Natural Law, Religious Law, and Positive Law
Natural Law
Natural law is historically linked to the concept of moral law and to religious influences. It was developed on the basis of the notion that human beings have certain inalienable rights and entitlements that exist regardless of their recognition by States, even if they are not enshrined in written texts, and that these rights are natural and irrevocable. Such rights are supported by the conviction that each human being enjoys a specific dignity.
Some lawyers based their reasoning on natural law when they criticized the then existing positive law applicable to the indigenous population when Spain conquered South America in the sixteenth and seventeenth centuries.
The proponents of the theory of natural law point out that rights may exist outside any formal codification, resulting from moral obligations inscribed in the conscience of individuals. They have used this concept to counter established rules of written law. An important historical example is the emphasis that was placed on moral law in the fight to abolish slavery.
International law has come to formally recognize the existence of such unwritten peremptory norms, against which no derogation is permitted. These are jus cogens norms.
By invoking jus c ogens , it is possible to escape from rigid and stale laws that may be ill adapted to new situations or unjust because they were enacted in one era and have become controversial in the next. When the application of a written law clearly flouts human dignity, the reference to unwritten norms provides an opportunity to oppose such rules.
The key is not to succumb blindly to the formality of law. It is important, in all circumstances, to have the ability:
- to determine the force or status of law of a given rule and to compare it to another rule that is superior to it in the hierarchy of norms,
- to appraise the content of a law and compare it with another set of rules that may contradict or complement it,
- to be acquainted with the various principles governing the necessary interpretation of a rule.
Religious Law
The world’s main religions contain a number of rules that believers must respect. These rules often include the duties of kindness, compassion, solidarity, justice, forgiveness, and respect toward the enemy. They are often used to challenge and humanize existing laws and social practices including war. ▸ International humanitarian law
However, some religions on occasion dictate specific rules that go or seem to go against general principles. These specific rules should be interpreted in context if they are to be properly understood. For example, the fundamentals of Islamic law are expressed in Sharia, which is based on both the Koran and the Sunna. These fundamentals must first be identified, understood, and interpreted so that they constitute fiqh . This interpretation is indeed complex because there exist numerous instructions and several schools of interpretation ( fiqh ). It is further difficult to identify analogies ( qiyas ) between what was ordered for a society that existed in the seventh century and that which exists today.
The principle of compatibility—according to which a specific rule should be interpreted in a way that complies with and does not contradict essential principles—may be used when facing such difficulties.
Positive Law
Law is a set of norms and standards that are usually established by the authorities who are in charge of representing the community that the laws are meant to serve. The laws may be in the form of constitutions, decrees, precedents, and so on. In the case of international law, it describes formal interstate agreements, international conventions, and other treaties that reflect the consent or will of States to be bound by such laws. Positive law describes the content of these texts. Lawyers analyze each word, each comma, to ascertain the intention of the drafters. They also evaluate the force or status of law held by each text. They determine this on the basis of the body that enacted it and the level of formality with which it was adopted. They are guided in their interpretation and application of laws by the principles and hierarchy of legal norms. ▸ Hierarchy of norms ▸ International conventions
Customary international law is included in positivist thinking because, while it is not a written law and does not always reflect the express consent of States, it does reflect their implicit consent, as expressed through repeated and consistent practice, and is accepted as such. Hence, it represents the will of many nations, from which it receives its force of law: it is binding on all States. ▸ Customary international law
Mandatory International Principles
Though positive law took over as the principal and most effective means of regulating societal or interstate relations, the idea that there exist rules that are superior and that must be respected by States endured. The term natural law is rarely used in international law today; however, jus cogens occupies a similar place. Modern human rights principles are based on the concept that fundamental rights and freedoms are inherent and many of them inalienable.
Article 53 of the Vienna Convention on the Law of Treaties, adopted on 23 May 1969, recognizes the existence of certain peremptory norms of general international law, or jus cogens , which are intrinsically linked with the nature of human beings and “accepted and recognized by the international community of States, as a whole, as a norm from which no derogation is permitted.”
Today, these norms represent a sort of “international public order,” which legally may not be infringed on. It is generally accepted that any law or treaty that violates jus cogens is void (Art. 53 of the Vienna Convention on the Law of Treaties).
The full content of jus cogens remains highly controversial. Nonetheless, certain rights, freedoms, and fundamental guarantees form its core and have been framed by international human rights and humanitarian law conventions. These texts specify that States are prohibited from infringing on, or in any way limiting or suspending, these fundamental rights. The list of the inalienable human rights derived from these conventions is the first inclination toward a concrete definition of jus cogens . ▸ Fundamental guarantees ▸ International law
▸ Customary international law ▸ Fundamental guarantees ▸ Hierarchy of norms ▸ Human rights ▸ Inalienability of rights ▸ International conventions ▸ International humanitarian law ▸ International law ▸ Inviolability of rights
For Additional Information: Elshtain, Jean Bethke. “The Just War Tradition and Natural Law.” Fordham International Law Journal 28, no. 3 (2005): 742–62.
Küng, Hans. “Religion, Violence, and ‘Holy Wars.’” International Review of the Red Cross 858 (2005): 253–68.