Natural-Law Thinking in the Modern Science of International Law

Author(s): Josef L. Kunz

Source: The American Journal of International Law , Oct., 1961, Vol. 55, No. 4 (Oct.,
1961), pp. 951-958
Published by: Cambridge University Press

Stable URL: http://www.jstor.com/stable/2196276

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 1961] EDITORIAL COMMENT 951

NATURAL-LAW THINKING IN THE MODERN SCIENCE OF INTERNATIONAL LAW

There is no doubt that in the modern science of international law,

currents of natural-law thinking, often coupled with severe criticism of
positivism, do appear.' But there is no unity in this movement; quite
to the contrary, there are very different approaches; there is much con-
fusion as to what natural law can do for international law; even the very
words "natural law" and "positivism" are used in very differelnt mean-
ings. This state of things ilnvites some observations.
The problem of "natural law" was posed, two and a half thousand
years ago, by the Greek sophists and, to the present day, has remained
a permanent part of the Occidental philosophy of law.2 During antiquity
and the Middle Ages there were many "schools" of natural law, yet a
dominating school, the "traditional " natural law, was developed by a
line of Greek and, later, Catholic thinkers: 3 a natural law on an ontological-
teleological or metaphysical basis; it held that good law must be in harmony
with the essential nature of man, as a corporeal-spiritual individual and
a social being. This traditional natural law during the Middle Ages not
only dominated jurisprudence, but also deeply influenced national legal
systems, both the "Common Law" of England and the "Civil Law"
of the Continent, where Roman law, itself considered as ratio scripta,
had been received.
There is, therefore, small wonder that the new international law and
its science should have been deeply influenced by Roman and natural law.4
The masters of the first, the "Spanish" school of international law, were
at the same time the leaders of Spanish Neo-Scholasticism, building upon
Aristotelian-Thomistic lines. Su'arez was a realistic thinker who fully
recognized that the new "international community" of the sovereign
states of Western Christian Europe is here to stay; but he walnted to
give the new international law a foundation in Catholic natural law, in
the "genus humacnurn, in varios populos et regna divisum."
The Protestant Grotius, who wrote the first treatise on international
law, was still strongly influenced by the traditional natural law, but he
secularized it by stating that natural law would be valid even if there

1 See, e.g., Luis Garcia Arias, "Las concepelones jusnaturalistas sobre la funda-
mentaci6n del derecho internacional, " Temis, No. 7, pp. 115-148 (Saragossa, 1960 );
Ulrich Scheuner, "Naturrechtliche Str6mungen in heutigen V6lkerrecht," 13 Zeitschrift
fur ausliindisehes offentliches Recht u. V6lkerrecht 556-614 (1950).
2 See Alfred Verdross, Abendliandisehe Rechtsphilosophie (Vienna, 1958).
3 To name a few: Plato, Aristotle, Stoics, Cicero, St. Augustine, St. Thomas of
Aquinas, Vitoria, Suarez.
4 International law was called for centuries Jus Naturae et Gentiurn. See E.
Reibstein, Die Anfiinge des neueren Natur- und Volkerrechts (1949); P. Guggenheim,
"Jus naturae et Gentium," Festschrift Spiropoulos 213-225 (1957) . This latter
writer holds that natural law has been dissolved and that positivism is firmly and
necessarily established; he foresees no success for present-day attempts at a revival
of natural law.

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952 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 55

were no God. This secularization profoundly changed the character of

natural law. True, the Catholic natural law is not based on divine
revelation; it is to be discovered by man's recta ratio-a term stemming
from the Stoics; yet the jus naturae is man's "participation in the lex
aeterna"; it necessarily presupposes the Christian faith in the Creator,
who has written these norms into the hearts of all men. "Right reason"
is only the tool to discover the natural law; with Grotius this right reason
becomes the basis of natural law. Grotius distinguished the "natural"
and the "voluntary" jus gentium, although modern international lawyers
are sometimes of exactly opposite opinions as to what part he emphasized.5
International lawyers of the seventeenth and eighteenth centuries fol-
lowed different paths: One school, eliminating the natural law of nations
altogether, were strict positivists; 6 others, dominated by the "classic" law
of nature, the droit de la raison, eliminated the voluntary law of nations; 7
even the later "Grotians" retained natural law only in appearance:

Exaggerated emphasis on the independence of states had the effect

in Vattel's system of reducing natural law . . . to little more than
an aspiration after better relations between states.8

