Positivism, Law, and Spaces of Exception

By Jason MacLeod on March 3, 2011 — 2 mins read

Anghie stated in his book Imperialism, Sovereignty and the Making of International Law, “The philosophy of positivism provided the primary jurisprudential resource for the jurists of the late nineteenth century. In the naturalist scheme, the sovereign administered a system of natural law by which it was bound. Positivism, by way of contrast, asserts, not only that the sovereign administers and enforces the law, but that law itself is the creation of sovereign will. The sovereign is the foundation of positivist jurisprudence; and nineteenth-century positivist jurists essentially sought to reconstruct the entire system of international law based on their new version of sovereignty doctrine.” (Anghie 2005) (41).  What is fascinating to me about this passage and the book in general is the argument that international law, in large part, was created through colonialism.  It allowed for the advent of new law by distancing itself from divine law, which was normally applied through earlier colonial advances.  The bare lands, the un-claimed territories, the home of the uncivilized were the open arenas through which law could be applied, through force, in an innovative way.  The legal establishment that placed the uncivilized outside of its protections and rights was the creation of the colonizer (the lone sovereign) and its executor.

I’m surprised that Anghie did not bring up Giorgio Agamben’s theory of homo sacer and the spaces of exception.  The natives were placed outside of law, were subaltern, and could by killed with impunity, and in ways, it was geographical.  More than just the separateness of continents, but within the colonized territory itself, the colonizers could go where they pleased and if met with resistance, could kill whom they pleased.  Anghie states, “Vitoria’s scheme finally endorses and legitimizes endless Spanish incursions into Indian society…For example, Vitoria asserts that ‘to keep certain people out of the city or province as being enemies, or to expel them when already there, are acts of war”. (21).  In land where the sovereign is the only law maker, and the only sovereign is the colonizer, all laws will be generated by self-interest.  Especially when the colonizer perpetuates the antagonistic dichotomy of the other.

In the 18th and 19th centuries, these characteristics were expressed in distinct and despicable ways.  The binaries between civilized and uncivilized, god fearing and god-less, honorable and untrustworthy, not to mention many more, allowed the colonizers to apply legal rules and punishments to the colonized in ways they could never do back in Europe.  The self-created hierarchy allowed the colonizers complete power and control.  The military, economic power, and technology allowed them to kill with impunity.  The creation of the other and the associated binaries still exist today.  What avenues do we have to change the common perspectives most individuals have of the subaltern?  Is it only through education and travel that we can remove the masks both on “them” and on “ourselves”?

Anghie, A. (2005). Imperialism, sovereignty, and the making of international law. Cambridge, UK; New York, NY, Cambridge University Press.