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Published online by Cambridge University Press: 08 March 2019
As part of a roundtable on “Balancing Legal Norms, Moral Values, and National Interests,” this essay presents a Christian view of how to think coherently about the relationships between those three elements. Christian monotheism entails the view that there is a given moral order or “natural law,” which comprises basic human goods (or universally objective values) and moral rules for defending and promoting them. This natural law precedes all human, positive law. It follows that, while the authority of positive international law is important for the maintenance of the good of social order, it is still penultimate, since it can be trumped by natural law. Moreover, international law's authority is weaker than that of national law, because controversy over its sources gives greater scope for the interpreter's moral and political prejudices to shape its construal. Since the interpretation of international law is subject to diverse construals, occasions arise when its authority is invoked to shield the perpetration of grave injustice. In such circumstances, an appeal to natural law could supply moral justification for humanitarian military intervention, even when it violates the letter of international law. Humanitarian intervention, however, is often criticized for being motivated by national interests. A Christian view that follows Thomas Aquinas, however, does not regard national interests as immoral per se, but recognizes that self-interest can be legitimate, and that a national government has a moral responsibility to promote the legitimate interests of its people.
1 Roman Catholic philosopher of law John Finnis has proposed seven “basic human goods”: life, knowledge, play, aesthetic experience, sociability or friendship, practical reasonableness, and religion (Natural Law and Natural Rights [Oxford: Clarendon Press, 1981]Google Scholar). Alternatively, the Aristotelian philosopher Martha Nussbaum has proposed ten “core capabilities”: life; bodily health; bodily integrity; senses, imagination, and thought; emotions; practical reason; affiliation; other species; play; and control over environment (Creating Capabilities: The Human Development Approach [Cambridge, Mass.: Harvard University Press, 2011]Google Scholar).
2 Before the Second World War, Gustav Radbruch, professor of law and politician, was a legal positivist. In 1946, however, he wrote his famous essay, “Gesetzliches Unrecht und übergesetzliches Recht,” (translated as “Statutory Lawlessness and Supra-Statutory Law”) arguing that there can be cases where the discrepancy between positive law and justice reaches such an “unbearable” degree that the former must be deemed “erroneous” (unrichtig). Indeed, there may be cases where positive law does not even attempt justice, and where equality is abandoned, in which case the statute does not partake of the nature of law at all. “That,” he wrote, “is because law, including positive law, can only be defined as an order and statute, whose very meaning is precisely to serve justice.” Radbruch, Gustav, “Gesetzliches Unrecht und übergesetzliches Recht,” Süddeutsche Juristen-Zeitung 1, no. 5 (1946), p. 107Google Scholar.
3 For recent Thomist theological work on law, see Porter, Jean, Ministers of the Law: A Natural Law Theory of Legal Authority (Grand Rapids, Mich.: Eerdmans, 2010)Google Scholar.
4 Finnis, Natural Law and Natural Rights. Finnis's “New Natural Law” theory may be one of the few exceptions to Stefan Oeter's rule that moral values are largely unknown to legal discourse. See Oeter, Stefan, “Conflicting Norms, Values, and Interests: A Perspective from Legal Academia,” Ethics & International Affairs 33, no. 1 (2019), pp. 57–66Google Scholar.
6 Brownlie, Ian, “Humanitarian Intervention,” in O'Connell, Mary Ellen, ed., International Law and the Use of Force: Cases and Materials (New York: Foundation Press, 2005), p. 301Google Scholar.
7 Richard Lillich, “Humanitarian Intervention: A Reply to Ian Brownlie and a Plea for Constructive Alternatives,” in O'Connell, International Law and the Use of Force, pp. 307–308.
8 Brownlie, “Humanitarian Intervention,” p. 300.
9 Lillich, “Humanitarian Intervention: A Reply to Ian Brownlie,” p. 308.
10 Brownlie, “Humanitarian Intervention,” pp. 303–304.
12 Lillich, “Humanitarian Intervention: A Reply to Ian Brownlie,” p. 313.
13 Ibid., p. 311. Martti Koskenniemi agrees: a formalistic, strictly textual reading of international law “seems arrogantly insensitive to the humanitarian dilemmas involved.” See “‘The Lady Doth Protest Too Much’ Kosovo, and the Turn to Ethics in International Law,” Modern Law Review 65, no. 2 (2002), p. 163Google Scholar.
