Natural Law Skepticism

by Chris Borgen

In working through an explanation for the source of international law’s authority in the international community, Mary Ellen O’Connell describes the important role of positive law but also shows its limits. For example, it is very hard to imagine a serious contention that it is somehow possible to legalize genocide or slavery through the mere fact of enacting positive law. As Mary Ellen explains, there would be a general agreement that such laws—in whatever country they existed—would be invalid. In effect, they would be trumped by something prior to positive law. This is the realm of natural law or, to use a relatively recent synonym, jus cogens.

But, as Mary Ellen rightly notes in The Power and the Purpose,

The classic problem associated with natural law is, Who decides? How do we avoid the natural law answer being the subjective opinion of any one person—scholar, judge, world leader? Contemporary natural law theorists have responded to this problem, especially through the concept of the common good as an objective answer for natural law principles.

Mary Ellen, however, offers an additional explanation based on legal process theory.

I agree that a workable concept of natural law could bolster international law by defining a set of rules that were above and beyond the power of states. However, I am skeptical that such an enterprise is politically feasible beyond a very narrow set of rules (such as those mentioned in the first paragraph). In short, I am a natural law skeptic in all but a very few instances. Here are my reactions to Mary Ellen’s argument…

In her recent post, Mary Ellen mentioned that one first response to the question of defining natural law is based on the “concept of the common good as an objective answer.” However, she seems somewhat dubious of this approach:

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.

As this is not the argument on which she focuses, so I will not spend much time on it here. I will simply say that I agree that the idea of the “common good” is itself a term that can be vastly different in different societies. I will note that my concern may be more pronounced than Mary Ellen’s because, as I argued in this article, varying societies disagree not just over the definition of the common good, but over the content and function of international law as well. This can either deny the existence of universal norms or, at best, define a very thin and wispy set of universalities that are subject to significant local interpretation.

The issue of interpretation brings us to what is the focus of Mary Ellen’s argument. She turns to a legal process-based response to the question of who decides what is natural law. Part of her answer in The Power and the Purpose is that international courts can and should play a leading role in defining natural law:

Dinah Shelton… confirms that courts are already playing the role of identifying higher norms outlined here. In decisions concerned with jus cogens, she points out that the European Court of Human Rights and the Inter-American Court of Human Rights are making these determinations presently. The European Court of Justice may in the future… The International Criminal Tribunal for Yugoslavia held that a jus cogens norm against torture was superior to national law… (pp. 142-43)

But doesn’t this lead straight back to the problem of international law’s democracy deficit? Relying on international courts to settle issues of interpretation of treaties (by which states have consented to be bound) or to apply customary international law (which can be defined through objective factors such as state practice, opinio juris, etc.) does not lead to the same problems as relying on international courts to define “higher” laws, which are neither consensual nor derogable.

My concerns are compounded by Mary Ellen’s argument that the function of natural (nonconsensual, nonderogable) law is to limit the application of positive law. While this seems fine in certain relatively easy cases (no genocide, no torture), what happens when international tribunals start to define jus cogens norms that are more contested? For example, what happens when international courts begin to spell out a norm of what is or is not aggression (as a matter of jus cogens, not just treaty law) when there is disagreement among states as to whether and how such a term should be defined as a matter of law? (I believe this is a topic to which Mary Ellen will be turning in a later post.)

Despite the theory that jus cogens is some form of higher law, isn’t it in practice a set of rules for which there is a broad consensus and which, as a matter of political will, the majority of the states in the world have decided to enforce? Prior to such a consensus, acts which are now prohibited (possibly) by jus cogens (take the ban on torture) were once quite widespread. If jus cogensis, at its core a function of consensus and political will, then leaving the definition of jus cogens to courts would actually weaken it. And, if this description of jus cogens is correct then it is notactually natural law, in the classic sense, but a version of voluntarist law in which there is a consensus among the parties who accept the norm to also enforce the norm on members of the international community who do not consent to the norm.

