Natural Law

Craig Reeves

in International Law

ISBN: 9780199796953
Published online March 2012 | | DOI:
Natural Law

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Natural law as a field of jurisprudence is part of a wider tradition of thought whose roots reach back into Greek philosophy. Theories claiming the status of “natural law” theories vary widely and historically, and their understanding of what is at stake in the debate between natural law and its critics has been developed and revised dramatically. This article will focus on natural law as a theory of law, particularly international law, but will necessarily situate the literature on this topic in the broader context of natural law thinking. For if there is a core theme that links the various natural law philosophies, it is a basic commitment that the understanding of human life and its central practices and institutions—including law—must take its cue from a more general understanding of being, or at least human being. Thus it is of the essence of natural law theories that the understanding of law entails a broader philosophical understanding of things, whether that involves an account of human needs and interests, transcendent values grounded in theological commitments, or a full-scale metaphysical account of the cosmos. For natural law theories, law’s validity is tied to morality, and morality is understood as relating to the nature of being (including the prime being, God), or human being. Although the origins of natural law stretch back into antiquity, the roots of natural law theory lie in the thought of Augustine and especially Aquinas. Aquinas’s thought was especially influential on later Scholastics, who began to apply natural law to the idea of international relations, war, and peace, and to develop natural law accounts of international law. Grotius’s famous account of the natural law requirements of the conduct of war is perhaps the founding text of international law and has been very influential. In the Enlightenment, natural law theory was reformulated along more instrumentalist lines by Pufendorf, and subjected to critique by Kant and Hegel, after which it fell into decline as legal positivism came into ascendency. Recently, it has seen a revival in the “new natural law” of writers such as Finnis and, more ambiguously, in the interpretive jurisprudence of Dworkin. It has always remained important in the field of international law and human rights, however, for it is especially in this area that positivism has had difficulty reaching any consensus on the sources of law. Legal positivism, although displacing natural law, has proved unable to entirely eradicate the attraction of natural law, for the sense remains that law reaches beyond itself and, especially at the level of the international community, is constituted by some transcendent norms, which are irreducible to posited rules or accepted customs. Thus elements of the natural law tradition survive not only in explicitly natural law theories, but also in contemporary liberal accounts of international order and even in the radical approaches of postmodernist legal theory inspired by Derrida.

Article.  6698 words. 

Subjects: International Law ; International Courts and Tribunals ; Private International Law and Conflict of Laws ; Public International Law

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