January 23, 2022

Positivism and The Development of The Subject Based Definition of International Law

International Law


Legal positivism has long provided the usual theory for comprehending international law. The typical positivist definition of international law is grounded on a subject-based differentiation between international and municipal rules. Positivism views international law as a set of rules with states as its subjects. Municipal law is thought of as pertaining to individuals who are subjects of a single state. This Article rejects the positivist subject based approach to international law and calls for a definition of the

discipline that recognizes individuals as subjects of international law.

Keywords: positivism, recognize, law


Prior to positivism, there was no hypothetical request that the guidelines of the law of countries applied distinctly to states. William Blackstone reflected the sentiment of the middle eighteenth century. For Blackstone, people and states were both legitimate subjects of the law of countries. He drew no dividing line between what later came to be called public and private international law. Blackstone distinguished his law of nations from other sorts of law not on the basis of its subjects but because of its sources. He saw the rules of the law of nations as universal, emanating either from natural justice or from the practice of many states. Municipal legal rules, however, emanated from a single state.

In 1789, Jeremy Bentham created the term “international law” in his Introduction to the Principles of Morals and Legislation. Bentham defined the new concept as the law which relates to “the mutual transactions between sovereigns as such.’ 5 He thought that “as to any transactions which may take place between individuals who are subjects of different states, these are regulated by the internal

laws, and decided upon by the internal tribunals” of individual sovereign states.[1]

Two early nineteenth century positivists promoted the notion that the individual was not a proper subject of international law. Legal positivism had taken the eighteenth century law of nations, a law common to individuals and states, and transformed it into public and private international law. The former was deemed to apply to states, the latter to individuals. Positivists scorned both sides of the discipline. The positivist definition of international law has had an enormous impact on modern perceptions concerning the individual and international law. With few exceptions, the theory rejects the notion that individuals are proper subjects of public international law. Originally, the subject-based approach was merely Bentham’s attempt to provide a rational way of explaining that law may have different subjects: individuals and states.


A prominent example of the failure of positivism to describe adequately the reality of the individual as a subject of international law comes from the time of Bentham himself. In Respublica v. De Longchamps, an American municipal court indicted the defendant for assaulting the Consul General of France to the new United States. It was held that the case “must be determined on the principles of the laws of nations.””‘ There was, following Blackstone, no doubt that an individual could be guilty of an infraction of the law of nations. De Longchamps, for his violation of the law of nations, was ordered to pay a fine of one hundred French crowns to the Commonwealth of Pennsylvania and to be imprisoned for “a little more” than two years. Even during the high tide of positivism, the United States Supreme Court had no difficulty seeing individuals as subjects of international law.[2]

However inadequately subject-based theory accounted for individual rights and obligations in international law in the eighteenth and nineteenth centuries, positivism has done an even poorer job in explaining the practices of the twentieth century. The trials of Nazi war criminals after the Second World War highlighted the limitations of positivism. The Charter of the International Military Tribunal at Nuremberg explicitly made individuals subject to international rules relating to crimes against peace, war crimes, and crimes against humanity.


It is high time to realize that positivism’s subject-based approach to international law is neither realistically descriptive nor beneficially prescriptive. While it is true that international law frequently concerns states inter se, oftentimes international law directly involves individuals. It will be better to focus our attention on the universal and multi-state sources of both public and private international

law. Such a focus better distinguishes international from municipal law. It usefully encourages courts and other law finders and appliers to look outside national sources for rules of decision in international cases.


[1] https://scholarship.law.cornell.edu/

[2] www.jstor.org

Author Details: Jeba Boktiar Mondal (Presidency University , Bangalore)

The views of the author are personal only. (if any)

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