Dworkin’s interpretivism, legal monism, and the threat of ‘authoritarian’ international law

Abstract

ABSTRACT Dworkin’s philosophy of international law is distinct from other theories because it rejects five separations: a separability between international law and national legal orders, a separability between law and morality, a separability in the sources of political legitimacy of a state’s government and of international law, a separability between the concepts of law and the rule of law, and a separability between theory and practice. This paper argues that the rejection of these assumptions makes Dworkin’s legal monism well equipped to respond to a recent threat to the authority of international law, namely the practice described by Ginsburg as an ‘authoritarian use’ of international law. ‘Authoritarian’ international law disavowals some inferentially articulated commitments that are an important aspect of the rationality of law. Dworkin’s monism enhances the intellectual attitude required by these commitments and resists some fragmentations that provide occasions and opportunities for authoritarian international law.