Theology for International Law

The ancient Greek philosophers and the Greek tragedians began to think non-religiously about the human problems that had been the province of mythology and religion. The early Christian Church returned the compliment by beginning to think religiously about the problems that philosophy had uncovered. It is an enterprise more topical and urgent than ever in a globalising world full of intense cultural and religious diversity, and full of evil of every kind and on a grand scale, crying out for universalising ideas.

International law is caught in an existential tension between an ideal of universal law and the fact of interstate law. In responding to that tension, Christianity has tried to find a way to reconcile Christ and a world full of Caesars. Professor Reed is not the first to suggest that an idea of natural law made coherent with the rest of Christian theology could help to solve this agonising dialectical puzzle, at least for believing Christians.

Identifying herself as a Protestant Thomist, especially influenced by Aquinas and Karl Barth, she faces valiantly familiar stumbling blocks on the way to that happy state of affairs.

What is natural law? The age-old search for a morality beyond morality and a law beyond law seems to reflect a cold act of human self-judgement. Humanity’s experience of its own history has given rise to an incurable human desire to rise above the glaring imperfections of conventional morality and conventional law. The problem is that the underlying idea of “natural law” – as law without a legislator and morality beyond society – has been explained in as many different ways as there have been philosophers to explain it: a necessary inference from a God-made universe; human concordance with the natural order of the universe; a substantive product of a special capacity of the human mind called “reason”; a discernible pattern of human self-perfecting in human history; a purely philosophical reconstruction of the self-ordering capacity of the human mind (“pure” reason producing “practical” reason); Christian self-deluding; a clever way of branding the higher self-interest of powerful governments; social poetry suitable for study by serial reductionists and linguistic philosophers and postmodern hermeneutics.

Esther Reed joins a tradition that sees natural law as a set of inferences drawn by practical reason from the nature of the God of Christian theology. But then the problem is to know what those inferences shall be when we are faced with the agonising particularity of human life, not least life at the level of all-humanity. At one point the author is stopped in her tracks by a devastating passage from Aquinas seeming to say that, in the end, practical reason may simply fail in its effort to mediate between universality and particularity.

She examines a great range of current practical problems of international order, never understating the challenge of their awful complexity. To take only one example, torture: a recent development in international law seeks to make torture by governments a violation of ius cogens, so-called “peremptory norms”, that is, rules from which states cannot derogate even by agreement among themselves. Some people see this development as a first toehold of natural “lawism” in modern international law. Others of us see it as a minor disaster. The concept is not accepted by all governments. There is no agreement on the content of the supposedly supra-legal rules. The UN Torture Convention of 1984 defines “torture” in 128 unperemptory lawyerly words.

But there is another obstacle on the way to inserting a layer of higher law and higher morality into the international system. How is it to be enforced? Professor Reed gives an interesting Protestant answer, as this reviewer would identify it. Rationality is one part of the intensely complex process of our moral decision-making. It follows that religion must also speak eloquently about its rational aspect. We are answerable for the total moral decision.

Esther Reed’s book, unusually lucid in a field where obscurity is often used to stake a claim to authority, should be read by all those who want to hear a powerful, well-informed and essentially optimistic Christian voice discussing such deeply perplexing challenges and developments of human self-ordering in the twenty-first century.

As an international lawyer who happens to be a (Roman) Catholic, I have to say, however, that I remain a non-believer in the potential value of an idea of natural law in the reimagining of international law. It is not the job of law to make better human beings. Its job is to make satisfactory citizens. It is no accident, as the Marxists used to say, that Aquinas wrote at a time when the Church was acquiring its manic legalistic persona under the influence of the Romano-Byzantine legal tradition. The presentation of a revolutionary religion as a legal system has grievously distorted Catholicism to the present day.

Governments are not things but collections of human beings, with all the well-known characteristics of human beings, including the capacity to do evil. To make governments do good is a supreme challenge for philosophy and for religion. Some of us may want to resist the call of the snark of finding philosophical transcendence within the Christian religion.

Christianity is a religion of metanoia, human life transformed by love not by law, and ruled by the Pauline-Augustinian categorical imperative of doing good and avoiding evil, an imperative that is as natural as anything can be, an inbuilt potentiality of the human animal. Esther Reed recognises this throughout her book. Our aim, as rational human beings and not merely as believers, should surely be to transform international law into the good law of a better international society, cooperating with people from every cultural background and every religion.

Philip Allott