The intranscendence of the Debate Between Positive and Natural Law: Jus Cogens Norms

Abstract

The objective of the article is to establish the irrelevance of the positivism-natural law debate for problems lawyers typically face. The article is based on the answers that positivists and natural lawyers give to the problem of the existence of rules of ius cogens; particularly, the normativity and the criteria used to identify these rules. By showing that inclusive, exclusive positivist, and natural lawyers answer the problems of rules of ius cogens in the same fashion, the article concludes that there is not a real debate between these schools, except for explaining in what sense law can be considered as a normative or a descriptive discipline. In this sense, the debate between positivists and natural lawyers may be considered as a chapter in the longer debate on the nature of social sciences.