Positivism

ADVENT AND EVOLUTION OF SOCIOLOGICAL POSITIVISM

MAIN PHILOSOPHICAL TENETS OF JURISPRUDENTIAL POSITIVISM

BIBLIOGRAPHY

There are two uses of the term positivism in the social sciences, one derived from sociology, the other from jurisprudence, especially international law. In sociology, positivism was a broad movement of European thought during the second half of the nineteenth century. The name derives from the fact that thinkers returned to the appreciation of positive facts so as to restore the world of nature, which idealists had reduced to a mere representation of the ego. Positivism placed greater stress on immediate experience and on the data obtained through the senses.

In jurisprudence, positivists emphasize textual analysis, in contrast to naturalists, who take treaties and other texts as a starting point for determining the guiding principles of the day. However, if there is no text and a new or revised rule of customary international law is advocated, naturalists are likely to emphasize the actual consequences of the new practice, while positivists underscore intent or motive. This is the opposite of the situation faced in textual analysis. One could imagine situations in which the claim is made that the text should be ignored in favor of a new customary principle. Where there is a conflict between positive law and customary principles, naturalists argue that the customary law claimed to exist should prevail. However, naturalists are also likely to argue that principles can be used to interpret provisions in such texts as the UN Charter, which would reduce the probability of a conflict with custom.

Positivism flourished in Latin America as nowhere else, not even in France, where it was first developed by Auguste Comte (1798–1857). It met the needs of many Latin American intellectuals who rejected Spanish and Portuguese culture and were trying to prove their independence by adopting French ideas. They considered Catholicism as a tool of Spanish imperialism, which had kept Latin America in a state of amoral, chaotic backwardness. Positivism called for progress, discipline, morality, and freedom from the tyranny of theology. The positivists rebelled against the spiritualist metaphysics shared by deists and Catholics. This rebellion turned them into agnostics and sometimes even into atheists.

ADVENT AND EVOLUTION OF SOCIOLOGICAL POSITIVISM

The sociological use of positivism emerged in France under Comte, evolving from English empiricism, which argued that experience was the only source of human knowledge. The new school of thought held that reality mechanically evolves from inferior forms until it attains consciousness in humans. According to Comte, historical observations on the process of human society show that humans have passed through three stages. First was the theological state, in which nature was mythically conceived and the individual sought the meaning of natural phenomena from supernatural beings. Second came the metaphysical stage, in which nature was conceived of as a result of obscure forces and the individual sought to explain natural phenomena from them. Third came the positive stage, in which all abstract and obscure forces are discarded and natural phenomena are explained by their constant relationships. Comte extended the law of the three stages to include all reality.

Jurisprudential positivism emerged in the nineteenth century and gained influence in the twentieth century because of the tendency to replace customary or natural law with statutory or treaty law. In international law, positivism gained even more influence after the 1945 UN Charter. Positivists argue that the charter, and law generally, should be treated as a constitution that, following the model of H. L. A. Hart (1961), establishes “primary” rules (to make rules) and “secondary” rules based on them that establish particular policies and principles, including, but not requiring, conceptions of justice and other issues of substance. In international law, if treaties are read loosely, or principles are imputed or inflated, or customs are claimed rather than observed, positivists feel that the consent required for law to exist on the basis of explicit rules does not exist. Furthermore, in specific applications, motives matter in order to assure that the community of nations agrees. Because motives are difficult to know, the presumption of positivists is that consent for actions against prevailing interpretations of legal doctrine must be unambiguous for law to deviate from claimed fundamental principles. Opposition to what is clearly the intent of positive law as expressed in texts is normally a sign of illegality.

Sociological positivists did not follow exactly the same course in the Latin American countries. Positivism was most influential in Brazil, whose elites studied French and visited Paris, where they came to admire everything French. By the end of the nineteenth century these elites wanted to import or copy everything they associated with France. At the time, positivism became particularly important in Brazil’s technical schools and military academies, where many middle-class children studied. Comte’s emphasis on progress through gradual change appealed to Brazil’s new elite, who saw positivism as a way of incorporating themselves into the national elite without threatening the social order on which the old elite depended. They were attracted by the idea of using military and government officials to plan economic development for progress and industrialization. They believed that by expanding economic opportunities and education, they could incorporate the disenfranchised into society without the need for widespread social or political change. Furthermore, in positivism they saw the possibility of ending foreign economic domination and colonialism in Brazil.

MAIN PHILOSOPHICAL TENETS OF JURISPRUDENTIAL POSITIVISM

Jurisprudential positivism, following a line of jurisprudence that has included the theories of Vattel, Zouche, Kelsen, and Hart, emphasizes legal rules and consent in the relations of states. Rights and obligations about rules and principles are based primarily on the words in treaties. Based on the empiricism of Locke and Hume, positivists in international law, such as Humphrey, the principal author of the Universal Declaration of Human Rights, Schachter and Henkin among lawyers and Donnelly among political scientists, have argued that rules take precedence over claimed principles or unprecedented customs of states. Without observable experience or consent, validating customs after the fact betrays self-serving, perverse incentives besides nullifying the original intent of primary rules.