While there is such broad consensus on a few topics (and thus jus cogens norms in those areas), international courts are not the best means by which to attempt to define or expand jus cogens as they are not good reflections of the political will of the international community. If they overstate what is jus cogens, they undercut the very concept. Natural law as jus cogens is cabined by political will.

As I understand her argument, Mary Ellen views natural law as having an important but only a secondary role in the further evolution of international law. I agree that it is of secondary (or tertiary) importance but I am also skeptical as to the possibilities of its expansion. Rather, I think the power of international law comes primarily from openly agreed-upon texts (and secondarily from custom) and the most effective role for international courts is to resolve disagreements over the interpretation or application of those texts. To go beyond that is not to buttress international law, but to skate on thin ice.

http://opiniojuris.org/2008/11/18/natural-law-skepticism/

5 Responses

  1. I’m really glad to see this discussion — I think it’s an important topic, and Prof. O’Connell has written some papers that I found very admirable.

    A few questions for you Chris…

    1) Would you agree that natural law is primarily concerned with prohibitions?

    2) Isn’t language itself “a set of rules for which there is a broad consensus” and aren’t logical fallacies, in effect, ultra vires?

    For example, one couldn’t write a law requiring that 1 + 1 = 3.

    3) Isn’t it clear that the US Constitution embodies a presumption of natural law and that all of the writers on the the subject assumed that it derived from reason and / or god?

    I’m thinking here self-evident truths and unenumerated rights, and of Locke’s notion of an “appeal to heaven”.

  2. Thanks for your questions, Charly. Here are some thoughts in response.  I’ll use your third question as a way into the issues:

    Isn’t it clear that the US Constitution embodies a presumption of natural law and that all of the writers on the the subject assumed that it derived from reason and / or god?

    Well, yes, the Founders spoke a great deal of natural law and the founding documents reflect the language of natural law (moreso in the Declaration of Independence than the Constitution) but then again, the same people who wrote that “all men are created equal” also bought and sold some of those men (and women) as slaves.

    This gets to my point about international law/ jus cogens: unless there is actual political will to support the pronouncements of natural law, they remain essentially philosophical ideals, not operational law.

    For all the difficulties of “operationalizing” natural law as understood by the founding fathers, consider how much difficult this process becomes when we try to achieve an understanding across states, nations, and cultures as to (a) whether a “higher” law exists and (b) what is the substance of that law.

    That is why the crux of my argument is that when we talk about jus cogens we are actually talking about about areas of broad political consensus (which states are will to enforce on other states that are not part of the consensus), as opposed to talking about how to discern an externally ordained higher law.

    Mary Ellen sets aside trying to use the approach of defining a single conception of the “common good” across these disparate politcal communities. However, my concern is that the legal process approach, which puts a great deal of weight on the work of international tribunals, does not foster the required consensus. And, for a critique of the national court side of the equation, see Deborah Pearlstein’s recent post. 

  3. Hi Chris

    Yes, I think I prefer this necessary role for “operationalising” in the legal realisation of these norms than simply trying to have a fuzzy natural law exception to our otherwise positive rule of recognition. Whatever the problems of operationalising, it must be better than such an explicit violation of the separability thesis.

    I argue in the comments section of Mary Ellen’s previous post that the positive aspect of any operationalising could be functionally characterised as a non-revocable constitutional form of norm recognition – which is just a stronger form of the one-way logic used when custom binds non-persistent objectors. Is that a fair conception do you think?

    As for the legitimation process, in legally realising the norm, I think you’re right that it is broad political consensus doing all the work here. So you’ve got to tie that into the positive ratification process somehow. Perhaps a purely judicature-based process cannot express this without a democratic deficit as you argue.

  4. Re: “political will”–If we consider the ratification of human rights norms (and, in some measure, ‘operationalization’) in the last century I think we’ll see that many of the same kind of skeptical arguments raised here were raised then and looking back one can’t help but recognize if not be gratified by the kind of progress made, all out of proportion to what positivists or “realists” and their ilk would have imagined possible (or desirable for that matter).

