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Revisiting Dworkin’s Philosophy of International Law: Could the Hedgehog Have Done It Any Other Way?

Published online by Cambridge University Press:  01 August 2017

Thomas Bustamante
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Abstract

This paper replies to the criticisms raised by Eric Scarffe and Thomas Christiano against Dworkin’s philosophy of international law. While the former argues that Dworkin’s philosophy of international law boils down into some form of political realism, the latter upholds that Dworkin’s attempt to ground the legitimacy of international law on the states’ duty to improve their own legitimacy is insufficient to establish a solid foundation for international obligations. In my response to these critics, I hold that they are based on an uncharitable and implausible reading of Dworkin’s theory of international law, since Dworkin’s theses about the law, whether we are considering “municipal” or “international” law, only make sense if they are understood in an interpretive way. This is, I submit, the only way to avoid turning Dworkin’s assumption of the “unity of value” into an implausible metaphysical theory of natural law. Once we adopt Dworkin’s interpretive attitude, it becomes clear that the route taken by Dworkin in “A New Philosophy for International Law” was the only route that remained available for his interpretive account of political legitimacy and the foundations of law.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 30 , Issue 2 , August 2017 , pp. 259 - 285
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2017 

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References

1. Ronald Dworkin, “A New Philosophy for International Law” (2013) 41:1 Phil & Public Affairs 2.

2. Dworkin, Ronald, Justice for Hedgehogs (Belknap Press, 2011).Google Scholar

3. Eric J Scarffe, “‘A New Philosophy for International Law’ and Dworkin’s Political Realism” (2016) 29: 1 Can JL & Jur 191.

4. Christiano, Thomas, Dworkin, “Ronald, State Consent and Progressive Cosmopolitanism” in Wil Waluchow & Stefen Sciaraffa, eds, The Legacy of Ronald Dworkin (Oxford University Press, 2016) 49.CrossRefGoogle Scholar

5. Dworkin, “A New Philosophy”, supra note 1 at 5.

6. Dworkin, Ronald, Law’s Empire (Belknap Press, 1986) at 90.Google Scholar

7. See Samantha Besson, “Theorizing the Sources of International Law” in Samantha Besson & John Tasioulas, eds, The Philosophy of International Law (Oxford University Press, 2010) 163; Jeremy Waldron, “International Law: ‘A Relatively Small and Unimportant’ Part of Jurisprudence?” in Luís Duarte D’Almeida, ed, Reading HLA Hart’s ‘The Concept of Law’ (Hart, 2013) 378.

8. Dworkin, “A New Philosophy”, supra note 1 at 6.

9. Ibid at 6-8.

10. Dworkin, Justice for Hedgehogs, supra note 2 at 304.

11. Ibid at 310.

12. Dworkin, “A New Philosophy”, supra note 1 at 11.

13. Ibid at 12.

14. Ibid at 14.

15. Ibid at 16-17.

16. Ibid at 17.

17. Ibid.

18. Ibid.

19. Ibid.

20. Ibid at 19.

21. I am following Thomas Christiano’s suggestion to refer to it in this manner. See supra note 4 at 53.

22. Dworkin, Law’s Empire, supra note 6 at 13.

23. Başak Çali, “On Interpretivism and International Law” (2009) 20:3 EJIL 805. This is not, however, the only internal objection Çali considers for interpretivism in international law. Alongside this critique, he mentions the so-called “lack of centrally-organized coercive institution objection.” I am assuming, however, for the sake of argument, that Dworkin has anticipated this objection in his paper and has avoided its most significant problems when he specified that he is looking for a “doctrinal” concept of international law and that he resorts to a hypothetical assumption of a centralized institution with coercive powers in international law in order to identify the content of legitimate international norms.

24. Ibid at 817. According to Çali, this objection can be understood in two ways. First, one may argue that the circumstances for constructive interpretation are absent in international law, since we still lack a global community of people who share an interpretive attitude towards this practice and assign to that practice a common purpose to which interpretation should be sensitive. Second, even if the first objection can be overcome, the ideal of integrity commands respects for individuals, in such a way that only can be attained in a “single political community”, rather than “multiple political communities.” Ibid at 818.

25. See Dworkin, Law’s Empire, supra note 6 at ch 6.

26. Çali, supra note 23 at 817.

