In Praise of Jus Cogens' Conceptual Incoherence

26 Pages Posted: 21 Sep 2018 Last revised: 5 Dec 2018

See all articles by Jens David Ohlin

Jens David Ohlin

Cornell University - School of Law

Date Written: September 8, 2018

Abstract

The most compelling account of jus cogens is that it flows from natural law and constitutes the “ethically minimum” content of international law. Although natural law was once considered an acceptable and obvious approach to jurisprudence, its significance has waned at the expense of legal positivism. However, the hierarchical quality of jus cogens is best explained by some element of natural law—and its explicit invocation of moral content—rather than anything one might find in legal positivism.

Of course, international lawyers have persistently refused to recognize the latent naturalism within jus cogens. While rueful from the point of view of legal theory, the obfuscation was nonetheless essential for jus cogens to succeed. In an alternate world where jus cogens was correctly viewed as a vestige of natural law, modern international lawyers would never have accepted it.

One might lament the failure to recognize the natural law origins of jus cogens because it hampered the development of standards for identifying which legal norms counted as jus cogens. However, no account of jus cogens offers compelling, unambiguous criteria, and second, the lack of clarity on its criteria was a good price to pay in exchange for the legal category’s widespread adoption. In the end, the notion that jus cogens is consistent with international law’s legal positivism was a useful fiction, a “noble lie” that gave us modern human rights law.

Keywords: jus cogens, positivism, natural law, naturalism, human rights

Suggested Citation

Ohlin, Jens David, In Praise of Jus Cogens' Conceptual Incoherence (September 8, 2018). McGill Law Journal, Forthcoming; Cornell Legal Studies Research Paper No. 18-46. Available at SSRN: https://ssrn.com/abstract=3246417

Jens David Ohlin (Contact Author)

Cornell University - School of Law ( email )

218 Myron Taylor Hall
Ithaca, NY 14853-4901
United States
(607) 255-0479 (Phone)
(607) 255-7193 (Fax)

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