THE natural lawyers and legal positivists have come the full circle. Last week the UN Security Council resolved to set up a permanent war-crimes court. The Security Council, of course, comprises those countries on the winning side in World War II. Between them, they set up the first war-crimes trials at Nuremburg after that war. They resparked a great debate among legal philosophers. On one side were the natural lawyers and on the other were the legal positivists.
Natural law goes back to ancient times and has taken many forms. Broadly, it appeals to some higher form of universal morality beyond church and nation. Legal positivism, a creature of the scientific age scoffed at this, arguing that the only law was the law factually promulgated and enforced by the state. The positivists argued that natural law was a lot of unprovable wool not worthy of consideration by the fine minds of the law schools of the world.
Then came the Nuremburg trials. At these trials the court held assorted Nazis guilty of crimes against humanity and of murder, even though their conduct was not against the law of Germany at the time and, indeed, was consistent with orders given from on high. The war-crimes court said “”following-orders” was not an excuse.
The natural lawyers took great comfort from this. “”See,” they said to their positivist opponents, “”there is a higher natural law of humanity which transcends the written law of the state which happens to be in force at the time.”
“”Not so,” the positivists retorted. “”The only reason your so-called natural law is being put into effect is because it is being promulgated by the winning powers retrospectively and enforced after the event.”
This ding dong reverberated through the universities, though, of course, it became slightly more refined than that.
Broadly, both sides were asking the same question: what is law? The natural lawyers still argue that law, surely, is more than the words plonked into statute books by legislatures. It is more than the decrees of despots. Can we not argue that there is a higher law that every human in his or her heart knows to be law, irrespective of what some legislature or despot has decreed? Can we not argue that the gun-totting sniper in Bosnia knows that what he (or she, and there are some she snipers) is doing is wrong and a breach of some higher, universal law?
Now the UN has come to the natural lawyers’ rescue, but in a positivist way.
Much like the framers of the US Constitution, it held certain things to be universal truths. It said that no matter what the national law of the time, no matter that there is fighting and war, individuals would be held accountable for crimes against humanity and murder.
The positivists would say, of course, that the new war-crimes body and its rules are just another set of positive law. They are only law because someone says they are law and someone is willing to enforce them.
There is still some truth in that, but it is significant for the natural lawyers that the stating and enforcing body is the United Nations, the universal body.
The turmoil of war and the horror of imposed ideology in the second half of the 20th century, has renewed the search for universal values beyond mere religious or moral assertion. The search is now taking place through looking at general social experience: killing is a breach of universal law, not because someone says god says it is, but because the vast experience of human existence shows that most people in most eras have expressed that view. So, too, with assault and stealing.
How “”killing”, “”assault” and “”stealing” are precisely defined is another matter. But herding people from their homes under the orders of an army commander in Bosnia, Cambodia or anywhere else and shooting them and taking their goods certainly fit.
Of course, once you go beyond killing, assault and stealing, you run into difficulties. That is why the UN has come under fire for some of its other “”universal” declarations.
The broad social data cannot be distilled in such a way to resolve disputes such as between the “”rights” of the child against those of the parent, or the “”right” of free speech against the “”right” not to be racially vilified.
The positivism-vs-natural law debate poses the question: where does the UN ground its jurisdiction? _ Does it rely solely upon the police and military forces of nation states to hunt out the war criminals on its soil, or does it rely on a statement of universal human principle?
It needs both. Without either, its new war crimes tribunal could only be a farce.