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Natural Law Reasoning between Statism and Dystopia: International Law and the Question of Authority

This essay argues that a restatement of Thomistic natural law reasoning is increasingly necessary in jurisprudential debate about international law. Mindful of Pope John Paul II’s call for a renewal of international law, the essay engages with the present-day tension between Morgenthau-type realism (Goldsmith and Posner) and neo-Kantian discourse-oriented cosmopolitanism (Habermas). The essay does not offer a fully-worked alternative to these two approaches but addresses whether the former is sufficiently realistic in our global twenty-first century context, and whether the latter is adequately cosmopolitan. Attention is drawn to Aquinas’s understanding of the relation between custom, consent and political authority in order to expose some of the limits of present-day statism, and to suggest that Thomistic natural law reasoning is, potentially at least, better able to cope with the intractable disagreement that characterises twenty-first century global relations than some forms of neo-Kantian jurisprudence. The essay grew from my involvement with the Theology and International Law Project based at the Center of Theological Inquiry (CTI), Princeton—which, in turn, arose from discussions at Princeton Theological Seminary in 2006 about torture and detainee abuse.1 Uppermost in our minds throughout our time together were the so-called ‘torture memos’ prepared by lawyers in the administration of US President George W Bush. These memos claimed, in effect, that the President had the legal authority to permit the use of torture during interrogation.2 As a Working Group, we were concerned that legal advisers to President Bush’s administration had not only misconstrued international law and thereby supplied bad advice but (2010) 1(2) Jurisprudence 169–196