Taking Dworkin’s Legal Monism Seriously

Abstract

Abstract In this review essay, I analyse two philosophical positions presented by Cormac Mac Amhlaigh in New Constitutional Horizons – namely, a pluralistic analytic legal theory, which offers a criterion of ‘individuation’ of legal systems in the context of transnational laws (to explain the relationship between domestic and international law), and a pluralistic account of constitutionalism, which understands the concept of ‘constitution’ and related political concepts in the context of transnational legal relationships (treating them as ‘interpretive concepts’ in the sense of Ronald Dworkin). My main target is not Mac Amhlaigh’s account of constitutionalism, with which I agree, but, rather, his analytic legal theory. After a brief summary of the former, to make explicit the interpretive methodology of the book, I respond to the latter in two ways: first, I present Dworkin’s argument to defend Hans Kelsen’s international legal monism against H.L.A. Hart’s objections, and, second, I argue that the analytic ambition to provide a test to distinguish sharply between municipal law and international law, treating them as separate while simultaneously valid systems, is unachievable. I end with a claim that Dworkin’s thesis of the unity of value entails a distinctive version of legal monism, which is more plausible than Kelsen’s traditional legal monism because it is not committed to a ‘linear’ or ‘hierarchical’ theory of law.