The American Origins of Positivist International Law

• In Event: Conceptualizing Sovereignty in Comparative Political Thought

Abstract

Legal positivism denies that there is any necessary relationship between law and morality. For legal positivists, what makes a rule a law is its pronouncement as such by an authoritative legislator and its enforcement by established sanctions. Legal positivism had particularly strong implications when it was applied to international politics in the 19th century, displacing the idea that international law was grounded in natural law. Recent scholarship by Antony Anghie, Martti Koskienemmi, Jennifer Pitts, China Miéville, and others has shown that this transition in the philosophical underpinnings of international legal was partly motivated by, and helped contribute to, the expansion of European imperialism in the same period. All of these accounts acknowledge, however, that the most influential text in the consolidation of positivist international law was not written by a European, but by an American, Henry Wheaton’s 1846 Elements of International Law, which displaced Emer de Vattel’s naturalist Droit de gens as the standard reference for scholars and practitioners. In this paper, I show that Wheaton’s arguments on behalf of positivism were, in fact, preceded by another American text: the Chilean Andrés Bello’s 1836 Principios de derecho internacional. I demonstrate that Bello and Wheaton’s turn to positivism was motivated by a critique of the European imperialism that naturalist international legal jurisprudence facilitated, and reflected the peripheral position that the Americas occupied in the economic and geo-political order of the early 19th century. In this sense, positivist international law was not either Eurocentric or imperialist in its origins, but rather became both Eurocentric and imperialist as the United States rose to economic and military parity with Europe and as “scientific racism” inspired US-Americans to identify themselves as Anglo-Saxons rather than as Americans.

Author

• Joshua Simon, Johns Hopkins University