The Original Meaning of the Law of Nations

by William J. Moon ~ Mar 30, 2016

The Alien Tort Statute, originally enacted as part of the Judiciary Act of 1789, confers on federal courts jurisdiction over civil suits alleging violations of “the law of nations.” Whereas scholars and lower courts alike have assumed that customary international law is the modern equivalent of the law of nations, this Article reveals that this conflation is mistaken. The term “the law of nations,” as commonly used at the time of the statute’s enactment, primarily reflected the dominant view that the law of nations was an extension of natural law. While some writers discussed rules derived from the implicit consent of nations (the modern equivalent of customary international law) in their commentaries on the law of nations, the prevailing view at the time was that it did not belong in a systematic treatise on the law of nations. The implication is that “the law of nations” as understood in the eighteenth century encompassed rules that are better conceptualized as peremptory rules of international law (jus cogens), rather than customary international law. This understanding is of critical importance under the Supreme Court’s instruction that modern suits brought pursuant to the Alien Tort Statute rest on a norm that is comparable to the features of the eighteenth-century paradigms. By developing what I term the “revisionist historical paradigm,” this Article provides a workable doctrinal framework to evaluate modern Alien Tort Statute litigation in line with recent Supreme Court jurisprudence. 

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