Review of Higgins, Problems and Process: International Law and How We Use It (1995)

by Stephan Kinsella on August 2, 2025

I have mentioned before my year obtaining an LL.M. in international business law at the University of London, 1991–1992, after law school. ¹ I had to take at least half my courses from King’s College London, my “base” school, and took the other half from the London School of Economics. My favorite course in the program was “The International Law of Natural Resources,” taught by Professor Rosalyn Higgins at LSE—now Dame Higgins and later the first woman on the International Court of Justice. ²

This year of study led to a lifelong interest in international law. ³ It played a role not only in my legal practice (first, in oil and gas law, and then in patent law, both of which had international aspects) but also in my subsequent scholarship, both libertarian related (rights theory, intellectual property policy and theory, and so on), and on purely legal topics (intellectual property, oil & gas, international law. ⁴

Sometimes the two merged, as here when I wrote a review of Higgins’s now-classic book, Problems and Process: International Law and How We Use It (1994), and published it in the libertarian journal Reason Papers. The review is Stephan Kinsella, “Book Review of Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994),” Reason Papers No. 20 (Fall 1995): 147–153 (pdf; text below). (For another review, see Louis B. Sohn, “International Law as a Process,” Mich. L. Rev. 93 (1995): 1828.)

I corresponded a few times with Higgins (by mail) afterwards, when I was a young lawyer. I sent her a copy of my review, and she was a bit taken aback by the comment in my review describing her views as “sometimes positivist.” As she wrote me on March 13, 1996, on letterhead from the International Court of Justice:

Thank you very much for your letter with its enclosures and your review of my book.

I have read it with interest. It has never before been suggested that my views on human rights are sometimes “positivist“!

Higgins perhaps views herself as being more in the natural law camp, when compared to other modern legal scholars, but my approach is more radical and libertarian, so differs from that of more mainstream thinkers. ⁵ I began a letter to her about this but never completed or sent it. I append it below along with a couple others I still have the Word files for. This draft letter and some others I no longer have in electronic form are appended here (pdf), but omit her letters to me since I have not asked her permission to reprint them.

One interesting side note. In my review I mention her formulation of law as the “interlocking of authority with power,” and in my explication I write”mere power (e.g. an invalid law, such as one decreeing that all Jews be killed).” A mutual friend who knew Higgins well said “Stephan! Why did you use that example?” I said what do you mean? He said “well you Higgins is Jewish!” To which I said, “Uh, no, I did not.” I had no idea. Apparently unlike many Europeans, and many blue-blood yankees in the US, and others who are obsessed with noticing these things, I usually … do not. I don’t think in these terms or notice things like that. Just one of my gaps, I suppose. I recall years a conversation I had with Robert Jan van Houtum, who was my now-deceased brother’s partner for many years. When I met him he was the Deputy Chief of Mission at the Dutch US Embassy in DC and then later Dutch Ambassador to the Czech Republic and to Argentina. He was very intelligent but leftish, so our politics did not mesh. I recall when when the news came out in 1997 or so that former US Secretary of State Madeleine Albright Jewish, he said something like “as if we didn’t already know—just look at her!” I guess I’ve just never been conscious enough of these categories, like good European socialists and American blue-blood yankees are. My bad.

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I have reproduced the text of the original article below without adding or changing references, other than some hyperlinks, but have added notes in brackets or as additional endnotes.

Book Review of Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994)

Stephan Kinsella
Reason Papers No. 20 (Fall 1995): 147–153 (pdf)

Problems and Process: International Law and How We Use It[*]

by Rosalyn Higgins

N. Stephan Kinsella,[†] Schnader Harrison Segal & Lewis, Philadelphia, Pennsylvania

Rosalyn Higgins, recently appointed as the first woman judge on the UN’s International Court of Justice and former professor of international law at the London School of Economics, has for many years been an outstanding authority on the subject of international law.[1] Her latest offering, Problems and Process: International Law and How We Use It, contains several provocative, interrelated discussions of many areas of international law.

