\u201cFantasy Upon Fantasy\u201d: Some Reflections on Dworkin\u2019s Philosophy of International Law

John Tasioulas

doi:10.1007/s42439-021-00036-3

Abstract

This article offers a critique of Ronald Dworkin’s article “A New Philosophy for International Law”, (Philos Public Aff 41: 1–30, 2013). It begins by showing that Dworkin’s moralised theory of law is built on two highly questionable background assumptions. On the one hand, a descriptively implausible characterisation of a positivist-voluntarist view of international law as the reigning “orthodoxy”. On the other hand, the methodologically questionable assumption that a theory of international law must discharge the dual function of explaining the validity of international law in a manner that underwrites its presumptive legitimacy. In its core part, the article then offers a sustained criticism of Dworkin’s moralised account of the validity and legitimacy of international law. Various problems are identified with the “principle of salience” that Dworkin offers in place of consent as a ground for international law. A key concern is the difficulties that stem from Dworkin’s willingness to proceed on the “fantasy” assumption that his theory needs to get off the ground, i.e. that there is an international court with compulsory jurisdiction and reliable mechanisms for enforcing its judgements. Finally, the article concludes with some thoughts on how Dworkin’s “fantasy-based” approach led him to over-estimate the degree to which international law can be a vehicle for the global spread of liberal democratic values. More minimalist ambitions for international legal order, along the lines suggested by John Rawls in The Law of Peoples, seem more realistic.

Highlights

Dworkin sketches the theoretical understanding of the validity and legitimacy of international law that he believes is dominant among practitioners and scholars of international law
A remarkable feature of this moralised view is that it proceeds on the “fantasy upon fantasy” (14), as Dworkin himself describes it, that an international court exists with compulsory jurisdiction, one whose rulings can be effectively enforced throughout the globe
The theory that Dworkin identifies as the orthodox view is one I shall call the positivist-voluntarist account (PVA) which holds that “a sovereign state is subject to international law but... only so far as it has consented to be bound by that law” (5)

Summary

Introduction

On this view, which I call the positivist-voluntarist account (PVA), the validity and legitimacy of international law both stem from the consent of sovereign states within a broadly Westphalian international legal order.

Results

Conclusion