27. Scarffe, supra note 3 at 198.

28. Ibid at 202.

29. Jack L Goldsmith & Eric Posner, The Limits of International Law (Oxford University Press, 2005) at 13.

30. Ibid at 225.

31. Scarffe, supra note 3 at 203.

32. Ibid at 204.

33. Ibid.

34. Ibid at 206.

35. Ibid.

36. Ibid at 206-07.

37. Ibid at 211-12.

38. See Dworkin, Justice for Hedgehogs, supra note 2 at 203. In other words, his point is that each person “must accept that it is a matter of importance that his life be a successful performance rather than a wasted opportunity”.

39. Ibid at 204.

40. Ibid at 265.

41. Scarffe, supra note 3 at 209.

42. Ibid at 209.

43. Ibid at 210-11.

44. Ibid at 211.

45. Ibid.

46. Christiano, Thomas “Democratic Legitimacy and International Institutions” in Besson, Samantha & Tasioulas, John, eds, The Philosophy of International Law (Oxford University Press, 2010) 119.Google Scholar

47. Ibid at 121.

48. Ibid at 122.

49. Ibid.

50. Ibid at 124.

51. Ibid.

52. Dworkin, Law’s Empire, supra note 6 at 206.

53. See supra note 23.

54. Christiano, “State Consent”, supra note 4 at 57.

55. Ibid at 56.

56. Ibid.

57. Ibid at 58.

58. Ibid.

59. Ibid at 59.

60. Ibid.

61. Ibid.

62. Ibid.

63. Ibid.

64. See above at section III.a).

65. Dworkin, Justice for Hedgehogs, supra note 2 at 402.

66. Ibid at 403.

67. Dworkin, Ronald, Justice in Robes (Belknap Press, 2006) at 34–35.Google Scholar

68. Dworkin, Justice for Hedgehogs, supra note 2 at 5.

69. Nicos Stavropoulos, “Legal Interpretivism” in The Stanford Encyclopedia of Philosophy (Summer 2014 Edition), Edward N Zalta, ed, online: https://plato.stanford.edu/archives/sum2014/entries/law-interpretivist/.

70. Ronald Dworkin, Law’s Empire, supra note 6 at 108-09.

71. Under Dworkin’s view, “a conception of law must explain how what it takes to be law provides a general justification for the exercise of coercive power by the state.” Ibid at 190.

72. Dworkin, Justice in Robes, supra note 67 at 2.

73. Dworkin, Justice for Hedgehogs, supra note 2 at 414.

74. Greenberg, Mark, “The Standard Picture and its Discontents” in Green, Leslie & Leiter, Brian, eds, Oxford Studies in Philosophy of Law, vol. 1 (Oxford University Press, 2011) 39 at 42.CrossRefGoogle Scholar

75. Greenberg’s account of legality is, however, different from Dworkin’s in that it is not committed to interpretivism. Institutions may alter the set of moral obligations we have in a community, and we call “law” the set of obligations that derive from the action of such institutions. Like Dworkin, Greenberg thinks that in order to understand the content of the law we must make a moral judgment about the action of institutions. Yet there is an important difference from Dworkin’s jurisprudence, since Greenberg does not uphold interpretivism and thinks that the values which should base our judgments about the effect of the action of institutions are moral facts which are metaphysically basic. Unlike Dworkin, Greenberg will thus need a metaphysical theory to explain the foundations of the basic moral values we use to determine the significance of the action of political institutions. See Mark Greenberg, “The Moral Impact Theory of Law” (2014) Yale LJ 1288 at 1301.

76. Dworkin, Justice for Hedgehogs, supra note 2 at 301.

77. Ibid at 407.

78. Ibid at 1.

79. Ibid at 37.

80. Ibid at 67.

81. Ibid at 9.

82. Ibid at 10.

83. Ibid at 100.

84. Ibid at 101.

85. Ibid.

86. Jeremy Waldron, “Jurisprudence for Hedgehogs” (2013) New York University Public Law and Legal Theory Working Papers, Paper 417, online: http://lsr.nellco.org/nyu_plltwp/417 at 5.

