Sources in Natural Law Theories: Natural Law as Source of Extra-Positive Norms

Oxford Handbook of the Sources of International Law, Jean d’Aspremont and Samantha Besson (eds.). Oxford University Press. Forthcoming

Notre Dame Law School Legal Studies Research Abstract No. 1623

25 Pages Posted: 27 Jun 2016 Last revised: 29 Jun 2016

See all articles by Mary Ellen O'Connell

Mary Ellen O'Connell

Notre Dame Law School

Caleb Day

University of Notre Dame, Students

Date Written: June 27, 2016

Abstract

International law, like all law, can be understood as a hybrid of positive law and natural law. Positive law relies on material evidence to support conclusions as to the existence of principles, rules, and processes. Natural law relies on a very different method to explain aspects of law that positivism cannot, including peremptory norms (jus cogens), general principles inherent to law, and legal authority. The history of natural law thought from Ancient Greece to today’s global community reveals three integral elements in the method employed to produce these explanations of extra-positive features of the law. The method uses reason, reflection on nature, and openness to transcendence. Certain contemporary natural law theorists, concerned about the association of natural law with Christianity, attempt to suppress transcendence from natural law method, focusing only on reason and nature. Yet, the history of natural law thinking shows transcendence is integral to the method. History also reveals, however, that religion is not the only avenue to transcendence. Aesthetic theory, for example, invokes the beauty of the natural world and of the arts to provide ‘glimpses of transcendence’. Just such glimpses of transcendence complete natural law method, rendering it capable of explaining persuasively why law binds in general and why certain principles are higher or superior to positive law.

Keywords: natural law, positivism, reason, nature, transcendence, aesthetics, jus cogens, general principles, authority, international law

JEL Classification: K33, K49

Suggested Citation

O'Connell, Mary Ellen and Day, Caleb, Sources in Natural Law Theories: Natural Law as Source of Extra-Positive Norms (June 27, 2016). Oxford Handbook of the Sources of International Law, Jean d’Aspremont and Samantha Besson (eds.). Oxford University Press. Forthcoming, Notre Dame Law School Legal Studies Research Abstract No. 1623, Available at SSRN: https://ssrn.com/abstract=2801182

Mary Ellen O'Connell (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
574-631-7953 (Phone)

Caleb Day

University of Notre Dame, Students ( email )

Notre Dame, IN
United States

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