International Law and the Objectivity of Value

Abstract

AbstractThe familiar critical claim that propositions of international law cannot be both objective and normative casts a long shadow over international legal theory. The claim relies on the conjunction of two ideas: first, that the truth-conditions of any proposition of international law will include some element of evaluative judgement (about the right or the good) that gives the proposition its normative character, and, second, that evaluative judgements cannot be objectively true or false. International lawyers have two main strategies for defending their discipline against this sceptical challenge. A more modest strategy would accept that legal objectivity and normativity are incompatible and attempt to sidestep the sceptical critique by abandoning the claim to normativity. A second and more ambitious strategy would resist the sceptical challenge by disputing the plausibility of its attack on the objectivity of evaluative judgements. This strategy would rely on the claim that objectivity and normativity are not mutually incompatible and that the aim of producing an account of international law that displays both features is realistic. My aim in this paper is to show that there exists at least one version of this second strategy that can succeed against the sceptical challenge. I argue that scepticism about values is incoherent and, therefore, that the opposition between the objectivity and the normativity of international law is illusory. Setting such scepticism aside will allow international lawyers to concentrate fully on the substantive normative questions that drive theories of international law and on the values that provide the best account of its content.