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“A New Philosophy for International Law” and Dworkin’s Political Realism

Published online by Cambridge University Press:  02 February 2016

Eric J. Scarffe
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Abstract

During his career, Ronald Dworkin wrote extensively on an impressive range of issues in moral, political, and legal philosophy, but, like many of his contemporaries, international law remained a topic of relative neglect. His most sustained work on international law is a posthumously published article, “A New Philosophy for International Law” (2013), which displays some familiar aspects of his views in general jurisprudence, in addition to some novel (though perhaps surprising) arguments as well. This paper argues that the moralized account of international law we might have expected is conspicuously missing from this posthumous article; with Dworkin advancing an argument based on a form of political realism instead.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 29 , Issue 1 , February 2016 , pp. 191 - 213
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2016 

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References

1. . Notably, many political and legal philosophers have shared a similar trajectory: namely, John Rawls, Joseph Raz, and HLA Hart. I will return to this point in section II.

2. Dworkin, Ronald, “A New Philosophy for International Law” (2013) 41:1Google Scholar Phil & Pub Affairs, 2.

3. Dworkin, Ronald, Justice in Robes (Cambridge: The Belknap Press of Harvard University Press, 2006) at 34Google Scholar [Dworkin (2006b)].

4. Dworkin, Ronald, Justice for Hedgehogs (Cambridge: The Belknap Press of Harvard University Press, 2011) at 405.Google Scholar

5. See Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977).Google Scholar In particular chapter two (The Model of Rules I).

6. Dworkin, Ronald, Law’s Empire (London: Fontana Press, 1986).Google Scholar

7. Dworkin (2006b), supra note 3 at 14.

8. Dworkin, supra note 5 at xi.

9. Ibid at 184.

10. Ibid at xi.

11. Dworkin, supra note 4 at 329.

12. Dworkin offers us a definition of a legal right in the last section of his book, Justice for Hedgehogs: namely, a legal right is “a right enacted by a legislative body of a legitimate government to be enforced on the demand of individual citizens through the decisions, if necessary, of an adjudicative institution like a court” Dworkin, supra note 4 at 331.

13. Ibid at 407.

14. For example, it might be the case that people, as citizens of a developed and prosperous nation like the United States, have a political right to free health care without this right being recognized in law. In cases such as these, the political right still exists as a claim against the government, but it cannot be enforced without further legislation.

15. Dworkin, supra note 3 at 236 [emphasis added].

16. Dworkin, supra note 5 at 200.

17. Dworkin, supra note 4 at 333.

18. Ibid at 334.

19. Ibid at 330. It is also worth noting that there is some development between Dworkin’s earlier thoughts on rights, and what he expresses here. In Taking Rights Seriously, for instance, Dworkin writes that the “most fundamental” right “is a distinct conception of the right to equality, which I call the right to equal concern and respect” (xii). Later, in both Justice for Hedgehogs, and Is Democracy Possible Here?: Principles for a New Political Debate, Dworkin develops this right to “equal concern and respect” in relation to human dignity. (In particular, see Dworkin, supra note 4 at Part Five.) Ronald Dworkin, Is Democracy Possible Here?: Principles for a New Political Debate (New Jersey: Princeton University Press, 2006a) [Dworkin (2006a)].

20. Dworkin, supra note 4 at 335. Notably, Dworkin makes the same claim in an earlier version of this argument. As Dworkin writes, in his book Is Democracy Possible Here?, “[t]he fundamental human right, we should say, is the right to be treated with a certain attitude: an attitude that expresses the understanding that each person is a human being whose dignity matters.” Dworkin (2006a), supra note 19 at 35.

21. Dworkin, supra note 4 at 335.

22. Ibid at 338.

23. Dworkin (2006a), supra note 19 at 48.

24. Ibid at 9-10. It is also worth noting that Dworkin later clarifies these two principles as the “principle of self-respect” and the “principle of authenticity” (Dworkin, supra note 4 at 203-04). As was the case in his earlier work, he conceives of these two principles as forming the proper conception of human dignity. Although the principles articulated in this later work may be explanatorily superior, as the difference does not constitute a substantial difference in an imagined justification for international law, we can leave this clarification aside.

25. This line of argument draws on similar arguments Dworkin has made from his theory of law as integrity regarding the status of abortion rights in the United States. As Dworkin writes in his book, Justice in Robes, “integrity requires judges to look to morality in some cases, including this one, to decide both what the law is and how to honor their responsibilities as judges.” Dworkin (2006b), supra note 3 at 21.

26. Dworkin, supra note 4 at 422.

27. Ibid at 205.

28. Dworkin notes that, unlike historical accounts of international law, the contemporary debate largely takes for granted the existence of international law as law. International law’s existential question is thus set aside in favour of questions pertaining to the understanding the nature of authority and enforcement which binds us to it. Although Dworkin ultimately disagrees with Austin, and other positivists who reject the existence of international law as law, nevertheless he thinks it is misguided to take its existence for granted—and the challenges raised against the existence of international law as law remain in need of a response.

29. Dworkin, supra note 2 at 3.

30. Briefly, the rule of recognition stipulates something like “the political community must agree to recognize law as law”.

31. See Besson, Samantha, “Theorizing the Sources of International Law” in Besson, Samantha & Tasioulas, John, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010) 163.Google Scholar

32. Dworkin, supra note 2 at 5.

33. Many of these views also include something like a threshold clause. This translates into a kind of “threshold” account of peremptory and nonnegotiable international law. If enough states to constitute “the international community of states” recognize fundamental rules, then these rules are peremptory and nonnegotiable for all states. Ibid at 6.

