In the 17th and 18th centuries and earlier times, under the influence of theology norms.
norms.15 16 Also influenced by and representative of the 17th and early
and the "law of nature," the science and study of international law was
dominated by the naturalist school. This school maintained that the validity of
international law was based upon the will of God and that sovereigns were
subject not only to divine law, but also to the laws of nature established by God.
From the 19th century and onwards, positivism gradually replaced the dominant
role of naturalism. The positivist school generally taught that the will of the State
was the ultimate source of all laws, international and domestic, and the basis of
the binding force of international law could only be sought from the fact that
States consented to be bound by it.5 Between the naturalist and the positivist
schools, there was an "eclectic school," also known as the "Grotian" school, which
attempted to harmonize naturalism and positivism. However the proponents of
eclecticism were either "more naturalist" or "more positivist," thereby making it
difficult to regard the eclectic school as a separate discipline. For example, the
renowned "eclecticists," Baron Christian von Wolff (1679- 1754)6 and Emerich de
Vattel (1714-1767), essentially belonged to the naturalist school.7
.8.1° The notion of "jus naturae" may be traced back to Stoicism of the
Ancient Greek times in about the third century A.D. Stoicism taught that
man was a reasonable being, and the basis of natural law was the reason
of man. "Jus gentium" of the Ancient Romans was a system of law based
on the adoption of the concept of natural law. The teaching of Saint
Thomas Aquinas (1225-1274), an Italian theologian and philosopher of the
medieval times, represented a historical apex in the development of
natural law.11 '1 12 Nevertheless, the formation, development and
domination of naturalism as a matured theoretical school was largely a
matter for the scholars of the 16th, 17th and 18th centuries. Early writers
that can be labeled as "naturalists" include the two well-known Spanish
theologians and jurists, Francisco de Vitoria (1486-1546) and Francisco
Suirez (1548-16174 Theories based on the "law of nature" became even
more popular and dominant in the 17th and 18th centuries. Insofar as
concerns the field of international law, the German jurist, Sammuel
Pufendorf (1632-1694) was the most prominent pioneer and
representative of the 17th century doctrines of natural law. An extreme
naturalist, Pufendorf (and his followers) denied the existence of any
positive rule, holding that only natural law contained legally binding
18th century naturalism were Christian Thomasius (1655-1728), another
German jurist, and two well-known English political and juridical thinkers,
Thomas Hobbes (1588-1679) and John Locke (1632-1704). Thomasius'
central theme of writings was about the "law of nature." A celebrated
international law scientist though, Thomasius hardly showed "any great
concern with the special problems of international law" even if his major
work bears the title of ". . . jus naturae et gentium.'' 17 While Hobbes and
Locke have sometimes been labeled "founders" of positivism,18 their
natural law orientation is also beyond doubt. Hobbes' naturalist
preference is reflected in his doctrines of social contract and "the state of
nature." 21 Locke, who "clung to the notion of just war by asserting that
only in the case of such a war did the victor acquire a right over the
vanquished, 22 developed a whole new set of ideas (vis-d-vis Hobbes') on
natural rights, state of nature, social contract and laws of nature.23 The
Dutch writer Hugo Grotius (1583-1645), widely considered to be the
"founder" or "father" of the Law of Nations, 24 also had natural law as "a
dominant element" in his teachings. 25 However Grotius' work was
authority to both naturalists and positivists. Commenting on Grotius, the
late Judge Laches observed: Grotius was extremely able in combining
theory and practice .... He did not abandon the concept of immutable
natural law. Without identifying it with divine law, still less with the law of
nations, he regarded it has a moral code and as an independent, superior
source of law; it was thus the guardian of justice, not of the status quo,
and he saw in it no barrier to the evolution of jus voluntarium. Within this
evolution, potential new rules, based upon the will of States, not imposed
but exercised by consent, could regulate international problems in a
progressive manner.2 Grotius' works attracted a number of followers,
known as the "Grotians" who sought to refine the concept of natural law.
