The Universal Common Good and the Authority of International Law

"If we are to avoid descending into chaos . . . we must rediscover within States and between States the paramount value of the natural law, which was the source of inspiration for the rights of nations and for the first formulations of international law."¹ These words, which Pope John Paul II addressed to the diplomatic corps accredited to the Holy See, provide the starting point for serious reflection on and renewal of Catholic thought regarding international law at the beginning of the twenty-first century. Modern international law did indeed first take root in the fertile soil of natural law thinking, and from its firm stand on that ground the Catholic Church has consistently provided international law with strong intellectual and moral foundations. Yet, despite that constant tradition, the Holy Father rightly spoke of the need to rediscover the value of the natural law between states, for it is undoubtedly the case that the dominant currents of juridical thinking today at least ignore and often reject theories of natural law as viable bases for judging the value and authority of international law in the contemporary world. To reinvigorate and reassert the distinctive contribution of the Church to international law for the twenty-first century thus coincides with a return to the first principles of natural law.

Therefore, I propose to begin by raising some basic questions about the foundations and ends of modern international law from the perspective of the Catholic intellectual tradition. What is "authoritative" about international law and international legal institutions in the contemporary world, seen in the light of natural law reasoning and in the light of the concrete global realities of the beginning of the twenty-first century? In particular, I would like to examine carefully the proposition that international law and international legal institutions should be considered to have a special moral status in the contemporary global order in virtue of the existence and requirements of the universal common good.

I. The Basic Theoretical Dilemma of Modern International Law

To begin to ask about Catholic thought and international law requires first setting aside some of the basic premises of legal positivism that prevail in legal theory today. If we are to consider international law to be "law" in any significant sense at all, we must be able to reasonably claim that it provides grounds for constraining and directing the behavior of states, the principal subjects of that law. Yet, contemporary theories of the modern international legal system have consistently had difficulty articulating and defending the basis for that authority. How can a system of norms that emerges exclusively from the will and narrowly conceived self-interest of states also stand outside those states as an objective reason for limiting and controlling them? To the extent that the ultimate source of authority of international law is regarded merely as the actual behavior and the consent of states, every attempt to ground the authority of international law has become an exercise in obscuring the circularity of the argument. That prevailing positivism of modern international legal theory is typically sustained either by an intellectual sleight-of-hand and deliberate truncation of the question of the ultimate authority of law (as in Kelsen) or else by reducing the phenomenon of law to a sociological reality without real normative force (as in Hart). It is no wonder that in this intellectual and moral vacuum, the most theoretically attractive postpositivist accounts of international law today both in Europe and in the United States, consistently conclude that it is nothing other than a linguistic game, a discursive construct to clothe the reality of raw willfulness and self-interest with the illusion of necessity and legitimacy. If the state, considered as a purely sociological reality, is all that there is at the foundation of international law, then there is ultimately no real reason or truth to it, and what passes for law becomes a form of violence toward what is truly human. As John Paul II observed,

Human values, moral values, are at the basis of everything. Law cannot set them aside, neither in...