– Contributions by Jeremy Bentham, 1800s and Principles of Morality and Legislation. His work heralds the end of natural law. He defined international law as transactions between States and divided international law into two categories: public and private, the former referring to States and the latter referring to individuals. Naturalism, according to jurists, precedes positivism, and it is this natural law that gave rise to modern international customary law, since it obliges States to focus on the common good of the universal community. There are 3 key assumptions of positivism as an explanation of the legitimacy of the law: positive statement, i.e. The law must be expressed; It is created by sovereign States subject to international law; He argues that law is effective, even if unjust, when measured against a moral standard, that is, there is not necessarily a correspondence between international law and morality. Even though positivist theory has been heavily criticized for a number of reasons, the fact that this theory has emphasized the realistic practices of the state in relation to international law cannot be ignored. It is a harsh reality that international law can develop only to the extent that States recognize it. Positivist theory focuses on the rules and regulations of international law that are actually adopted by states.
Other notable contributions to the historical development of “natural law” include Hugo Grotius – a philosopher from the Dutch Republic who is often considered the father of international law. He was of the view that the source of international law was oriented towards natural law. He argued that even if we reject the theological basis of natural law, the ideas of reason are sufficiently obvious to allow us to follow them. In the early years, States were not exclusively subjects of international law and non-State actors could participate. Subsequent positivist doctrine removed the rights and duties of the individual from international law. Positivists attached the greatest importance to the sovereignty of a state. They refuted the existence of any reason or purpose behind the law. Positivism was based on the actual legal practice of states in relation to naturalism, which believed in the supremacy of human reason and its capacity for rationality.
The positivists argued that citizens of a state are obliged to obey a law if it is sanctioned by a legislative authority. Therefore, it is the will of the State that requires obedience under international law. It was Jeremy Bentham who launched legal positivism. But Bentham turned to an angle of moral philosophy. He gave his famous understanding of the principle of greatest happiness or the utilitarian principle. He explains that it is not only the utility, but also the extent to which it creates happiness. Bentham emphasizes creating a moral obligation to produce the greatest amount of happiness. These are evident in his book “Introduction to the Principles of Morality and Legislation”, in which he attached importance to the rational principle in order to provide guidance for legal reform. Unlike Hobbes, Bentham also wants the legislature to change, as it gives lawmakers more impetus to work in unison. Nevertheless, Bentham believed that the law is not rooted in natural law, but the commandment that expresses the will of the sovereign.
This view was later developed by Austin. Even if the law challenges the moral fabric, it is still the law. Despite the fact that Bentham gives his utilitarian theory, he remained mainly against the structure of natural law. Natural law would understand international law as the source of validity derived from a system of norms such as reason or morality. An understanding of natural law would say that a law cannot be created by states that violate jus cogens norms. This article will attempt to analyze the two situations, which move from positivism to naturalism in the narrow sense. Before discussing school theory, we need to analyze a specific situation that can be very useful to us in understanding the problem as a whole. When we assume a situation where a person without legal training is appointed as a judge. This scenario can be discussed by referring to one of the famous articles entitled “Two concept of interest: Reflection on Supreme Court`s balancing test”, written by Charles Fried, assistant professor of law, Harvard Law School, and published in the Harvard Law Review in 1964.
Can we say that the judicial system will only collapse because the judge does not know the law? The truth is that the system will continue and the new judge will not be underperforming his peers. The reason is the simple idea that, whatever “law” he knows, the judge`s position reflects the basic natural assumption. It is not that he should be compared to those who have knowledge on an equal footing, but even without being compared, the judge knows that he has an authoritarian “role” to play in a legal argumentative situation that is itself highly structured.
