Positivism and the peace/power dialectic: feminist reflections in a transnational age

Human rights have often been described as the ‘morality of the law.’ Decades of feminist critique have exposed the foundations of law as deeply biased and patriarchal. And yet the idea that almost all legal philosophers are or should be positivists continues to hold sway in some quarters. The claim of this chapter is that the positivist paradigm of law, the idea that a law is valid if it emanates from a particular recognised source, provides a de minimis standard for the basis of legal relations and a starting point for critique, but offers little more. In this reductionist sense then it may be appropriate to state that everyone who engages with law is de facto a positivist. However, in an increasingly complex, diversified and pluralistic society where the transcendence of national borders and processes of globalisation neither recognise nor sustain state specific Grundnormen, legal positivism faces challenges and realities which will not and cannot leave the fundaments of the positivist paradigm unchanged. Rather, examination of the positivist paradigm through the transnational lenses of both human rights and feminist critique demonstrates that the metaphysical austerity lauded by proponents of the positivist position as a virtue, leaves it barren and inadequate to respond to the deep structural inequalities of the law. The patriarchal assumptions of the norms constituting the positivist paradigm must be challenged. The role played by human rights in providing the positivist position with a moral conscience and an opportunity to address not yet imagined atrocities and quotidian injustices in an increasingly globalised society must be critically analysed. In carrying out such a critical examination, this chapter conceptualises and historically establishes positivism at the apex of what is introduced as the peace/power dialectic. The conclusion is that whilst positivism as a historical methodology for peace may not have been (on a generous reading) malicious in establishing the economy of exclusions that it relies on, including gender, race, social class, sexuality and ability, the maintenance of the positivist position as legal truth and the position of power might well be.