Positivism, the New Haven School, and the Use of Force in International Law

BSIS Journal of International Studies, Vol. 3, p. 26, 2006

17 Pages Posted: 30 Oct 2010

See all articles by David Kleimann

David Kleimann

affiliation not provided to SSRN

Date Written: October 1, 2006

Abstract

It is common knowledge that different interpretations of laws lead to differences on what is regarded appropriate responses to legally relevant circumstances. It is less well known, however, to what extent legal schools of thought differ with regard to more fundamental questions, namely what law actually is and how it is determined. Such methodological divergencies are often irreconcilable as they may rest on the political preferences of the respective proponents. A methodological and practical comparison of Positivism and the New Haven School lays bare the overwhelming importance of these divergencies in general and in the particular case of the use of force in international law. From a descriptive point of view both schools of thought are equally legitimate. Viewed against the background of the basic normative functions and purposes of law, however, New Haven School theorists are found to confuse the legal with the political sphere – with severe implications for their enhanced ability to justify the uses of force in international society.

Keywords: Public International Law, Positivism, New Haven School, Use of Force, legal theory, legal methodology

Suggested Citation

Kleimann, David, Positivism, the New Haven School, and the Use of Force in International Law (October 1, 2006). BSIS Journal of International Studies, Vol. 3, p. 26, 2006, Available at SSRN: https://ssrn.com/abstract=1699304

David Kleimann (Contact Author)

affiliation not provided to SSRN

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