The book is not a complete treatise on international law, as are M. N. Shaw’s or Ian Brownlie’s more general works on international law.[2] Rather, it is a series of interrelated perspectives on and criticisms of several “difficult and unanswered” (p. vi) areas of international law, derived from her lectures delivered at the Hague Academy General Course in International Law. The fifteen chapters of Problems and Process cover the following areas:

The Nature and Function of International Law
Sources of lnternational Law: Provenance and Problems
Participants in the International Legal System
Allocating Competence: Jurisdiction
Exceptions to Jurisdictional Competence: Immunities from Suit and Enforcement
Responding to Individual Needs: Human Rights
Self-Determination
Natural Resources and International Norms
Accountability and Liability: The Law of State Responsibility
The United Nations
Dispute Settlement and the International Court of Justice
The Role of National Courts in the International Legal Process
Oiling the Wheels of International Law: Equity and Proportionality
The Individual Use of Force in International Law
The Use of Force by the United Nations

Higgins’s discussions and criticisms of these issues are presented in a lively, accessible, and authoritative fashion, and the book is very well-written. Higgins makes many insightful points about and criticisms of many interesting areas in international law, although libertarians would disagree with many of Higgins’s conclusions and premises. For example, as discussed below, Higgins sometimes appears to express skepticism regarding the possibility of objectively discovering international law rules, and seems to hold a sometimes positivistic view of human rights. However, Problems and Process is full of well-reasoned critiques and analyses that do not depend on these views nor on Higgins’s view of international law as a process.

Chapter 3, for instance, contains a probing critique of the traditional concept of “subjects and objects of international law.” Higgins’s analysis here is well-reasoned, useful, and conclusive. However, even though she claims that her analysis is aided by viewing international law as a process rather than as rules, her reasoning seems to be independent of this characterization. I had no trouble being convinced by her reasoning alone, without conceiving of international law as a process. Also, Chapter I0, “The United Nations,” as well as Chapter 11, “Dispute Settlement and the International Court of Justice,” are extremely well-written and interesting chapters, although many libertarians would disagree with Higgins’s pro-U.N. sentiments.[3] Chapter 7, “Self-Determination,” is another enlightening chapter, although, here again, many libertarians would object to Higgins’s conclusion that there is no legal right of secession where there is representative government.[4]

International Law as “Process”

In Problems and Process, Higgins tries “to show that there is an essential and unavoidable choice to be made between the perception of international law as a system of neutral rules, and international law as a system of decision-making directed towards the attainment of certain declared values.” (p. vi) She also attempts to show “how the acceptance of international law as process leads to certain preferred solutions so far as these great unresolved problems are concerned.” (p. vi) However, as explained above, her analyses and “solutions” generally appear to be successful despite any flaws in her view that law is a “process.”

Higgins defines international law as “a continuing process of authoritative decisions” (p. 2); international law is “the entire decision-making process, and not just the reference to the trend of past decisions which are termed ‘rules’.” (p. 2) Higgins therefore disagrees with the contrasting view of those who “insist that international law is ‘rules’, and that all international lawyers have to do is to identify them and apply them” (p. 3)

During her discussion of this issue, Higgins notes that international law concerns both power and authority. “Law, far from being authority battling against power, is the interlocking of authority with power.” (p. 4, footnote omitted) “[I]nternational law is not the vindication of authority over power. It is decision-making by authorized decisionmakers, when authority and power coincide.” (p. 15) (I take “authority” here to be equivalent to legitimacy, since “authority” and power without legitimacy is still merely power.) ⁶ However, contrary to Higgins, it seems perfectly consistent to regard international law as a set of rules while also recognizing that law requires power as well as authority/legitimacy to qualify as law. A recommended or proposed law has the element of legitimacy only; if accepted and implemented, it also has the element of power.

This is similar to the difference between a natural right and a legal right: natural (or moral or individual) rights may properly be viewed as proposed rights that ought to be made into legal rights (i.e., law) or respected as such. An illegitimate law contains the element of power alone, with no legitimacy. Thus, Higgins’s formulation of law as the “interlocking of authority with power” nicely captures the distinctions between (1) natural law or proposed law (legitimacy only); (2) valid law (legitimacy plus power, i.e. justifiable individual rights which are actually respected, enforced, and recognized); and (3) mere power (e.g. an invalid law, such as one decreeing that all Jews be killed).

