A Religious View of the Foundations of International Law
New York University School of Law
April 26, 2011
NYU School of Law, Public Law Research Paper No. 11-29
Over the last ten years there has been something of a crisis in American confidence in, and support for, international law. As the idea of order and justice in the international realm is considered and rationalized from various perspectives, it seems appropriate to consider also how it might be regarded from the viewpoint of the world’s leading religions. These lectures were delivered in late March 2011 as the Charles E. Test Lectures in the James Madison Program at Princeton University. Lecture 1 begins the task of considering law beyond the state from a specifically Christian point of view, though it also addresses the difficulties of sustaining a viewpoint of this kind in a multi-faith and indeed increasingly secular world. Lecture 2 considers nationhood, sovereignty, and the basis for the division of the world into separate political communities. Clearly a religious approach to order in the international realm will endorse the position of most modern international jurists that sovereign independence is not to be made into an idol or a fetish, and that the tasks of order and peace in the world are not to be conceived as optional, which sovereigns may or may not support at their pleasure. At the same time, sovereigns have their own mission, ordering particular communities of men and women; and this task, too, should not be slighted. Finally Lecture 3 will consider the rival claims of natural law and positivism in regard to the sources of international law Natural law is no doubt important in any Christian jurisprudence. But the most telling part of natural law jurisprudence from Aquinas to Finnis has always been its insistence on the specific human need for positive law. This holds true in the international realm as much as in any realm of human order - perhaps more so, because in the international realm law has to do its work unsupported by the overwhelming power of a particular state. So this final lecture will address, from a religious point of view, the sources of law in the international realm: treaty, convention, custom, precedent, and jurisprudence. It will focus particularly on the sanctification of treaties.
Number of Pages in PDF File: 73
Keywords: customary international law, international law, ius cogens, nationalism, natural law, positivism, public reason, religion, self-determination, sovereignty, treaties
Date posted: April 27, 2011 ; Last revised: May 12, 2011