Separation anxiety? Rethinking the role of morality in international human rights lawmaking.

• Author: Padmanabhan, Vijay M.
• Position: Abstract though III. Failures of the Separation Thesis in International Human Rights Lawmaking B. Jus Cogens, p. 569-595

ABSTRACT

The conventional accounts of international law do a poor job accounting for human rights. International legal positivists generally argue that there is a strict separation of law and morality, with no role for moral obligation in the validation of law. But human rights practice reveals many situations in which it appears that morality is validating legal obligation. Process theorists recognize an intrinsic role for the values underlying international law in understanding its commands. But they embrace a vision of law as dialogue that fails to protect the right to self-determination that is a core value of human rights.

This Article argues that inclusive positivism provides the best model to understand international human rights law. Unlike process theory, inclusive positivism accepts that law is a discrete object identified through application of validation criteria. This model allows states to retain control over the content of their legal obligations. Unlike conventional international legal positivism, inclusive positivism acknowledges that moral obligation plays a role in the validation of human rights law consistent with the practice of human rights actors.

This Article suggests hypotheses as to how the commonly accepted rules that define human rights law can be modified to account for the role moral obligation plays in human rights practice.

TABLE OF CONTENTS I. INTRODUCTION II. SEPARATION THESIS IN INTERNATIONAL Lawmaking A. Central Theses B. Positivist Account of International Lawmaking C. Normative Defense of Exclusion of Moral Criteria from International Lawmaking D. Alternative Approaches to Moral Criteria Validating Law III. FAILURES OF THE SEPARATION THESIS IN INTERNATIONAL HUMAN RIGHTS LAWMAKING A. Missing Morality B. Jus Cogens C. Customary Law D. Treaty Law IV. INCLUSIVE POSITIVISM A. Defending the Social Fact Thesis in Human Rights Law B. Defending Inclusion of Moral Criteria in Rules of Recognition in Human Rights Law V. INCORPORATING MORAL OBLIGATION INTO A POSITIVIST ACCOUNT OF HUMAN RIGHTS LAW A. Jus Cogens B. Customary Law C. Treaty Law VI. CONCLUSION I. INTRODUCTION

The role of the moral obligation of states, or how states ought to behave, in international law is a source of significant controversy. The dominant twentieth century positivist paradigm of international lawmaking was predominantly, exclusively positivist in nature because it saw no formal role for moral obligation in determining the content of the law. (1) Exclusive positivism holds that there is a separation between law and morality (separation thesis) and that moral criteria cannot play a role in validating law. (2) Adherents to this view of the separation thesis defend it as necessary in international law to overcome different conceptions of justice in the heterogeneous international community. (3) Exclusive positivists also believe that a separation of law and morality fosters greater predictability regarding the content of law, which is critical to avoiding fragmentation in a legal regime without an organized settlement system. (4) While many nonpositivist international scholars have challenged the viability of the separation thesis, most international legal positivists have adhered to a strict view of the separation of law and morality. (5)

This Article argues that inclusive positivism provides the proper framework for understanding international human rights law. Inclusive positivists, like all positivists, are committed to the social fact thesis, which provides that the secondary rules that tell legal officials when law exists are social facts, observed through the practice of legal officials. (6) But unlike exclusive positivists, inclusive positivists permit moral criteria to validate law if the social practice of a legal community assigns moral criteria such a role. Inclusive positivism retains the real benefits of positivism as compared to nonpositivist theories of law, such as New Haven School process theory, while accurately describing human rights practice. (7)

This Article defends the application of the inclusive-positivist framework to international human rights law in four Parts. Part II describes the conventional positivist account of international lawmaking, including an analysis of the normative benefits normally attached to this model. It also analyzes criticisms of this approach made by nonpositivist scholars.

Part III argues that the conventional positivist account of international lawmaking does not work with respect to international human rights law. The moral nature of human rights and the normative commitments of international human rights law make the positivist account of international lawmaking unrealistic in this field. Part III then provides examples of practice in the area of jus cogens norms, customary law, and treaty law where it appears moral obligation is driving the understanding of law among human rights actors.

Part IV advocates for the adoption of an inclusive-positivist approach to international human rights lawmaking. Inclusive positivism protects the commitment to self-determination that is at the core of international human rights law better than process-based approaches to law. Inclusive positivism adheres to the social fact thesis better than exclusive positivism.

Part V concludes by offering hypotheses as to the precise role of moral criteria in the validation of international human rights law. Future scholarship must test these hypotheses against additional practices of law.

2. SEPARATION THESIS IN INTERNATIONAL LAWMAKING

   The prevailing conception of international lawmaking in the twentieth century was positivist in nature. (8) While the positivist account arguably remains the dominant understanding of international lawmaking, nonpositivist accounts that challenge the separation of law and morality also enjoy significant support. This Part undertakes four tasks. First, it describes briefly the two central theses of positivism: the social fact thesis and the separation thesis. Second, it provides the conventional positivist account of international lawmaking, highlighting how the rules of recognition exclude or include moral criteria in the validation of international law. Third, this Part provides an assessment of why the separation thesis is attractive in international law. Fourth, it describes how nonpositivists have challenged the positivist account.

   1. Central Theses

      Positivism is committed to two central theses. First, the social fact thesis provides that the truth conditions that validate law are observable social facts found in the practice of officials in a legal community. (9) H.L.A. Hart, who wrote a preeminent exposition of positivism, argues that a modern legal system is a union of primary and secondary rules. Primary rules govern behavior directly, requiring persons to commit or abstain from particular conduct and, in the process, imposing duties upon members of the community. (10) For example, the rule that a driver of a car may drive no faster than sixty-five miles per hour is a primary rule.

      In a modern legal system, Hart explains, legal officials in a community know that a primary command is law because it satisfies secondary rules that these officials recognize validate law. (11) The most important secondary rule is the "rule of recognition," or ultimate rule. The rule of recognition specifies the feature or features of a primary rule, which, when present, conclusively demonstrate that a primary rule is a binding rule of the community. (12) For example, in Tennessee, legal officials understand that the sixty-five miles per hour speed limit is law because that primary rule satisfies the rule of recognition that law is created when it passes both houses of the legislature and is signed into law by the governor. Because secondary rules emerge through the social practice of a particular community of legal officials, they can be descriptively evaluated as facts.

      Second, positivists adhere to the separation thesis, which provides that law and morality are conceptually distinct. (13) This position divides positivism from many natural law theories, which reject the possibility of cleaving law from morality. Because there is no necessary connection between law and morality, law may be validated by the rule of recognition alone. If law is adopted or developed in the manner specified by the rule of recognition, then it is law, irrespective of whether the substance of the law is consistent with morality. Thus, positivists would argue that the sixty-five miles per hour speed limit is law in Tennessee if it meets the validation criteria in the state constitution, even if the law violates moral commands with respect to the dangers of fast driving.

      Positivists are divided, however, on whether validation criteria can have a moral component. Law is defined by exclusive positivists as a reason to act that is created by social convention. (14) While morality also provides reasons to act, moral reasons are not created by social convention; to the contrary, morality provides reasons for action that exist independently of social convention. (15)...