II

It is against the long predominance of the "classic" natural law and

its extravagances that, at the beginning of the nineteenth century, positiv-
ism came as a reaction in Europe.9 It took the form of a factual positivism,
under the domination of the anti-metaphysical "positive philosophy" of
Auguste Comte and of legal positivism. More and more, a rigid positivism
swept the whole science of law 1O and the science of international law
again followed the general trend. In the last decades of the nineteenth
century, however, this trend began to change. There was the revival
of the nearly-forgotten traditional Catholic natural law, due to the En-
cyclical "Aeterni Patris" of August 4, 1879, by Leo XIII. Neo-Thomistic
philosophy of law developed, and this natural law was fostered in the
Hispanic world, in the Catholic law schools of the United States, and in
great law schools of Europe, such as those at Paris, Milan, Louvain,
Freibourg. By 1870, there began in Germany a strong reaction against
sociological positivism and the long predominance of Comte, with a return
to Kant. Up to the first World War the leadership in Germany was with
the Marburg Neo-Kantian School. Within this school, we find Stammler's
"natural law with a variable content," and Del Vecchio is not uninflu-
enced by the philosophia perennis of St. Thomas. Since the beginning
of this century, and particularly since the end of the first World War,

5 Thus, Oppenheim-Lauterpacht, International Law. A Treatise, Vol. I, Peace 93

(8th ed., 1955), holds that the bulk of Grotius' interest was in the natural law of
nations; exactly to the contrary, Guggenheim, loc. cit. note 4 above, at 233.
6 Particularly Johann Jacob Moser. 7 Particularly Samuel Pufendorf.
8 J. L. Brierly, The Law of Nations 39 (4th ed., 1949).
9 Except Spain, where Krause's philosophy dominated-' "el krausismo espaniol."
10 Bergbohm (Jurisprudenz und Rechtsphilosophie, 1892) declared natural law dead.

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 19611 EDITORIAL COMMENT 953

new philosophical thinking, which we may put under the general name
of the "phenomenological movement," arises to challenge the Marburg
Neo-Kantianism. Hence, since the beginning of the twentieth century
and especially since the second World War, a general revival of natural
law can be observed, as many writers state."
Natural law flows from the Baden Neo-Kantian School. The French
"Institutionalists" know a "natural law with a progressive content"
(Renard). There is a strong connection between natural law and all
"intuitionist" philosophies: Bergson, phenomenology, theories of values,
existentialism. Neo-Thomists often welcome certain types of these newer
philosophies. Phenomenology leads via Brentano to Scholasticism. Strong
influences lead from Bergson to Neo-Thomism. Many Neo-Thomists are
"jubilant followers of Max Scheler." There is a "Catholic Phenome-
nology," a "Catholic existentialism." Neo-Thomist philosophers, such as
Jacques Maritain and Heinrich Rommen, exercise wide influence.'2 New
treatises on Catholic natural law are being written, such as that by Joh.
Messner.'3 The Notre Dame Law School has started its excellent "Natural
Law Forum."
The revival of natural law is by no means restricted to Neo-Thomism.
There is a revival of "classic" natural law. Attempts at construing a
modern natural law on the basis of the "sentiment" or "conscience"
of law are being made.'4 There are proponents of natural law, not a
part of Neo-Thomism, in the United States. It is highly interesting to see
that sociological scholars of law, who strongly reject natural law, build
on a cryptic natural law, such as the droit objectif of Leon Duguit, or
the droit positif intuitif of Gurvitch. The leader of the American "socio-
logical jurisprudence," Dean Roscoe Pound, has, in the spirit of Josef
Kohler, introduced a cryptic natural law.'5 There are all kinds of natural
law at the present time; as a professor of the Law School of the Catholic
University of Louvain tells us: "Natural law is now fashionable." "I
This general trend toward natural law must also be understood his-
torically in relation to the past and to the times in which we are living.
The relatively peaceful nineteenth century had primarily to do with
problems of interpretation, of codification of law. Western optimistic
faith in "progress" sincerely held that law is and will be, generally

11 Charmont, La renaissance du droit naturel (1910); Keller, Droit naturel et droit

positif en droit international public (1931); Haines, The Revival of Natural Law
Concepts (1939).
12Die ewige Wiederkehr des Naturrechts (1949).
13 Naturrecht (1950).
14 Helmut Coing, Die obersten Grundsaitze des Rechts (1947).
15 Cairns (Legal Philosophies from Plato to Hegel 113 (1949) ) states that "Pound'Is
'postulates of civilized society in our time and place' are really natural law doctrines
intentionally framed as the necessary presuppositions of a particular system or systems. "
16 " The term natural law is fashionable, especially among Catholics who seek a
rallying point against relativism. There are, therefore, many people using it, and
they bring it up on any pretext, as other men use the term sociology." J. Leclerq,
in 2 Natural Law Forum 64 (1957).

