Positivist Arguments Against International Law

Improved Essays
LIMITATIONS OF POSITIVIST INTERNATIONAL LAW
Although, it may be appealing to rely on the positivist arguments that focus on international written, official rules, it is important to note that law transcends far beyond being just a set of rules controlling and dictating the behavior of societies. The norms, values, morals and beliefs of any community are reflected in its law.
International law does recognize other sources which are not given any credence in positive law. It recognizes the sources mentioned in the document that created the ICJ, not just international conventions but also customs, general principles and decisions of judges and writings of jurist scholars. Furthermore, there are certain principles that are accepted in international law to affect legality, these include; justice, natural law and jus cogens. The ICJ statute is also very clear in Article 38 about which sources should affect international law. The positivist arguments and opinions are clearly contradictory to that article.
The positivists also are not able to explain state and UN actions and practice. They declare that the Charter has explicitly prohibited intervention yet states have not been deterred from extra-UN humanitarian intervention. The United Nations has never clearly declared these interventions as illegal. Furthermore, opinio juris among the states regarding
…show more content…
Integrative jurisprudence has been supported and advocated by many scholars; however, it has also its fair share of critics. One of its criticisms is that there is the risk of the selective interpretation of societal norms, values and practices. Another criticism is that if divergence or flexibility is permitted with regards to any rule, there is a very real risk of it being exploited or

Related Documents

  • Improved Essays

    The “Official Version of the Law” is a key term when studying both the legal justice system and the injustice done in this system. This “Official Version of the Law”, also known as the OVL, was first suggested by a law professor, Ngaire Naffine. Naffine created the term to describe how the law sees itself; unbiased, just and righteous to each of its subjects (Comack, Balfour, 2004). The professor’s official definition for the term Official Version of the Law was “what the legal world would have us believe about itself-is that it is an impartial, neutral and objective system for resolving social conflict” (cited from Comack, Balfour, 2004, pg 16). Elizabeth Comack analyzed the OVL and related it to the image of lady justice and how she represents…

    • 1250 Words
    • 5 Pages
    Improved Essays
  • Superior Essays

    When you first start reading Kitty Calavita ‘s Introduction to law and society you begin to wonder what the book will truly be about. She starts off telling you about the history of the study of law and society. She then begins to tell of how society defines law and how a definition is hard to establish. As you continue through the book you discover that Calavita is trying to make three main points. These points I would argue are law is created by society and guided by society, Law allows society to hold back individuals and even create tensions between laws and the society, and lastly that law that those in society who interact most with the law tend to shape the outcome of the laws and the system itself.…

    • 1722 Words
    • 7 Pages
    Superior Essays
  • Improved Essays

    From the family unit to the national state, each societal group is held accountable by the laws of their own creation. Whether through coercion or incentive, each member of the group agrees to abide by these laws. Yet were do these laws arise from? The answer is morals. Though some well-meaning idealists might wish for laws based on logic, it has been historically shown that many societies base their laws on a collective sense of morality.…

    • 1119 Words
    • 5 Pages
    Improved Essays
  • Great Essays

    Australian Legal System

    • 1683 Words
    • 7 Pages

    Legal systems can be dated back to the ancient peoples. There are many different legal systems that have evolved in other parts of the world. There are two types of legal system, the secular and religious legal system. It is argued that the Australian legal system is radically different to other legal systems. This, however, is not the case through findings and comparison with the Madayin legal system and Talmudic Jewish legal system.…

    • 1683 Words
    • 7 Pages
    Great Essays
  • Improved Essays

    Case Study Legal Pluralism

    • 1348 Words
    • 6 Pages

    Introduction I will present how the Supreme Court of Canada handles the competition between normative orders. This paper will consist of a brief summary of the case, the decisions of the judges and what drove them to this decision alongside a mixture of Brian Tamanaha’s (author of Understanding Legal Pluralism: Past to Present, Local to Global) point of view concerning this case in an indirect manner. I will also answer three complicated questions concerning this case. First of all, in order to better understand this case, we will have to have basic knowledge concerning this case. Starting with the appellants, which are the Sikh boy (Gurbaj Singh Multani, in this text will referred to as G) and his father (Balvir Singh Multani, will be refer…

    • 1348 Words
    • 6 Pages
    Improved Essays
  • Great Essays

    Laws have become a very indispensable component of every human society and the relevance of laws can never be undermined. Laws are made in a society for the preservation of that society by ensuring orderliness and peaceful co-existence of its members. It also guarantees the sovereignty of the state and its authority. Laws prescribe the conducts and behaviours of people within the society so as to ensure that every member of the society acts in accordance with the supreme interest of the society. Laws protect people, create social stability, and provide opportunities to create rights that people might not otherwise enjoy.…

    • 1943 Words
    • 8 Pages
    Great Essays
  • Improved Essays

    Commonly Held Values

    • 1089 Words
    • 5 Pages

    This essay will be examine how the law reflects commonly held values. Secondly also looking in depth at the other side of the argument that (the law does not reflect commonly held values). Firstly we must establish what the law is in relation to rule of law. The rule of law seems to vary based on context and jurisdiction, but it's most important application is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with due process.…