    The fact that there was a gap between what the Founding Fathers articulated in theory and acted in practice did not foreclose the possibility that future generations could (and did) act to close that gap, a possibility allowed by the “ideal” formulation of natural law principles (in other words, a moral critique of practice not measuring up to the ideal was always possible and providing, in effect, the requisite motivation for political action/rectification). Furthermore, skepticism seems an inevitable by-product of a certain kind of identity politics (either the descriptive appreciation of salience or the normative claim of importance), the power of which may be waning.

    I think the problem of “operationalization” becomes (or is) to some extent a self-fulfilling prophecy, in other words, the problem is exaggerated to a considerable degree. Natural law principles can be agreed upon or at least argued for, from premises found in quite disparate worldviews and philosophies, both religious and secular. This certainly has been the case with human rights norms, as different peoples and cultures have come to justify or sanction them, despite reasoning from rather disparate metaphysical presuppositions and assumptions, some of which may be unique to specific worldviews and traditions. The notion of a “higher” law beyond positivist formulation does seem to have an almost universal appeal even if it is rather inchoate or intuitive. Consensus or agreement about the legal and political significance and worth of ideals comes with rhetorical appeal, social and political debate and struggles such that the current state of affairs characterized by lack of consensus is seen for what it truly is: relative and contingent, not carved in stone, and thus may be overcome. The philosophical ideals of the French Revolution or of democratic constitutionalism did not remain ideals plain and simple but were in varying degrees realized, instantiated, achieved, in the bosom of time; it would seem a similar scenario might be envisioned for jus cogens or natural law norms. Consider, for instance, the virtually universal acceptance of the notion of human dignity. Why and how did this occur?

    The fact that there is disagreement on the margins about what counts as a jus cogens norm should not be fatal to the enterprise of articulating those norms or conducting rational debates as to what precisely those norms are.

    It is, I think, misleading to discuss the discovery or formulation of natural law principles as a process of “how to discern an externally ordained higher law,” as this conception appears to assume a Catholic (or at least Christian) conception of natural law. It is human beings, using the powers of reason and moral intuition, who can be said to determine the content and scope of natural law, much like the Stoics did in ancient times (nothing was ‘externally ordained’ in their model). As a former teacher explains, “Natural Law has often been articulated with a stress on features that seem to be defined with dogmatic certainty, but essentially it expresses a deep wonder, reverence, and agnosticism as to the unknown possibilities of human growth. It provides the needed critical distance from the dogmas of historicism, empiricism, and positivism (with their disguised metaphysics concerning the meaning of history, the finality of sense-experience, and the intelligibility of ordinary language within a particular social and legal system, culture, or polity at any given time).”

    As for the “operationalization” question in particular: “The argument that the concept of Natural Law is empty of operative force rests upon the view that since the term ‘law’ must be defined in terms of physical sanctions enforceable within the polity, consequently, the dependence of Natural Law upon theological, transcendental, or non-physical sanctions deprives the concept of the status of ‘law.’ But even positive law, though backed by coercive authority, relies for its effective and continuing operation upon a large measure of conformity, upon social sanctions, public opinion, and the internalization of externally determined obligations [Brian Tamanaha, if I'm not mistaken, has helped us of late to appreciate this, along with recent work on social norms generally]. This internalization is not merely a matter of civic status but reflects, however dimly and intermittently, a recognition of the moral stature of man and the conduct appropriate to a rational and self-conscious agent, endowed with a measure of free will and capable of choosing, deciding, assenting, and withdrawing support.”

    I suspect that “the seeming weakness of Natural Law is, in fact, its real source of moral strength and significance. Its operative force depends very much upon the extent of self-awareness and the degree of humanity which men show themselves capable of and seek to attain in a given community.”

