International Law and Justice Working Papers - IILJ

Whether those “subjective ideas” criticized by Bergbohm have disappeared from the doctrine
and practice of international law ever since Bulmerincq, is the question. Immersion of an
international legal text with politics can of course be regarded as professional failure. (This was
essentially Bergbohm’s judgment on Bulmerincq.) However, alternatively it may be a strategy of
argumentation, the strategy of positivism 156 or perhaps even of the whole international legal
discourse. The context of international legal texts indicates that such texts do not only aim at
presenting knowledge, they usually also attempt to persuade, take a stance, change the world.
International law is an argumentative framework in the context of historical struggles. One of the
ways of persuading and claiming authority with international legal arguments is emphasizing
“interest in disinteredness”. Therefore, Bulmerincq realized that to claim the distinction between
law and politics was essential for the authority of international law. International law developed
into a formalized, seemingly depoliticized language for addressing the world of political and
social struggles. Bulmerincq’s legal positivism freed from politics was politics disguised in
which politics appeared officially only as the politics of others. The fight against asylum or
social democratic or ultramontanist agitation, however, turned in Bulmerincq’s discourse quite
powerfully into international legal obligations.
The task of the future research is to trace the further historical development of the claim of the
separation of international law from the politics. Bulmerincq’s academic successors in
Dorpat/Iur’ev/Tartu made their own (sometimes painful and even tragic) experiences with
politics and developed their own stances regarding the paradigm “international law is not
politics”. Only after this material has been analyzed together, can further observations and
normative conclusions be drawn.
156 For going in this direction, see B. Kingsbury, Legal Positivism as Normative Politics: International Society,
Balance of Power and Lassa Oppenheim’s International Law, 13 EJIL 2002, pp. 401-436.