The International Community, The Natural Law and International Law

THERE ARE MANY VOICES in the international stage, and the voice of the Church is often confused with them or is drowned out in the din of competing voices. As we discussed in the prior post, the Church's vision of international relations between nations recognizes the importance of nations states and peoples, yet also does not absolutize them. The latter (absolutization of peoples or of nation-states) is a form of idolatry, and frequently leads to the oppression of minority peoples, whether they be racial, cultural, or religious. As extreme examples of the latter, we might point to the Turkish genocide of the Armenians, Assyrians, Greeks, and Dersim Kurds, the German genocide of the Jews and the Slavs.

The Church is not in the business of advocating a one-world-government based upon false values. And she carefully distinguishes between international government and international order. There can be an international order without an international government.

What the Church seeks is that international relations be seasoned with the salt of the natural moral law, a law which is universal in scope, and which comprehends all men bar none.

To bring about and consolidate an international order that effectively guarantees peaceful mutual relations among peoples, the same moral law that governs the life of men must also regulate relations among States: 'a moral law the observance of which should be inculcated and promoted by the public opinion of all nations and of all the States with such a unanimity of voice and force that no one would dare to call it into question or to attenuate its binding force.'

(Compendium, No. 436) (quoting Pius XI, Radio Address Dec. 24, 1941)

Underlying any international order, then, must be the recognition of a Law above all law, a God above all nations. "The universal moral law written on the human heart, must be considered effective and indelible as the living expression of the shared conscience of humanity, a 'grammar' on which to build the future of the world." (Compendium, No. 436)

Cumaean Sybil, Michaelangelo (Sistine Chapel)

The Church is therefore an opponent of any international order, and even more of a one-world government, that does not recognize the universal moral law. She would oppose making a bunch of Leviathans into one great Leviathan. She seeks to tame the Leviathans of the world with moral suasion. She seeks to have law, which is to say reason, not force govern relations among nations.

Universal respect of the principles underlying 'a legal structure in conformity with the moral order' is a necessary condition for the stability of international life. The quest for such stability has led to the gradual elaboration of a 'right of nations' (ius gentium), which can be considered as 'the ancestor of international law.'

(Compendium, No. 437) (citations omitted)

The Church's emphasis on the natural moral law as being the cement for any authentic international order relies on both faith and reason:

Juridical and theological reflection, firmly based on natural law, has formulated 'universal principles which are prior to and superior to the internal law of States,' such as the unity of the human race, the equal dignity of every people, the rejection of war as a means for resolving disputes, the obligation to cooperate for attaining the common good and the need to be faithful to agreements undertaken (pacta sunt servanda). This last principle should be especially emphasized in order to avoid 'temptation to appeal to the law of force rather than to the force of law.'

(Compendium, No. 437) (citations omitted)

Might does not make right, and this is as true within nations as among them. And the Church knows that it is preferable to have law govern the relations among nations than to invoke the bloody principle of war, which is to bring in the rule of the dice or the rule of the powerful and to pay obeisance to the rule of irrationality. Inter arma enim silent leges.*

The Church is mother of all mankind, and, to quote the Roman poet Horace, bella detesta matribus.** And so, as mother, she would with remind all men with Virgil's words placed in the mouth of the pagan Cumean Sybil, who the Middle Ages believed had also prophesied the birth of Christ: Bella, horrida bella.*** The Church therefore always urges another option to war if it be possible.

To resolve the tensions that arise among different political communities and can compromise the stability of nations and international security, it is indispensable to make use of common rules in a commitment to negotiation and to reject definitively the idea that justice can be sought through recourse to war. "If war can end without winners or losers in a suicide of humanity, then we must repudiate the logic which leads to it: the idea that the effort to destroy the enemy, confrontation and war itself are factors of progress and historical advancement."†

(Compendium, No. 438) (citations omitted)

If war is to be avoided, but right still rule, then something else must take its place to solve disputes between nations. The only other something that exists is law. And so the Church seeks to have a "primacy of law," as distinguished from a primacy of force or violence, to govern relations among nations. Within the confines of her vision--which is based upon Christian truth and the natural moral law--the Church advocates some sort of "reformulation" of international organs so that it is not recourse to war, to violence, or even the threat of violence that resolves disputes, which often is the law of the more powerful against the weaker without regard to truth or justice, but the rule of law.