    “To negate legal positivism,” as Natural Law does, “is to increase the meaningfulness of law and at the same time diminish the excessive worship of concretized law which claims too much. This is important in politics because it has a bearing on the sovereign state and the larger community. To see beyond legal positivism is to assert the ceaseless relevance of moral principles and rational assessment. We also need to see beyond existing legal systems. No logical system can be confirmed or interpreted from within itself. If any logical system is applied to social life or extracted from legal structures, it can only be applied by human beings through their exercise of voluntary thinking, reasonable interpretation, and seeing relevance in relation to examples, variables, and features in complex situations. Further, social norms may not be seen wholly in terms of any one simple view of how they are acquired, whether through developmental ethics, mechanistic sociology, or behaviorist psychology. The argument that the concept of Natural Law is empty of precise connotation rests upon the view that the terms used in Natural Law are too ambiguous to be capable of authoritative and agreed interpretations. It is true that the concept has been formulated at different times in a variety of ways, and that it has been put to contrasted and contradictory uses in the course of history. However, empirical terms may have an open texture, especially terms like ‘coercion’ and ‘compliance,’ which are critical to positive law. No doubt, the concept of Natural Law has a considerable degree of open texture as do most political and social concepts. The difference is one of degree rather than of kind. It is not possible to lay down in advance the limits to human self-awareness or to the enrichment and articulation of man’s images either if his own true nature or the cosmic order of which he is an integral part.”

    Recent cosmopolitan moral and political theories as well as moral theories of international or transnational law (including theories of global distributive justice) have come quite close to renewing the moral and political value of Natural Law: I’m thinking here of the work of Allen Buchanan and David Golove, Kwame Anthony Appiah, Martha Nussbaum, and Simon Caney, in particular, although only Nussbaum is explicit about the affinity of her “capabilities” approach to the pre-contractarian Natural Law tradition. Perhaps, in the end, we’ll have Natural Law theories under a different guise, meaning they’ll simply not call themselves Natural Law theories however much they effectively resurrect the essential moral and political virtues of the Natural Law tradition. We can decide to emphasize the nobler elements and potential of our shared humanity.

    I’ve hardly addressed all of Chris’s concerns here but perhaps Mary Ellen will attempt to do that (or I may find the time to do so in the near future).

  5. Re: “political will”–If we consider the ratification of human rights norms (and, in some measure, ‘operationalization’) in the last century I think we’ll see that many of the same kind of skeptical arguments raised here were raised then and looking back one can’t help but recognize if not be gratified by the kind of progress made, all out of proportion to what positivists or “realists” and their ilk would have imagined possible (or desirable for that matter).

    The fact that there was a gap between what the Founding Fathers articulated in theory and acted in practice did not foreclose the possibility that future generations could (and did) act to close that gap, a possibility allowed by the “ideal” formulation of natural law principles (in other words, a moral critique of practice not measuring up to the ideal was always possible and providing, in effect, the requisite motivation for political action/rectification). Furthermore, skepticism seems an inevitable by-product of a certain kind of identity politics (either the descriptive appreciation of salience or the normative claim of importance), the power of which may be waning.

    I think the problem of “operationalization” becomes (or is) to some extent a self-fulfilling prophecy, in other words, the problem is exaggerated to a considerable degree. Natural law principles can be agreed upon or at least argued for, from premises found in quite disparate worldviews and philosophies, both religious and secular. This certainly has been the case with human rights norms, as different peoples and cultures have come to justify or sanction them, despite reasoning from rather disparate metaphysical presuppositions and assumptions, some of which may be unique to specific worldviews and traditions. The notion of a “higher” law beyond positivist formulation does seem to have an almost universal appeal even if it is rather inchoate or intuitive. Consensus or agreement about the legal and political significance and worth of ideals comes with rhetorical appeal, social and political debate and struggles such that the current state of affairs characterized by lack of consensus is seen for what it truly is: relative and contingent, not carved in stone, and thus may be overcome. The philosophical ideals of the French Revolution or of democratic constitutionalism did not remain ideals plain and simple but were in varying degrees realized, instantiated, achieved, in the bosom of time; it would seem a similar scenario might be envisioned for jus cogens or natural law norms. Consider, for instance, the virtually universal acceptance of the notion of human dignity. Why and how did this occur?

    The fact that there is disagreement on the margins about what counts as a jus cogens norm should not be fatal to the enterprise of articulating those norms or conducting rational debates as to what precisely those norms are.