    • 1089 Words
    • 5 Pages
    Improved Essays
  • Decent Essays

    Innately humans have greed, as it exists within our system. There are those who can be more selfless than others, however, no one possesses the ability to be solely selfless. In America, some people have the ability to earn powerful jobs in society, assuming and hoping that they will perform what the general population needs. To an extent they do, however they also accomplish what they want as it will benefit them. Due to human nature, a vague document that people can interpret will be construed for a person’s personal reasons, making the document impure.…

    • 199 Words
    • 1 Pages
    Decent Essays
  • Improved Essays

    JL Guest's Analysis

    • 800 Words
    • 4 Pages

    According to JL Guest, a conservative writer from the Western Journalism news company, we are a nation of laws where everyone is treated fairly and equally. Guest states that with a nation of laws, there is a greater balance of human nature, avoidance of government atrocities, and no corrupt officials that could use the imbalance of laws as a weapon to take over people’s basic rights and liberties. On the other hand, Skwirk, an online interactive learning portal, strongly puts in confidence that we are a nation of laws in order to implement rights and to solve clashes. The laws keep or discourage individuals from behaving in a way that adversely influences the nature of life of other individuals. Therefore, consequences are dealt by overstepping…

    • 800 Words
    • 4 Pages
    Improved Essays
  • Improved Essays

    “What is law? It is a question that invites a multiplicity of answers, because law is a broad concept with many definitions… Law is defined as a group of rules governing interaction. Law is a set of regulations governing the relationships among people and between people and their government (historical background of criminal law).” The earliest known record of criminal law was written by King Hammurabi in Babylonia during his reign in 1790 B.C. and was named The Code of Hammurabi; many of our legal concepts and procedures can be traced back to the code.…

    • 710 Words
    • 3 Pages
    Improved Essays
  • Great Essays

    For example, when judges rule on cases which involve weighing up several legal rules, they exercise their discretionary abilities to find a course of action that they feel is the best. But these ‘moral’ issues, the soft positivist proposes, are no more than social attitudes and norms; morality does not transcend a society. The laws allowing slavery would be deemed evil today, while at the time they reflected what was socially acceptable. Hard positivism, defended by Joseph Raz , maintains that law and morality not only need not be connected, they must not be connected. The concept of law can only be explained without any reference to morality at all.…

    • 1632 Words
    • 7 Pages
    Great Essays
  • Superior Essays

    Essay On Cohearentism

    • 1298 Words
    • 6 Pages

    The cohearentist method for finding truth, while effective at ultimately fostering positive change in society, is conversely useless in advancing real development in moral law. Additionally, coherentism often poses a detriment to those affected through the process, that could otherwise be avoided with introspective thought and techniques posed by Young, that avoid the process altogether; in essence producing a good result that was not necessarily the product of a good process for people that could have believed in good without the use of coherentism altogether. This is particularly true on a macro scale when examining laws brought about as a result of a lack of legal precedent or inconsistency in social laws where the first iteration of legal regulation in a specific area is a product of cohearentist thought. Notable examples of laws produced by cohearentist thought through Socratic Dialogue in search of legal standards are often an attempt to resolve a social inconsistency which is a product of uncertainty in the moral laws of an individual. This is demonstrated in recent examples such as the Defense of Marriage Act, and North Carolina’s HB12 where this cohearentist Socratic Dialogue took place amongst the populous and the legislators who thereby resolved an inconstancy in a wrong one of the two ways to resolve…

    • 1298 Words
    • 6 Pages
    Superior Essays
  • Improved Essays

    However, as rules are applied all-or-nothing , they are inherently restricting and are obstruct judges from determining the “right answer”. As such, Dworkin proposes that judges should view law as a system of principles, policies and other standards , rather than rules, as the former has a range of weight or importance , hence not as limiting. Also, principles may represent public standards of morality , and this means that for Dworkin, judges must draw on these societal perspectives and not political persuasion. Therefore, to follow closely these principles of the judicial system and society, judges cannot have discretion. Overall, Dworkin’s theory is theoretically sensible as it prevents the propagation of unfair or bad rules, hence allowing judges to adequately protect the rights of…

    • 910 Words
    • 4 Pages
    Improved Essays
  • Decent Essays

    A legal positivism should be from an establishment of that law by some socially recognized legal authority. There is a clear cut between law and morality in legal positivism. Legal positivist such as John Austin view law on a logical aspect of law, in which morality does not have a place in. The main differences between natural law and legal positivism is the element of morality. Natural law provides that the law should reflect on moral order whereas the legal positivism states that there is no connection between law and morality.…

    • 833 Words
    • 4 Pages
    Decent Essays
  • Improved Essays

    W.H Auden’s modernist techniques combined with his unique style of writing makes his poetry difficult to read and interpret. However, his eccentric use of words calls for the reader’s imagination to create images that help grasp the central idea of the poem. Such can be seen in “Law like Love” starting with the ironic nature of the title. Law, as we know it is something which has clear cut definitions and rules which many do not favour. Love on the other hand, is not meant to have boundaries and to be regulated by rules or be dominated.…

    • 941 Words
    • 4 Pages
    Improved Essays