This files deals with naturalism and positivism under Public International Law

1. NATURALISM VS POSITIVISM

2. Positivism- Meaning,assumptions,relation with
International law
Meaning: Positivism is derived from latin word “ positium” means posited.
Legal positivism is the thesis that the existence and content of law
depends on social facts and not on its merits.The english jurist John
Austin( formulated it.
According to John Austin , positive law has four elements :
command,sanction , duty and sovereignty.
Assumptions:
1) Positive declaration i.e. law must be expressed.
2) International law is created by sovereign states which are the subject of
international law.
3)It holds that law is effective even if it is unjust when measured against
some moral standard .

3. Legal positivism in international legal philosophy:
• Legal positivism became the dominant legal theory of 18th century and found its
way into international legal philosophy.
• Georg Friedrich , published the first systematic manual on positive international
law.
• During the 19th century positivist legal theory became even more dominant due to
nationalism and the Hegelian philosophy.
• Positivism narrowed the range of international practice that might qualify as law
,favouring rationality over morality and ethics.
• Criticisms : Positivist international legal theory includes its
 Its rigidity
 Its focus on state consent
 Without allowing for interpretation and
 The fact that it does not allow moral judgements regarding a
s state ‘s conduct as long asit follows international norms.

4. Naturalism- Meaning,Naturalists theory on
International law
MEANING :
A theory or practice in literature emphasizing scientific observation of life
without idealization and often including elements of determinism.
Varieties Of Naturalism Has Applications In Legal Philosophy:
• Conceptual analysis of the concept of law should be replaced by reliance on
the best social scientific explanation of legal phenomena.
• Normative theories of adjudication should be replaced by empirical
theories.

5. REPLACEMENT NATURALISM
NORMATIVE NATURALISM
SUBSTANTIVE NATURALISM
NATURALTHEORY OF LAW
LEGAL NATURALISM

6. NATURALISTSTHEORY ON INTERNATIONAL LAW:
• Lon L.Fuller gives some ways in which a law is to be recognised:
It must be made public or atleast an affected party must know the rules he is to
observe.
It must not be retroactive.
It must be easily understandable.
It must not be contradictory.
It must not be so frequently changed.
It must be expressed in general terms.
• Hugo Grotius was one of the pioneering naturalists.His theory was based
on the fact that customs already in existence and governing the relation
between nation were binding and had the force of law unless they are
contrary to the rule of natural justice
He aruged that even if we reject theological basis natural law, the ideas
are sufficently evident from reasons to follow them.

7. Difference between Naturalism and Positivism
Naturalism
Law whose content is set by nature and
has validity everywhere.
It can be though of as the idea that the
power of law does not come from voice
of authority.
Naturalism is based on a set of rules that
are of of universal and has objective
scope.
Naturalism concerns the under pinning
values of international society .
Positivism
• Law that is made by human beings.
• It says the authority is what makes the
law.
• Positivism is based on structured and
coherent legal system which is created
by the state.
• While positivism has the international
rules as such.