Articles

• Hall, Stephen

Abstract

International law was virtually synonymous with the natural law until the nineteenth century when the new doctrine of legal positivism supplanted Enlightenment naturalism as the dominant legal philosophy. Whereas the perennial jurisprudence of the natural law had conceived of the natural law and the positive law as complementary aspects of a single juridical reality, Enlightenment naturalism rejected or underestimated the role of positive law in regulating international relations. The confusion this error caused in international law rightly discredited Enlightenment naturalism. This did not, however, lead to a revival of older and more complete conceptions of the natural law. Austin's positivism expelled international law from the province of jurisprudence because it failed to conform to that theory's narrowly constructed definition of ‘law’. Successive attempts by leading legal positivists to redeem international law for their school have led to a dilution of positivist doctrine, but have not furnished a coherent account of international law's juridical character. These revisions have failed to explain the persistence of non‐positive juridical phenomena in the system, which may be highlighted by a detailed consideration of international law's sources. Legal positivism is also having an adverse impact on the theory and practice of international human rights law.