34. I note that this is likely an overgeneralization. As Besson kindly pointed out to me, there is no reason to think that all positivist accounts of international law are necessarily consent based in the way Dworkin seems to describe, and there are plenty of examples—arguably even her own—which espouse another basis for international law.

35. Ibid at 6-7.

36. Ibid at 8. It is worth noting that Brian Tamanaha shares a similar concern about discussions which suppose “state legal systems” to express unified beliefs like other agents and persons. As Tamanaha writes, “[a]lthough we regularly refer to state law as a hierarchically structured institution, when broken down into its constituent elements it becomes apparent that state law is more closely described as a collection of institutions, each with their own characteristic activities, and each with their own internal hierarch of authority, often located in separate buildings with their own material and financial resources, often with conflicting interests and concerns, loosely connected to one another at certain points of intersection and co-ordination […] While it is correct to say that the activities of these institutions, taken as a whole, constitutes the state legal system, in actual operation the wholeness of law is more a projection than a reality.” Brian Tamanaha, Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law (New York: Oxford University Press, 1997) at 146-47.

37. Dworkin, supra note 2 at 9-10.

38. Ibid at 8, 10.

39. Ibid at 9 [emphasis added].

40. Elsewhere, Dworkin offers us further reasons for thinking that “consent” is an inappropriate principle for grounding any system of law, not just international law. (See Dworkin (2006a), supra note 19 at 96-97.)

41. Dworkin, supra note 2 at 9.

42. Ibid at 11.

43. Ibid.

44. Ibid at 11, 12.

45. Ibid at 13.

46. Dworkin (2006b), supra note 3 at 236.

47. Dworkin, supra note 2 at 13 [emphasis added].

48. Goldsmith, Jack & Posner, Eric, The Limits of International Law (New York: Oxford University Press, 2005) at 3.Google Scholar

49. Ibid at 13.

50. It is important to note that I am neither claiming that Dworkin’s view is synonymous with the one put forward by Goldsmith and Posner, nor claiming that Dworkin is advocating a kind of “power politics”. I emphasize, once again, that in claiming that the basis Dworkin provides for his theory of international law is a form of political realism, I mean that the basis of his theory is not a moral one, but explained by state self-interest. I thank Richard Bronaugh for pointing out this important distinction to me.

51. The one notable exception would be the International Criminal Court, but Dworkin does not mention it in his article.

52. Dworkin, supra note 3 at 14.

53. Ibid at 14.

54. Ibid.

55. Ibid at 16.

56. Ibid at 16.

57. Ibid.

58. Ibid.

59. Ibid at 17.

60. Ibid.

61. Ibid.

62. Ibid.

63. Dworkin, supra note 4 at 205.

64. Dworkin, supra note 2 at 19.

65. Ibid at 19.

66. It is worth noting that Dworkin lists four ways in which states fail in their responsibilities to their citizens: the first of which is to protect against the threat of “its own possible future degradation into tyranny.” Ibid at 17 [emphasis added]. Once again, I argue that the four reasons Dworkin offers as support for the “standing duty” for states to mitigate the risks of the sovereign state system are derived from an argument for political realism.

67. Ibid at 23.

68. Ibid.

69. Hart, HLA, The Concept of Law (Oxford: Oxford University Press, 1961).Google Scholar

70. Waldron, Jeremy, “International Law: ‘A Relatively Small and Unimportant’ Part of Jurisprudence?” in Almeida, Luís D’ et al. , eds, Reading H.L.A. Hart’s The Concept of Law (Portland: Hart, 2013) at 209.Google Scholar

71. Ibid at 213.

72. Ibid at 215.

73. Rawls, John, “The Law of Peoples” (1993) 20:1Google Scholar Critical Inquiry 36.

74. Pogge, Thomas, “An Egalitarian Law of Peoples” (1994), 23:3Google Scholar Phil & Pub Affairs 195 at 195 [emphasis added].

75. Ibid at 197.

76. Ibid at 196.

77. One should note that no part of my argument here passes judgement upon whether Waldron and Pogge are correct in their criticisms, only that it is not absurd to suppose that someone could misapply one’s own theory.

78. Dworkin (2006a), supra note 19 at 95 [emphasis added].

79. Dworkin, supra note 4 at 321 [emphasis added].

80. Ibid at 262.

81. Ibid at 19.

82. Ibid.

83. Ibid at 255.

84. Ibid at 265 [emphasis added].

85. Ibid at 319.

86. Ibid.

87. Ibid at 266.

88. Ibid.

89. Ibid at 264 [emphasis added]. It is also noted that Dworkin makes a similar claim in Justice in Robes. As Dworkin writes, “the equilibrium I believe philosophy must seek is not limited, as [Rawls’s] is, to the constitutional essentials of politics, but embraces what he calls a ‘comprehensive’ theory that includes personal morality and ethics as well.” Dworkin (2006b), supra note 3 at 161.

90. See Rawls, John, “The Idea of an Overlapping Consensus” (1987) 7:1Google Scholar Oxford J Legal Stud 1; Taylor, Charles, “Conditions of an Unforced Consensus on Human Rights”, Dilemmas and Connections (Cambridge: The Belknap Press of Harvard University Press, 2011) at 105.Google Scholar

91. Dworkin, supra note 4 at 339.

92. Ibid.

93. Ibid at 338.

94. Dworkin, supra note 5 at 286.

95. Ibid [emphasis added].

96. Ibid at 45-46.

97. Dworkin, supra note 2 at 3.

98. Dworkin, supra note 5 at 45.