Natural Law Skepticism
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.