Positive Theory of International Law

ILP became a legitimate theory in 1968 in Chayes, Ehrlich and Lowenfeld`s International Legal Process, in which the American method of legal procedure was adapted to create an international legal process. [20] ILP describes how international legal processes work, as well as the formal and informal ways in which foreign offices integrate international law. [18] ILP also measures the extent to which individuals are held accountable for abuses committed in international conflicts. [21] While the ILP acknowledges that international law does not compel decision-makers to act, it suggests that international law serves as a justification, limitation, and organization. [21] Criticism of the lack of normative quality of the ILP in its method led to the emergence of a new ILP. [22] The New International Legal Process (NLP) encompasses both law as a process and as the values of any society. Unlike the U.S. legal system, it takes into account normative values other than democracy, such as “Democracy.” Feminism, republicanism, law and economics, liberalism and human rights, peace and environmental protection. [23] NLP is unique in that it adapts to changing values. This component of the methodology is important for resolving the evolution of legal norms over time. NLP shows that it is truly moving away from the ILP by addressing what happens in the conflict situation and what should happen. Other positivists react differently to Dworkin`s phenomenological points, accepting their relevance but modifying theory to accommodate them.

So-called “inclusive positivists” (e.g. Soper, Lyons, Coleman, Walukhov (who deserve this term), Kramer and Himma) argue that performance-based considerations can in fact be part of the law if they are made explicitly or implicitly by source-based considerations. For example, the Canadian Constitution expressly permits the violation of Charter rights, “such remedies as the court considers appropriate and just in the circumstances.” In deciding which remedies may be valid, judges are therefore expressly invited to take into account their morality. And judges can develop a firm practice in this regard, whether or not regulations require it; It can become common in some cases. Reference to moral principles may be implicit in the web of judicial law, for example in the common law principle that no one should profit from his or her own wrongdoing. Such moral considerations, the inclusivists argue, are part of the law because the sources make them so, and so Dworkin is right that the existence and content of the law may depend on its merits, and only false in his explanation of that fact. Legal validity depends on morality, not because of the interpretive consequences of an ideal on how government can use force, but because it is one of the things that can generally be accepted as the ultimate determinant of legal validity. It is the sources that make the merits relevant.

Realism asserts that in an anarchic international system, the main objective of states is survival, which obliges them to maximize their relative power in order to maintain their territory and existence. Since international cooperation is possible only to the extent that it reflects the personal interest of States in maximizing their power and prospects for survival, States do not seek cooperation on the basis of normative obligations. [4] According to realist jurists, states only adopt international legal norms that strengthen their power, formalize the subordination of weaker states, or deliberately violate them for their own benefit. [5] International law can therefore only deal with peripheral issues that do not affect the power or autonomy of states. Therefore, for realists, international law is a “weak web of fragile obligations”[6] A positivist approach would say that state consent creates international law. The law need not be compatible with morality or a higher state of reason. International legal theory includes a variety of theoretical and methodological approaches to explain, analyze and propose improvements to the content, training and effectiveness of international law and experts in international law. Some approaches focus on the question of compliance: why do states follow international standards when there is no coercive power to ensure compliance?.