While some would urge that international law must be regarded as a set of rules because only then “will it be possible to avoid the manifestation of international legal argument for political ends,” Higgins disagrees with this reasoning. “Reference to ‘the correct legal view’ or ‘rules’ can never avoid the element of choice (though it can seek to disguise it), nor can it provide guidance to the preferable decision.” (p. 5) Judges do not “find rules” but “make choices.” (p. 3) Because “there is no avoiding the essential relationship between law and policy, I also believe that it is desirable that the policy factors are dealt with systematically and openly.” (p. 5)

Of course, there are many social and political factors considered rightly or wrongly when judges make decisions. This being a fact, certainly it should not be concealed. Certainly, such “policy factors” should be dealt with “systematically and openly.” But this does not mean that international law is not a set of rules, or that no objective rules can be discovered by judges. Indeed, the need to resort to objective norms is inescapable, since one must still recommend a set of normative “rules” that guide a judge in deciding how to take such factors into account. Libertarians, of course, maintain that objective norms (or rules) are discernible by reason and should be followed by judges or by whomever enforces law.[5]

Positivism and the Nature of Rights

Higgins recognizes that law must be based on “authority” as well as power. As mentioned above, “authority,” in order to be a meaningful concept, must mean legitimacy, for otherwise only the element of power would be present. This view implies that might does not make right, since power alone is not enough to justify a law. Higgins also seems to eschew positivism when she recognizes the universality of human rights, and passionately criticizes non-universal, relativist views of human rights. (p. 97)

However, paradoxically, Higgins also expresses positivistic views of what rights there are. “To assert an immutable core [of] norms which remain constant regardless of the attitudes of states is at once to insist upon one’s own personal values (rather than internationally shared values) and to rely essentially on natural law in doing so. This is a perfectly possible position, but it is not one I take.” (p. 21) Also, “human rights are demands of a particularly high intensity made by individuals vis-a-vis their governments”. (p. 105) This positivistic and relativistic view appears to contradict her absolutist views on human rights expressed elsewhere in the book.

“Illegal” Expropriations of Foreign Investments

Chapter 8, “Natural Resources and International Norms,” contains an insightful analysis of, inter alia, problems that arise when western investors invest in developing regimes. For example, when a foreign investor is granted a contract (called a “concession”) by a host state (such as Libya) to explore for and produce oil, there is always the danger that the host state will steal (“expropriate” or “nationalize” in modern language) his investment. Thus, as Higgins points out, the problem facing the foreign investor is: “how can he be sure that, given the vast resources he will be required to make, he will be allowed to reap the benefits of his investment and work effort, and that the rewards will not be taken from him just as the fulfillment of the contract terms beings to bear fruit (that is to say, petroleum)?” (p. 139)

Of course, the answer to this question is, he cannot. As long as nation-states have “sovereignty” over their territories, it is always a possibility that the government will infringe the investor’s property rights, although there are ways to minimize such “political risks.”[6]

Under international law, an expropriation is legal only if the expropriation is: (1) for a public purpose; (2) nondiscriminatory; and (3) accompanied by prompt, adequate, and effective, or at least “appropriate,” compensation.[7] However, international law has long been in a state of confusion over how much compensation an expropriated investor is entitled to. In other words, what is “adequate” compensation? There is disagreement as to whether “full value,” which includes both damnum emergens (e.g. the value of physical assets such as factories and equipment) and lucrum cessans (lost profits), should be awarded, or merely damnum emergens, and there is disagreement as to whether the amount of damages should be enhanced if the expropriation is in some sense “illegal” under international law.[8] Higgins adopts the common-sense view that the economic “value” of property of course includes expectations of future profits (p. 144), although this view, remarkably, is not universally accepted.

Despite conclusions of other commentators and arbitrators to the contrary, Higgins tentatively concludes “that the value of the property does not change by virtue of the lawful or unlawful nature of its taking”(p. 145) This view also makes sense, because it makes little difference to an investor why his property was taken, for the damage done to him regardless of the motivation for the theft is measured by the (full) economic value of the property. Of course, if this is the case, it makes no sense to distinguish between “illegal” and “legal” takings.[9] For whether the expropriation is discriminatory or not, or for a public purpose or not, full compensation should be awarded to the investor as damages.

