Abstract
This paper is about two stories. The more reassuring one states that by establishing that a norm is valid because of its source, not its merit, legal positivism is, in its various forms, perhaps one of the greatest achievements in Western legal theory and practice. From constitutionalism to human rights policies, from criminal to international law and free trade agreements, from contracts to torts and e-commerce, legal validity, predictability, and coherence have found their most powerful ally in positivist thought. This contribution argues that it is time for a different, neorealist story: the metaphysical, ontological and biopolitical essence of its language demonstrates that legal positivism has in fact played a fundamental role in the substitution of action with behaviour, and consequently, in the normalisation of humankind’s self-annihilating animality as post-historical and post-political ‘form-of-(non-)living.’
Acknowledgements
I wish to thank Lael Weis, Jorge Emilio Núñez, Michael Gordon, Dominique Allen, Neera Bathia, and Benjamin Hayward for inviting me to the below initiatives, as well as all those who provided me with valuable suggestions. I am particularly grateful to Jorge Emilio Núñez, Michael Gordon, Julian Webb, John Morss, Lael Weis, George Duke, as well as to an anonymous reviewer for their constructive comments on earlier drafts. Errors are mine only.
Note
This paper was presented at the Legal Theory Workshop, held at Melbourne Law School on 11 March 2016, at the Juris North Discussion Group, held at Liverpool Law School on 3 February 2016, and at the Deakin Law School Research Forum, held at Deakin Law School on 9 October 2015.
©2016 by De Gruyter