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954 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 55

speaking, in harmony with the postulates of natural law. In such times

positivism can suffice. But the rapidly changing, violent twentieth century
is faced by wars, revolutions, rebellions, by problems of reforming and
of creating law. These are problems of law-making, of politics of law, for
which rigid positivism has no answers. It is, therefore, understandable
that positivism had to suffer a crisis, as a consequence of the fact and of
the far-reaching consequences of the first World War. To that must be
added the deep inner crisis of our Occidental culture; in such times
cries, such as Scheler 's, asking for a "knowledge of salvation " arise.
Man was no longer satisfied with the formal, logical investigations of the
Marburg Neo-Kantian School. A tendency toward the concrete, toward
substantive richness, toward eternal values, toward metaphysics, toward
natural law, made itself felt. Then there were the terrible experiences
before, in and after the second World War, the unheard-of cruelties
toward men by totalitarian regimes, the abuse of law for purposes of
injustice, torture and extermination, total war, the appearance of nuclear
weapons, the bitter struggle in a world torn by an ideological abyss.
Such periods of profound crisis foster a flight into natural law as ideas
and values on which man can rely, as a barrier against the misuse of
law. These events of our time are part of the explanation why Gustav
Radbruch, at the end of his life, returned from relativism to natural
law, why natural-law concepts appear in modern European Constitutions
and in the decisions of the highest courts of Western Germany, as well
as in documents of the "new" international law.

III

In earlier centuries international lawyers followed the general trend,

first of "traditional," later of "classic" natural law. During the period
of positivism they were mostly positivists; but even during the predomi-
nance of rigid positivism many an international lawyer still recognized
natural law to a certain extent. Remnants of natural-law thinking can
be found in the discussion of some problems, such as the fundamental
rights of states. Now many international lawyers follow the general trend
of the revival of natural law.
There is the great stream of the revived traditional Catholic natural
law. We may mention in Germany Cathrein and Mausbach, in France
Louis Le Fur.17 J. T. Delos'8 has applied the teachings of the leaders
of the French "Institutionalist School" (Hauriou, Renard) to interna-
tional law. Here belong the majority of Spanish international lawyers
and others of the Hispanic world; to them the Catholic natural law, as
developed by Spanish Neo-Scholasticism on the lines of St. Thomas, is a
part of their national and historical civilization. Here must also be
named prominently Professor Verdross who, according to his own words,19

17 On his "objective theory" see Garcia Arias, loc. cit. note 1 above, at 140-143.
18 La soci6t6 internationale et les principes du droit international public (1927).
19 A. Verdross, V6lkerrecht 55 (4th ed., 1959).

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 1961] EDITORIAL COMMENT 955

defends the natural-law doctrine of the Spanish School of International

Law, and, particularly, of Francisco Suarez.
Other international lawyers revive the "classic" natural law, especially
with regard to the problem of the international protection of human rights
and freedoms. The most prominent name is here that of the late Sir
Hersch Lauterpacht, who openly returned to natural law in his plea for
an international bill of the rights of man,20 and who, in 1955,21 spoke
out against the triumph of positivism, which, notwithstanding its merits,
"can no longer be regarded as being in accordance with existing Interna-
tional Law." With the misdeeds of totalitarian regimes in mind, he
emphasized the importance and vitality of metapositive standards.
When it comes to the writers who are often indiscriminately named as
"sociological" jurists, it is necessary to distinguish clearly. There are
international lawyers who insist on the sociological factors, on the socio-
logical foundation of the international law actually in force, and show
their importance for a full understanding of that law and as a prerequisite
to reform, but who are normative jurists, sometimes favorable to, or
adherents of, natural law. In this category, we may name Max Huber
and Dietrich Schindler, who stood near to Nicolai Hartmann. Here
belongs the Professor at the University of Madrid, Mariano Aguilar
Navarro.22 Here belongs the late Professor Brierly, who wrote that

if we are to explain why any kind of law is binding, we cannot

avoid some such assumption as that which the Middle Ages made,
and which Greece and Rome had made before them, when they spoke
of natural law.23

Here we must also name Charles De Visscher,24 who has emphasized socio-
logical factors, but is a normative jurist and in favor of the traditional
law of nature.
There are international lawyers who follow the cryptic natural law,
developed by anti-metaphysical scholars who reject natural law. The in-
fluence of Duguit's droit objectif on the science of international law was
remarkable. Foremost is the late Professor Georges Seelle, whose droit
objectif-pseudo-natural law, so to speak-is presented as a "biological
necessity." Also Nicolas Politis 25 is to be mentioned here. Other inter-
national lawyers adhere to a natural law based on the "legal sentiment"
or the "legal conscience" of men and nations (Krabbe,26 Drost 27); some,
as Laun, in an unacceptable way simply confuse law with ethics.

