Legal positivism is the proposition that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin formulated it as following: “The existence of law is one thing; its merit and demerit another.”

Austin defines ‘law’ as “a rule laid down for the guidance of an intelligent being, by an intelligent being having power over him.”¹ In this positivist view, positive meaning ‘empirical,’ rules are defined as commands backed by the threat of a sanction in the case of disobedience. Per Austin, “whether a given norm is legally valid, and hence whether it forms part of the law depends on its sources, not its merits”. ²

The enforcement argument put forward by positivists is that, for law to exist there needs to be punishment. For instance, punishment in the international level may consist of diplomatic penalties or other legally imposed sanctions such as economic penalties and limitations of rights. In fact, D’Amato supports that international law is governed by the reciprocal entitlements argument. Hence, in the situation of the Iran hostage crisis in 1979, Iran deprived the US of its entitlement to diplomatic immunity and as a response, the US imposed economic sanctions. The positivist view necessitates that law is obeyed by force, by the understanding that any violation will be dealt with a powerful sanction.

Such a view though, has suffered extensive critisism. D’Amato for instance advocated that people normally obey the law out of a sense of moral obligation. According to him, coercive enforcement does not play a major role in ordinary compliance with law. Moreover, as Judge Marshall observed in the landmark US Supreme Court Case of Marbury v Madison,³ the law can recognise a right that has no real remedy attached. Nevertheless, it should be stated that the Legal positivists do not necessarily believe that a legal system only exists if its subjects comply out of fear of enforcement. Instead, it can be stated that the supporters of Legal positivism are agnostic on why the citizens obey the law. Their primary requirement however for any legal system to exist, is to include and benefit from certain enforcement mechanisms.

It could be argued for instance, that an enforcement mechanism is present in international law, by virtue of international institutions such as the United Nations (UN) and the International Court of Justice (ICJ). Though, the existence of power asymmetries inside the UN hinders the resolution of disputes and the enforcement of sanctions. The permanent five UNSC members can veto any resolution they find displeasing, leading therefore to the paralysis of the UNSC as a mechanism capable of producing a response in those situations. For instance, after the annexation of Crimea by Russia there could be no official action for its illegality as Russia was vetoing the UN resolutions.⁴ Economic sanctions have been imposed however, which would fit Austin’s idea that the reciprocal entitlements argument has been adopted in the international law.

Moreover, the ICJ produces binding rulings based on conventions, customs and general principles of law. However, they are only binding between states that consent to submit to the ruling of the Court (Art.94 ICJ Statute). Its reliance on consent being exploitable by major powers, as illustrated in Nicaragua v US, ⁵ where the US withdrew from compulsory jurisdiction after the ICJ found USA’s covert war in breach of international law.

It therefore appears that the enforcement of international law occasionally rests on social/state disapproval and reciprocity, as other measures cannot be always attained, mainly because of structural difficulties within the international institutions.

1. J. Austin, The Province of Jurisprudence Determined, (Cambridge: Cambridge University Press, 1832)
2. A. D’Amato, A Few Steps Toward and Explanatory Theory of International Law (2010), Faculty Working Papers, No.90
3. 5 U.S. 137 (1803)
4. Foreign & Commonwealth Office, UK Responds to Russia’s Security Council veto on Ukraine Resolution, 2014
5. Nicaragua v The United States of America (1986) ICJ 1