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