The Natural Law Bridge Between Private Law and Public International Law

Abstract One key similarity between natural law and international law is that they seek to obtain a stable social order without the intervention of any state authority capable of issuing and enforcing its commands to those subject to its rule. Among ordinary individuals in a state of nature that weakness tends to lead to a stripped-down libertarian regime that features simple rules of acquisition, contract, and protection. The system gains its relative stability from the brute fact that between rough equals the party in the defensive posture will win out, so that great disparities in power are needed to disrupt the basic equilibrium. Similar constraints apply to nations in international affairs. Only within sovereign states is it possible to seek (but not necessarily to obtain) gains from the use of taxation or eminent domain powers. The dangers implicit in the use of these powers caution against the adoption of strong centralized forces in international affairs, where the risks of misapplied power are likely to outweigh the possible gains from greater centralization of political power in international organizations. Table of Contents I. Introduction 48 II. Natural Law and the Command Theory of Law 48 II. Private and International Law: Instructive Comparison or Dangerous Analogy? 51 A. Rules Between Equal Legal Entities 51 B. Utilitarian Self-Preservation 51 C. Private Disputes Prior to the Formation of a State 53 TV. The Natural Law Building Blocks in Private and International Law: Their Uses and Limitations 55 A. Private Versus Common Property 55 1 . Common property 55 2. Privatization by occupation. 58 B. Contracts and Treaties 62 C. Aggression and Self-Defense 67 V. Moving Beyond the Natural Law in International Affairs 69 I. Introduction The purpose of this short article is to examine, in broad strokes, the analytical connections between the system of private law that governs the relations between ordinary individuals and the system of international law that governs (at least in its classical formulation) the relationships between states. Section I examines the relationship between natural law principles and the command theory of law stemming from die nineteenth-century author John Austin. Section ? explains why the enterprise is worth undertaking notwithstanding the obvious differences between domestic and international legal systems. Section ?? then applies that analysis to the key rules of private law dealing with individual autonomy, the acquisition of property, the transfer of labor and property by contract, and the protection of both through tort law. In so doing, it notes that the key ingredient diat state power adds into the mix is its ability to coerce individuals diough the imposition of its powers to incarcerate persons, take property, and .tax ordinary people. Under a system of limited government these extra powers are exercised cautiously, ideally only in diose cases where they expand overall welfare when measured by this one criterion: those individuals who are coerced in any instance ate on average made better off by the systematic use of force as applied to all members of die community. Section IV then examines the question of whether it is wise to strengdien die overall structure of international law, and concludes mat, in general, the risks of that expansion of state power exceeds any gains that it might produce. …