Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim's Positive International Law Benedict Kingsbury * Full text available: PDF format ** 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 mainstream positivism has had more enduring appeal because it has been at least sub-consciously open to such readings. * Professor of Law, New York University Law School. This paper was originally prepared for a conference at Kyushu University on `The Acceptance of Modern International Law in East Asia'; a version of this paper will in due course appear in the conference proceedings, edited by Professors Michael Stolleis and Masaharu Yanagihara (Max Planck Institute for Legal History, Frankfurt, forthcoming). Discussions with participants at the Kyushu University conference, the comments of Andrew Hurrell, and the support of the Filomen D'Agostino and Max E. Greenberg Research Fund at NYU Law School, are gratefully acknowledged. The writer is immensely indebted to Professor Mathias Schmoeckel for his kindness in sending, prior to publication, a draft of his article, `The Story of a Success: Lassa Oppenheim and His "International Law"'. Schmoeckel's invaluable article is the most comprehensive study of Oppenheim known to the present writer. The writer also thanks his former student Anja Meyer, of the Max Planck Institute in Heidelberg, for her superb research assistance, and her careful study of the relationship between the work of Philipp Lotmar and the ideas put forward in Oppenheim's Gerechtigkeit und Gesetz (1895) and Das Gewissen (1898). ** The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems.
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