87. Ibid at 5.

88. Ibid.

89. A performative contradiction is a form of logical contradiction. It is a contradiction between an assertion and the implicit presuppositions for the truth of such assertion. As Robert Alexy explains, “the performative character results from the fact that only one part of the contradiction stems from what is explicitly stated by performing” a given speech act. Robert Alexy, “On the Thesis of a Necessary Connection between Law and Morality: Bulygin’s Critique” (2000) 13 Ratio Juris 138 at 141. A performative contradiction, therefore, is a fallacy because “its conditions of success cannot possibly obtain.” See John R Searle & Daniel Vanderveken, Foundations of Illocutionary Logic (Cambridge University Press, 1985) at 151.

90. Dworkin, Justice for Hedgehogs, supra note 2 at 1.

91. See above at section III.a).

92. Dworkin, Justice for Hedgehogs, supra note 2 at 322.

93. Ibid at 113.

94. Ibid.

95. Ibid at 113, 335.

96. Ibid at 265.

97. Dworkin, “A New Philosophy”, supra note 1 at 17.

98. Ibid at 17-18.

99. See above at section III.b).

100. Christiano, “State Consent”, supra note 4 at 60.

101. Ibid.

102. See Thomas Christiano, The Constitution of Equality (Oxford University Press, 2008).

103. Thomas Christiano, “The Legitimacy of International Institutions” in Andrei Marmor, ed, The Routledge Companion to Philosophy of Law (Routledge, 2012) 380 at 388.

104. Ibid.

105. Ibid.

106. Ibid at 388-90.

107. It is interesting to point out, briefly, the influence of Thomas Nagel’s moral and political philosophy on Dworkin’s attempt to reconcile the Kantian principle of humanity with our legitimate preferences in the realm of moral action. According to Nagel, ethics and morality (including political morality) must be understood “as arising from a division in each individual between two standpoints, the personal and the impersonal.” See Thomas Nagel, Equality and Impartiality (Oxford University Press, 1990) at 1. As human beings, we are naturally divided between our preferences and interests, which constitute our personal standpoint, and our impersonal point of view which refers to the “claims of the collectivity” that we are able to recognize. “The impersonal standpoint in each of us produces (…) a powerful demand for universal impartiality and equality, while the personal standpoint gives rise to individualistic motives and requirements which present obstacles to the pursuit and realization of such ideals” (ibid at 2). The toughest challenge to political philosophy, under this view, is to develop a form of “reasonable integration” of these two points of view, thereby providing an ethical theory that accommodates our legitimate interests and the universal moral principles that we are able to recognize.

108. Dworkin, Justice for Hedgehogs, supra note 2 at 271.

109. Ibid at 287.

110. Ibid.

111. Ibid at 272.

112. Ibid.

113. Ibid at 273-74.

114. Ibid.

115. Ibid.

116. Ibid.

117. Ibid at 275-84. On Dworkin’s view, there are two dimensions of the factor called “confrontation.” The first is particularization: “the clearer it is who will be harmed without my intervention, the stronger the case that I have a duty to intervene.” The second is proximity: “the more directly I am confronted with some danger or need, the stronger the case that I have a duty to help” (ibid at 278).

118. Ibid at 288.

119. Ibid.

120. Ibid.

121. Christiano, “State Consent”, supra note 4 at 61.

122. Ibid at 60.

123. Ibid at 62.

124. Ibid at 62-63.

125. Ibid at 63.

126. Christiano, “International Institutions”, supra note 103 at 388.

127. Ibid at 388.

128. Ibid.

129. Further from Scarffe and Christiano, we can mention two recent papers that discuss Dworkin’s effort to contribute to a new philosophy of international law. Adam Chilton, on the one hand, adopts a political realist perspective and accuses Dworkin of giving an unjustified priority for the preferences and interests of international institutions over domestic preferences of elected governments. See Adam Chilton, “A Reply to Dworkin’s Philosophy of International Law” (2013) 80 U Chicago L Rev Dialogue 105 at 110. Miodriag A Jovanović, on the other hand, argues that Dworkin did not consider some of international law’s important features when he transplanted his philosophy of law into the international legal order. Dworkin would be wrong in at least three points: 1) treating individuals as the primary subjects of international law; 2) overemphasizing the Westphalian features of contemporary international law; and 3) failing to observe the recent fragmentation of international law. See Miodriag A Jovanović, “Dworkin on International Law: Not Much of a Legacy?” (2015) 28:2 Can JL & Jur 443 at 453.

130. In other words, states must treat their citizens’ obligations as their own.