David Koepsell

Natural law is not dead, it has been naturalized. No longer is it dependent upon any particular ideology, theology or philosophy, and the implications it carries regarding justice, namely that there is such a thing and that it is achievable through substantive legal enactments, are more promising for the possibility of international law than the last 100 years or so of legal positivism.

Biography

David Koepsell is an author, philosopher, and attorney whose recent research focuses on the nexus of science, technology, ethics and public policy. He obtained his PhD in Philosophy as well as his law degree from the University of Buffalo. He has authored numerous articles as well as authored and edited several books, including Searle on the Institutions of Social Reality, co-edited with Laurence Moss, (Oxford UK: Blackwell 2003), Reboot World, (New York: Writer's Club Press 2003) (fiction), and The Ontology of Cyberspace: Law, Philosophy, and the Future of Intellectual Property. He has lectured worldwide on issues ranging from civil rights, philosophy, science, ontology, intellectual property theory, society, and religion. Koepsell has practiced law, worked for Bowstreet, Inc. as an ontologist in Portsmouth, New Hampshire, and taught at SUNY Buffalo. He was appointed Assistant Professor of Philosophy at TU Delft in 2008. He is an associate editor of Free Inquiry magazine. He is the co-founder, with Edward Summer, of Carefully Considered Productions, an educational media not-for-profit corporation.

Abstract

International Law and Legal Positivism 

There have been two contrary forces in the developing realm of international law for the past 60 or so years. Even while international bodies and treaty organizations have attempted to bring more nations under the rubric of their influence, for more reasons (encompassing more than trade, and now enforceable now to individuals), trends in legal theory both within and among various nations threaten to undermine the moral basis of international law. If there is to be a moral basis for developing common codes of acceptable legal rules, and if we are to have morally acceptable enforcement of those rules internationally, then the legal theory of positivism must be dismissed. Legal positivism rests on the evaluation of justice as the enactment, and means of enactment, of legal rules. It rejects the notion that laws and legal systems, in order to be just, must be founded upon ‘natural’, immutable principles. It is clear that if we accept the tenets of legal positivism, international law rests upon a very weak foundation. Given this, we should not only resist legal positivism as a valid or workable legal theory for purposes of pedagogy or national rulemaking, but endeavour to provide a substantial basis for valid rulemaking in the realm of international law.