Current Contributions of the Natural Law Tradition to International Law
Jeffrey Dunoff and Mark Pollock, eds. International Legal Theories: Foundations and Frontiers, 2019
25 Pages Posted: 14 Jan 2020
Date Written: December 23, 2019
Many elements of current positive public international law (‘PIL’) originated in theories of natural law, including both rules – of the law of the sea and of war, of refugee and asylum law -- and constitutive conceptions of sovereignty. Several scholars argue that PIL has improved upon and replaced those origins, leaving the old natural law theories dead. Some say it is time for PIL to kick the ladder of natural law away. This essay seeks to give voice to the other side. Proclamations of the death of natural law theories are premature. More plausible versions of natural law theory may still contribute as PIL continues to evolve, by treaty agreements and interpretations. The main aim here is only to consider whether a core of some more defensible such theories can contribute to present-day discussions about PIL. Section 1 sketches aspects of a charitable core of the natural law tradition: Human-Oriented Minimalist International Natural Law – ‘HOMINAL’ for short. In response to questions about the legitimate authority of PIL, HOMINAL holds that there are objective standards of right actions and rules, discernable by human reason based on features of human nature, about law, and of the natural and malleable social order. Section 2 identifies several of the historical roles and contributions of natural law theories – often compatible with HOMINAL – for PIL, in order to assess and respond to criticisms. Section 3 seeks to defend natural law theories in general, and HOMINAL theories in particular, against some – but not all – criticisms. Some concerns against this tradition are misguided – their popularity with positivist legal theorists notwithstanding. Section 4 turns to some alleged current problems and crises of PIL, to consider the roles of natural law theories such as HOMINAL theories. They might often appear part of the problems, but they may also contribute to resolve some of the challenges. These reflections do not seek to vindicate natural law theories in general, or HOMINAL theories in particular. Many theorists through the ages have argued plausibly that some premises are flawed, or that any necessary specification is too contested. Other normative theories of international law may help alleviate some of the crises – and indeed be more sound. Such arguments belong elsewhere. The aim here is more limited: to argue that some of the recent wholesale rejections of the natural law tradition seems ill founded, and that we may still need other theories of the legitimate authority of PIL.
Keywords: international law, natural law
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