Natural law at the foundation of global constitutionalism

Mary Ellen O’Connell

Chapter 15 in Handbook on Global Constitutionalism, 2023, pp 208-224 from Edward Elgar Publishing

Abstract: A common view holds that law within nation-states consists of positive law and constitutional law. Positive law is law made through affirmative action incorporating consent of some sort by the governed. Constitutional law is positive law that is more difficult to change than the standard forms. At the international level, the common view is that there is no constitution. All law is positive law. Contributors to this Handbook, however, find constitutionalist features at the international level. This chapter takes that analysis further arguing that yet a third category of law underlies both constitutional law and positive law. Natural law theory and principles play a critical role in accounting for the binding nature of law and for its enduring higher norms, both the jus cogens and inherent general principles. Without them law is not law. Some authors include certain general principles and jus cogens in the category of constitutionalist principles, such as the principle of equality and the prohibition on the use of force. Constitutions, like all of positive law, can be amended or terminated tomorrow. Natural law norms endure. Despite its essential role, natural law has been suppressed for reasons discussed in the chapter.

Keywords: Economics and Finance; Law - Academic; Politics and Public Policy (search for similar items in EconPapers)
Date: 2023
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