20 An International Bill of the Rights of Man (1945).

21 Oppenheim-Lauterpacht, op. cit. note 5 above, at 107.
22 Derecho Internacional Pfiblico (1952-1954).
23 Op. cit. note 8 above, at 57.
24 Theory and Reality in Public International Law (1957). See this writer's book
review in 70 IHarvard Law Rev. 1331-1336 (1957).
25 Les nouvelles tendances du droit international (1926).
261H. Krabbe, "L 'idee moderne de 1 'Itat," 13 Hague Academy Receiil des Cours
(1926, III).
27H. Drost, Grundlagen des Volkerreehts (1936).

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956 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 55

Max Huber once remarked that ethical orders are, in the last analysis,
anchored in metaphysics, whereas ethics anchored only in sociological obser-
vations are of a different type. Indeed, a German sociological jurist has
stated that "sociology is the natural law of our times."2 28 The "realist"
school considers "law as a fact," a prediction, not a prescription; in the
same way natural law is not a system of ethical norms, but a compilation of
factual descriptions; statistically proved facts are spoken of as "values."
Thus Professor McDougal's "goal-values" are not values, but, as he, when
pressed, must admit, simply "preferences." But the real problem is not
to state preferences or "interests" (Heck), but to weigh them; and
for that we need not a description of factual behavior, but a normative
scale. The concept of the "living law" of the Austrian scholar Eugen
Ehrlich has exercised a profound impression on the American "realist"
school.29 It is also the basis for the earlier investigations of Western
and Eastern cultures by Professor Northrop. Yet in his recent work 30
he felt the necessity of evaluating the justice of the different "living laws."
For that purpose he needs, of course, a system of ethical norms, that is,
of natural law; but he believes he can solve this ethical problem by
scientific means.
The far-reaching proposals for the progressive development of interna-
tional law by the late Judge Alejandro Alvarez31 cannot be said to be
based on natural law; he does not start from supreme values, from highest
ethical norms, but from the fatits socitaux, from the "new conditions of
life."

IV

As in former times, many international lawyers follow the trend of a

return to natural law and toward severe criticism of positivism, a trend
to be seen in the science of law in general, and understandable through
the times in which we are living, times of particular gravity for the
future of international law. But we see also the split between many
forms of natural law, and sometimes only pseudo-natural law. We find
often the same lack of clarity as to the very terms of "natural law" and
of "positivism."
As far as positivism is concerned, we must distinguish, first, the "naive"
positivism of the nineteenth, and the "critical" positivism of the twentieth
century. The first has certainly been recognized as being untenable; we
have to deal only with the second as represented by Hans Kelsen. Kelsen
has, with his usual clarity, recognized that, in order to explain the legally
28 Franz W. Jerusalem, Kritik der Rechtswissenschaft 5 (1948).
29 The leading sociological jurist of Brazil, Pontes de Miranda, wants to determine
justice positivistically and scientifically; he asks for " a justiqa concreta, verifieavel
e conferivel com o fato." 1 Sistema de Ciencia Positiva do Direito 477 (1922).
30 F. S. C. Northrop, The Complexity of Legal and Ethical Experience (1959).
31 See his dissenting opinions as a judge of the International Court of Justice at
The Hague, and his last two books: Le Droit International Nouveau dans ses Rapports
avec la Vie Actuelle des Peuples (1959), and Le Droit International Nouveau. Son
Acceptation, Son lthude (1960).

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 1961] EDITORIAL COMMENT 957

