Dworkin: A New Philosophy for International Law

The late Ronald Dworkin (New York Univ. - Law) has published posthumously A New Philosophy for International Law (Philosophy & Public Affairs, Vol. 41, no. 1, p. 2, Winter 2013). Here's an excerpt:

When I was last instructed in international law—at Oxford in the 1950s—the first and most lively question, bound to appear on the examination paper together with tedious questions about navigable bays, was existential. Is there any such thing as international law? Or does the subject we were being asked to study actually not exist? Is what some academics and state department officials call international law not law at all but only common practices that no state is really legally bound to continue practicing?

You may well ask: Why does this matter? Isn’t the only important point really whether there are rules that nations do follow in their dealings with one another? And that nations join in criticizing and if possible punishing other nations that do not follow those rules? Does it really matter whether we call these rules “law”? Or whether we say, instead, that in certain ways they are like the rules of more familiar national legal systems?

The question whether it matters is deeper and more difficult than may first appear. I reserve it for discussion later. In any case, the question whether there is international law seems no longer to trouble anyone. Almost everyone assumes that there is international law and also assumes that it includes, for example, the Charter of the United Nations and the Geneva Conventions—or at least some of them. But nothing has actually changed. The old grounds for challenge remain; they are only ignored.

The existential challenge remains important, however. Even though almost everyone agrees that “international law” is really law, and that the rules and principles set out in documents of that kind are part of it, the question of why these documents constitute some kind of legal system is crucial because how these rules and principles should be interpreted hinges on it. Interpretive issues are both controversial and dramatically important. Nations and lawyers disagree, for instance, about the legal status of associates of Al Qaeda and the Taliban under the Geneva Conventions, and whether there is such a thing as an enemy noncombatant who is not covered by those Conventions. I will later discuss another celebrated interpretive issue: whether the NATO intervention in Kosovo, without the consent of the Security Council of the United Nations, was a violation of international law.