Two Challenges to the Common Good Principle

Recall that natural law political philosophy takes as its central normative concept that of the common good (0.1). It is the common good, that is, that ultimately provides the normative force for law, rendering it (under suitable conditions) authoritative. And so the common good must be something that there are very strong reasons to promote and protect, and the common good principle (that is, the requirement to do one's share with respect to the common good of one's political community) must be a principle that there are decisive reasons to honor (3.6). For the demands of the common good principle are supposed to explain the normative demands of the law; consent, though necessary (4.7), is relevant only because we must appeal to consent to explain why to flout the law is to flout the common good principle (5.5).

It was in light of this normative role that the natural law view I have defended selects the aggregative conception of the common good: for what this natural law view needs is a conception of the common good that carries sufficient normative weight that it can underwrite the decisive force of the common good principle, and the aggregative view both makes a plausible case on its own account (3.2) and clearly fills this role better than the alternative natural law conceptions on offer (3.3, 3.4).

The Central Claims of Natural Law Jurisprudence and Natural Law Political Philosophy

The central claim of natural law jurisprudence is that there is a positive internal connection between law and decisive reasons for action: law is backed by decisive reasons for action. (For there to be a decisive reason to ϕ is for ϕ-ing to be a reasonable act for one to perform and not ϕ-ing an unreasonable act for one to perform, and so for a law to be backed by decisive reasons is for there to be decisive reasons to perform any act required by that law.) The central claim of natural law political philosophy is that law has this reason-giving force through the common good of the political community. Natural law jurisprudence most fundamentally asserts that it is of the essence of law to bind in reason; natural law political philosophy most fundamentally asserts that what makes law bind is its role with respect to the common good of the political community.

Why should we take the view that these are the central theses of natural law jurisprudence and political philosophy to be anything more than stipulation? As the term ‘natural law theory’ is now used, Aquinas is the paradigmatic natural law theorist. If one would like evidence for Aquinas's status as the paradigm, one can look at any anthology of moral, political, or legal philosophy that includes a section on natural law theory: any such anthology contains a selection from Aquinas or about Aquinas.

The Fundamental Claim of Natural Law Jurisprudence

Natural law political philosophy takes its lead from natural law jurisprudence. For natural law jurisprudence most fundamentally claims that law is backed by decisive reasons for compliance, whereas natural law political philosophy attempts to describe the conditions in which law, in this sense, is present.

The immediate challenge faced by defenders of the thesis that law is backed by decisive reasons for compliance is that it seems open to obvious and devastating objection by counterexample. For that thesis appears to entail that if one does not have decisive reason to comply with a dictate, then that dictate is not law. But it seems that we readily acknowledge as law dictates for which we do not, or would not have had, decisive reasons for compliance. The Fugitive Slave Act of 1850 required citizens not to hinder, and even to aid, federal marshals who sought to return runaway slaves to bondage. This act was passed in order to enforce a Constitutional provision and was enacted in due form by the federal legislature. It was socially acknowledged and judicially enforced. It seems that, as a matter of social practice, the Fugitive Slave Act was law – regardless of the fact that those under it did not have decisive reason to comply with it. It thus serves nothing but obfuscation to deny that the Fugitive Slave Act was law.

Three Routes to the Weak Natural Law Thesis

The strong natural law thesis holds that law unbacked by decisive reasons for compliance is no law at all. The weak natural law thesis holds that law unbacked by decisive reasons for compliance is defective precisely as law. I have two central aims in this chapter – first, to defend the truth of the weak natural law thesis; second, to show that the success of this defense of the weak natural law thesis is not merely a way station to the defense of the strong natural law thesis but provides the premises to call the strong natural law thesis into question. So while the standard criticisms of natural law jurisprudence (1.1) fall short of providing serious reasons to reject the strong natural law thesis, reasons to reject the strong thesis emerge in prosecuting the task of defending the natural law view.

I will consider three initially plausible routes to the weak natural law thesis. What makes each of these an initially plausible route to that thesis is that each exhibits on its face a technique for distinguishing between law's existence conditions and its non-defectiveness conditions, and provides some clue to identifying what law's non-defectiveness conditions are. One route, the ‘legal point of view’ route endorsed by Finnis, appeals to the notion that there is a distinctively legal point of view, and it is law as characterized from this point of view that is paradigmatically law (2.2).