Further, because of each state’s sovereignty over its own territory under international law, the alleged internationally “illegal” action of a discriminatory expropriation would never justify another nation physically invading the host state to remedy or prevent the expropriation.[10] Accordingly, since the “illegal” status of an expropriation has little or no consequences, the status seems meaningless, a distinction without a difference. For, as Higgins observes, a right without a remedy is hollow indeed. (p. 16 n. 42, p. 53, p. 99) ⁷

Endnotes

[*] This book is available from Oxford University Press, 1-800-451-7556 (USA). Its order number is 825767-8. Page references will be given parenthetically in the text. I would like to thank Jack Criss for helpful comments on an earlier draft of this review.

[†] LL.M. (international business law) (1992), University of London King’s College London; J.D. (1991) Paul M. Hebert Law Center, Louisiana State University; M.S. Electrical Engineering (1990), B.S.E.E. (1987), Louisiana State University. The author is an associate in the intellectual property department of Schnader Harrison Segal & Lewis, in Philadelphia. Internet: nskinsella@shsl.com [of course this is no longer a good email].

[1] Higgins has published several important books and articles in this field. See, e.g., Higgins’s United Nations Peacekeeping: Documents and Commentary (Oxford: Oxford University Press, 4 vols. 1969-1981); The Development of International Law through the Political Organs of the United Nations (1963); “The Taking of Property by the State: Recent Developments in International Law,” Recueil des cours de l’Academie de Droit International (Collected Courses of the Hague Academy of International Law) 176 (1982), p. 259; “Conceptual Thinking about the Individual in International Law,” Brit. J. Int’/ Stud. 4 (1978), p. 1; and “The Place of lnternational Law in the Settlement of Disputes by the Security Council,” Am. J. Int’L. 64 (1970), p. 1. While pursuing an LL.M. in international business law in 1992, I took Higgins’s course “The International Law of Natural Resources,” one of the most interesting and stimulating courses I’ve ever had the pleasure of taking.

[2] M.N. Shaw, International Law (Cambridge: Grotius Publications Limited, 3d ed. 1991); Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 4th ed. 1990).

[3] See, e.g., Ayn Rand, “The Anatomy of Compromise,” in Capitalism: The Unknown Ideal (New York: Signet, 1967), p. 147-48 (expressing disapproval of the U.N.).

[4] For an excellent article on the libertarian view of the right to secede, see Robert W. McGee, “The Theory of Secession and Emerging Democracies: A Constitutional Solu tion,” Stanford J Int’L. 28 (1992), p. 451.

[5] For a few examples of hard-core libertarian justifications for the existence of objective individual rights, see Hans-Hermann Hoppe, A Theory of Socialism and Capitalism (Boston/Dordrecht/London: Kluwer Academic Publishers, 1989), esp. chapter 7; Tibor R. Machan, Individuals and Their Rights (La Salle, IL: Open Court, 1989); Murray N. Rothbard, The Ethics of Liberty (Atlantic Highlands, NJ: Humanities Press, 1982); N. Stephan Kinsella, “Estoppel: A New Justification for Individual Rights,” Reason Papers No. 17 (Fall 1992), p. 61; and Roger A. Pilon, “Ordering Rights Consistently: Or What We Do and Do Not Have Rights To,” Ga. L. Rev. 13 (1979), p. 1171. For a critique of legislated law as opposed to judge-discovered law, see Bruno Leoni, Freedom and the Law (Indianapolis: Liberty Fund, expanded 3d. ed. 1991); Peter H. Aranson, “Bruno Leoni in Retrospect,” Harv. J L. & Pub. Pol’y 11 (1988) 661; and N. Stephan Kinsella, “Legislation and the Discovery of Laws in a Free Society,” J. Libertarian Studies 11 (Summer 1995), p. 132.

