Positivism, New Haven Jurisprudence, and the Fragmentation of International Law

This Article addresses the fragmentation of international law and international legal theory. This problem has become increasingly acute. As international interactions have increased exponentially among a broad range of domestic and international actors, the need to coordinate and regulate international actions has correspondingly intensified. Because actors cannot seem to agree on what international law is, consensus on applicable international laws and legal behavior often remains elusive. Using positivism and policy-oriented jurisprudence – two major theories of international law – as foci of inquiry, this Article demonstrates that the gulf between the two international legal theories are not really meaningful conceptual disagreements. Instead, they are differences about ontological and normative commitments that are anterior to conceptualizing about law, which this Article terms preconcept commitments. After identifying the nature of fragmentation between Positivism and policy-oriented jurisprudence, the Article suggests that these differences of preconcept commitments can be bridged, or at least revealed, if jurists and policymakers clarify semantically what they mean when they use the term law. This theoretical move may enable jurists and policy-makers to engage each other more meaningfully. By addressing the fragmentation of international legal theory in this manner, jurists and policy-makers may be able to understand each other better and work together more effectively to devise international laws and processes to prevent, address and rectify international problems