Capps, Patrick --- "Natural Law and the Law of Nations" [2011] ELECD 572; in Orakhelashvili, Alexander (ed), "Research Handbook on the Theory and History of International Law" (Edward Elgar Publishing, 2011)

Book Title: Research Handbook on the Theory and History of International Law

Editor(s): Orakhelashvili, Alexander

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443549

Section: Chapter 3

Section Title: Natural Law and the Law of Nations

Author(s): Capps, Patrick

Number of pages: 32

Extract:

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 per-
forming 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 ...