binding validity of the law, at least one metapositive norm must be

introduced, his "fundamental norm." The latter is only supposed; it
has only hypothetical validity; it may be supposed, but must not be;
but it raust be supposed, if one wants to understand the given materials
as law. The problem of the ultimate validity of law is not excluded by
Kelsen. This is one of the fields of inquiry of natural law, a philosophical
and ethical problem. But whereas true natural law stands on absolute
values, Kelsen-and that is a general problem of our times_82 feels that
scientifically only a relativism of values can be maintained.
Secondly, there is legal (analytical) and factual (sociological) positivism.
Thirdly, it is of the highest importance to distinguish between the philo-
sophical and the juridical positivism. For the first, law is everything;
as the neo-positivism puts it: "Value judgments are nonsense." Yet law
is a system of norms ordering human conduct; the exclusion of values is
impossible. Juridical positivism correctly holds that there is only one
law, the man-made law, whereas it is ready to recognize that there are
other and higher ethical and religious values and norms. Critical and
juridical positivism studies the law analytically; it excludes neither the
study of the sociological factors nor the ethical evaluation of the law,
which never can be eliminated. Law, as this writer has for a long time
maintained,33 has three components: norm, fact, and value. Analytical,
sociological and ethical studies are therefore justified. Their long-standing
hostility should be replaced by co-operation, each working in its legitimate
field and with legitimate methods.
Modern critical, juridical, analytical positivism is indispensable. That
"positivism" is particularly attacked by the present science of interna-
tional law also has a special reason. The rigid, naive, philosophical
positivism did not restrict itself to the study of the law in force, but served
also its own political postulates, held under the conviction and defense
of the omnipotence of, and the highest place on earth due to, the sovereign
state. This positivism stood for the predominance of the state, for the
dualistic construction, for the will of the state as the only basis of inter-
national law, for the unquestionable right of every sovereign state to go
to war, against third-party judgment, against a progressive development
of international organizations, and so on. The era of rigid positivism
was therefore an unhappy one for international law. But all this has
nothing to do with correct positivism. No one can deny that Kelsen, a
critical positivist, is a protagonist of the most progressive development
of international law.
Just as it is necessary to be clear about positivism, one must also be clear
about "natural law." It is, for instance, agreed that the "classic" natural
law with its detailed natural-law codes on all problems is just as un-
tenable as naYve positivism. Natural law, so called, is a system of highest
32 See, on this problem, A. Brecht, Political Theory. The Foundation of Twentieth
Century Political Thought (1959), and the article by A. Means, Jr., "Legal Theory
and Arnold Brecht," 47 Virginia Law Rev. 264-276 (1961).
33 See his study in 8 6sterr. Zeitschr. f. 5ff. Recht 1-26 (1957).

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958 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 55

ethical norms. Its adherents restrict it correctly to a few of the highest,

most general principles, whereas the application of these principles to
concrete legal norms varies according to the contingent conditions of times
and nations. There is no opposition to positive law; on the contrary,
the latter is considered indispensable. But also in the traditional natural
law, even today, the grave mistake is often made of asserting that natural
law is law. This is untenable. The analytical, positivistic scholar studies
from a legal point of view the law, that is, a system of norms according
to which the real conduct of men can be evaluated as "legal" or "illegal."
But the adherent of natural law is a philosopher, a moralist, evaluating
the law in the light of higher, non-legal but ethical norms, in order
to decide, not whether it is or is not law, but whether the law is good
or bad. When he speaks of the binding quality of the law, he does not
mean its legally binding quality-for that is a question of law-but its
ethically binding quality. It is fundamental to state that natural law
is not law, but ethics. This is fully recognized by many modern Neo-
Thomists.34 It is particularly gratifying to see that a leading Neo-Thomist
thinker, Professor Jean Dabin of the Catholic University of Louvain Law
School, has strongly spoken against the long chain of mistakes being
constantly made by the claim that natural law is law. He has said clearly
that there cannot be a "juridical" natural law; he has stated unequivocally
that the dichotomy of natural law-positive law must be replaced by the
new one: ethics-law.35
A true natural law is not a system of legal norms, but a system of
highest ethical principles. In this sense true natural law has a task to
fulfill in these times, so difficult for international law. This task cannot
be based on the pretense that natural law is law. It cannot be used to
declare something to be law which is not law. Such uses can be seen
often. There are three great problems for natural law as applied to
international law: First, to study the ultimate foundation of the validity
of international law; this is a problem of philosophy of law. Secondly,
there is the problem of evaluating the international law actually in force
from an ethical point of view; this is a problem of an ethical critique
of international law. Thirdly, there is the problem of helping, from
an ethical point of view, the progressive development of international
law. These tasks are necessary for the international community which
is today truly worldwide. Finally, in a period in which our Occidental
culture is fighting for its very survival, it seems necessary for its protago-
nists, and hence its international lawyers, to strongly reaffirm the supreme
values and ethical norms of that civilization-flowing from the central idea
of the dignitas humana-and show their faith in them by words and deeds.
JOSEF L. KUNZ

34 See, e.g., Joseph 0 'Meara, "Natural law fruitfully may be regarded as the con-
tribution which ethics can make to law," 5 Natural Law Forum 83 (1960); A. Utz,
"Natural law is essentially normative ethics," 3 ibid. 170 (1958).
35 Jean Dabin, Theorie G6arale du Droit 324 (2nd ed., 1953).

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