Background

The late Ronald Dworkin requires no introduction; few, if any, contemporary law scholars have so profoundly influenced legal thinking.

Here, I will focus on the gift Dworkin left us in the form of a new philosophical framework for international law published posthumously, A New Philosophy for International Law (published in (2013) 41 Philosophy and Public Affairs 2).  More specifically, I will seek to offer some defense for Dworkin’s theory against the attack it came under in Adam Chilton’s A Reply to Dworkin’s New Theory of International Law (published in (2013) 80 University of Chicago Law Review Dialogue 105).

The essence of Dworkin’s philosophy of international law

In A New Philosophy for International Law, Dworkin sets out to (a) bring attention to the weaknesses of how legal positivism approaches international law; and (b) propose a better alternative.

Dworkin shows us that ‘consent’ cannot furnish an international rule of recognition like the standard positivist account would have us believe.  For example, he notes:

But the scheme has several defects as a proposed rule of recognition that are finally fatal. First, it offers no priority among the different sources it recognizes. Must treaties yield to general practices? Or vice versa? More important, though it is founded on the idea of consent, it sometimes binds those who have not consented. It offers no explanation why states that have not accepted a rule or principle as law may nevertheless be subject to it because the bulk of other states, or of ‘civilized’ states, have accepted it. It offers no standard for deciding how many states must accept a practice as legally required before the practice becomes ‘customary’ and therefore binding on everyone. It offers no guidance as to which states are sufficiently civilized to participate in that essentially legislative power. Or which norms are peremptory. (at 6–7)

Dworkin’s own proposal is that we abandon the idea of consent as the international law rule of recognition in favor of a framework centered on what he terms the principle of salience:

If a significant number of states, encompassing a significant population, has developed an agreed code of practice, either by treaty or by other form of coordination, then other states have at least a prima facie duty to subscribe to that practice as well, with the important proviso that this duty holds only if a more general practice to that effect, expanded in that way, would improve the legitimacy of the subscribing state and the international order as a whole. (at 19)

Chilton’s criticism

Chilton’s claim is nothing less than that Dworkin’s theory may be ‘fatally flawed’.  In support of this, he brings attention to what he claims to be three ‘flaws’, or ‘major shortcomings’, in Dworkin’s theory.  I will here discuss and seek to refute each one of those claims.

Chilton’s first claim

The first of the argued flaws identified in Chilton’s reply to Dworkin is as follows:

Professor Dworkin does not provide an explanation of what, if anything, should give when domestic preferences and international obligations are in tension. Professor Dworkin reasonably argues that, for a state to be legitimate, citizens must play some ‘role in their own government.’ […] Given that Professor Dworkin argues that political legitimacy requires giving people a voice in their government, what is unclear in Professor Dworkin’s theory is whether elected officials are still required to comply with international law when it is against the preferences of their citizens to do so. (at 110–111)

In relation to this, Chilton offers Dworkin two options he views as ‘permissible’ under Dworkin’s theory:

The first answer would be that legitimate governments —which Professor Dworkin claims must give citizens a voice — are not obligated to obey international law that their citizens do not support. The obvious problem with this answer is that, if legitimate governments are only obligated to comply with international laws they support, it is difficult to see how there would be much daylight between Professor Dworkin’s theory and the theories of international legal obligation based on consent that he so forcefully argues against. The second answer would be that elected officials are still required to comply, even if their citizens do not support compliance. […] Having this obligation rest with the elected officials and not the citizens, however, requires an argument for cosmopolitanism at the expense of democracy that may do more to undermine political legitimacy — one of the principles motivating Professor Dworkin’s theory — than the principle of salience he supports. (at 112)

I suspect Chilton’s failure here may be attributed to his commitment to a binary — black or white — approach to a landscape rich in nuances.  The better view is to consider the consent model of legal positivism as one end of the spectrum, with a slavish obligation to follow any and all international law, no matter what, on the other.

On my reading, Dworkin positions himself somewhere between these two extremes in speaking of a ‘prima facie duty’; thus, Dworkin need not adopt the one extreme position to avoid being associated with the other.  His analysis is more nuanced, indicated by the considerations that he outlines that must be taken into account in the interpretation of international law:

The correct interpretation of an international document, like the UN Charter, is the interpretation that makes the best sense of the text, given the underlying aim of international law, which is taken to be the creation of an international order that protects political communities from external aggression, protects citizens of those communities from domestic barbarism, facilitates coordination when this is essential, and provides some measure of participation by people in their own governance across the world. (at 22)

In light of this, Dworkin could, at the most, be accused of not having fully canvassed how these underlying aims ought to be balanced when a state is assessing its prima facie duty under the principle of salience.  However, he does offer us one tool for this; that ‘[t]hese goals [the underlying aims of international law outlined above] must be interpreted together: they must be understood in such a way as to make them compatible.’ (at 22)

Perhaps Dworkin’s principle of salience is easier to understand if re-worded, and fleshed out, such as the following:

1.—-If a significant number of states, encompassing a significant population, has:

– developed an agreed code of practice, either by treaty or by other form of coordination; and
– a more general practice to that effect, expanded in that way, would improve the legitimacy of the subscribing state and the international order as a whole,

2.—-then other states have at least a prima facie duty to subscribe to that practice as well.