[6] See, e.g., Paul E. Comeaux & N. Stephan Kinsella, “Reducing Political Risk in Developing Countries: Stabilization Clauses, Bilateral Investment Treaties, and MIGA & OPIC Investment Insurance,” N.Y. L. Sch. J. Int’L & Comp. L. 15 (1994), p. 1. [This is one reason I wrote subsequent books I cited this observation in later related writing, e.g. my book Comeaux & Kinsella, Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk (Oceana, 1997), Rubins & Kinsella, International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford 2005), and Rubins, Papanastasiou and Kinsella, International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, 2d ed. (Oxford 2020). As we wrote in the Preface to the 2005 book, “Our goal here is to enable the investor to appreciate the risks associated with government interference in property rights, to minimize those risks and deal effectively with their consequences. But we also hope to promote understanding within host governments about investors’ expectations and concerns, to allow them to avoid conflict and maximize the benefits of foreign direct investment for their countries and constituencies. … We are convinced that the reduction of political risk, through the active participation of both host countries and foreign investors, is a critical factor in the improvement of the human condition worldwide. Entrepreneurship and capital investment are essential to the expansion of prosperity. This conviction, in addition to a more detached enthusiasm for the subject of our practice and research, is one motivation for undertaking this book and, we believe, has spurred us to forcefully explain both how investors can protect themselves, and the ways that host States can make such protection superfluous.” Preface and Introduction to International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide.]

[7] Shaw, supra note 2, at 516-28.

[8] See, e.g., Shaw, supra note 2, at 523-24. See also C.F. Amerasinghe, “Issues of Compensation for the Takings of alien Property in the Light of Recent Cases and Practice,” Int’/ & Comp. L.Q. 41 (1992), p. 22; Patrick M. Norton, “A Law of the Future of a Law of the Past? Modem Tribunals and the International Law of Expropriation,” Am. J. Int’l L. 84 (1991), p. 474.

[9] Paul Comeaux and I will argue this point in our forthcoming book: Legal Aspects of Political Risk (New York: forthcoming 1996). [Which we did. See Comeaux & Kinsella, Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk (Oceana, 1997), ch. 3.B.3, and Kinsella, “Expropriation, Inalienability, and International Law: The Illusory Requirements of Nondiscrimination and Public Purpose.” See also my later books, based on the earlier book but which omit much of that previous discussion: Rubins & Kinsella, International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford 2005), ch. 5.B.2.c, p. 181 and Rubins, Papanastasiou and Kinsella, International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, 2d ed. (Oxford 2020), ch. 5.B.2.c, ¶¶5.87, 5.90.]

[10] See, e.g., Problems and Process at Chapter 14, “The Individual Use of Force in International Law,” and M.N. Shaw, supra note 2, at Chapter 18, “International Law and the Use of Force.”

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Draft Letter from Stephan Kinsella to Rosalyn Higgins (never completed or sent)

Stephan Kinsella
June 4, 1996

Dear Judge Higgins,

I hope you are doing well and that you are finding your new position fulfilling. I received your letter in response to mine, by which I forwarded to you my review of your book, and I noted your comment on my referring to your views as “sometimes positivist.” As positivism has been on my mind for the past several months, I thought I would take the time to express to you a few thoughts in this regard.

It appears to me that legal positivism is used in at least two distinct, even if related, senses. In one sense, it identifies a view that all law (and the rights that are declared thereby) must and ought to be positively declared by a law-maker, the state, at least in part because law can be nothing but what the sovereign posits, since natural law is groundless and “unscientific.” In another, narrower, view, legal positivism is simply the view that it is possible to identify an existent law without inquiring into its moral validity. The latter view seems obvious and even compatible with natural law, since in my view we can certainly identify various laws and the legal rights recognized thereby. Knowing what natural rights we have allows us to know what legal rights ought to be enshrined by positive law, however, and from our knowledge of natural law we can thus criticize various positive laws as being valid or not, obligatory or not, and the like.

The problem with the former type of legal positivism (which I take to be the primary definition of the term) is the view that rights (through laws) can be created at will, e.g. by an enforcing agency, and that there are no such thing as natural rights that one could judge positive or enforced rights as being contrary to. I think this is incorrect. Rights cannot be created at all. Legal rights are certainly created recognized by legislation, but these legal rights at best mirror the natural rights we have. To the extent a law protects legal rights that are actually natural rights, like a law against murder that implies a legal right to not be murdered, which is consistent with the actual natural right to not be murdered, the law is valid. To the extent the law sets up illusory rights, such as a right to welfare or education, the law is invalid, or at least not in accordance with natural law. Anyway, this to me is the essence of legal positivism, a relativistic view that the only rights that can be said to exist are those that are posited, or created, by society or some agent thereof.