Among these followers included the proponents of the eclectic school of
the eighteenth century. The great Swiss writers of Wolff and Vattel are
regarded as the the 18th century, are regarded the leading exponents of
the eclectic school.27 The eclecticists attempted to combine elements of
both naturalism and positivism but leaned more toward the former than
toward the latter. In 1758, e.g., Vattel wrote: We use the term necessary
Law of Nations for that law which results from applying the natural law to
nations. It is necessary, because nations are absolutely bound to observe
it. It contains those precepts which the natural law dictates to States, and
it is no less binding upon them than it is upon individuals. For States are
composed of men, their policies are determined by men, and these men
are subject to the natural law under whatever capacity they act. This same
law is called by Grotius and his followers the international Law of Nations,
inasmuch as it is binding upon the conscience of nations. Several Writers
call it the natural Law of Nations.2 " Naturalism and its variations, in
numerous ramifications, begin with the ---According to naturalists, the
individual has some rights which can be deduced directly from nature in
general, and, in particular, from nature as created by God.29 The nature
from which these rights are deduced is mostly considered to be the nature
of man himself, in particular his reason. Consequently, one speaks of
inborn or inherent rights as distinct from those rights conferred upon man
by positive law. "These rights," remarks the well-known Viennese jurist
Hans Kelsen (1881-1973), "include freedom, equality, property [and] self-
preservation., 3 1 Starke observes that "there are . . . writers ... who treat .
. . 'natural law' as [being] identical with reason and justice applied to the
international community and who look upon it as thereby elucidating the
lines of the future development of international law."31
POSITIVIST
In direct opposition to the naturalist theories are positivism and various
derivative positivist theories. Positivism generally teaches that the law of
nations is the aggregate of positive rules by which States have consented
to be bound, exclusive of any concepts of natural law such as "reason" and
"justice." For the positivists, nothing can be called "law" among States to
which they have not consented. The proponents of the positivist doctrines
maintain that the will of the State is absolutely sovereign and that it is the
source of the validity of all law. The validity of all laws, whether domestic
or international, depends upon the supreme will of the State. The
positivists believe, as Starke observes, that the rules of international law
are, in the end, similar to domestic law in the sense that they both derive
their binding force from the will of the State.75 Alberico Gentilis (1552-
1608), the English writer of Italian origin, and Richard Zouche (1590-1660),
another English writer, may be said to be the originators of the school of
positive law. Although Gentilis formulated the school of the so-called "jus
naturae et gentium" (natural law and international law), his doctrine had
already departed from theology and canon law.76 He opposed to the idea
of identifying international law with natural law, advocated the
interpretation of international law from the perspective of reality,
recognized the existence of different nation-States, believed that every
nation-State in reality had equal rights and for the first time attributed the
basis or foundation of international law to the practice (and will) of the
State, as reflected in treaties, voluntary obligations, custom and history.77
On the other hand, some critics decline to regard Gentilis a positivist
because there was not enough concern with State practice in his works
despite the influence he received from realism." On the basis of Gentilis'
doctrine, Zouche completely negated natural law.79 Zouche no longer
used the term jus gentium to denote international law and instead used
the expression jus inter gentes.s He believed that international law, being
the law among States, was a law recognized by States with sovereign
authority - "a law 'which has been accepted [through] custom conforming
to reason among most nations or which has been agreed upon by single
nations,' to be observed in time of peace and war.""s During the time of
the renowned Dutch jurist Cornelis van Bynkershoek (1673-1743), one of
the most learned and respected of the early positivist thinkers, positivism
gained another opportunity for further development. Admittedly, due to
the naturalist influence of his time, Bynkershoek particularly emphasized
the "principle of bona fides" as being the theoretical foundation of all
agreements between States, and reason occupied an important place in
his thinking. And "his own protestations notwithstanding," one
commentator observes, Bynkershoek "must be accorded a place among
the Grotian eclectics who found a bridge between positive and natural
law.",82 Nevertheless, Bynkershoek's strong positivist orientation must be
recognized. In his famous Quaestionum juris publici, Bynkershoek
emphasized the importance of the practice of modern States, custom and
treaties, completely ignored the "law of nature" and held (1) that the rules
of international law were established through the consent of States, and
(2) that all agreements between States were the products of their
sovereign wills.8 3 Despite the teaching of early positivist thinkers,
 positivism did not begin to take over the theoretical domination by
naturalism until the 19th century. Since then, positive international law
underwent important development under the influence of positivism and
the most obvious examples include Europe-centered international
conferences, various international conventions and institutions of
international law that emerged in the stages of the nineteenth century.
The expansions of Western Powers, the maturation of the system of
international law, and the continuing spread of the positivist school led
men to the belief that law is essentially the command issued by sovereigns
or sovereign entities, that is to say, it is the body of rules of conduct
prescribed by human beings. Any concept of "reason," "morality" or
"justice" is totally irrelevant to the issue of validity of such "man-made"
law. The validity of domestic law of one State depends in the last analysis
on the sovereign will of the State itself, while that of international law
depends on the collective wills of all sovereign States. Within the positivist
school there are several doctrines or variations: the doctrine of the will of
the State, the doctrine of consent, the doctrine of auto-limitation, and the
doctrine of pacta sunt servanda. These doctrines or variations have one
thing in common: they all maintain positivism and oppose naturalism,
though from different perspectives or with different emphases.