In order to consolidate the primacy of law, the principle of mutual confidence is of the utmost importance. In this perspective, normative instruments for the peaceful resolution of controversies must be reformulated so as to strengthen their scope and binding force. Processes of negotiation, mediation, conciliation and arbitration that are provided for in international law must be supported with the creation of "a totally effective juridical authority in a peaceful world."

(Compendium, No. 439) The Church simply extends here the model we take for granted within states (the rule of law, rather than the rule of the mob or the rule of tyranny) to relationships between states.

Progress in this direction will allow the international community to be seen no longer as a simple aggregation of States in various moments of their existence, but as a structure in which conflicts can be peacefully resolved. "As in the internal life of individual States ... a system of private vendetta and reprisal has given way to the rule of law, so too a similar step forward is now urgently needed in the international community." In short, "international law must ensure that the law of the more powerful does not prevail."

(Compendium, No. 439) (citations omitted)
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*Cf. Cicero, Pro Milone ("Silent enim leges inter arma") IV.10.
**Cf. Horace Ode 1 ("bellaque matribus detestata")
***Cf. Virgil, Aeneid, 6.86 (so says the Cumaean Sybil in her prophecy) "Wars, grim wars, I see, and the Tiber foaming with streams of blood." (trans. H. R. Fairclough) (bella, horrida bella / et Thybrim multo spumantem sanguine cerno)
†Obviously, this language is hortatory and invokes an ideal. The Church is no fool, and she knows that, in a world where sin all-to-often gains the upper hand, sometimes recourse to war is a moral necessity. In fact, in the very Compendium where these anti-war sentiments are expressed, we find express treatment of the Christian just war theory. See Compendium No. 500.

The International Community, The Nation State and International Law

GIVEN HER UNIVERSAL MISSION by her Lord, one extended to all mankind without exclusion, the Church believes she "has the mission of restoring the unity of the human family lost at the tower of Babel."* That unity is not based upon some false, secular, materialistic notion of forced unity. Rather, the unity of nations and cultures sought by the Church is one brought "in Christ," and "through the Church, morality, and law."** Clearly, the unity of mankind in Christ, through the Church, morality, and law "is not yet becoming a reality."*** (Compendium, No. 433). There is much that impedes it.

The world is rent by divisions: of nation, of peoples, of cultures, of races, of religions, which--when viewed in non-personalistic, materialistic, ethnocentric, ideological, or chauvinistic ways--serve as a centripetal force that work against building an international community ordered toward the universal common good. It is as if nations and peoples are working at cross-purposes of humankind, and so we suffer from the evils of substantial injustice, violence, and war.

"The coexistence among nations," if it is to exist, must be "based on the same values that should guide relations among human beings: truth, justice, active solidarity and freedom." (Compendium, No. 433) There is not one morality for individuals, and another for nation states. All men and all nations are bound by their duties to God and to the natural moral law.

The Church insists in the ideal that the relations among "peoples and political communities be justly regulated according to the principles of reason, equity, law and negotiation," and that these should exclude "recourse to violence and war, as well as to forms of discrimination, intimidation, and deceit." (Compendium, No 433)

The relationship among political communities must not be lawless; rather, the relationship must conform with international law, the ius gentium or law of nations, a law which "becomes the guarantor of the international order." The sources of the international law are various and diverse, including from international customs, agreements, treaties, accords, charters, and protocols. Unique to international law, since there is no one governing or enforcing entity, international law is an endeavor largely voluntary. Nevertheless, because the relationship among nations is based upon law, it is a juridical community.

This international order should be distinguished from a one-world government, as the international order is one that seeks "coexistence among political communities," which is to say nations, each of which "seek individually to promote the common good of [its] citizens and strive collectively to guarantee that of all peoples." This sort of relationship, however, will be informed by the awareness that "the common good of a nation cannot be separated from the good of the entire human family." (Compendium, No. 434)

"The international community is a juridical community founded on the sovereignty of each member State, without bonds of subordination that deny or limit its independence." (Compendium, No. 434) There is no question of trying to establish an international community which violates this sovereignty, or which fails to recognize the "distinctive characteristics of each people." Indeed, the sovereignty of the nation states is an effort to give expression to such distinctive characteristics.

