David Marks Staff asked 4 years ago

Has there been a shift in international treaty law

Has there been a shift in international treaty law from natural law to positivism?

1 Answers
David Marks Staff answered 4 years ago

A shift can be traced historically from a natural law view to a positivist view, when one considers the question why do nations comply? The natural law approach appeals to absolute rules to be found empirically in nature, which provide some kind of unquestionable foundation. International law, in this worldview, is related to notions of divine authority, and so on, and generally has clearly specified systems of sanctions erected in order to punish non-compliance to what is ‘right’. Thomas Aquinas, for instance, found the legitimacy of international law in God’s law. The final justification for natural law is a moral self-righteousness, a belief that it is simply the way things should be if nations are to co-operate. The rules for co-operation are universal in that they are condensed from reason.
Now, a positivist approach rejects the idea that an axiomatic justification can be given for international law. The foundation of positivist law is the consensus of nation states coming together, in a strategic blurring of the lines between public and private. The idea that morality itself cannot be found in religion or even in culture is an idea that another realist suggested. Hobbes’ Utilitariansim, however, seemed to over-exaggerate how much people can seamlessly fit their own self interest into a social system. Kant responded, in a way, when he suggested a moral basis for cosmopolitanism. This shift prominently occurred in the 20th century, and can be seen as some sort of realist answer. Nations never obey these laws, but simply consent to co-operate, in everyone’s good interest. The focus here is more on human organizations and customs, than on morality or objective ‘rightness’. There is a certain power attributed to the very fairness of international rules which could only have been arrived at through consensus, and must be kept separate from actual ‘laws’.