2.—-In assessing whether such a duty exists, states should take account of the underlying aim of international law to create an international order that:

– protects political communities from external aggression;
– protects citizens of those communities from domestic barbarism;
– facilitates coordination when this is essential; and
– provides some measure of participation by people in their own governance across the world.

3.—-These goals of the underlying aim of international law must be interpreted together and must be understood in such a way as to make them compatible.

Chilton’s second claim

Chilton’s second objection is that ‘Professor Dworkin’s theory does not provide an account of why states should be bound by international law when the coordination problem that states face is not a prisoner’s dilemma.’ (at 112)  In relation to this, Chilton adopts a topic originally used by Dworkin ­— that of global warming — and asserts that while some states may suffer from global warming, other states may gain, thus taking the situation outside the classic prisoner’s dilemma.

Having taken us this far, Chilton demonstrates that the issues that flow from this are not particularly different to the first objection he raised:

The natural question, of course, is whether compliance should still be demanded in cases where a given state stands to lose from coordination. As with the last objection I raised, the options available to Professor Dworkin’s theory similarly appear to be either to allow states not to comply when it would not be in their interest to do so, or to demand that states comply even if it were against their interests. (at 113)

In light of this, we may instantly score a point for Dworkin by noting that, in fact, this so-called second flaw is indeed nothing but the other side of the coin of the first asserted ‘flaw’. In this we have eliminated one third of Chilton’s objections, and we may legitimately recycle the answer provided to his first objection — the participation by people in their own governance is one consideration in the balancing of a set of considerations when a state assesses its prima facie duty under the principle of salience.

In addition, there is something unwholesome about Chilton’s broad claim that some states may stand to gain from global warming.  At a minimum, it seems rather speculative.  After all, is it not possible that the destruction of the environments of some states will negatively impact the people of other states, for example, through refugee problems?

Chilton’s third claim

Chilton’s third claim is that, given that generating new sources of international law is a repeat game

if Professor Dworkin’s theory of how sources of international law should be interpreted was taken seriously by international courts and organizations, it would run the very serious threat of causing states to be unwilling to negotiate robust agreements in the future. (at 113)

He proceeds to explain in more detail that

if states begin to be held to more demanding standards than they thought had previously been agreed upon, in future negotiations those states would have strong reasons to block even weak language in international agreements to avoid it being held against those states later on. (at 113–114)

The first, and most obvious, problem with this proposition is that it assumes that states have a clear and precise interpretation in mind of what is agreed to at the time an international agreement is formed.  Given the vague and general language characteristic of many international agreements, this proposition does not survive even the slightest scrutiny.  On a sober-minded assessment of the real state of things, it is clear that the vague language common in international agreements may always be a source of interpretive contention irrespective of what method of interpretation one adopts.

Where the above is accepted, we may in fact turn the second part of Chilton’s third claim in favour of Dworkin’s theory.  Chilton correctly asserts that

the weight of the empirical evidence suggests that the reason international law helps to improve human rights is not because of international interpretations or enforcement, but instead because domestic political actors are able to use prior international commitments as powerful political tools when lobbying their government for change. (at 114)

To the extent that Dworkin’s theory provides for a more expansive interpretation of international law, it should make international law a more potent weapon in the hands of those domestic political actors that use prior international commitments as political tools when lobbying their government for change.  The trick is, of course, to ensure that the strength of international law is such that it does not scare off states, yet is strong enough to be useful both as a tool for domestic lobbying and for international enforcement.

Concluding remarks

Chilton’s complaint is a storm in a teacup and the ‘three flaws’ he attacks lack sting. Further, given the above, I cannot agree with the conclusion reached by Laurisha Cotton (available here) at an American Society of International Law event that ‘it is unlikely that Dworkin[’s] late work will change the dynamics of philosophy in international law.’

No doubt change will not happen overnight, but I suspect (and hope) that through A New Philosophy for International Law, Dworkin has planted a seed that over time will develop and eventually blossom.

Dan Jerker B Svantesson, Professor and Co-Director, Centre for Commercial Law, Faculty of Law, Bond University; Researcher, Swedish Law & Informatics Research Institute, Stockholm University; Australian Research Council Future Fellow. The views expressed herein are those of the author and are not necessarily those of the Australian Research Council.