The Magisterium recognizes the importance of national sovereignty, understood above all as an expression of the freedom that must govern relations between States. Sovereignty represents the subjectivity of a nation, in the political, economic, social and even cultural sense. The cultural dimension takes on particular importance as a source of strength in resisting acts of aggression or forms of domination that have repercussions on a country's freedom. Culture constitutes the guarantee for the preservation of the identity of a people and expresses and promotes its spiritual sovereignty.

(Compendium, No. 435)

Though the Church supports the notion of national sovereignty as an essential component of the international order, it also insists that the nation-state, and the sovereignty which defines it, is not an absolute value.

National sovereignty is not, however, absolute. Nations can freely renounce the exercise of some of their rights in view of a common goal, in the awareness that they form a "family of nations" where mutual trust, support and respect must prevail. In this perspective, special attention should be given to the fact that there is still no international agreement that adequately addresses "the rights of nations," the preparation of which could profitably deal with questions concerning justice and freedom in today's world.

(Compendium, No. 435)

National sovereignty does not exist so that the mighty might reign. In the international order, where the natural law must reign, might does not make right. National sovereignty is therefore subordinate to the demands of justice, the principles of natural moral law, and, ultimately, to God to whom all mankind is ordered.

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*J. Brian Benestad, Church, State, and Society: An Introduction to Catholic Social Doctrine (Catholic University of America: 2010), 381.
**Benestad, 381, 382.
***It is unfortunate that the Church in the Compendium of the Social Doctrine of the Church does not address the claims (increasingly truculent) of her rival in universality: Islam. Islam, at least in its traditional form, views the world in a markedly different way from the Church. Islam broadly divides the world into two: the House of Islam (Dar al-Islam, دار الإسلام‎) where Shari'a, a law against the natural moral law and human dignity in numerous particulars, is enforced and Islam is superior and the House of War (Dar al-Harb, دار الحرب). Some groups further seek the revival of a central governing authority, the caliphate or khalifa (خلافة). Islam, it hardly need be noted, is thoroughly anti-Christian in spirit in the sense that its foundational documents (the Qur'an, Ahadith) and law (the shari'a) roundly condemn central tenets of the Christian faith (Trinity, Christ as God, the crucifixion and redemptive death of Christ, the natural moral law (as distinguished from divine positive law) as indicating the will of God, the authority of the New Testament). Islam is also biased toward violence (e.g., the "Verse of the Sword," Surah 9 (at-Taubah), which abrogates any revelations to the contrary) in the imposition of its credo, which is largely one of submission to law. In comparing the two religions, one might point out the obvious: Christian flags typically bear the Cross, a symbol of suffering violence; Muslims flags sport the sabre, the sword, a symbol of wielding violence. There will be no workable international order as long as Islamic chauvinism exists.

Jacques Maritain and Natural Law: The Ius Gentium as "Middling" Law

THERE ARE OTHER KINDS OF LAW that Maritain discusses in his work on the natural law we have been discussing in these last series of posts. In particular, Maritain focuses on the ius gentium, the "law of nations," which is a sort of middle ground between the natural law and mere human positive law. Maritain refers to the "law of nations," or the ius gentium, as the "common law of civilization."* Maritain, 48. Right (ius) means something no longer only "virtual," but right obtains a "formal and actual" meaning. Maritain, 47. By using the term ius gentium, Maritain is referring to that area of thinking that we might call the area of natural rights. In terms of theoretical underpinnings, this area has been a morass of confusion since the 16th century.

Maritain distinguishes the ius gentium from the natural law by the manner in which it is known. "The Natural Law is known through inclination, the law of nations [ius gentium] is known through the conceptual exercise of human reason (considered not in such and such an individual, but in common civilized humanity)." Maritain, 48; see also 63 n. 30. It thus shares features with human positive law, and for this reason St. Thomas categorizes it as part of positive law.

