International Legal Norms

Author:Jasper Doomen
Position:J.D., M.A. in Philosophy, Lecturer, Leiden University
Pages:107-116
 
FREE EXCERPT
107
JURIDICA INTERNATIONAL XIX/2012
Jasper Doomen
J.D., M.A. in Philosophy
Lecturer, Leiden University
International Legal Norms
The political developments in the years after World War II have led to a considerable number of rules and
views at the international level, the complex of which is now recognised as ‘international law’. In this article,
the domain as such, rather than a speci c part of this whole, is examined from a meta-legal perspective. The
meaning of ‘international law’ is considered here; how should this be quali ed?
In order to ascertain this, a general analysis of the basis of positive law (i.e., the law as it is established)
is useful. To that end, I will indicate in Section 1 how ‘natural law’ may be interpreted. The ideas of ‘natu-
ral law’ and ‘international law’ are, after all, often connected. In Section 2, the way in which rules at the
international level operate is dealt with; it will be shown how these are observed and whether they may be
enforced. Finally, in Section 3, the topic of human rights is discussed, because of its connection with cross-
border legal issues. Coming to the fore here is the question of the extent to which human rights are relevant
to this subject.
1. The legal basis at the national level
It is important to determine which elements are constantly (implicitly) present in national law. Through
this approach, a possible contrast with the rules at the international level may come to light. Because of the
general theme of this article, I cannot address all possible perspectives on natural law; I will merely deal
with the most important positions for the present discussion.
I mention the term ‘natural law’; the approaches of two philosophers in particular, Hart and Hobbes,
provide clari cation with regard to this matter. A familiar interpretation of ‘natural law’ is the ‘classical’
approach; this consists of a standard indicating that a natural law exists in an absolute, immutable, sense
and should (in moral terms) be acknowledged as the directive for actual legislation*1, the truth or rectitude
being the same for all and equally known to all insofar as the collective principles of reason are involved.*2
It may accordingly be said that ‘every posited human law contains the rationale of the law to the degree
in which it is derived from the law of nature. If it, however, in any way, discords with the natural law, it will
no longer be a law, but a corruption of law’*3. The right to, for example, a fair trial could from this perspec-
tive be taken to exist before it is laid down by a (human) legislator.
1 T. Aquinas. Summa Theologiae [1274]. Complete Works, Vol. 7: 1a2ae, Summae Theologiae a quaestione 71 ad quaestionem
114. Rome: Ex Typographia Polyglotta S. C. de Propaganda Fide 1892, Q 90, Article 2 (p. 150); Q 93, Article 3 (p. 164); Q 94,
Article 2 (pp. 169, 170); Q 94, Article 5 (pp. 172, 173).
2 Ibid., Q 94, Article 4 (p. 171).
3 Aquinas (see Note 1) wrote: ‘Unde omnis lex humanitus posita intantum habet de ratione legis, inquantum a lege naturae
derivatur. Si vero in aliquo a lege naturali discordet, iam non erit lex, sed legis corruptio’. – Q 95, Article 2 (p. 175).

To continue reading

REQUEST YOUR TRIAL