Edited by Alexander Orakhelashvili
Chapter 3: Natural Law and the Law of Nations
Patrick Capps 3.1 INTRODUCTION Modern natural lawyers hold that all legal norms must be practically reasonable if they are to be valid or binding. An act or a norm can be said to be practically reasonable if it is consistent with a set of other-regarding, or moral, constraints. So, natural lawyers make the claim that there is some intimate connection between law and morality. The moral content of law is usually to be found in concepts like the common good or human dignity. Natural law comes in strong and weak varieties. The stronger version has morality performing an analytical or classificatory function: lex injusta non est lex. The weaker version has morality performing a normative function: law is defective if it does not correspond to morality.1 The opposing position, legal positivism, denies a necessary connection between law and morality and holds that law is to be identified with reference to a social source.2 All of these positions have found adherents in modern international legal theory. Historically, however, we see positivism emerging in international law as a dominant position in the later part of the nineteenth century, even though its central claims have a longer history. Prior to this, natural law theory can be said to be the dominant theory by which the authority and content of the law of nations was justified. The application of natural law theory to the law of nations became popular in the late sixteenth century. For Lesaffer, there is an obvious cause of the turn...
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