Back to Basics: The Reawakening of Natural Law

by Mary Ellen O'Connell

In response to Will Fettes’s thoughtful comment: The problem is not with positivism per se but positivism alone. By the 1960s, certainly in the United States there was a view that only positive law theory explained law and positive theory relied on the existence of the usual legal institutions—with their absence on the international plane, positivists could not understand how international law could have authority, be created, etc. International law hardly seemed to be real law. Its existence might extend as far as the president’s consent but not beyond and that consent could be withdrawn. American legal theorists could hardly conceive of (and the torture memos do not mention) jus cogens or peremptory norms.

By contrast, the vast majority of international lawyers accept that there is a category of peremptory norms, norms that may not be changed by treaty. These norms are demonstrably not norms created by positive acts and are powerful evidence that aspects of international can only be explained through natural law theory.

In Power and Purpose, I present other evidence of the importance of natural law to international law: the basis of international law authority and important general principles of international law such as good faith and proportionality. International law has always had some hardy scholars who were never too shy to write about natural law, but too often, we have only whispered about it, accepting the need for it to explain jus cogens or general principles, but, always hoping not to appear less scientific than our domestic law colleagues.

Stephen Smith’s account in Law’s Quandary of the crisis in domestic jurisprudence may be freeing domestic legal theorists to accept the role of natural law theory in grounding domestic legal authority and the higher norms of domestic law. His book may free international lawyers, too.

In addition, the post-modernists have challenged us to move beyond the fetters of materialism and the application of Enlightenment scientific method even to our ideational constructs such as law.

This is not to say it is all natural law. In my view, natural law explanations account for some essential aspects of law but natural law theory from Aquinas forward has always recognized that most of the law is positive law. And as I describe in the book, the higher norms are most reliably found when authoritative courts and tribunals look to evidence in the common law for what the community’s higher norms are. I do not see concepts such as the “common good” as more than inspirational—the common good concept is far too limited by subjectivity to be a reliable source of universal law.

Natural law is essential to both provide an explanation of legal authority and the outside governor on the positive law. Where I believe the work of theory needs to go next is in developing a richer theory of international legal process for identifying and applying jus cogens and general principles.

In the next post, I will discuss the jus cogens prohibition on aggression and show how the authoritative processes of international law are best means of clarifying the dimensions of this norm.

One Response

  1. This is great stuff, thank you for your reply.

    I should probably say I am torn here, as I acknowledge your arguments, but my sympathies are still broadly in the positivist camp.

    I find myself unable to avoid Raz’s argument that the authoritative function of law would be in danger if we violate the separability thesis. That is, I have trouble with the idea that law can fulfil law’s function if we collapse the difference between our legal rules, principles, and underlying rule of recognition, with a contestable morality. So, that cautionary point makes we very wary of any philosophical missteps here in our rush to embrace non-derogable norms.

    However, I do concede that the peremptory force we attach to certain erga omnes obligations, under the banner of jus cogens, can only really be captured if we acknowledge that the strongest purely positive conception is deficient as you have so deftly explained Professor.

    That conception would theoretically commit us to displacing these fundamental norms with any later-in-time positive law, which clearly misses the categorical nature of the norm. So even if we could accept that the content of jus cogens were established by positive consensus, which is an assumption that itself may involve conceptual confusion, the requisite peremptory character of the norm would not obtain under any system which simply allowed us to licence derogation through a new positive legal regime of norms.
    I don’t know, however, that this means a more qualified positivist rule of recognition can’t do the job. I want to argue here that natural law ontology certainly plays a key role in describing the origination of the norm, but it must still must be ratified and recognisable in positivist terms. It’s just that it must not be revocable – so there are no “backsies” as it were. Therefore, this process of recognition cannot be a normal kind of dynamic positivism, instead it is closer to a constitutional form of norm recognition – which is posited in a cemented form.

    I admit I’m actually ignorant of the “process theory” scholarship being referred to here. Perhaps someone can recommend some related reading? But I’m wondering whether this is just a sneaky way of blurring a positivist rule of recognition with a natural law source by having ratification by the judicature play a quasi-rule of recognition type role?

    One thing I’ve always liked about IL is that you can go to the ICJ Statute and the VCLT and you have clearly defined sources. So notwithstanding the problems of decentralised enforcement inherent to IL, even as a positivist I have never been turned off public international law as if it did not have adequate rules of recognition. It was just more flexible about what could be incorporated – eg. the secondary source of publicist writing.

    Anyway, thanks again for illuminating this important issue. I think it’s clear I have more thinking to do on this subject. I will definitely be purchasing your book Professor.

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