Since you, in your book, objected to natural law and commented that rights are what is demanded with a sufficient intensity by the people (and thus respected by the government), it seems to me at least somewhat identifiable as a positivistic view (which is why I said you “seem” to have a “sometimes” positivistic view of rights). If you meant instead to describe the process by which legal rights typically come to be enforced by a law, I would not disagree with you and would not call such a description positivistic; it is merely factual or historical. However, in view of your explicit disavowal of natural law I took your comment about how rights are formed to be a comment not about legal rights but about the basis of rights as such. If you believe that the only way for us to know what rights there “truly” are is to see what is demanded by certain pressure groups, this seems to me to be a relativistic belief that denies that we can have objective, culturally-independent standards by which to criticize existent laws. It seems to be a belief that admits that rights can be created—whether by the government itself or by a majority or consensus in society—which seems to go the the heart of legal positivism.

As you are aware, there is logical positivism, typically referred to solely as “positivism,” at least in philosophical circles, which is akin to scientism and empiricism. Then there is legal positivism, also sometimes referred to, confusingly, solely as positivism, in legal discussions. I must admit I have not yet discovered the exact relation between the two, if there is any. Some authors think they are linked; some seem to think they are completly unrelated.

I believe that today they are sometimes conflated, which is unfortunate if the concepts do not have much relation; and confusing even if they are. In my view, logical positivism (which I will refer to herinafter solely as “positivism”; I will refer to legal positivism expressly), is a clearly false doctrine. Essentially, it holds that all true or “scientific” knowledge must be empirically based, and verifiable, or perhaps at least falsifiable, by repeated experiment or experience. (Hence its connection to empiricism and scientism. It is also, I believe, referred to as, or linked with, naive rationalism or constructivism by Popper and Hayek.) I believe the neo-Kantian epistemology expounded by the Austrian economist Ludwig von Mises, and his followers Murray Rothbard and Hans-Hermann Hoppe, demolishes the positivist view. Mises makes the case for epistemological dualism …..

Now as for legal positivism, there seem to be variations of it. I do accept the basic view that to identify law one need not validate it. I.e., there can clearly be an existent “law” that is immoral. There can also be laws that one is not bound to obey (whether this means any law that is not substantively moral or only a subset of substantively immoral laws is another question). However I think Lon Fuller et al. to be incorrect if they believe that any purported “law” is not really a true law if it is immoral. If they mean that any immoral “law” is not binding on citizens, they may be right, but this is different from saying that you cannot identify laws without being concerned for their morality.

Now typically the natural lawyers like Fuller are contrasted against this legal positivistic view. I happen to be a type of natural lawyer. I am not a (logical) positivist, so do not believe all knowledge has to be falsifiable or verifiable by experiment. I believe, for various reasons which are not relevant here, that we can unambiguously identify certain normative truths, including ethical truths like what rights individuals have. I do not base these views on any religious, supernatural, mystical, intuitionistic, irrational, or utilitarian reasoning. (Thus I would not identify with the Catholic or religious “natural law” theories, except in the belief that individuals have certain rights whether government and law recognizes them or not.) Rather, I think they are very rational views, as rational as, and as scientific as, theories in the empirical sciences like physics and chemistry. In fact it is this normative (moral, rights-oriented) background from which I criticize particular existing laws as being immoral or invalid. It is these background morals that I would draw on to describe an ideal legal/political system that embodies the (natural) rights that all individuals have.

This anti-scientistic view also opposes cultural and moral relativism and moral skepticism, because it holds, and holds that it can prove, that individuals have certain rights, regardless of whether others or a given culture or society recognize them. However, the libertarian belief in individual rights is not necessarily opposed to legal positivism, in my view. We can simply identify a given law, and then decide, based on natural individual rights (and the ideal laws that correspond therewith) whether the law is valid or not. This judgment may be used to disapprove of the law, to agitate for its legislative repeal, for example, or that the relevant court ignore or reverse the invalid rule.

