Hans Joachim MorgenthauPositivism, Functionalism and International Law

Hans Joachim Morgenthau, ‘Positivism, Functionalism and International Law’ (1940) The American Journal of International Law, Vol. 34, No. 2, pp. 260-28.

Background

Hans J. Morgenthau is all but universally accepted as the ‘founding father’ of modern International Relations. Upon leaving Nazi Germany, he spent crucial years at the University of Geneva before emigrating to the United States. He was impressed with the failure of labour law in Nazi Germany which he encountered as a young attorney at law. His frustration with the reality of law and positivism led him to look at law in terms of power relations.  His work in the establishment of Realism challenged contemporary thinking regarding the relations between states and came to dominate both in study and in practice the subject throughout the 20th Century. The article Positivism, Functionalism and International Law was written whilst Morgenthau was Assistant Professor of Law and Political Science at Kansas University and is considered to be one of his breakthrough pieces of work.

Summary

Positivism, Functionalism and International Law is one of Hans J. Morgenthau’s most provocative attacks on international legal science. Written several years before his breakthrough textbook Politics among Nations the article viciously attacked legal positivists and international lawyers who were blind to the realities of the rules of international law. Morgenthau advocated an interdisciplinary approach believing that lawyers needed to recognise the ‘sociological context of economic interests, social tensions, and aspirations of power, which are the motivating forces in the international field’ (1940:269). In his later work Morgenthau concerned himself less with international law and more with the concept of power in international relations however this article remains a seminal work on international law and a valuable insight into the theoretical foundations of one of the 20th centuries leading international politics scholars.

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