UN ENSAYO PÓSTUMO DE RONALD DWORKIN.
En fecha reciente falleció este gran jurista liberal, crítico de los procesos y la teoría jurídica en su país de origen, y en el mundo occidental en tiempos globales.
El colega de la facultad de jurisprudencia, Oscar Delgado nos remite este escrito que aquí reproducimos para la reflexión y el debate del que somos coetáneos, en un tiempo de realinderamientos geopolíticos. N d la R.
Philosophy & Public Affairs
Volume 41, Issue 1, pages 2–30, Winter 2013
Additional Information(Show All)
How to Cite
DWORKIN, R. (2013), A New Philosophy for International Law. Philosophy & Public Affairs, 41: 2–30. doi: 10.1111/papa.12008
Editor's note:
Professor Dworkin died while this article was in the late stages of revision. The editors would like to thank Liam Murphy and Samuel Scheffler for their help in finalizing the article for publication on Professor Dworkin's behalf.
Publication History
Issue published online: 11 APR 2013
Article first published online: 11 APR 2013
I
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.
First, however, we should notice why many people did doubt, half a century ago, that there was any such thing as international law. This was not because the rules and practices were very different from what they are now, but because a certain philosophical theory of what law is, called “legal positivism,” was more popular.
This theory holds that whether a law exists is fundamentally a question of historical fact. Law exists only when some person or group has created that law. Legal philosophers who regard themselves as positivists have disagreed about who those law-making people are, and how they make law.
Different answers to these questions have been influential in different times. John Austin, a nineteenth-century legal philosopher, answered by proposing a definition of law: law is by definition, he said, the command of an uncommanded commander, a sovereign with absolute power over some territory.
If Parliament, with the Queen's consent, has unlimited power, the Queen in Parliament is the uncommanded commander in the United Kingdom. But since there is no such sovereign body commanding the parliaments of all the nations, it seems to follow from Austin's theory that there is no international law.
By the middle of the last century, however, another legal philosopher, H.L.A. Hart, had introduced a more sophisticated version of positivism. He denied that law always depends, as Austin had said it did, on the commands of an uncommanded commander.
In the United States, Hart pointed out, no institution is such an absolute sovereign. He described, instead, a more general set of social facts that give rise to law. He said that law exists when the “bulk” of the officials of a political community have come to accept, as rules they have an obligation to follow, two kinds of rules: “secondary” rules, which stipulate how law is created, enforced, and identified, and “primary” rules, which are created and identified when those secondary rules are followed.
Hart insisted that one secondary rule, which he called the community's “rule of recognition,” serves in any legal system as the fundamental test of all the rest of the secondary and primary rules of that system. His theory thus preserved the core principle of legal positivism: what the law of a community actually is depends on nothing more than a contingent aspect of its social and political history. Political or personal morality has nothing to do with it.
Notice that under any version of legal positivism the law of any particular political community is bound to have “gaps.” Written and spoken defamation are subject to different rules of civil damages, and no official may have declared, either way, whether false statements videotaped at a political rally should be treated as written or spoken. So those whose job it is to enforce the law—judges, for example—must have what legal positivists call “discretion” to fill in the gaps by legislating, retrospectively, themselves.
-
Hart himself raised the question whether so-called international law really counts as law on his new test. However, though he phrased that question in the traditional way, he actually changed the subject.1 He asked a question for social scientists: whether there is any system of practices that can sensibly and usefully be described, for their sociological or anthropological purposes, as international law.
That is very different from the doctrinal question posed to the lawyers and judges who practice international law: the question, for instance, whether the intervention in Kosovo was legal under international law. Hart approached his sociological question by conceding, first, that the distinction between primary rules and secondary rules could not be made in the international realm. He found nothing comparable to what he understood as the familiar secondary rules of domestic law—general rules of legislation, for instance—in the international sphere.
-
That was nevertheless not decisive, he said, of the question whether it would be helpful for theoretical and practical purposes to include international law within the more general concept of law. He suggested, at least, that it might be. His analysis was therefore like the recent discussions among astronomers whether it would be sensible to continue to use the word “planet” in such a way as to make Pluto a planet.2
But interpretive doctrinal questions, such as whether the Kosovo intervention was legal under international law, cannot be answered by considering whether it would be useful to speak of an international law. For such doctrinal questions, we need an account that helps us decide not whether it would be useful to speak of international law as a sociological category, but what international law holds on particular issues.
