practice is not based entirely on statistical regularity, which is to say, does not strictly recognize a rule based on the percentage of people following it. This makes most statistical anomaly cases irrelevant. Hart’s conditions for acceptance do seem to allow for one of my problematic scenarios, though, since “A practice constitutes the acceptance of a rule only when those who follow the practice regard the rule as binding, and recognize the rule as a reason or justification for their own behavior and as a reason for criticizing the behavior of others who do not obey it.”20 Conceivably, a bad practice could be accepted as law, though this is unlikely.
My concerns are not so problematic to positivist theory however, since they simply show that Hart’s rule of recognition needs modification if they are to address these problems. Changing the rules of recognition would also be a solution to problems with customary law, such as to identifying factors for a general practice, sorting out single instances and “instant” customary law. Also, nations could incorporate moral principles not captured under custom through additions or changes to the rules of recognition. Finally, while I’m sympathetic to Dworkin’s criticisms of the seprability of law and morality, I think that philosophy should be the field for the investigation of an ordering of moral principles, not courts, since philosophers are free to work out their theories without the practical consequences that courts face. If philosophers find a “best” ordering of moral principles, then I agree with Dworkin that law should adopt it, and that law can be seen as derived from moral principles.

In conclusion, Legal-Positivism is adequate for the needs of international law. Their is some serious doubt as to whether the seprability thesis holds for the theory, as seen through Ronald Dworkin’s criticisms, but the rules of recognition seem flexible enough to include the moral considerations that influence law. A “best “ordering of moral principles may be possible if Dworkin is correct in his theory, though there is no reason to hold this view over a plurality of principles view, and in either case Dworkin is correct in that a “Herculean” effort will be needed to come up with an ordering. These concerns are worrisome to international law in that Dworkin’s theory shows that law based on positivist theories are an artifact of man and not deriving from what true law is based on, but for pragmatic reasons international law is better off continuing as is until a universally recognized correct ordering of principles exists.

Notes
1. Green, Legal-Positivism
2. Ibid
3. Himma, Legal-Positivism
4. Ibid
5. Influenced by Taking Rights Seriously, pg. 18
6. Ibid, pg. 19
7. Ibid, pg. 20
8. Akehurst’s Modern Introduction To International Law, pg 36 9. Himma, Legal-Positivism
10. Taking Rights Seriously, pg, 17
11. Ronald Dworkin's Principle Based Constitutionalism: An Italian Point of View, pg 624
12. Ibid, pg. 625
13. Ibid, pg. 625
14. Taking Rights Seriously, pg. 28
15. Ibid, pg. 24
16. Himma, Legal-Positivism
17. Taking Rights Seriously, pg. 44
18. This section is influenced by Green’s Legal-Positivism
19. Taking Rights Seriously, pg. 19
20. Ibid

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