Adam Sieff, Staff Writer
Ideology: Liberal | Writing from: Columbia University

At some point in the early 20th century, a new model for state sovereignty—what Robert Jackson calls “negative sovereignty”—emerged that was not only inconsistent with the mechanics of international politics, but also, despite its best intentions, perhaps injurious to international society and even its own objectives.

The linchpin to Jackson’s argument is mentioned in the opening chapters of his book on Quasi-States and I don’t think he gives it sufficient treatment. I am referring to what he calls the emergence of a “new normative attitude,” something that we might want to call cosmopolitanism. In sum, it was shift away from 19th century legal positivism and a return to an axiomatic emphasis on “natural” law. Jackson mentions that the analogous domestic manifestation of this shift, observed internationally as the legal doctrine of self-determination, can be observed throughout the 20th century’s liberation and enfranchisement movements (e.g. women’s suffrage, the Civil Rights movement, etc.)

What may have precipitated the emergence, or re-emergence, of natural law in the past century, and what were its consequences for both international society and its own ends? Above all, I think the answer lies in a disillusionment with positivist law after the failures of 1914 and 1939.

In the case of the former, the system of bi and multi-lateral treaties designed to prevent conflict ultimately ended up entangling much of globe in a bloody and expensive “world war.” Whatever the causes of the war, and regardless of whether it could have been prevented, the fact that the dominant legal framework of the time (positivism) failed to prevent such a horrific and perhaps “morally repugnant” loss of life was probably troubling to observers. But it was only after Hitler committed even worse atrocities against racial, religious and other undesired minorities—again killing millions but this time mostly innocents—that the cry for natural law was truly sounded. The cool detached eye of legal positivism, with its emphasis on custom, was deemed too weak to preempt genocide. The result was a re-commitment to natural law and its conception of inherent human equality.

If this might perhaps explain the emergence of natural law doctrine, what were its effects on international society and the actualization of moral equality of persons?

In the context of international law and colonialism, the doctrine primarily spawned the doctrine of self-determination, which led to the premature liberation and empowerment of millions of rightfully angry and dangerously uninformed peoples. The combination was disastrous, especially because the essence of the ex-colonials self-determination founded on equality meant that they could demand aid and yet not be bound to use it responsibly, nor be pressured by their creditors to do so.

As it relates to the overall actualization of equality (the ostensible object of natural law), the empirical record shows that the ex-colonials, today the inhabitants of much of Africa, South Asia and Oceania, still largely suffer from grave inequality that is no better, and perhaps even worse, than the substantive conditions they experienced under colonial rule. In fact, the extent of their “equality” is really only limited to the respect and recognition the international community gives to to their “sovereign,” and often failing, governing apparatuses and procedures.

Now I didn’t intend this as a defense for colonialism, or a polemic against the virtue of human rights. Rather, my goal has been to evaluate, non-normatively, why “natural law” (and cosmopolitanism) may have reemerged, and, further, what its effects were upon international society and in achieving its own ends. Regrettably for optimistic cosmopolitans, natural law—regardless of its merits—seems to have emerged in the twentieth century at great cost not only to international society, but also to those it was most committed to assisting. If there is a lesson to be learned in any of this it may be to understand that social activity, especially when emanating from ideology or ideal interests, often inverts means and ends to produce unintended consequences. Political leaders, and responsible citizens, beware.