The Notion of Hierarchy Under the Light of the Founding Fathers' Magna Opera: The Ideological Structure of the Early Jus Gentium and its Implications on the Current Debate About the Order of Values and Normative Hierarchy
EUROPEAN SOCIETY OF INTERNATIONAL LAW, 10th Anniversary Conference, Vienna, 4-6 September 2014, Conference Paper No. 6/2014
26 Pages Posted: 10 Dec 2014
Date Written: September 4, 2014
As Carl Schmitt has aptly observed all great political concepts possess a certain theological attribute, connotation or origin. By applying the latter doctrine of political theology on international normativity, the author in the present paper attempts to investigate, re-discover and highlight the interdependence between the early theological values and pre-data of the "doctrina christiana", and the initial phase of crystallization of international legal rules via the works of the Great Founders of the scientific discipline in question. Based on this evident interplay between theological concepts of the past and the consolidation of International Law's early doctrines, an attempt is made to discern certain fundamental principles, common to the works of all the Founders, acting as constituent pillars of the international system, establishing a definite hierarchical relation between rules, principles and ultimately rights of International Law's subjects. Furthermore, after reassessing concepts such as the vitorian “totus orbis” and the ideal of the “civitas gentium maxima”, the paper proceeds to reinterpret the function of the early visions‟ enforcement mechanisms aiming at the protection of the fundamental pillars of the international juridical cosmos, a point of paramount importance utilized to confirm the existence of a well-ordered hierarchy between the norms, principles, and rights within the Founders‟ system.
Upon establishing that normative hierarchy in the original visions was based on the higher ontological importance of certain values, necessary for the perpetuation of the system, this proposition is scrutinized so as to attest whether it remains pertinent up to our days of multilevel interdependence and variable international normativity. After drawing some conclusions on the influence of the theological concepts and the doctrinal methods of theology involved in the formation of International Law, the current problematic of normative hierarchy is addressed. Finally, the essay concludes with remarks concerning the future of International Law's orientation regarding the need for a solid (or else) hierarchy, the prospect of further verticalization and a kelsenian exegesis of international adjudication vis-à-vis international community's fundamental norms.
Keywords: jus cogens; erga omnes; Vitoria; Suarez; Grotius; totus orbis; jus gentium; Kelsen; aiguilleur; political theology; normative hierarchy
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