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35 New Eng. L. Rev. 265 (2000-2001)
Actio Popularis, Jus Cogens and Offenses Erga Omnes

handle is hein.journals/newlr35 and id is 275 raw text is: Actio Popularis, Jus Cogens and
Offenses Erga Omnes?*
Alfred P. Rubin**
For many years, scholars of international law have been trying to trans-
late their moral insights into rules of law binding on others. Antecedents
of those attempts can easily be traced back to the divine law notions of
biblical days,' the substitution of the political and moral notions of politi-
cal leaders for the divine law notions of their churchly competitors for
law-making authority, the moral approaches to law taken by scholars
during the European Enlightenment of the 18th century and, in general,
the documentable 3,000 year old dispute between positivist lawyers and
naturalists, including their subsets involving divine law, ''moral law,
amoral customary law, and other subsets.  Whether a particular scholar
finds the model, the ontology, of the positivists or naturalists or one
of their subgroups more congenial to his or her way of thinking about in-
ternational law, depends on psychological factors that vary with the indi-
vidual and on Occam's Razor, the unprovable rule of Parsimony that
requires each analyst to adopt as a rule and apply to reality the simplest
generality with fewest exceptions.4
*   This article is printed with the kind permission of John Carey and John
Pritchard, editors of International Humanitarian Law: Origins, Challenges & Pros-
pects (Mellen Press, 2001). The volume in which it is scheduled to appear has not
yet been published.
** Distinguished Professor of International Law, The Fletcher School of
Law & Diplomacy, Tufts University.
I. This is not the place for a full analysis of divine law notions. Briefly,
the logic is that because our God is the only true God, and She/He/It gave the land
to us, then all those others in the land must be violating God's law and can be
killed as outside of God's protection. Indeed, they cannot be truly human since
they derive their lives from other sources than that of the true giver of life, our
God. Evidences of this sort of thinking are too plentiful from biblical days
through the Nazi Holocaust and events today in Northern Ireland and the former
Yugoslavia.
2. See generally Alfred P. Rubin, International Law in the Age of Colum-
bus, 39 NETH. INT'L L. REV. 5 (1992).
3. See generally Alfred P. Rubin, Enforcing the Rules of International Law,
34 HARV. INT'L L.J. 149 (1993) (providing a summary analysis of these and other
subsets of law); ALFRED P. RUBIN, ETHICS AND AUTHORITY IN INTERNATIONAL
LAW (1997) [hereinafter RUBIN, ETHICS AND AUTHORITY] (providing a more elabo-
rate general overview with quotations from the leading texts).
4. Essentia non sunt multiplicanda praeter necessitatem (Essences
should not be adopted unless necessary). The Neo-Platonic notion of essences

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