ECLECTIC THEORY
The various legal theories, but not limited to those mentioned
above, have similarities and uncompromising differences.
Nevertheless, almost all claim that law is a collection of rules,
principles or precepts that serves as a framework on what
humans can or cannot do, what other individuals can do or
not do to others, and what consequences human decisions
and actions have on their own and other peoples’ legal
rights, duties, obligations, inter alia. Except for radical legal
theories, the philosophical study of theories of law point to a
collection of laws imposed by authorities that guide societies
and judicial bodies to make decisions. Most of them
view positive law as a variable (contingent/changeable) and
artificial, which partly rejects natural law given its idea that
law is a human creation of people in power. A proponent and
adherent of positive law theory denies the relation of law
among other concepts, such as morality, religion, and
custom. In this argumentative paper, after presenting the
myriad perspectives of various legal theories, I arrived at an
eclectic, holistic, comprehensive, meta-legal and meta-
evaluative approach to legal philosophy and jurisprudence
(i.e., theory of law): It deals with all kinds of different levels of
law (e.g., first-order, second-order). Essentially, the Eclectic
Legal Theory treats all other theories of law as having their
proper place in a continuum, spectrum or, amorphously, in an
undefined state (especially so, for yet unknown legal
theories, not to mention nearly interrelated ethical/moral
theories that may emerge in the future).
2.1. Part 2: Arguments for or against an Eclectic Legal Theory4
2.1.1. What is an Eclectic Theory of Law?
The Eclectic Legal Theory is the approach to legal theorizing
where what seems best among the various competing theories and
their variants are selected to answer persistent and pressing
problems in legal theory (in a positive sense) discriminatingly but
holistically in juxtaposition. The claims among the various theories
are taken into account in analysing, synthesizing, and meta-
evaluating a better theory of law. Clashes in legal theories’ claims
are bared and laid out as arguments in a continuum and/or spectrum
so that they, side-by-side, are offered as parts of the comprehensive
view of what the law is, should be and/or ought to be.
Weak points of the legal theories, on the other hand, are not
necessarily set aside because it really depends on the
methodological lens (e.g., rational justification,
conceptual analysis, sociological technique, evolutionary method)
used that a theory of law might pass or fail a test. Hence, any legal
theories, under the Eclectic Theory of Law, are not treated
inabitrarily as to their primacy of claims. Instead, what is best in a
legal theory is given its proper consideration in a myriad of
positions in various contexts along the spectrum or continuum of
ideas.
In particular, what is considered best in natural law theory is the
primacy of eternal laws that are considered immutable. On the
other hand, legal positivism does not subscribe to eternal law, but
only to positive laws. Granting without accepting that two points
are dichotomous, what is vital in eclectic legal theory is the
importance attached to laws (whether eternal or ephemeral) and
whether they are beneficial or less advantageous to an individual
and/or to society, in general. An instance is the conception of what
is right (legal) and wrong (illicit). Whether the two points are
similar or not in their direction regarding what is legal or otherwise
(i.e., moral), they can be taken as located in either extremes of the
spectrum, continuum, or positioned in similar or different
quadrants, cube, or universe.
Indeed, various theories of law may simply be looking over the
same horizon with differing perspectives because of their different
position or place in various times. In fact, despite Joseph Story's
(Newmyer, 1985) adherence to natural law theory, for instance, he
nevertheless combined natural law theory with historical and
positivistic jurisprudence both in many of his scholarly writings
and judicial opinions. He depended, for instance, on the
universality of morality in natural law with firm fundamentals of
history in informing positive law. As such, an eclectic approach
also considers, not only what is best in any legal theories, but also
most, if not all, the multidimensionality of laws in diverse
temporal-spatial and related dimensional worldviews.
2.1.2. How an Eclectic Legal Theory answers the question about
moral and factual laws?
Prior to a straightforward answer on the question about fact-centred
and value-laden, not to mention value-free or value-neutral, eclectic
treatment of the subject under consideration, let me talk first about
the persistent issue about law and morality in specific legal
theories. For instance, both historical and natural legal theorists do
not reject positive laws, although positivist theorists only
acknowledge laws that are derived from the sovereign and not
from social conventions.