The Place of Punishment within a Natural Law Account of Politics

There is no doubt that a great deal of ordinary thought about law involves thought about punishment. But one might think, for more than one reason, that the place of a theory of punishment is bound to be at the periphery of a natural law account of political matters.

First, recall that the central thesis of a natural law political theory is that the authority of law derives from its privileged place with respect to the common good (0.1). Natural law political philosophy is concerned with law's authority. Punishment, by contrast, is concerned with law not as authoritative but with law as coercive: punishment involves the wielding of force against the unwilling to bring about certain desirable actions or outcomes. But bearing authority and having the right to coerce are two fundamentally different conditions, and neither entails the other. Needing the direction of a personal trainer, I might promise to follow your directions with respect to my exercise regimen. While that promise establishes you as an authority over me – at least in this limited domain – it does not of itself give you a right to coerce me if I fail to comply. Nor does a right to coerce entail authority. Needing help in stopping smoking, I might grant you a right to knock a cigarette from my hand if you ever see me lighting up.

We have seen that it is, in principle, perfectly possible to conceptualize the totality of international legal norms as a consequence of the doctrine of sovereignty. In a sense, all legal norms are merely descriptions of what it is for each State to be sovereign. This is the way many classical lawyers presented their international law. Statehood was assumed given and the law followed in terms of the “absolute” and “conditional” rights which accompanied it. This approach seemed unworkable because of the abstract and ultimately subjective way that such rights were conceived. Moreover, it failed to explain the phenomenon that sovereignty was associable with the most varied kinds or rights and obligations. When modern lawyers were compelled to admit that sovereignty had no natural content, they also had to recognize that it did not serve as a reliable starting-point for deductions about the law.

The modern doctrine of sources of international law attempts to deal with the problem of the indeterminate character of the doctrine of sovereignty. On the one hand, it tries to provide for the concreteness of the law by refusing to accept any norms as simply given, either by virtue of statehood or some anterior normative code. It tells the lawyer where he can find the law in an objective fashion. On the other hand, sources doctrine also attempts to provide for the law's normativity by detaching it from the momentary views and interpretations which States might hold of its content.

This is not only a book in international law. It is also an exercise in social theory and in political philosophy. One of the principal theses of the book is that it is neither useful nor ultimately possible to work with international law in abstraction from descriptive theories about the character of social life among States and normative views about the principles of justice which should govern international conduct. Indeed, many international lawyers have recognized that this is so. They have stressed the need to elaborate more fully on the social determinants of State conduct. And they have emphasized the law's instrumental role in fulfilling normative ideals of “world order”. But they have had difficulty to integrate their descriptive and normative commitments into analytical studies about the content of the law. Typically, reflection on the “political foundations” of international law has been undertaken in the introductory or “methodological” sections of standard treatises. These have had only marginal – if any – consequence on the doctrinal elaborations of different areas of international law. Lawyers seem to have despaired over seeing their specific methodology and subject-matter vanish altogether if popular calls for sociological or political analyses are taken seriously. Ultimately, they believe, there is room for a specifically “legal” discourse between the sociological and the political – a law “properly so called”, as Austin put it – and that this is the sphere in which lawyers must move if they wish to maintain their professional identity as something other than social or moral theorists.

I shall not attempt an exhaustive review of modern international legal doctrines or theories advanced by modern lawyers to explain why international law is something other than politics. My focus will remain with the argument's “deep-structure”, that is, the conditions within which express argument is possible. I am less concerned about what lawyers have said or assumed than what they need to say or assume in order to think their work coherent. From this perspective, modern discourse will appear as the constant production of strategies whereby threats to the argument's inner coherence or to its controlling assumptions are removed, or hidden from sight, in order to maintain the system's overall credibility.

Modernism shares the classical problématique, involved in its adoption of the liberal theory of politics. It tries to explain why the law it projects is both normative and concrete – that is, not vulnerable to the criticism of being apologetic or utopian. But these explanations threaten each other. To remove – or explain away – the threat, doctrine may adopt four strategies. It may prefer normativity or concreteness, renounce both or explain them as compatible. These are exhaustive and logically exclusive positions and will count as a full description of the modern argument's structure.

I shall first describe the method whereby it has been possible for a distinctly “modern” discourse to emerge from a criticism of classical doctrines as subjective because either apologetic or utopian (3.1).