Now to backtrack for a second, let me say that I am also in agreement with Fuller’s point that law is purposive. You can hardly interpret a statute without the concept that it was drafted to accomplish a certain purpose, without interpreting it in view of that purpose. Yet I do not see that this is inconsistent with legal positivism, for a legislator or other promulgator of a law can have an immoral purpose (examples abound) and infuse this into a law. The law can still be identified; its purpose is still necessary to understand and apply the law (even if the purpose is evident from the plain text of the statute); and the law (and its purpose) can still be condemned as immoral or otherwise invalid. I see no necessary inconsistency in all this. If the natural lawyers mean more than that any true law is “purposive”—that the “purpose” is the same as “morality”—I disagree, for the above-stated reasons. Yet I do not disagree with natural law in the sense of believing that we can rationally identify ethical truths, individual rights, which may be called, I suppose, “natural” rights that accord with “natural law.” To me, the concepts “natural rights” and “natural law” do nothing more than identify the simple fact that it is true that, e.g., individuals have certain rights. Individual have certain rights, “naturally” one might say. These rights are either protected, or violated, by positive laws, that is, by laws in force. Laws in accord with rights are valid; laws violative of rights are invalid. Laws that establish positive rights that are not true rights are invalid laws.

It seems that there is some tendency for there to be overlap between positivists and legal positivists. Did not Bentham say that natural rights were nonsense on stilts? Doesn’t this, and his scientistic utilitarianism, amount to a type of logical positivism, even ethical skepticism? Criticism of natural law thus seems to me to often rest on logical positivistic grounds, on the basis that we cannot know moral truths, thus natural law is pure mysticism or emotivism. Yet a legal positivist would also criticize natural law, if only because natural lawyers claim that legal positivism wrongly ignores the necessarily moral content of law. I consider myself to be a type of natural lawyer, as I said, yet I see no problem identifying law even if it is immoral (a pro-legal-positivist view), although I don’t think this prevents one from admitting that laws are purposive by nature. Yet as a natural lawyer—as a defender of epistemological dualism and an opponent of scientism—I oppose positivism and its attack on the rational basis for ethics. So I do not see why both legal positivists and logical positivists seem to position themselves as allies against natural law, for only logical positivism seems to me to be necessarily inconsistent with natural law.

I am not sure if the legal and philosophical layout is as I have presented it here, as I have never seen a discussion getting to the heart of the interrelationship between natural law (and related fields like libertarianism, individual rights, etc.), legal positivism, and logical positivism, though it is not for want of looking. In any event, this is how it seems to me.

It also seems to me that perhaps one reason there has been the unfortunate (and partically incorrect) conflation or linking between legal and logical positivism is that some legal positivists adopt part of logical positivism’s views; or, one reason some legal positivists are legal positivists is because they are logical positivists. If one is a logical positivst, one does not believe in moral truths. One is a skeptic in the field of ethics. Norms, rights, morals—all the “non-hard” sciences like economics, ethics, etc.—are seen as inferior to “truly” scientific fields like physics, chemistry, those that are subject to the scientific method, those that are verifiable or at least falsifiable by experiment or experience. I have explained above why I believe this view is short-sighted and wrong. Moreover it is naive and arrogant, and indeed I believe it is this scientistic view—the view that everything can be modelled after the physical sciences, even human beings who have free will (which can be ignored since it is qualitative not quantitative)—that has led to the great horrors of our bloody century, namely central and state planning, socialism, fascism, communism. All these have been miserable failures in part because one cannot apply the same methods of the “hard” sciences to human actors, who are purposive beings. The view that we can mold human nature (communism) by central command and edict has been shattered. The beliefs that we can plan economies by central planning bureaus (socialism) or tinker with economies to make them better and more efficient (fascism, Keynesianism, welfare-statism) have imploded in the wake of the final inevitable fall of communism, stagflation, etc.

