Legal Interpretivism beyond The State (original) (raw)
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This article argues for the relevance of interpretivism within theoretical and normative debates about international law. To do this, the article carries out two tasks. First, it draws out the central features of interpretivism that make it a theoretically distinct contribution to understanding the nature and theory of law. Secondly, it identifi es four important objections, two external and two internal, to the relevance of interpretivism to international law. External objections stem from positivism and anti-essentialism about international law. Internal objections, on the other hand, stem from the view that international law does not suit the application of interpretivism. I show that it is possible to counter all four and conclude by pointing to the nature of future work that needs to be undertaken to develop a substantive interpretivist account of international law.
Principles and Disagreements in International Law (with a View from Dworkin's Legal Theory
Principles are part of international law as much as of other legal orders. Nonetheless, beyond principles referred to the functioning of international law, or the sector related discipline in discrete fields, those fundamental principles identifying the raison d'être, purpose and value of the legal international order, as a whole, remain much disputed, to say the least. In addressing such a problem, one that deeply affects interpretation and legal adjudication, this chapter acknowledges the limits and weakness of legal positivism in making sense of the inter-and supranational legal order(s). It appraises also the novel from the late Ronald Dworkin, concerning international law, and its consequence for interpretivism in the international environment, so different from State political communities and their " integrity ". Finally, some recent cases before international courts shall be considered, that expose difficulties stemming from traditional legal positivist stric-tures, and explain how judicial reasoning actually profits from asking further questions of principles. All the more so, if the issues at stake happen to be covered by two or more diverging legal regimes, that would, per se, lead to opposite outcomes.
A New Interpretivist Conception of the Rule of Law' Problema 10 (2016) 91-109
Ronald Dworkin argues that the content of the law is limited to the set of judicially enforceable rights. For him, legality, the value that law distinctively serves when it goes well, is primarily a virtue of judicial decision-making. The purpose of this article is to criticize Dworkin’s court-centrism on the ground that it delivers an impoverished conception of legality. Legality has a systemic as well as an adjudicative dimension. In its systemic dimension it requires that government as a whole is structured in a way that guarantees the proper exercise of public power. Accordingly, for a legal system to exhibit the value of legality, it is not sufficient that its judges direct the use of state coercion under certain conditions. Additionally the exercise of public power must accord with a scheme of separation of powers that is geared towards justice. Not all the requirements of legality thus understood are judicially enforceable. This expansive conception of legality is underpinned by a theory of political legitimacy that differs from Dworkin’s. Legitimacy is not merely a retail thing. A political community is also legitimate when it has standing guarantees for the proper exercise of power. Separation of powers is crucial among them. http://biblio.juridicas.unam.mx/Revista/FilosofiaDerecho/
A New Interpretivist Conception of the Rule of Law
Problema. Anuario de Filosofía y Teoría del Derecho
Ronald Dworkin sostiene que el contenido del derecho se limita al conjunto de derechos sujetos a ser adjudicados ante los tribunales. Para Dworkin, el valor de la "legalidad", es decir, el valor que sirve el derecho de manera distintiva cuando funciona adecuadamente, es una virtud de las decisiones judiciales. El objetivo de este artículo es criticar el enfoque hacia las cortes de Dworkin, dado que proporciona una concepción empobrecida de lo que es el valor de la "legalidad", argumentaré que la legalidad tiene una dimensión tanto sistemática como adjudicativa. En su dimensión sistemática, exige que el gobierno en su conjunto esté estructurado de tal forma que garantice el ejercicio adecuado del poder público. Por lo tanto, para que un sistema jurídico presente el valor de la legalidad, no es suficiente que los jueces emprendan el uso de la coerción del Estado bajo ciertas condiciones. Además, el ejercicio del poder público tiene que ser acorde con un esquema de separación de poderes con un objetivo de justicia. Así entendidas, no todas las exigencias de la legalidad son sujetas a ser adjudicadas judicialmente. Esta * Artículo recibido el 16 de octubre de 2014 y aceptado para su publicación el 6 de noviembre de 2014. ** Associate Professor, School of Law, University of Reading. dimitris.kyritsis@ gmail.com. I thank participants in the Workshop on the Legal Philosophy of Ronald Dworkin organized by UNAM and the Supreme Court of Mexico for their helpful comments. I am also grateful to an audience at the 2014 McMaster Conference in Legal Philosophy, where I also presented the argument of this article, and especially to Eric Encarnacion for his written and oral comments. This article elaborates claims that I make in my monograph Shared Authority: Courts and Legislatures in Legal Theory (forthcoming Hart Publishing).
