Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim's Positive International Law

Abstract

Because mainstream international law positivism in the tradition of Lassa Oppenheim (1858–1919) has sought to separate law from morals and from politics, many critics have dismissed this positivism as amoral, apolitical, and atheoretical. This article offers a reading of Lassa Oppenheim that challenges this view. Drawing on the jurisprudential theory articulated in Oppenheim’s non-international law writings about conscience and justice, the author reads Oppenheim’s adoption of an austere positivism in international law as a theoretically-grounded normative choice of a concept of law best suited to advance his moral and political values. The author thus treats Oppenheim’s normative positivism as political, and considers it together with Oppenheim’s advocacy of international society and balance of power as a statement of political conditions for international law. While concluding that the extent to which Oppenheim consciously accepted such a political and jurisprudential understanding of international law remains speculative, the author contends that main- stream positivism has had more enduring appeal because it has been at least sub-consciously open to such readings