Jurisprudential positivists cite three UN Charter articles that make humanitarian intervention presumptively illegal. First, Article 39 of Chapter VII limits coercion sanctioned by the United Nations Security Council (UNSC), whether by the UN or by the armies of member states, in three situations: a “threat to the peace, breach of the peace, or act of aggression.” Taken literally, Article 39 (and the title of Chapter VII) does not apply to a country that is killing its own citizens but not threatening or attacking other countries. Second, positivists might also argue that unilateral humanitarian intervention would usually be illegal because of Article 2(4), except either when the UNSC finds an Article 39 situation, as indicated above, or for individual or collective self-defense to armed attack under Article 51. Article 2(4) names only three situations in which a state may not threaten or use force: (1) against the territorial integrity, or (2) political independence of any state, or (3) in any manner inconsistent with the purposes of the United Nations.

Jurisprudential positivists define a violation of territorial integrity as an armed attack on another state and a violation of political independence as a de facto partition or loss of sovereignty over part of a country. Donnelly calls for “positive non-intervention” to respect UN Charter Article 2(7)’s intervention prohibition and encourage uninhibited criticism. “Nonintervention” means only the renunciation of “intervention,” in the strict sense of coercive interference. International human rights, however, are an appropriate subject for the exercise of international influence. Inaction in the face of human rights violations is not only morally inappropriate, it is in no way required by international law.

Some positivists, such as Schachter, would permit armed humanitarian intervention for great emergencies and with a consensus among the five permanent members of the Security Council. In commenting on UNSC Resolution 688 regarding northern Iraq, he notes that the council could invoke the Chapter VII enforcement procedures, at least if there is some threat to international peace as well. Others, such as Henkin, might be willing to forgo UNSC authorization to authorize force to stop mass murder, but not in the face of a likely veto. Positivists might be divided on whether to insist upon a consistent standard for legal humanitarian intervention or to permit it where it is politically possible. As Henkin (1991, p. 41) suggests, “The Charter does not prohibit humanitarian intervention by use of force strictly limited to what is necessary to save lives.” He would presumably not accept humanitarian intervention if a UNSC consensus was absent or if a unilateral intervention were to change national boundaries or replace a government: “It has not been accepted, however that a state has a right to intervene by force to topple a government or occupy its territory even if that were necessary to terminate atrocities or to liberate detainees.” Henkin also opposes using force to promote democracy, as do his ideological opposites, Franck and the Reagan administration.

SEE ALSO Comte, Auguste; Economics; Empiricism; Friedman, Milton; Hume, David; Imperialism; Jurisprudence; Locke, John; Logic; Methodology; Naturalism; Philosophy of Science; Realist Theory; Religion; Social Science; Sociology

BIBLIOGRAPHY

Damrosch, Lori Fisler. 1991. Commentary on Collective Military Intervention to Enforce Human Rights. In Law and Force in the New International Order, ed. Lori Fisler Damrosch and David J. Scheffer, 215–223. Boulder, CO: Westview.

Donnelly, Jack. 1992. Humanitarian Intervention and American Foreign Policy: Law, Morality and Politics. In Human Rights in the World Community: Issues and Action, ed. Richard Pierre Claude and Burns H. Weston, 307–320. Philadelphia: University of Pennsylvania Press.

Franck, Thomas M. 1992. The Emerging Right to Democratic Governance. American Journal of International Law 86 (1): 46–91.

Hart, H. L. A. 1961. The Concept of Law. Oxford: Oxford University Press.

Hawkins, Richmond Laurin. 1938. Positivism in the United States (1853–1861). Cambridge, MA: Harvard University Press.

Henkin, Louis, Stanley Hoffmann, and Jeane J. Kirkpatrick. 1991. Right v. Might: International Law and the Use of Force. 2nd ed. New York: Council on Foreign Relations Press.

Humphrey, John P., and Ronald St. John MacDonald. 1979. The Practice of Freedom; Canadian Essays on Human Rights and Fundamental Freedoms. London: Butterworths.

Lenzer, Gertrude, ed. 1998. Auguste Comte and Positivism: The Essential Readings. New Brunswick, NJ: Transaction.

Mill, John Stuart. 1961. Auguste Comte and Positivism. Ann Arbor: University of Michigan Press. (Orig. pub. 1865)

Schachter, Oscar. 1991. United Nations Law in the Gulf Conflict. American Journal of International Law 85: 452–473.

Woodward, Ralph Lee, Jr., ed. 1971. Positivism in Latin America, 1850–1900: Are Order and Progress Reconcilable? Lexington, MA: Heath.

Zea, Leopoldo. 1974. Positivism in Mexico. Trans. Josephine H. Shulte. Austin: University of Texas Press.

Henry F. Carey