Paul Guggenheim, ‘What is Positive International Law’ in George A. Lipsky Law and Politics in the World Community: Essays on Hans Kelsen’s Pure Theory and Related Problems in International Law (University of California Press, Berkley and Los Angeles, 1953) pp. 15-30.
Paul Guggenheim was a Swiss Professor of International Law who dealt in-depth with aspects of positive law especially with regards the foundations and sources of international law and their relation with national legal systems. This essay appeared in George A. Lipsky’s Law and Politics in the World Community: Essays on Hans Kelsen’s Pure Theory and Related Problems in International Law (University of California Press, 1953). Guggenheim discusses a positive approach to international law and the limitations of the position of natural law. The context of this paper is the emerging doctrine of natural law as a response to the failures of positivism leading to World War II and in search for new foundations of law in particular in Germany and the Bonner Grundgesetz. Natural law also influenced, in this vein, discussions on the nature of international law at the time. Guggenheim recalls the virtues and need for positivism in international law and international relations shaped by powers.
In the essay ‘What is Positive International Law?’ Paul Guggenheim discusses whether international law realises an absolute legal value. In the first part Guggenheim sets out the position of natural law doctrine that international law derives its legal norms from the accepted norms of natural law and that without a natural-law basis, a large amount of international law can be incomprehensible. In this understanding international law should be considered part of natural law and be complemented by moral, natural-legal principles of law to support the execution of the general norms of general international law.
The natural law doctrine draws upon the fact that certain legal norms were not originally created as norms of positive international law but have only become part of the positive international legal order by reception. Guggenheim acknowledges that this is the case but states that judicial deliberations, rather than admitting a legal norm corresponding to an absolute legal value, look instead to one of juridico-political principles which are already present in various municipal laws. The international judge is merely filling in the gaps, from accepted norms, when the international norm is too vague as prescribed by positive law. Even in the cases where a tribunal or court gives a law-creating judgement they do so either by acting in a legislative function or by giving reasons that may not be explicitly part of international positive law but still allow for a judgement.
Guggenheim vehemently rejects this view that assumes that there are ‘facts in themselves’ stating that all facts of legal significance are established in a legal procedure. The norms contained in a general rule of law cannot be designated as the content of the positive law. The positive legal norm is created only when there is an authentic interpretation of the general rule by an act having the force of law. He also rejects the natural law doctrine according to which the highest organs cannot individualise the general norms of the highest level by acts having the force law without moral reinforcement as it proceeds from the incorrect presupposition that the lower organs could not commit delicts because their acts are subject to control by higher organs, before assuming the force of law. If they are illegal they are abolished and replaced by legal acts. Positive law is realised through the activity of the law-creating and law-applying organs. They individualise the general norms in the process of concretizing the legal order and at the very end take care of the administration of the individual norm at the lowest law-creating level.
In the second part Guggenheim turns to the sociological conception of international law which refutes the existence of general norms and places legal science akin to natural science, applying casual laws to law purely concerned with predicting individual decisions of the courts. The sociological view instead proposes a socio-psychological examination of the individual legal acts. The question as to the conformity or nonconformity of the individual legal norm with the general legal norm appears immediately for it is not possible to make the prediction without taking into consideration the general legal norm. The sociological jurisprudence reduces the meaning of a legal obligation to the statement that in the event of certain human behaviour contradictory to the will of those wielding power the one or the other consequence will probably follow, for instance the administration of a punishment or another coercive measure.
To explain the natural phenomena parallel to the content of the legal norms is of the greatest importance for political theory and the politics of law. The sociology of law to which belongs also the doctrine of international relations, presupposes knowledge of the content of positive law. The starting point of sociological jurisprudence are legal phenomena as determined by normative jurisprudence and not vice versa. It investigates the causes and effects of legally valid acts.
In the final part of the paper Guggenheim argues that positive law being created by human society is, as is to be expected, imperfect. The individual legal norms, created on the basis of general norms and to be executed immediately in legal reality, must therefore correspond to an effective normative idea. Once a norm is no longer respected then it becomes obsolete. It is not easy to make an inventory of the effective individual and superior general norms in view of the often disputed claim of validity and superior general norms. He argues that the scientific theory of positive law does not deny the possibility of natural law and the necessity of a sociological doctrine of law but it maintains that the knowledge gained through these theories is without any real significance for a theory directed at the autonomous structure of the positive law.
Finally, Guggenheim stresses that only rules of law which realise universally recognised values and interests can be included in the development of international law. Guggenheim concludes that positive law is by necessity secularised, religiously neutral law, in view of the manifold religious and ethical legal communities which constitute the society of nations.
You can find a scan (PDF) of the original text here: Guggenheim – What is Positive International Law (2)