But for Maritain, the ius gentium is a middling law between the natural law and pure human law because, though it may share the manner in which it is known with the positive law, it shares the immediate source of its existence with the natural law. "[The ius gentium or law of nations] is based upon the natural order of morality, but it emanates necessarily from this order as the first formal juridical order."
--Jacques MaritainIn the case of the ius gentium as Maritain understands it, "the human reason does not intervene as the author of the existence of the law (which is the case with positive law in the strict sense), but it does intervene as the author of the knowledge of the law. Hence we have one foot in the land of "virtual" law, and one foot in the land of "formal" law. The ius gentium is thus an "intermediary between natural law and positive law." Maritain, 63. The ius gentium, then, is known "through the rational, logical, conceptual exercise of the common reason, starting from more profound and more primary principles which are the principles of Natural Law." Maritain, 49. In this sense, "it pertains to positive law." Maritain, 63. There are, consequently, shared areas of law between the natural law and the ius gentium, and in these areas, the law may be known on the one hand by inclination (i.e., by connaturality or "intellectual feltness" or an "intellectual tendentiousness") and by discursive reason. In another portion of the text, Maritain cites the example of prohibitions against murder, knowledge of which can be gained through inclination and through the exercise of conceptual reason, and thus is both a precept of the natural law and the precept of the ius gentium.

[A] precept which is like a conclusion derived from a principle of natural law but which in actual fact is known through inclination, not through rational deduction, is part of natural law; but that a percept which is known through rational deduction, and as a conclusion conceptually inferred from a principle of natural law, is part of the ius gentium. . . . The prohibition of murder, in so far as this precept is known by inclination, belongs to the natural law. The same prohibition of murder, if this precept is known as a conclusion rationally inferred from a principle of natural law, pertains to the ius gentium.

Maritain, 63-64.

The ius gentium can, however, go beyond the natural law's knowledge by inclination and derive certain laws that may be called the "common law of civilization" that have a direct tie to the natural law, though their knowledge is gained entirely through human reason, that is, conceptual, discursive reasoning. And these laws can have great dignity and value. As an example, Maritain cites to the due process notion that one ought not to be condemned with out a hearing or to the precept that prisoners of war should be treated humanely. These are two examples of rules that are known, not through inclination or connaturality, but through discursive reason starting from principles of natural law. These sorts of laws therefore partake in the dignity of the natural law with respect to their existence, but the knowledge of them is derived by different means.

Just like the ius gentium has one foot in virtual law and one foot in formal law, the ius gentium "belongs at once to the moral order and to the juridical order." Maritain, 51. It is "based upon the natural order of morality, but it emanates necessarily from this order as the first formal juridical order." Maritain, 51. It thus binds men both morally and legally. The ius gentium "presupposes a debitum morale, a moral obligation appealing to conscience, before the legal obligation, debitum legale." Maritain, 51. The ius gentium is not, however, necessarily written. This law, however, whether written or not, is "first of all formulated in the common conscience by human reason in its legislative role, making the law known through its own conceptual means." Maritain, 51. (This is one reason why Maritain calls it a "common law of civilization"). But the fact that it may be unwritten does not make it less binding juridically. The ius gentium "may be formulated juridically; in fact, it seeks to be, but is not necessarily so formulated." Maritain, 51.** It is the ius gentium as well as the natural law proper that governed and justified the Nuremberg trials in 1945, genocide being recognized as a delictum ius gentium, a crime against the law of nations.

From the ius gentium, Maritain next analyzes the human positive law, a law that, in both its source and its knowledge, is derived from human reason. This will be the subject of our next posting.
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*Maritain's use of the term ius gentium is much broader than the international "law of nations." He sees the term as encompassing a sort of "common law of civilization." He also finds it "absurd to reduce the law of nations to the laws of international morality." Maritain, 51. He would place in the ius gentium "every norm of conduct which is universally valid, but which is known to common consciousness because necessarily deduced by human reason [from the natural law fundamental principles]." For this reason, the term ius gentium will be used herein instead of the term "law of nations."
**Maritain thus anticipates its formulation in a "code of a supranational world society whose tribunals would be required to enforce" the ius gentium. Maritain, 51.