Chapter 17 Taming Politics or Naïveté of Positivism in International Law?: Lassa Oppenheim and His Ascertainment of Customary International Law

In: Politics and the Histories of International Law
Hirofumi Oguri
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Along with the ‘turn to historiography’ in international law, there has been a growing number of studies on the interaction between international law and history and its methodology as well as ongoing debate regarding the need to balance contextualism and anachronism. This chapter suggests that this dispute over methods (Methodenstreit) only concerns epistemic beliefs about the historical past, while all sides the share the understanding that positivistic methods of international law are marred by a naïve faith in the trajectories of state practices and treatises without due regard for their sources. With a case study of the identification of customary international law, it is argued that a well-equipped source criticism (Quellenkritik) is a possible way to reduce such ‘naïveté’. Because the ‘positivist’ but critical focus on the sources are not inevitably naïve, there is no need to resort to an untamed ‘politics’ of history writing.

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