Sources and the Legality and Validity of International Law: Natural Law as Source of Extra-Positive Norms

O’Connell, Mary Ellen; Day, Caleb

Abstract

This chapter posits that international law, like all law, can be understood as a hybrid of positive and natural law. The history of natural law from Ancient Greece to today’s global community reveals that the method used for centuries to explain extra-positive features of law consists of three integral elements. The method uses reason, reflection on nature, and openness to transcendence. Certain contemporary natural law theorists, however, prefer to focus on reason and nature alone. Yet, the history of natural law thinking shows that transcendence is integral to the method. History also reveals that religion is not the only avenue to transcendence. Transcendence completes a natural law method capable of explaining persuasively why law binds in general and why certain principles are superior to positive law.

Citation

O’Connell, M. E., & Day, C. (2017). Sources and the Legality and Validity of International Law: Natural Law as Source of Extra-Positive Norms. In S. Besson, & J. d’Aspremont (Eds.), The Oxford Handbook of the Sources of International Law (562-580). Oxford University Press. https://doi.org/10.1093/law/9780198745365.003.0027

• Online Publication Date: Feb 5, 2018
• Publication Date: Oct 26, 2017
• Deposit Date: May 4, 2020
• Publisher: Oxford University Press
• Pages: 562-580
• Book Title: The Oxford Handbook of the Sources of International Law
• ISBN: 9780198745365
• DOI: https://doi.org/10.1093/law/9780198745365.003.0027
• Keywords: Choice of law, General principles of international law, Sources of international law
• Public URL: https://durham-repository.worktribe.com/output/1628584
• Additional Information: Co-written with Mary Ellen O’Connell, Robert and Marion Short Professor of Law at the University of Notre Dame, United States, with whom I was working as a research assistant.