In some ways, both historical and natural theories of law do not
subscribe to the legal positivistic claim that laws are state
commands and that the sovereign can create laws according only
with its own will. In other words, historical and natural legal
theories admit of positive laws as long as they do not violate
rational and moral natural principles. As such, because historical,
natural and positive laws have similarities, they may actually be in
accord with one another when it comes to reasonable human laws.
However, since legal positivists5 only adhere to positive laws as
the only object of legal study and do not entertain social norms and
national spirit as laws as the scope of legal studies, they
nonetheless have commonality concerning laws that are beneficial
for individuals and the community.
On the other hand, excluding positive law theory and a few other
legal theories, law and morality are inseparable from any systems
of law. Law and morality are seen as interconnected about what is
legal and immoral, just or unjust, fair or unfair, and so on. As such,
it can be deduced that law and morality are closely knit as their
concepts overlap and are interchangeably used from one subject to
the other; thus, making them indistinct and indivisible, despite their
quasi non-intermixture for some unidimensional legal theorists.
However, revolutions between the state and religion in many
countries and efforts to sever law from morality came the
emergence of social contract and positivistic legal theories.
Consequently, laws and morality became distinct systems in certain
degrees. Nevertheless, law and morality cannot be completely
similar or totally distinct from one another. Their impact is as
encompassing as history and unwritten laws are. In occasions that
they are taken to be distinct, sometimes the methods used are the
defining factor and not their distinctions per se. For example, in
Professor Jerome Hall (1952) “Theft, Law, and Society” and
“Foundations of Jurisprudence” (Hall, 1973), he effectively
combined sociological and historical methods when he stated that
historical jurisprudence serves as the bridge between traditional
philosophies of law (i.e., positivism and natural law theories) and
empirical sociological perspective.
At this juncture of pinning down the conceptual connection or not
between “is” and “ought” (i.e., counter-arguments about the
separability or overlap thesis on moral versus factual laws), the
Eclectic Theory of Law does not lean over any ‘claimed’
dichotomy or distinguishing characters as they are laid out in either
side of a continuum or spectrum. Whether there is an “is” and
“ought” dichotomy or not, even when they do not overlap or
separate, or they do not even have an issue at all in future legal
theories, Legal Eclecticism is a multidimensional approach to legal
theorizing, unlike its present variants (e.g., Eclectic Theory of Bush
II) (Menendez, 2008). It does not subscribe to any single doctrine
about law but takes as a given similarities and differences in
perspective in arriving at a thorough understanding of meta-laws or
laws that are laws unto themselves.
Specifically, meta-laws, meta-legals, or laws beyond mainstream or
conventional laws are those that have to be reflectively and
consistently used equitably and globally by rational beings. Meta-
laws are in themselves bear conferring, punitive, inter alia
characteristics. An example of a fundamental meta-law is: An
individual should/ought not to do to another individual what he/she
does not want it done to him/her. Put otherwise, do what you would
like others do unto you. Similarly, act as to benefit oneself and
others when employing voluntary consent and/or collective
judgment or general consensus (Devlin, 1965). Meta-legal terms
include freedom, rights, liberty, justice, power, influence, and
countless others. CONCLUSION:
2.1.3. What is eclectic legal theory's reply to possible counter-
arguments from various legal theories?
Eclectic Legal Theory is not prone to possible counter-arguments
because it may or may not be descriptive and/or prescriptive in its
treatment of law and all its accompaniments. Instead, it is a legal
theory that is open to possible innumerable views as it organizes
and systematizes them into their proper places depending on their
inherent similarities and differences. In reiteration, claims and
counter-arguments made by the theories for themselves or against
other rival theories are considered having a proper location in the
Eclectic Legal Theory's quadrant, cube, continuum, spectrum, or
universe (to say the least to this latter kind of categorization). More
appropriately, Eclectic Theory of Law is amorphous, as plasmatic
and as diverse as it claims to be since it is a contingent, evolving
(dynamic) and even futuristic in its approach to legal theorizing
without relinquishing any mainstream theories of law.
2.1.4. What makes the Eclectic Theory of Law as key to a better
understanding of the philosophy of law?
In a diverse world, it is only fitting to choose what is best for
oneself and one's kind. Since humans have limited views and
understanding of the world they live in, similarities and differences
abound about one anothers’ claims and counter-arguments. There is
simply no best legal theory as they all seem to be scattered in a
spectrum or continuum of jurisprudence. As such, just like in law
where there is pluralism; so, do in morality, which I referred to here
as moral/legal pluralism (i.e., from informal to formal moral-legal
systems) housed in various labels, such as legal relativism. As such,
in case of conflicts in one anothers’ theoretical assumptions and
assertions, each theory's conflicts should not, in the first place, be
considered contradictory claims per se and in toto; rather, as
possessing only unique family resemblances in perspectives.
