Dworkin on International Law: Not Much of a Legacy?

Abstract

Dworkin’s proposal for a new philosophy of international law shares all the important features of his latest stage of philosophizing about domestic law. As a derivative theory, however, it faces not only the same problems as the original position, but some new ones as well. This paper focuses on three problems. First, already Dworkin’s exposition of the international legal regime of human rights, which is briefly analyzed in the paper, suffers from the ill-treatment of sovereignty, insofar as it is equated with the outdated Westphalian conception. Furthermore, Dworkin’s attempt to ground human rights in value monism opens a number of intricate philosophical and practical issues. At the general plane of international law, this theoretical proposal becomes even more vulnerable. Second, Dworkin’s moral reading of international law makes a revolutionary discontinuity with the developed institutional practices and standards of the international community, which is within his own theory considered as one of the key features of legality. Finally, Dworkin’s proposal is profoundly futuristic and utopian. It is no more about the claim that ‘law as it is’ needs to be assessed in light of ‘law as it ought to be’, according to some inherent standards of political morality of a given political community, but in light of some law that might develop in the distant future. The paper concludes by noticing that if Dworkin’s ‘interpretivist’ theory is to be employed in the area of international law, it would have to be along some different lines than the ones proposed by Dworkin himself.