Natural Law in International Legal Theory: Linear and Dialectical Presentations

Abstract

Natural law has a peculiar way of being everywhere and nowhere in the body of international law today. Often taken to be in some way foundational of positive law, and traditionally accepted to declare positive law either void or defective in any given case, its applicability in theory has been widened to the point of near-ubiquity by association with both naturalism, on the one hand, and the rhetoric of justice on the other. Yet it is hardly to be found in practice, and has been described as dead. I propose here to tell two stories about natural law in international legal theory, both roughly organized around a meeting point of sorts for the associations with naturalism and justice. This will also function as a brisk overview, drawing on three active periods of natural law scholarship bearing on international law, as well as recent developments. The first story relates in brief the renewed attention to natural law doctrine as part of historiographical and epistemological inquiries in international law and legal theory, with particular attention to the foundational role of natural law doctrine in a hegemonic project. The second presents still another means of understanding natural law and its ongoing role in international law, namely as a dialectic by which new conceptions and vocabularies of political organization have arisen under varying historical circumstances. The dialectical presentation, however, is not to the exclusion of the linear presentation of consolidating global hegemony, but fits within or alongside it.

Keywords: international law, natural law, naturalism, justice, hegemony, historiography