Hence, questions such as what the law is, what is its nature,
purpose, content, structure, form, and so on are opportunities to
delve deeply and farther into the analysis, interpretation, and
application of law as it is juxtaposed in, by, and for the Eclectic
Legal Theory.
To argue is to offer the most compelling evidence. So far, in this
paper, I believe that the Eclectic Legal Theory is the most appropriate
theory of law in treating the various theories with equanimity. Any
theory can be in itself, self-stylistically, the best. However, no such
theory is extant because, according to rival theories, weaknesses are
inherently present in all theories of law or morality. To avoid doing
unproductive counter-argumentations by future legal theorists, I have
set out in this paper the use of eclecticism so that any theory of law
has something to fall back on as a final recourse. Even when the
eclectic theory of law does not implicitly posits or presupposes
anything in favour of or in contrast to other legal theories and their
variants, it maintains an impartial treatment of other legal theories.
The point is that it is still up to any legal theorists to position
themselves in this eclectic legal theory's spectrum, continuum or
amorphous state. Since, philosophy of law is aligned to the various
objects of study in metaphysics (e.g., law's
nature), epistemology (e.g., knowability of laws), ethics (e.g., laws
effects on humans), politics (e.g., coercive character of laws), and
even aesthetics (e.g., law as an art), an eclectic legal theory is of
utmost significance in studying the variety of laws, legal systems, and
even that of moral laws.
Eclectic or Grotian approach
Hugo Grotius, a Dutch theologian, humanist and jurist played a key role in the
development of modern international law. In his De jure Belli ac Pacis Libri Tres
("Three Books on the Law of War and Peace") of 1625, and drawing from the
Bible and from the St. Augustine's just war theory, he argued that nations as well
as persons ought to be governed by universal principle based on morality and
divine justice. Drawing, though, from domestic contract law, he argued that
relations among polities ought to be governed by the law of peoples, the jus
gentium, established by the consent of the community of nations on the basis of
the principle of pacta sunt servanda, that is, on the basis of the observance of
commitments. On his part, Christian von Wolff, contended the international
community should be a world superstate (civitas maxima), having authority over
the component member states. Emmerich de Vattel rejected this view and argued
instead for the equality of states as articulated by 18th century natural law. In Le
droit des gens, Vattel suggested that the law of nations was composed of custom
and law on the one hand, and natural law on the other.
During the 17th century, the basic tenets of the Grotian or eclectic school,
especially the doctrines of legal equality, territorial sovereignty, and
independence of states, became the fundamental principles of the European
political and legal system and were enshrined in the 1648 Peace of Westphalia.
Legal positivism
The early positivist school emphasized the importance of custom and treaties as
sources of international law. Early positivist scholar Alberico Gentili used
historical examples to posit that positive law (jus voluntarium) was determined by
general consent. Another positivist scholar, Richard Zouche, published the first
manual of international law in 1650.
Legal positivism became the dominant legal theory of 18th century and
found its way into international legal philosophy. At the time, Cornelius van
Bynkershoek asserted that the bases of international law were customs
and treaties commonly consented to by various states. John Jacob Moser
emphasized the importance of state practice in international law. Georg
Friedrich von Martens, published the first systematic manual on positive
international law, Precis du droit des gens moderne de l'Europe. During the
19th century, positivist legal theory became even more dominant due to
nationalism and the Hegelian philosophy. International Commercial law
became a branch of domestic law: private international law, separate from
public international law. Positivism narrowed the range of international
practice that might qualify as law, favouring rationality over morality and
ethics. The 1815 Congress of Vienna marked the formal recognition of the
political and international legal system based on the conditions of Europe.
Modern legal positivists consider international law as a unified system of
rules that emanates from the states' will. International law, as it is, is an
"objective" reality that must be distinguished from law "as it should be."
Classic positivism demands rigorous tests for legal validity. Extralegal
arguments, i.e., arguments that have no textual, systemic or historical
basis on the law, are deemed irrelevant to legal analysis. There is only hard
law, no soft law.[1] Criticisms of positivist international legal theory
BASIS OF INTERNATIONAL LAW
Natural law, which can be thought of as the idea that power of law
does not come from voice of authority.
In contrast positivisim says the authority is what makes the law the
law. Natural law says there is a higher reason why the law is the law (e.g
morality, universal principles, religious, etc.). Under natural law, horrific
immoral laws would not be valid even if they came from a legitimate authority.