A retrospective

I have always found writing a messy affair. It has never proceeded according to plan. Starting on a text, I seldom possess more than the roughest skeleton of an outline for the argument I wish to make or the sections through which it might enfold. Reconstruction of what I now think From Apology to Utopia is about, cannot, therefore, hope to bring to light any very sharply defined programme I had when I wrote it in 1989. That programme developed in twists and turns during the work and my own view of it has not been unaffected by the passage of time. But it now seems right to say – although I would probably not have put it in this way at the time – that the book was conceived in order to articulate and examine two types of unease I had about the state of international law as a professional practice and an academic discipline. First, existing reflection on the field had failed to capture the experience I had gained from it through practice within Finland's Ministry for Foreign Affairs, especially in various United Nations contexts. In particular, I felt that none of the standard academic treatments really captured or transmitted the simultaneous sense of rigorous formalism and substantive or political open-endedness of argument about international law that seemed so striking to me.

Things, says Hegel, exist in and through the boundaries which delimit them from other things. This applies also to such an abstract thing as international law. Any determination of what might count as “international law” involves a delimitation of that “thing” towards neighbouring intellectual territories, in particular theories about the character of international life (descriptions of political behaviour) and the normative principles of international politics. In this first chapter I shall discuss the attempt to give identity to international law as a specific realm of thought and action through the assumption that it can be delimited from the fields of descriptive and normative politics in some determinate way. Two intellectual operations go to establish these boundaries. International law is kept distinct from descriptions of the international political order by assuming that it tells people what to do and does not just describe what they have been doing. It is delimited against principles of international politics by assuming it to be less dependent on subjective beliefs about what the order among States should be like. These two delimitations establish what lawyers commonly assume to be the “objectivity” of international law. Inasmuch as international law has an identity, it must differ from descriptive and normative politics in the two senses outlined.

My argument is that these intellectual operations do not leave room for any specifically legal discourse. The two distinctions have not been – and, as I shall argue, cannot be – simultaneously maintained.

The international doctrine of State sovereignty bears an obvious resemblance to the domestic-liberal doctrine of individual liberty. Both characterize the social world in descriptive and normative terms. They describe social life in terms of the activities of individual agents (“legal subjects”, citizens, States) and set down the basic conditions within which the relations between these agents should be conducted.

But the relations between individual liberty and normative principles might be figured in alternative ways. We have seen that a pre-classical scholarship started out with assuming the existence of a normative code – a set of rights and duties in different areas of the Prince's conduct. That code was normative in its own right. Sovereignty – the Prince's sphere of liberty – had no independent normative status. It was simply a description of the powers and liberties which the Prince was endowed with by the normative code. A reverse perspective was developed by the classical lawyers. For them, the State's sphere of liberty was prior, and normative, and the principles of conduct between States simply followed as a description of what was required to safeguard the anterior liberties. It should not be difficult to recognize the opposition between a descending and an ascending outlook in this explanation of the contrast between early and classical doctrines.

The problem with the classical position is how to explain what is involved in a State's sovereignty – its sphere of liberty – without lapsing into apologism; the conclusion that a State's liberty extends to anything the State itself thinks appropriate to extend it to.

This book was first published at a moment of enthusiasm about the spread of international cooperation and the rule of law in the world. Its central thesis – namely that international law reproduces the paradoxes and ambivalences of a liberal theory of politics – may have seemed awkward at a time when liberalism was just about to gain a knock-out victory over its alternatives. Little is left today of that enthusiasm. International institutions, multilateral diplomacy and indeed international law are widely seen to have failed to cope with the most pressing international problems. Instead, “liberalism” is now often associated with the expansion of a private, market-driven “globalization” or the spread of a rhetoric of “freedom” that instrumentalizes law for the advancement of particular values or interests. Examined from the outside, international law appears sidelined by the informal structures of private governance while, from the inside, its functional differentiation (“fragmentation”) has raised the question of whether any unifying centre remains in public international law that would still seem worthy of professional or ideological commitment.

And yet, the supple fabric of liberalism accounts for the persistent attraction of liberal themes. The virtues of sovereignty remain as palpable as its vices. The ideal of a consensually based legal order between equal and self-determining collectivities has retained its political appeal despite the theoretical, doctrinal and practical problems with the ideas of consent, self-determination and inter-state equality.