One of the great esoteric philosophic debates of the millennium … almost on par with the mind-body distinction … rudely intruded into the modern world of realpolitik last week. The debate is between natural law and what is called legal positivism.
Despite its name, legal positivism is not some trendy New Age drivel. Rather, it is the philosophy that says law is a human-made thing and law is only that which is generally enforceable or consented to. The natural lawyers, on the other hand, say there is a higher law, some innate principles of human conduct that can transcend the immediate human-made rules. New Age drivel, if you like, but with a longer pedigree.
Natural law waned a bit with the onset of the scientific age, rationalism and the decline of religion. But it made a bit of a comeback immediately after World War II. This was because you could not have a lot of legal positivist ex-Nazis wandering about saying that the law of Germany at the time said they could kill and torture so they were not answerable to some higher law.
Proponents of natural law argued they were always answerable for crimes against humanity, genocide and waging an aggressive war. And they were made answerable at Nuremberg.
Last week, however, natural law lost to the positivists in the World Court with the 14-2 judgment in Australia’s favour over the Timor Gap Treaty.
The court in this case, and in nearly all previous cases, has taken the positivist view: if the law is not enforceable, it is not law. Rather, it is merely a statement of moral or religious principle. Given there is no international policeman to enforce judgements, the court says it simply will not adjudicate unless the nations affected by its decisions are willing to be bound. That consent can be given generally, or for particular cases. Further, the court says it will not rule in cases where third-party nations might be affected, unless those third parties are will to be bound.
As Indonesia is not willing to be bound by the court’s decision, it is as if there is no law to be applied. It is very dispiriting for people who would prefer the rule of law to apply among nations rather than the rule of force or the rule that national interest comes first.
It is the more dispiriting in this case when the two nations before the court, Australia and Portugal, had submitted to the court’s jurisdiction and it was only an affected third party which did not submit to the jurisdiction, Indonesia, that caused the court to shy away. On one hand, you can see why the court takes the very positivist approach that there is no law without enforcement or submission to the jurisdiction. If it is willing to adjudicate in cases where nation states are not willing or cannot be forced to comply, it faces the danger of becoming little more than a debating society. It may be in possession of the high moral ground, but it is dispossessed of legal authority as nation states just blow the raspberry at its decisions. In the Timor case, however, this approach has back-fired. The court took the positivist approach and backed away from dealing with the merits, believing it would have been empty gesture in the face of Indonesia thumbing its nose at it or ignoring it. The court would not buy into a case where one of the three nations affected would not submit to its jurisdiction. But the result has been not that Indonesia has been prevented from blowing the raspberry at the court. Quite the opposite. Rather, the result has been Indonesia has taken great succour from the court’s inaction.
By backing away, the court has made Indonesia the winner, when all along the court has wanted to avoid the situation where third parties unwilling to submit to its jurisdiction are affected by its decisions. In its desire to be a positivist court … rather than an ineffectual debating society stating high principles of national law … the world court has got the worst of both worlds. It is hide bound by positivism without the virtue of stating high principles of natural law. Better to be an ineffectual stater of high principle than an ineffectual stater of high legalism.