Naturalism, according to jurists, precedes positivism, and it is this natural law that gave rise to modern international customary law, since it obliges States to focus on the common good of the universal community. Pufendorf denied the existence of positive international law and the fact that customs and treaties are sources of international law. A positivist approach would say that the consent of one`s state creates international law. The law need not be compatible with morality or a higher state of reason. Natural law has a particular way of being everywhere and nowhere in today`s international law. It is often assumed that positive law is somehow established and traditionally accepted to declare positive law null and void or erroneous in a particular case, but its applicability in theory has been extended to near-ubiquity by its association with naturalism on the one hand and rhetoric of justice on the other. Nevertheless, it is difficult to find in practice and has been described as dead. I propose here to tell two stories about natural law in international legal theory, both roughly organized around a meeting point for associations with naturalism and justice. It is also a vivid overview, based on three active periods of research in international law as well as recent developments. The first story briefly recounts the renewed attention paid to the doctrine of natural law in historiographical and epistemological research in international law and legal theory, with particular attention to the fundamental role of natural law in a hegemonic project. The second is yet another way of understanding natural law and its continuing role in international law, namely as a dialectic through which new concepts and vocabularies of political organization have emerged in different historical circumstances. However, dialectical representation does not exclude linear representation from the consolidation of global hegemony, but is part of or alongside it.
Grotius, Pufendorf and Vattel are representatives of naturalistic theory. In fact, most jurists of the 16th and 17th centuries belong to this school of thought. They believed that the basis of every type of law that exists is “natural law” and also considers it the basis of international law. Although natural law was considered a divine law, after deliberation, the law was considered with a secular lens, which led it to be considered a fundamental law. Natural law has its roots in nature and the nature of a person who has the capacity for rationality. At the beginning of the 20th century, positivism developed and naturalistic law shrank. The proponents of positivist theory are Oppenheim, Treipel, Anzilotti, Bynkershock and Hegel. Although the theory of positivism was not as popular as its counterpart in the 16th and 17th centuries, it began to gain prominence and completely monopolize jurisdiction over international law in the 18th and 19th centuries.
We can generally describe positivism as follows: the paradigm holds international law on the basis of state approval. This would be created in a contractual manner between States. For many years, a related idea was popular: only States are subjects of international law. After World War II, it was decided that individuals have rights and obligations under international law (e.g. the Nuremberg trials, crimes against humanity, genocide, etc.). Positivists attached the greatest importance to the sovereignty of a state. They refuted the existence of any reason or purpose behind the law. Positivism was based on the actual legal practice of states in relation to naturalism, which believed in the supremacy of human reason and its capacity for rationality. The positivists argued that citizens of a state are obliged to obey a law if it is sanctioned by a legislative authority.
Therefore, it is the will of the State that requires obedience under international law. -jus cogens. A mandatory standard. It is a fundamental principle of international law that is accepted by the international community as a norm from which it must never deviate. How can jus cogens exist in the context of positivism? States are bound by norms of jus cogens, but positivism suggests that laws can only exist through some kind of authoritative body. There is an obvious separation. – The creation of the UN ushered in a new era of multilateral legislation. – Contributions by Jeremy Bentham, 1800s and Principles of Morality and Legislation. His work heralds the end of natural law. He defined international law as transactions between States and divided international law into two categories: public and private, the former referring to States and the latter referring to individuals. Other notable contributions to the historical development of “natural law” include Hugo Grotius – a philosopher from the Dutch Republic who is often considered the father of international law. He was of the view that the source of international law was oriented towards natural law.
He argued that even if we reject the theological basis of natural law, the ideas of reason are sufficiently obvious to allow us to follow them. In the early years, States were not exclusively subjects of international law and non-State actors could participate. Subsequent positivist doctrine removed the rights and duties of the individual from international law. There are 3 key assumptions of positivism as an explanation of the legitimacy of the law: the positive statement, i.e. that the right must be expressed; It is created by sovereign States subject to international law; He argues that law is effective, even if unjust, when measured against a moral standard, that is, there is not necessarily a correspondence between international law and morality. Even though positivist theory has been heavily criticized for a number of reasons, the fact that this theory has emphasized the realistic practices of the state in relation to international law cannot be ignored. It is a harsh reality that international law can develop only to the extent that States recognize it. Positivist theory focuses on the rules and regulations of international law that are actually adopted by states.
Natural law would understand international law as the source of validity derived from a system of norms such as reason or morality. An understanding of natural law would say that a law cannot be created by states that violate jus cogens norms. Over the years, since the beginning of customary international law in the refined form it has reached today, jurists have entered into a theoretical controversy over the identification of its basis of obligation. Jurists have had a disagreement over where customary international law derives its binding authority, which has led to the emanation of two theories: naturalistic theory and positivist theory. Although naturalistic theory has been deeply criticized for placing more emphasis on the individual freedom of nation-states than on cooperation between them, in the 20th century it saw the birth of naturalistic theory. It was a Renaissance period after the world experienced the horrors of the world wars. With the views of modern jurists such as Kant and Hegel, natural law has been adapted to circumstances and times. Stammler and Koheler were also representatives of naturalistic theory. The perspective of positivists lies in the fact that the main sources of customary international law are customs and treaties, and through them the consent of a State is obtained.
Consent is expressed in the form of regular contracts. It should be noted that such consent or the will of States is considered explicit consent in the case of treaties, while it is considered tacit consent in the case of customs. International law, according to the jurists of naturalistic theory, is the applied form of natural law in which all such acts, which are of the utmost importance for the maintenance of harmony among all States, are binding. In other words, States have an obligation to work towards peace and security. Grotius relied on natural law as the source of international law, as well as customs and treaties. He recognized the difference between ius naturale, the natural law of international law, and ius gentium, the voluntary or customary law of nations. A modern definition examines how natural law is universally applicable, with rules derived from reason; a doctrine that human affairs should be governed by ethical principles understood by reason. We also have a Restarter Mothers Facebook group for mothers or women who want to resume their careers after a career break, or women who are entrepreneurs. Follow me on Facebook, Twitter, Youtube and Instagram.
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