The application of these approaches goes back 2000 years. Natural law
finds its origins in ancient Rome and Cicero the philosopher. Thomas Aquinas
examined source of the aw’s legitimacy; according to him natural law is God’s
natural law.
A modern definition explores 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.
Other notable contributors to the historical development of ‘natural
law’ include Hugo Grotius – philosopher from Dutch Republic, who is often
regarded as the father of international law. His view was that source of
international law is oriented towards natural law. He argued that even if we
reject theological basis of natural law, the ideas are sufficiently evident from
reason to allow us to follow them. In the formation of natural law in the early
years, states were not exclusive subject of international law and non state
actors were able to participate. The later positivist doctrine removed the rights
and obligations of individuals from international law.
In the early 20th century positivism grew and naturalist law shrunk.
– Contributions from Jeremy Bentham, 1800s and the principles of moral and
legislation. His work ushers in end to natural law. He defined international law
as concerned transactions between sovereigns and divided international law
into two categories: public and private, the former referring to states and the
latter to individuals.
We can describe positivism in general as: paradigm holds international
law based on state consent. This would be created in contractual like fashion
between states. For many years a related idea was popular: that only states are
subjects of international law. After WWII, individuals were decided to have
rights and obligations under international law (e.g. Nuremberg trials, crimes
against humanity, genocide, etc.).
There are 3 key assumptions of positivism as explanation for law’s
legitimacy: positive declaration i.e. law must be expressed; IL is created by
sovereign states which are the subject of international law; it holds that law is
effective even if it is unjust when measured against some moral standard ie
there is no necessary conformity of international law to morality.
Some additional thoughts to consider:
-jus cogens. A peremptory norm. Is a fundamental principle of international law
which is accepted by the international community of states as a norm from
which no derogation is ever permitted.
-how can jus cogens exist in the context of positivism. States are bound by jus
cogens norms, but positivism suggests laws can only exist pursuant to some sort
of authoritative body. There is an apparent disconnect.
– Establishment of UN a new era of multilateral law making began.
Natural law would understand international law as the source being a validity
that comes from a system of norms such as reason or morality. A natural law
understanding would say that a law cannot be created by states that
contravenes jus cogens norms.
A positivist approach would say that its state consent that creates international
law. Law does not have to be consistent with morality or a higher state of
reason.
21
1. The deniers of international law, who had negative impact upon the
growth and application of international law, include Hobbes, Spinoza,
and Pufendorf. Thomas Hobbes (1588-1679) believed that the State’s
power was absolute, and thus denied the validity of any international
undertaking, declaring that “Covenants, without the Sword, are but
Words and of no strength to secure a man at all” (Hobbes, ch. 17, p. 76).
Baruch Spinoza (1632-1677) similarly denied the binding effect of any
treaty, stating in his Tractatus theologico-politicus of 1670 that the State
was not subject to any authority but its own interests (see Wang, p.
322). Samuel Pufendorf (1632-1694) believed that there was in fact no
positive law of nations in the sense of a Statemade law with binding
force, since it did not come from any superior habitually receiving
obedience from all (Pufendorf, at ii.c.iii, §22).
2. Naturalists The Age of Enlightenment was more dominated by the
teachings of naturalists. Those who denied the existence or possibility of
international law were likely themselves naturalists. Pufendorf’s denial
of international law was inseparable from his extreme naturalist belief.
He “arrives at the unfortunate idea that there is no independent jus
gentium at all, and that jural relations among nations can be found only
in natural law”, and “in fact sets out to prove that every rule actually
observed among nations is nothing but law of nature” (Nussbaum, p.
148). Hobbes, too, maintained that “there is no law among nations
except natural law” (id.). For him, international law was the same as the
law of nature, and was binding on sovereign rulers only in conscience,
without being enforceable by a superior common power (see Shen, p.
294).
John Locke (1632-1704) was also an influential political thinker
whose writings on the state of nature, social contract, natural rights and
the law of nature continued yet distinguished from those of Hobbes’
(id.). Believing that the “law of nature” had its source and authority in
God, and that natural rights were higher than man-made principles,
Locke stated:
The obligations of the law of nature cease not in society, but
only in many cases are drawn closer, and have by humane laws known
penalties annexed to them to enforce their observation. Thus the law of
nature stands as an eternal rule to all men, legislators as well as others.
The rules that they make for other men’s actions must, as well as their
own and other men’s actions, be conformable to the law of nature, i.e.,
to the will of God, of which that is a declaration, and the fundamental
law of nature being the preservation of mankind, no human sanction can
be good or valid against it [italics added] (Locke, para. 135).