My point is that a logical positivist, believing in no natural law or independent, rational, scientific source of morals, rights, etc., would tend to believe that rules and laws should come from a central planner, namely the government. For some reason, many legal positivists also seem to share this belief. Not only do legal positivists believe that we can identify law without necessarily judging the law’s validity (a relatively uncontroversial view), many of them seem to favor “positive” law enunciated by the legislature or sovereign, as opposed to customary law, common law, natural law. I.e., Bentham, with his utilitariansm, skepticism of natural rights, and scheme of legislatively (i.e. “positively”) codifying the common law.

I do not know if I have accurately described these subjects or their interrelationship, and I do not fully understand why there is such a relationship. However, it does appear to me as if many legal positivists gravitate to logical positivism or at least some related view, such as a view that law should be positively enunciated, i.e. legislated, perhaps on the grounds that we cannot know from reason what law “should” be, therefore we have to have a sovereign enunciate it. It is because of this type of connection that I associate in my mind rights-skeptics, pro-legislation types, and legal positivists. When I think of a typical positivist, I think of someone who holds the following views in some combination: (1) we cannot know what “natural” rights there are or what laws there “should” be, since natural law is hogwash, mere emotivism (a logical-positivistic type of view); (2) because natural law is hogwash, legal positivism must be valid; and (3) because of (1) and also because of our naive rationalist view that we can plan everything by central decree, laws are only what the sovereign decrees and can not be criticized on rational, moral grounds since morals are mere emotions and not scientific. I associate “positivists” with the view that our rights “come from” the government or sovereign—as opposed to the natural law view that they “come from” our nature, and can only be recognized, or not, by government.

If I am right in my analysis, there is a mistake here. Perhaps it was the mistake in the seeming miscommunication between legal positivists and natural lawyers initially. Legal positivists should be willing to recognize the importance of “purpose” in the law, and natural lawyers should be willing to admit that there can be invalid laws in force in a society. But since there was this conflict, perhaps natural law is seen as opposed to both legal positivism and logical positivism. Or perhaps it is because legal positivists were swept up in logical positivism with the rest of the 20th century, and thus had to oppose natural law. I am not sure.

But this is why, whenever I encounter any view that tends to oppose the view that we can have rationally justified knowledge of normative truths, I associate it with “positivism.” This includes opposition to natural law, and advocacy or cultural or moral relativism, radical or ethical skepticism, or logical positivism. All these seem to making the same epistemological error that we cannot have rational knowledge of rights, i.e. of what laws ought to be. In your book, as I pointed out, you explicitly said you do not favor natural law. You also indicated a belief that rights “are” what various majorities or other groups make sufficiently intense demands for. This seems to me a relativistic view. Rights, to a non-relativist or natural lawyer, exist whether they are recognized or not, whether they are “sufficiently” demanded or not. (Indeed, in my view even some allegedly “natural law” views, such as the religious view that rights “come from” God, while superior to mundane positivism and relativism, are themselves a type of positivism, since they think God can “posit” what our rights are. I do not believe a legislature, even a supernatural one, can change what is true, nor can it legislate what our rights are. It is immoral to murder another, and one has a right to not be murdered, no matter Who decrees otherwise.)

Thus, given my understanding of these concepts, I associated your apparent (though inconsistent) relativism and view that rights are somehow created by various demands, with positivism. If you say that rights are what some group intensely demands, this implies the right is created or “posited” by people. Which means they can change, if people’s desires and demands and views change. To me this is relativist, and thus incorrect, since it controverts the fact that there are certain rights, that do not change with changing cultural or societal or governmental views. It is also positivist because, first, you specifically objected to natural law, one mark of a (legal) positivist; and second, like the logical an legal positivists who favor law’s being decreed by the sovereign, you seem to imply that the government in conjunction with various pressure groups (should?) create rights and laws. I am not trying to argue that you are wrong, just why your view seems “positivistic.”

Obviously, I could not put all this into a brief book review, nor would I want to, especially given some of my uncertainty as to the overall correctness of my view. In retrospect, instead of saying that you seem to have a “sometimes…” view, I should have merely left it at my point that there seemed to be a contradiction between your moral absolutism, on the one hand (with which I agree, and which I did praise in the review as admirable), and your apparent moral/cultural relativism, on the other.