Schools of International Law

Depending upon the views of different jurists, we can say that there are three important theories which form the basis of International Law. These theories of International law are also called schools of International law.

Naturalist Theory:

In the 17th and 18th centuries and earlier times, under the influence of theology and the “law of nature,” the science and study of international law was dominated by the naturalist school. Naturalist theory proposes that besides natural law (jus naturae), there is no room for any other law and that international law and other systems of law all belong to the system of the law of nature. This school maintained that the validity of international law was based upon the will of God and that sovereigns were subject not only to divine law but also to the laws of nature established by God. They assumed that there exists a system of law which emanates from God or reason or morals. Early writers that can be called “naturalists” include the two well-known Spanish theologians and jurists, Francisco de Vitoria (1486-1546) and Francisco Suarez (1548-1617).

German jurist, Sammuel Pufendorf (1632-1694) denied the existence of any positive rule, holding that only natural law contained legally binding norms. Pufendorf and his followers not only considered that the basis of international law was the law of nature but also viewed international law as part of natural law or completely identified the two as the same.

The Dutch writer Hugo Grotius (1583-1645), widely considered to be the “founder” or “father” of the Law of Nations, also had natural law as “a dominant element” in his teachings. However Grotius’ work was authority to both naturalists and positivists. Grotius’ works attracted a number of followers, known as the “Grotians” who sought to refine the concept of natural law.

Criticism of Naturalist Theory:

There are several criticisms of the doctrine of natural law.

• Authors of the 19^th century like Schwarzenberger and Brown have noted that the propositions of the naturalist school “were so vague as to become practically meaningless. The meaning of the law of nature is not precisely clear and hence there is a possibility of conflict in the interpretation of laws of nature.
• By denying the existence of rules of positive law, extreme naturalists espouse a doctrine that many modern scholars view as simply not being supported by reality. The doctrine of natural law is aloof from the realities of international life and lacks emphasis on the actual practice of relations between States. Thus naturalism involves its disconnection with reality.
• As per Kelsen, duties, and rights presuppose the existence of a legal system, which can only be established by acts of men or associations of men. The system naturalists deny.
• The Law of nature has played a very important role in the development of International Law when the world was static. Today’s world is dynamic and hence laws of nature are inadequate or progressive.

However, it is to be admitted that the law of nature has greatly influenced the development of International Law. It laid the moral and ethical foundation of International Law. The traces of natural law can be found in treaties and declaration of fundamental rights and duties of the States.

Positivists Theory:

Positivists Theory is based on following premises:

1. The State is a metaphysical reality, having a value and significance of its own.
2. It has a will of its own.
3. State- will has complete sovereignty and authority.

According to the positivist’s school the growth of International law is due to treaties and customs, rather than human nature, reason, and justice. Positivism generally teaches that the law of nations is the aggregate of positive rules by which States have consented to be bound, exclusive of any concepts of natural law such as “reason” and “justice.” For the positivists, nothing can be called “law” among States to which they have not consented. According to this theory, the will of the State is absolutely sovereign and that it is the source of the validity of all law. The positivists believe as Starke observes, that the rules of international law are, in the end, similar to domestic law in the sense that they both derive their binding force from the will of the State. Thus only those principles may be deemed as law which have been adopted with the consent of the States.

Alberico Gentilis (1552-1608), the English writer of Italian origin, and Richard Zouche (1590-1660), another English writer, may be said to be the originators of the school of positive law. Bynkershoek (1673-1743), one of the leaders of this school particularly emphasized the “principle of bona fides” as being the theoretical foundation of all agreements between States. In his famous Quaestionum juris publici, Bynkershoek emphasized the importance of the practice of modern States, custom, and treaties, completely ignored the “law of nature” and held

1. that the rules of international law were established through the consent of States, and
2. that all agreements between States were the products of their sovereign wills.

Criticism of Positivists Theory:

• All the rules of International law have not been derived from customs and treaties. Some of them are derived from the general principles of law recognized by civilized nations.
• The premise that a State is a metaphysical reality and it has a will is purely metamorphic. It is not the will of the State but it is a will of the individuals forming the State.
• A state remains bound by certain rules of International Law even if it has not given its content. In practice, the validity of International Law does not depend upon the consent or assent of a particular state, but it depends on the principle that it is generally recognized by the society of the States.
• States in some cases are bound by general International law even against their will. A multilateral treaty adopted by an international conference may be binding on all the members of the conference, irrespective of their consent, provided sufficient majority votes for the resolution and it is further ratified by a minimum number of States.

Ecclectic or Grotian Theory:

Between the classical naturalists and the classical positivists stood ecclecticists or the so-called “Grotians” who, like Grotius, attempted to harmonize the extreme positions of naturalism and positivism. Despite being eclectic, the proponents of eclecticism were either more or less naturalist or more or less positivist, although most of them were more naturalism-oriented. Representative eclecticist jurists such as Wolff and Vattel essentially belonged to the naturalist school.

Vattel accepted the simultaneous existence of two tiers of law. – one at a natural level and another at the positivists level. Thus according to this theory, International Law derives from natural law and consent law. Consent is the basis but not the sole basis of International Law.

Conclusion:

There are three schools of International law: viz: naturalist, positivists, and Grotians. Proponents of naturalist theory maintained that the validity of international law was based upon the will of God and that sovereigns were subject not only to divine law but also to the laws of nature established by God. While the proponents of Positivists theory maintained that the growth of International law is due to treaties and customs, rather than human nature, reason, and justice. “Grotians” maintained that the basis of rules of International Law could neither be explained nor supported by applying any one of the theories. Most of the rules of International Law are based on the basis of the consent of the States, a few of them, of course, derived from the law of nature.