He argued that men were “by nature all free, equal, and
independent” (id., para.95). In the state of nature thus conceived by
Locke, the sole restraining force was one’s own reason assuring that
men’s actions always conformed to natural law (id., paras. 123 & 128).
Needless to say, Locke would similarly subject international law to the
law of nature.
Christian Thomasius (1655-1728) was also closely linked with the
domination of naturalism in the Age of Enlightenment. Thomasius’
central theme of writings was about the “law of nature,” and he was
among other naturalist thinkers who “… recognized earthly laws as
subject to nature and man’s will and distinct from God’s laws[, and who]
viewed the state as the community or society of men, in which man-
made laws would be applied consistently with natural law” (Swenson, p.
387). Thomasius hardly showed “any great concern with the special
problems of international law” even if his major work bears the title of
“... jus naturae et gentium” (Shen, p. 293).
Also influential at the time was Sir William Blackstone (1723-
1780), who spoke of “the eternal, immutable laws of good and evil, to
which the Creator himself, in all his dispensations, conforms; and which
he has enabled human reason to discover, so far as they are necessary
for the conduct of human actions” (Blackstone, , vol. 2, bk. 2, p. 40). For
Blackstone, the law of nature was universally binding, so was
international law which was deducible from “natural reason, and [was]
established by universal consent among the civilized inhabitants of the
world” (id., vol. 2, bk. 4, pp. [66-68]). Since international law was
contrived from natural law, it was binding upon all individuals and
States. Each State was therefore required “to aid and enforce the law of
nations, as part of the common law: by inflicting an adequate
punishment upon offenses against that universal law” (id., p. [73]).
3. Grotians Between the classical naturalists and the classical positivists
stood eclecticists or the socalled “Grotians,” who, like Grotius,
attempted to harmonize the extreme positions of naturalism and
positivism. Despite being eclectic, the proponents of eclecticism were
either more or less naturalist, or more or less positivist, although most of
them were more naturalism-oriented. Representative eclecticist jurists
such as Wolff and Vattel essentially belonged to the naturalist school.
Baron Christian von Wolff (1679-1754) distinguished positive
international law from natural law, the latter of which was said to confer
upon States only imperfect rights. Under the law of nature, according to
Wolff, each State had the right and obligation toward itself aimed at
selfpreservation and self-perfection, including the right to ask other
States to offer assistance for its own self-preservation and self-
perfection. On the other hand, this right to assistance was not absolute.
It would be subject to the requested States’ assessment of their extra
ability to provide assistance. In that sense, this right to request for
assistance was imperfect right. Similarly, although Wolff’s “natural law”
required a State to work toward its own preservation and perfection as
well as those of others, its obligation to offer assistance to other States
was also an imperfect one, because such obligation existed only if it had
the extra ability to do so without prejudicing its duty toward its own
preservation and perfection. However, Wolff envisaged that States could
turn their imperfect rights and duties under natural law into perfect
ones by positive law making. By entering into a treaty, e.g., they could
make their duty to offer mutual assistance an absolute obligation, and
their right to request such assistance an absolute right (Wolff, pp. 10-11,
19 & 84-86).
Further, Wolff proposed an ideal civitas maxima (the super
State) as the foundation of the law of nations, symbolizing a larger and
perhaps higher polis than the political communities of modern States in
18th century Europe (Onuf, pp. 292-293). “In the civitas maxima,” Wolff
wrote, “the nations as a whole have a right to coerce the individual
nations if they should be unwilling to perform their obligations” (Wolff,
Prolegomena, para. 13). This civitas maxima also reflected Wolff’s
eclectic attempts at consolidating elements of natural law and positive
law. His supreme State was “naturalist” in original thinking, but its actual
creation and realization would also require the positive pacts of the
communities of which it would be composed as well as the positive acts
of a “ruler” acting on behalf of the civitas.
While a faithful disciple of Wolff’s, Emerich de Vattel (1714-
1767) distinguished himself from Wolff by questioning the latter’s core
feature, the civitas maxima. The international society was a more
realistic one in the eyes of Vattel who recognized the importance of
dealing with a public of “sovereigns and their ministers” (see Nussbaum,
p. 156). Although he accepted Wolff’s division of the law of nations into
voluntary law and necessary law, he refused to regard the socalled
civitas maxima as the foundation of the voluntary law of nations.
Instead, he considered the voluntary law as the “presumed” law of
nations (id., p. 158). In essence and on the whole, however, Vattel
continued and even furthered the legacy of Wolff by almost wholesalely
embracing Wolff’s ideas of imperfect rights and perfect rights (id.). For
Vattel, the law of nations was a system “based on the principles of the
law of nature and written with a view to practical application” (id., p.