14 Lillich, “Humanitarian Intervention: A Reply to Ian Brownlie,” p. 313.
15 Roberts, Adam and Zaum, Dominik, Selective Security: War and the United Nations Security Council since 1945, Adelphi Paper 395 (London: International Institute for Strategic Studies, 2008), pp. 18, 76Google Scholar.
16 They point out that no veto prevented the Security Council from addressing the Khmer Rouge's autogenocide in Cambodia from 1975 to 1979, and that Council members have sometimes acted in spite of a veto, for example, over the Suez crisis in 1956. See Roberts and Zaum, Selective Security, p. 37. The quotation comes from p. 19.
17 Roberts and Zaum, Selective Security, pp. 20, 28.
18 Phillips, Christopher, The Battle for Syria: International Rivalry in the New Middle East (New Haven, Conn.: Yale University Press, 2016), p. 54CrossRefGoogle Scholar: “Gratuitous torture [by the Assad regime] in custody was widespread, such as the gruesome case of Hamza Ali al-Khateeb, a thirteen-year-old from Deraa whose body was returned to his family burned, shot, and castrated—a clear message to deter potential protesters.” Hamza was arrested in the early, peaceful stage of the Syrian uprising on April 29, 2011, and his corpse was returned to his family on May 25, 2011.
19 According to the The Economist, “human rights groups say that the [Assad] regime has tortured to death or executed between 17,500 and 60,000 men, women, and children since March 2011. See “Assad's Torture Dungeons,” Economist, December 20, 2016, p. 75.
20 Evans, Gareth, “Introduction” to “Roundtable: Balancing Legal Norms, Moral Values, and National Interests,” Ethics & International Affairs 33, no. 1 (2019), pp. 13–18Google Scholar.
22 Koskenniemi, “The Lady Doth Protest Too Much,” p. 162.
23 Evans, “Introduction,” pp. 13–18.
24 See Gallagher, David M., “Thomas Aquinas on Self-Love as the Basis for Love of Others,” Acta Philosophica 8 (1999)Google Scholar. Protestants, with their typical emphasis on human sinfulness and self-sacrificial love, tend to regard self-love as sub-Christian. See, for example, the Lutheran, Swedish, Nygren, Anders, in Agape and Eros (Chicago: University of Chicago Press, 1982)Google Scholar. However, Jesus’ command was not simply to love God and one's neighbor. Rather, it was to love God and “your neighbor as yourself” (Mark 12.30–31).
25 Simon, Yves R., The Ethiopian Campaign and French Political Thought, Simon, Anthony O., ed., trans. Royal, Robert (Notre Dame, Ind.: University of Notre Dame Press, 2009), p. 55Google Scholar.
26 Evans, “Introduction,” p. 15.
27 Rees, Siân, Sweet Water and Bitter: The Ships That Stopped the Slave Trade (Durham, N.H.: University of New Hampshire Press, 2011), p. 308Google Scholar.
28 Edmund Burke made this point before me. Against his urging for military intervention for humanitarian purposes in France, critics had argued that consistency would require intervention to punish the crimes of the Barbary corsairs. Burke responded, “Algiers is not near; Algiers is not powerful; Algiers is not our neighbour; Algiers is not infectious. When I find Algiers transferred to Calais, I will tell you what I think of that point.” Burke, Edmund, “First Letter on a Regicide Peace,” in McDowell, R. B., ed., The Writings and Speeches of Edmund Burke, Vol. IX: I: The Revolutionary War, 1794–1797. II: Ireland (New York: Oxford University Press, 1991), p. 259Google Scholar; quoted by Simms, Brendan in Britain's Europe: A Thousand Years of Conflict and Cooperation (London: Penguin, 2016), p. 91Google Scholar.
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