Thomas Bustamante (Federal University of Minas Gerais (UFMG)) has posted Revisiting Dworkin's Philosophy of International Law: Could the Hedgehog Have Done it Any Other Way? (Canadian Journal of Law and Jurisprudence, Forthcoming) on SSRN. Here is the abstract:
I will examine in this essay Dworkin’s effort to extend his general theory of municipal law to the realm of international law. The question to answer is whether this effort is successful. One must not only look at the important assumptions he made in his posthumous essay “A New Philosophy for International Law” but also at his final book Justice for Hedgehogs. This is an interesting topic because important criticisms have been made against his philosophy of international law. However, my attention will not be given to any broad criticism that dismisses Dworkin’s overall theory of law and therefore rejects his theory of international law. On the contrary, I am interested specifically in the critics who argue, as Eric Scarffe did, that Dworkin’s new account of the legitimacy of international law is inconsistent with the moral ambition found in his previous philosophy or who dismiss Dworkin, as Thomas Christiano did, in failing to see the connection between the assumptions present in his interpretive theory of municipal law and those of his new theory of international law.
I argue that Dworkin’s theory of international law is premised on at least three important assumptions at the heart of his “one-system picture” of law and morality: i) a non-metaphysical conception of moral facts; ii) an optimistic view about the objectivity of moral judgments; and iii) an anti-naturalistic account of the truth of moral propositions. If these assumptions are sound, then the only way to justify the authority of law for Dworkin is by a holistic interpretation leading to the same principles that he advocates in his philosophy of international law. These two are – as will be explained – the states’ duty to mitigate the risks of their own sovereignty and the principle of salience. The conclusion I argue for is that Dworkin’s philosophy of international law resists its critics. Without these principles – mitigation and salience – Dworkin would be at pains to provide a moral foundation for international institutions. Indeed, without them his account would collapse into a metaphysical theory of natural law. Before we can find a ground for this conclusion, however, we must revisit the general features of Dworkin’s theory of international law.
Recommended.
