23 - Natural Law, Human Rights, and Jus Cogens

Summary

As a doctrine of positive international law, jus cogens superveniens gives juridical effect to the natural law’s prohibition of conduct violative of aspects of the transnational common good that reflect absolute human rights. In order to be fully valid in the sense that it commands a moral obligation of compliance, a measure for regulating the life of a community must be reasonable. A measure cannot be reasonable if its purpose is not the preservation or enhancement of the common good. The common good is the full array of physical, cultural, and institutional arrangements that facilitate the ability of persons in their various communities, including the transnational community, to advance their human flourishing. Human rights are conclusions of practical reason that always constitute essential aspects of the common good. Some human rights are ‘absolute’ in that they are not subject to limitation or restriction on any grounds, because any such limitation or restriction can do nothing but damage the common good. Although natural law is binding in reason, the positive law and other juridical measures of official authority are frequently required to effectively serve the common good.