The Elements of International Legal Positivism

Abstract This article contains a plea for continuing attention to the elements of international legal positivism. Using language ‘elements’ deliberately plays on positivist tendency describe discipline as science. Yet law’s differ in important ways from usual objects scientific inquiry. Law’s method does not seek address structure and behaviour physical world, but that particular society with its own political polarities, functions. The fact law inherits domestic context therefore presents complications. While adoption positivism predominant was animated part by desire provide imprimatur it needs claim credibility system, has also served an impediment development distinctive fashion law. International attachment at times extended certain presuppositions more closely associated modern European state. takes position is engage terms. Part I traces lineage three traditions (‘social thesis’ positivism, ‘system-based’ ‘teleological’ positivism) highlighting their different emphases doing so identifying key elements. II interrogates sometimes these considers whether appropriate rethink or re-engineer aspects application system. ‘purifying’ discipline, can only endure if complemented rich legal, social discourse focused understanding relationship particular, community, authority