Chapter 3 challenges the tradition in comparative legal studies, which treats Germany exclusively as a representative of the Civil Law family. Through excerpts of leading German legal theorists of the twentieth century, the chapter demonstrates that there has always been resistance to the Civil Law orthodoxy in the German legal culture. This includes a survey of the Free Law Movement (Kantorowicz), the Pure Theory of Law (Kelsen), and the Radbruch Formula (Radbruch). The chapter concludes with a discussion of the Federal Constitutional Court’s Lüth Case, in which the Court announced the Basic Law’s “objective order of values.”

Modern discussions of Epicureanism often use the descriptions “legal positivism” and “natural law theory” without providing clear definitions of what is meant by these terms. This chapter remedies this deficiency by characterizing the Epicurean theory of justice and law from the perspective of contemporary philosophy of law. The first section develops a clear conceptual framework by distinguishing between different theses that characterize a view as leaning more toward legal positivism or natural law theory. The second section then tests Epicurean theory against these theses, concluding that even if the Epicurean account has some legal positivist leanings, it is overall closer to a kind of natural law theory.

The Introduction establishes the topic of the book - the creation of states in international law - as well as the method adopted when investigating that topic. It argues that doctrinal debates over state creation have become deadlocked as a result of the prevailing method of 'legal positivism' and that this approach, which focuses exclusively upon the factual provenance of putative laws, should be abandoned. Advocating a form of 'rational reconstruction', whereby the normative appeal of putative laws must be assessed alongside their provenance within international legal practice, it connects this method of law identification to the earlier 'Grotian tradition' developed by scholars such as Hersch Lauterpacht. To aid readers who might be unfamiliar with the details of international legal reasoning, an extended summary of the legal framework endorsed by the text is then presented, followed by a brief overview of the structure of the argument to follow.

Humanity and civility were established as new leading principles of international law during the last decades of the nineteenth century. But the restriction of war itself was a battlefield. Some authors conceptualised the restrictions on warfare explicitly as of a social custom quality or as ‘chivalric practices’ of ‘moral value only’. Probably the most fundamental attack on international law’s limits came from the idea of ‘military necessity’. It was limiting law’s limitations. And in its most radical variant, it was evoked not only in those cases which explicitly referred to it but in any regulation of warfare. This was a specific, particularly militaristic understanding of ‘necessity’, and its effect was unleashing: the laws of war would lose their binding force. Necessity could revocate any ties, be they moral or legal. Pre-1914 international law was in some areas pretty far away from humanisation, universalism, and also from positivism. It was relativising and legitimating excessive violence.

This chapter shows that early modern metaphysics was far more important for Pufendorf’s moral philosophy than has often been thought. In particular, it is essential to understanding Pufendorf’s theory of moral entities. This theory is often regarded as voluntarist and anti-metaphysical. Opposed to this, it has been argued, was a rationalist belief in objective and eternal moral values that was exemplified by philosophers like Leibniz. However, the main distinction for Pufendorf was not between voluntarism and rationalism, but between moral rules that were specific to a certain society because they were merely conventional, and others that were universal because they were natural, in the sense of being grounded in the physical characteristics of human nature as it had been created by God. The latter, according to Pufendorf, were necessarily true, though their necessity was hypothetical rather than absolute. Pufendorf’s intention was to turn moral philosophy into a science, which would supersede traditional Aristotelian-scholastic views that morality was concerned with the contingent circumstances of actions, and therefore incapable of ‘scientific’, that is syllogistic proof. Pufendorf’s theory of moral entities was central to this project of a moral science, which required him to provide a metaphysical foundation for these entities.

This chapter introduces the book and situates it in current debates on both expropriation in international investment law and (international) legal theory.

In his Foundations of Natural Right, J. G. Fichte advances the innovative thesis that the theory of right is independent of, or separate from, moral theory. Although Fichte is concerned to stress the originality of his approach, he refers approvingly to some “excellent hints” in the writings of J. B. Erhard. Given the recent scholarly interest in Fichte’s account of the relationship between right and morality, it is surprising that Erhard’s position is seldom discussed. Where it is discussed, it is often presented as merely a hesitant precursor of Fichte’s position. This paper provides a corrective to that view by arguing that Erhard’s account of the relationship between right and morality constitutes a distinctive and philosophically compelling position. In the first two sections, I reconstruct Erhard’s account of the relationship between right and morality. I argue that Erhard’s position is best characterized as focusing on the dynamic interplay between the theory of right and the requirements of morality as articulated by Kantian moral theory. In the third section, I demonstrate the coherence and significance of Erhard’s position by considering it in relation to a central debate in the philosophy of law—the debate between legal positivism and natural law theory.

Schauer discusses normative positivism, explaining that this type of positivism comes in two main versions, namely, in the shape of a prescription to legal actors and in the shape of a prescription to legal institutional designers. He argues that a full appreciation of the artefactual nature of law leads to the conclusion that a culture can modify its concept of law in order to make it as useful a concept as possible, and that if normative positivism is a plausible position, it follows not only that choosing a concept of law on moral grounds is a moral position but also that choosing to see the enterprise of legal theory in a normative way itself amounts to a normative position.

Much has been said about legal positivism. Yet, given the lack of clarity as to what, exactly, it stands, or should stand, for, more is to be said, not only about what legal positivism is, or might be, and its different types but also about its different geographical traditions, central figures, fundamental tenets, meta-ethical underpinnings, if any, the problem of legal normativity considered within the framework of legal positivism, the value or disvalue of law positivistically conceived and of positivistic legal arrangements, and, of course, about the perceived problems of legal positivism, such as its alleged totalitarian implications. This is what this book does and this Introduction explains how. We attempt to provide a fuller and more adequate characterisation of legal positivism than just saying that legal positivists reject the view that there is a necessary connection between law and morality, and we identify certain important types of legal positivism. What is offered in this volume is a rather comprehensive and systematic discussion by experts in the field; this Introduction thus also illustrates the authors’ contributions to the various topics examined.

This chapter investigates H.L.A. Hart’s characterization of law as the union of primary and secondary rules, and its implications for international law’s status as genuine law.While Hart is frequently identified as an international legal skeptic, that conclusion rests on a misreading of his analysis of international law or, in some cases, a misreading of his analysis of law.Hart does not deny that international law is law, only that it constitutes a legal system.Properly understood, this is a claim few of his critics will deny.

This chapter considers two arguments for international legal skepticism, both of which appeal to an alleged analytical connection between law and coercive enforcement.The first is the legal philosopher John Austin’s characterization of law as the command of a sovereign, or in H.L.A. Hart’s apt phrase, as orders backed by threats.The second treats the mode of enforcement found in the modern state as a necessary condition for the existence of law.If true, each of these conceptual claims provides a sound basis for international legal skepticism.There are compelling reasons to reject them both, however.

Collective beliefs and the corresponding political organization influenced features of interstate relations such as the nature of warfare, alliance structure, and the absence of a hegemonic power. Except for Siam, the European colonial powers controlled every polity in Southeast Asia by the late nineteenth century. Siam adjusted to Western principles of political organization but did so against the backdrop of its existing belief system. Positivist international law nevertheless continued to exclude it from the Law of Nations, in a case similar to how the West treated the Islamic and East Asian polities.