On the Nature of Interpretation in International Law
This paper seeks to provide a theoretical approach to the nature of interpretation to overcome some of the challenges of treaty interpretation in international law. By adhering to the approaches of Gadamer and Wittgenstein, it is argued that interpretation is a reciprocal dialogue between the reader and text with the mediation of the ‘tradition’ and ‘language-games’. Although it seems there exists no agreement among legal theorists on the nature of interpretation, reviewing their approaches reveal they have acknowledged the dependency of meaning to the tradition. This finding paves the way for providing a new reading for the system of interpretation provided by article 31 and 32 of the Vienna Convention on the Law of Treaties. It is argued that VCLT rules, while integrate some of the elements of current interpretive methods, adopt their own approach. The nature of international law requires taking into account the ‘conventionalist theory’ to determine the meaning based on the acts o...
Dworkin on International Law: Not Much of a Legacy?
Canadian Journal of Law & Jurisprudence, 2015
Dworkin’s proposal for a new philosophy of international law shares all the important features of his latest stage of philosophizing about domestic law. As a derivative theory, however, it faces not only the same problems as the original position, but some new ones as well. This paper focuses on three problems. First, already Dworkin’s exposition of the international legal regime of human rights, which is briefly analyzed in the paper, suffers from the ill-treatment of sovereignty, insofar as it is equated with the outdated Westphalian conception. Furthermore, Dworkin’s attempt to ground human rights in value monism opens a number of intricate philosophical and practical issues. At the general plane of international law, this theoretical proposal becomes even more vulnerable. Second, Dworkin’s moral reading of international law makes a revolutionary discontinuity with the developed institutional practices and standards of the international community, which is within his own theory considered as one of the key features of legality. Finally, Dworkin’s proposal is profoundly futuristic and utopian. It is no more about the claim that ‘law as it is’ needs to be assessed in light of ‘law as it ought to be’, according to some inherent standards of political morality of a given political community, but in light of some law that might develop in the distant future. The paper concludes by noticing that if Dworkin’s ‘interpretivist’ theory is to be employed in the area of international law, it would have to be along some different lines than the ones proposed by Dworkin himself.
On the Duty to Mitigate: A Typology of Dworkin's New Philosophy of International Law DRAFT
Ronald Dworkin’s posthumously published “New Philosophy” is perhaps the most promising recent attempt to answer the question why states ought to comply with international law. At the core of the new philosophy is the idea that states’ duties to comply with law flow from a duty to improve the legitimacy of the state system. States can do this, Dworkin believes, by contributing to the mitigation of a specific set of problems that arise in that system. The new philosophy’s attention to the emergent problems that face the actual practice of law — what I will call pathologies — put it in a unique position to capture the concept of authority implicit in that practice. However, ambiguities in Dworkin’s presentation of the new philosophy open it up to multiple interpretations, some of which better justify the concept of authority in practice than others. This essay is a typology of the possible interpretations of Dworkin’s philosophy, with some attention paid to how well each interpretation reflects and justified the characteristics of authority implicit in practice. Because the first presentation of this view was only published very recently and because it no longer has a living representative, relatively little work has been done towards a disambiguation of the theory or an investigation into any one of the available interpretations. One exception, Matthias Kumm, has offered an interpretation of the new philosophy along familiar natural law lines of thought. While his interpretation of Dworkin is surely faithful, it is not necessarily the most charitable, especially if one is interested in justifying going practice. Drawing on Dworkin’s larger body of work, specifically his contributions in Law’s Empire, I will advance a more positivistic interpretation of the new philosophy that is both faithful to his words and illuminating for current projects in legal theory.