    It is, I think, misleading to discuss the discovery or formulation of natural law principles as a process of “how to discern an externally ordained higher law,” as this conception appears to assume a Catholic (or at least Christian) conception of natural law. It is human beings, using the powers of reason and moral intuition, who can be said to determine the content and scope of natural law, much like the Stoics did in ancient times (nothing was ‘externally ordained’ in their model). As a former teacher explains, “Natural Law has often been articulated with a stress on features that seem to be defined with dogmatic certainty, but essentially it expresses a deep wonder, reverence, and agnosticism as to the unknown possibilities of human growth. It provides the needed critical distance from the dogmas of historicism, empiricism, and positivism (with their disguised metaphysics concerning the meaning of history, the finality of sense-experience, and the intelligibility of ordinary language within a particular social and legal system, culture, or polity at any given time).”

    As for the “operationalization” question in particular: “The argument that the concept of Natural Law is empty of operative force rests upon the view that since the term ‘law’ must be defined in terms of physical sanctions enforceable within the polity, consequently, the dependence of Natural Law upon theological, transcendental, or non-physical sanctions deprives the concept of the status of ‘law.’ But even positive law, though backed by coercive authority, relies for its effective and continuing operation upon a large measure of conformity, upon social sanctions, public opinion, and the internalization of externally determined obligations [Brian Tamanaha, if I'm not mistaken, has helped us of late to appreciate this, along with recent work on social norms generally]. This internalization is not merely a matter of civic status but reflects, however dimly and intermittently, a recognition of the moral stature of man and the conduct appropriate to a rational and self-conscious agent, endowed with a measure of free will and capable of choosing, deciding, assenting, and withdrawing support.”

    I suspect that “the seeming weakness of Natural Law is, in fact, its real source of moral strength and significance. Its operative force depends very much upon the extent of self-awareness and the degree of humanity which men show themselves capable of and seek to attain in a given community.”

    “To negate legal positivism,” as Natural Law does, “is to increase the meaningfulness of law and at the same time diminish the excessive worship of concretized law which claims too much. This is important in politics because it has a bearing on the sovereign state and the larger community. To see beyond legal positivism is to assert the ceaseless relevance of moral principles and rational assessment. We also need to see beyond existing legal systems. No logical system can be confirmed or interpreted from within itself. If any logical system is applied to social life or extracted from legal structures, it can only be applied by human beings through their exercise of voluntary thinking, reasonable interpretation, and seeing relevance in relation to examples, variables, and features in complex situations. Further, social norms may not be seen wholly in terms of any one simple view of how they are acquired, whether through developmental ethics, mechanistic sociology, or behaviorist psychology. The argument that the concept of Natural Law is empty of precise connotation rests upon the view that the terms used in Natural Law are too ambiguous to be capable of authoritative and agreed interpretations. It is true that the concept has been formulated at different times in a variety of ways, and that it has been put to contrasted and contradictory uses in the course of history. However, empirical terms may have an open texture, especially terms like ‘coercion’ and ‘compliance,’ which are critical to positive law. No doubt, the concept of Natural Law has a considerable degree of open texture as do most political and social concepts. The difference is one of degree rather than of kind. It is not possible to lay down in advance the limits to human self-awareness or to the enrichment and articulation of man’s images either if his own true nature or the cosmic order of which he is an integral part.”

    Recent cosmopolitan moral and political theories as well as moral theories of international or transnational law (including theories of global distributive justice) have come quite close to renewing the moral and political value of Natural Law: I’m thinking here of the work of Allen Buchanan and David Golove, Kwame Anthony Appiah, Martha Nussbaum, and Simon Caney, in particular, although only Nussbaum is explicit about the affinity of her “capabilities” approach to the pre-contractarian Natural Law tradition. Perhaps, in the end, we’ll have Natural Law theories under a different guise, meaning they’ll simply not call themselves Natural Law theories however much they effectively resurrect the essential moral and political virtues of the Natural Law tradition. We can decide to emphasize the nobler elements and potential of our shared humanity.

    I’ve hardly addressed all of Chris’s concerns here but perhaps Mary Ellen will attempt to do that (or I may find the time to do so in the near future).

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