The Quest for a Higher Law
Noah Feldman’s “cosmopolitan law” is, I think, a revised version of what has been sometimes called the law of nations, international law, and transnational law. Each, as originated, was a quest for a higher law that would interpret, supplement, and sometimes limit the law and power of states. This quest goes back further: Aristotle’s equity was the “corrective of what is legally just.” The quest has a literary, as well as a legal and philosophical, face; for example, when T.S. Eliot’s Becket faced the four knights who would murder him for the law of England:
It is not I who insult the King,
And there is higher than I or the King.
It is not I, Becket from Cheapside,
It is not against me, Becket, that you strive.
It is not Becket who pronounces doom,
But the Law of Christ’s Church, the judgement of Rome.
Cromwell: . . . . When the King wants something done, I do it.
Chapuys: Ah. . . . But then why these Justices, Chancellors, Admirals?
Cromwell: Oh, they are the constitution. Our ancient, English constitution. I merely do things.
In the title of his essay, a review of recent books by Kwame Appiah and Martha Nussbaum, Feldman asks, “Cosmopolitan Law?” But what does he mean by “law”? Feldman begins: “We have ethical and moral responsibilities to citizens of other countries who live far away and whose lives barely interact with ours. But do we have legal duties to those people?” He later describes a distinction between “ethics” and “morality,” but he seems to assume we ought to know what “legal” means. There are so many different definitions of “law.” My best guess is that what Feldman means by a legal duty, as opposed to an ethical or moral duty, is a rule that would or could be justifiably applied by a court.
I think it is plausible to translate Feldman’s substantive inquiry about what is “cosmopolitan law” into a procedural question: who is entitled to make real-world decisions about the duties and rights of strangers? His non-law/law distinction might permit governments, groups, and individuals to take ethical and moral positions on duties and rights, but would generally limit courts to determining outcomes solely on the basis of legal criteria. So, it is important to know whether our duty to strangers is ethical or moral rather than legal, because a court ought to apply legal rules, not ethical or moral ones.
This sounds pretty familiar to a modern international lawyer, who since Bentham has been grounded on a positivist rather than a naturalist foundation. Bentham indeed created the term “international” in 1789 to describe foreigner-oriented law:
|[W]ith regard to the political quality of the persons whose conduct is the object of the law. These may, on any given occasion, be considered either as members of the same state, or as members of different states: in the first case, the law may be referred to the head of internal, in the second case, to that of international jurisprudence.
Bentham’s disciple, John Austin, did not believe that international law was positive law, because it was enforced only by moral sanctions. Bentham, however, was of a different mind, believing that moral and religious sanctions could sometimes enforce a real law even though they were not generally as efficacious as political sanctions. Moreover, Bentham included international law among his legal projects and drafted four essays on the topic, which were published by John Bowring under the heading of “Principles of International Law.” Might we call Bentham a “cosmopolitan utilitarian”? In crafting new international laws, he urged the legislator to see as his object “the common and equal utility of all nations; this would be his inclination and his duty.” What better citizen of the world?
Note the common thread, not only between the nature of Feldman’s cosmopolitan law and Bentham’s international law, but also their purpose. They share the realization that whatever it is that they intend to mean as the “law” ought to include some element beyond the law of the state. This realization is one of the regular lessons of the human experience.
In considering this higher law, Feldman’s essay would be stronger if it acknowledged the inevitable interweaving of law and ethics. There does not exist, either substantively or procedurally, a black line distinction between the two. Substantively, any “legal” inquiry is bound to have an ethical dimension. Procedurally, any court is bound to use ethics as it crafts a “legal” answer to any “legal” problem. We can see these interactions—between law and ethics, and positive law and higher law—put into practice under international law in the application of equity doctrine.
We distinguish among equity intra legem (when fairness is applied by the judge or lawmaker to achieve justice in specific cases), equity praeter legem (when fairness supplements the law or fills in its gaps), and equity contra legem (when principles of equity are deployed to strike down a law). This trio animates not only traditional international law and the modern concept of cosmopolitan law, but two other versions of much the same thing: the classical law of nations and the twentieth century concept of transnational law.
As early as the second century, Roman law included a jus gentium, or “law of nations.” Gaius defined this law of nations as a law “common to all men,” and meant it to apply to litigation involving foreigners. In the sixteenth century, Spanish jurists Francisco de Vitoria and Francisco Suárez argued that the law of nations prevented the Spanish Crown from treating native Americans as sub-humans entitled to no legal protections. In 1625, Hugo Grotius, the “father” of international law—although, of course, there was no “international law” then, only the law of nations—maintained that the law of nations bound not only the Protestant and Catholic states involved in the ferocities of the Thirty Years War, but also Muslims, Jews, Hindus, and Chinese. And, in lectures delivered at Yale Law School in 1956, Columbia University’s Philip Jessup coined the term “transnational law,” believing that what the world needed was a field of law “which regulates actions or events that transcend national frontiers.”
Though the quest for a higher law to specify, supplement, or limit the law and power of a state in the name of justice has lasted for thousands of years, the form and substance of that quest—as manifested as the law of nations, international law, transnational law, and cosmopolitan law—has differed. Despite the many variations among those four terms, let me venture a definitional contrast. I submit that the classical law of nations principally defined itself by its sources (it was a law made by many nations); the traditional international law defined itself by its subjects (it was alaw concerning inter-state relations); and Jessup’s transnational law defined itself by its transactions (it governed events involving one or more states or nationals of one or more states). What then of the fourth term, cosmopolitan law? As I see its formulation by Feldman, cosmopolitan law, though sharing some of all the prior definitions, is closest to the subject-based definition of international law, but with an important substitution—cosmopolitan law is primarily concerned with foreign individuals rather than with the foreign states of international law.
At the end of the day, my point is simple. Feldman’s cosmopolitan law is nothing new, but still important. It is one more step in our very human quest to enunciate and (sometimes) enforce a higher law that can interpret, supplement, and even trump the law and power of the state. It is a manifestation of our efforts to transform this higher law into legal rules that will have not only moral and ethical validity, but also some efficaciousness in actual decision-making. As such, Feldman’s “cosmopolitan law” is the latest incarnation of a law that was for Grotius and the Romans the “law of nations,” for Bentham and most of the world since 1789 “international law,” and for Jessup and some others “transnational law.” Although their forms are not identical, let me suggest that all four are close to each other in aspiration and method, and that lessons may be shared from one to the other.
Mark Weston Janis is William F. Starr Professor of Law at the University of Connecticut School of Law.
Preferred Citation: Mark Weston Janis, The Quest For a Higher Law, 116 Yale L.J. Pocket Part 317 (2007), http://yalelawjournal.org/forum/the-quest-for-a-higher-law.