156). This system as conceived by Vattel was in the first place naturalist
because it was guided by a higher natural law; it was also positivist
because it consisted of rules artificially written (e.g., enacted, agreed or
stipulated) for practical purposes. However, it was the guiding natural
law that controlled: No agreement could bind, or even authorize, a man
to violate the natural law. Thus, both Wolff and Vattel accorded the
“necessary law” or the “law of nature” an ultimately supreme role in the
order of legal systems. They attempted to combine elements of
naturalism and positivism but they both leaned more toward the former
than the latter. .
4. The most important positivists of the Age of Enlightenment include
Zouche, Bynkershoek, Moser and Martens. Drawing on the works of
Gentili, Richard Zouche (1590-1660) went on to deny the existence of
natural law altogether (see Shen, p. 310). To better reflect the positivist
nature of the law developed among nations, Zouche discarded the term
jus gentium, and preferred to use jus inter gentes instead (id.). For
Zouche, international law was “a law ‘which has been accepted
[through] custom … among most nations or which has been agreed upon
by single nations,’ to be observed in time of peace and war” (id.), a “law
which is recognized in the community of different princes who hold
sovereign power” (Lachs, p. 55). His approach to international law is said
to indicate a beginning of “the era of Positivism in international law”
Cornelius van Bynkershoek (1673-1743), with the duel status of a jurist
and a practitioner, examined international law by looking at existing and
historical facts, i.e., by looking at practice of States. He neither adopted
theologians’ approach, nor indulged in the discussion of natural law, nor
cared about talking about the notion of just war (Wang, p. 325). He even
played down the role of doctrines by attaching “great importance to
custom and treaties as safeguards of the international order” (Lachs, p.
58). For example, when he examined the law of the sea, he illustrated
“how … necessity or interest had prompted particular States … to make
certain demands and to support them with legal doctrines”; and “he
found favour in free navigation, thus agreed with Grotius, relying on
practice rather than doctrine” (id.). Bynkershoek is particularly known
for his emphasis of the principle of bona fides or good faith as the
theoretical foundation of all agreements between States (id.; Shen, p. nature,” but he minimalized the use of natural law by “considering it to
310). “All such agreements he envisaged as the product of the sovereign belong rather to the domain of morality.” (Lachs, p. 61). He distinguished
will, and he saw that they must be worthless if that will is vitiated by bad between necessary law (being the dictates of reason and usefulness) and
faith” voluntary law (being the rules of law expressly or tacitly consented to by
States). By relying on history and practice, he proved the existence of
. Johan Jacob Moser (1701-1785) was once noted as “the real what he called a general positive European law of nations which could
father of modern international law”, and is surely regarded to have “had be extended to North America but not to Turkey and other parts of the
a noteworthy share in the evolution of the positivist school of world. For him, it would be impossible for there to emerge a universal
international law” (Nussbaum, p. 179), although he did not abandon the positive international law – “only a natural law would be universal”
law of nature altogether. His positivist approach to international law was (Nussbaum, p. 182), but again that would not have characteristics of law
apparent in that he recognized the existence of a law of nations but only those of morality.
consisting of “treaties and custom” as the sources from which only the
“science of the law of nations [could] be demonstrated” (id., p. 177), and
that his treatment of the “European law of nations” was only concerned
“with the ways in which European rulers and states customarily ‘behave’
in their negotiations” (id., p. 176). He regarded natural law to be
“unavailing” because it was too “controversial,” could be “twisted too
easily”, and was too “silent with regard to many special situations” (id.).
In particular, he denied the value of natural law in its application to
Europe for being “too uncertain [as] a guide”, whereas with regard to
Asia and Africa, however, he considered the law of nature as a
“necessary principle” in order to limit the external behaviors of
European powers (Lachs, p. 61). “Thus his positivism stopped short at
Europe’s shores; in relation to other continents, he pleaded for
application of a universal law which, he felt, protected their
inhabitants.” (id.).

Georg Friedrich von Martens (1756-1821) was a prolific writer

on international law. The most important of his works was his Precis du
droit des gens moderne de l’Europe fondé sur les traites et l’usages
(1789). Before the publication of this work, he published an influential
essay in his native language: “Versuch über die Existenz eines positiven
europäischen Völkerrechts und den Nutzen dieser Wissenschaft.” (Essay
on the Existence of a Positive European Law of Nations and on the
Advantage of This Science) (1787). The very titles of these works suggest
his positivist approach. He did not object to the expression of “the law of