This chapter criticizes the aversion to metaphysics, which essentially governs the whole history of the sources of international law. Ludwig Wittgenstein’s logical positivism and anti-metaphysics had paved the way to legal positivism, which took a new pathological turn with Hans Kelsen’s and Carl Schmitt’s fixation on ideological purity. Moreover, international legal positivism means acquiescence in coercive international relations. And the history of international law is one of continuing coercion, rooted in the racial shadow of liberalism. The chapter thus offers a critical discussion of the theory of legal obligation in Emer de Vattel, the place of imperialism in the history of international law, and the continuing mainstream discussion of unequal treaties. It then revisits the history of international law through the prism of phenomenology, thereby re-introducing the Aristotelian metaphysics of justice to the theory of international law.
Anthony Carty Professor of Law at the Beijing Institute of Technology, School of Law, China.
Anna Irene Baka, Legal Officer at the Greek National Commission for Human Rights, and Ph.D. from The University of Hong Kong.