Le positivisme juridique aujourd’hui: Science ou science-fiction?

Abstract

This article’s focus is in on the paradoxical actuality of legal positivism, illustrated through an episode from the televised series Star Trek. On the one hand, when it comes to proposing an interpretation of existing law and to convincing the “community of internationalists”, the positivist thought and reasoning is often used, if not systematically. Positivism offers a system of thought, a framework of premises, formulas and techniques, in brief a science, allowing to persons with different or opposing thoughts, cultures and values to discuss and the case being, to agree on normative conclusions. However, on the other hand, positivism, largely characterizing legal discourse or motivation that intervenes largely in a “downstream” manner, is not useful in order to dictate, in an “upstream” manner, decision making. Therefore, no one has been “positivist” for a long time now, if the expression means the belief that the interpretation and implementation of law can operate in a rational, objective and neutral manner, and thus without any judgement of values or opportunity intervening.