--
Many contemporary international lawyers have tried to do what Hart did not: construct a doctrinal account of international law from his version of positivism.3 They assume that a sovereign state is subject to international law but, on the standard account, only so far as it has consented to be bound by that law, and they take that principle of consent to furnish an international rule of recognition.
This is a firmly positivist view of international law because whether a state has consented to a particular rule is just a matter of history. Positivism in that version seems to be now generally accepted by practitioners and scholars of international law. Contemporary textbooks and manuals of the subject (at least those I have consulted) uniformly cite Article 38 (1) of the Statute of the International Court of Justice, established by the United Nations, which they take to state an international rule of recognition. This Article reads:
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
international custom, as evidence of a general practice accepted as law;
the general principles of law recognized by civilized nations;
subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.4
True, international lawyers also speak of what they call ius cogens, or “peremptory norms” that cannot be canceled by treaty or even by decisions of the United Nations.
However, the Vienna Convention on the Law of Treaties brings these, too, under the umbrella of consent:
For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.5
Law for nations, on this view, is grounded in what nations—or at least the vast bulk of those that others count as “civilized”—have consented to treat as law.
Signatories to a treaty are assumed to have consented to its provisions being law for them just by their signature. States that have assumed, in their practices, that certain rules are law for them have in that way consented to the rules being law for them. If enough states to constitute “the international community of States” have recognized fundamental rules as preemptory and nonnegotiable, then these rules are preemptory and nonnegotiable for the whole international community. If there is evidence that a general practice is very widely accepted as law, or that it is recognized by all civilized nations, then it is law for all nations. The scheme has one apparent advantage.
Since it bases law on consent, it solves an apparent paradox born of the modern state system. How can a sovereign state nevertheless be subject to law? It answers: because it (or at least almost every state) has accepted, in the exercise of its sovereignty, to be bound by that law.
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.
These latter difficulties stem from the scheme's perfectly understandable ambition to extend the ambit of international law beyond those communities that have explicitly consented to its principles to include those that have not.
International law could not serve the purposes it must serve in the contemporary world—disciplining the threat some states offer to others, for example—unless it escaped the straitjacket of state-by-state consent. But yielding to that ambition seems to undermine the axiomatic place of consent in the scheme, and thus its assumed jurisprudential foundation.
However, I shall set that unsolvable problem aside for now to concentrate on difficulties that infect even the core of the scheme—the propositions that treaties create law for signatory nations and that the constraints that nations have accepted as law in their practices and statements are thereby made law for them.
We should notice, first, that the interpretive strategies licensed by this jurisprudential core are particularly unhelpful. If a constraint is part of international law for particular nations only because they have consented to it in either of those ways, then the master interpretive question must be: what is it most reasonable to assume that these nations, whose consent made the principle law, understood that they were consenting to? That question may in many cases be answered satisfactorily by the plain meaning of the text (though interesting issues may arise about translation). But in many cases, the text will not be decisive.
Here is an example I mentioned earlier as an important question of interpretation. Article 2 (4) of the United Nations Charter provides that:
All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.6
How should we understand the phrase “territorial integrity or political independence” in this provision? Does a humanitarian intervention undertaken by a group of states, as by NATO in Kosovo (or Libya), violate territorial integrity or political independence if its sole aim is to stop genocide or crimes against humanity without any change in boundaries or constitution? The most natural reading says yes: any invasion or bombing violates territorial integrity. But some prominent international lawyers have disagreed,7 and there is room for disagreement.
Does dropping humanitarian aid packages over a disaster area violate the territorial integrity of a state whose government has not approved it? Drones carefully targeted to kill a terrorist chief without the government's permission? Does territorial integrity require an effective government in place over a defined territory? Perhaps there is no territorial integrity to be respected in Syria as I write, so that intervention would not violate Article 2 (4).
It seems very unlikely that all the states that created the United Nations in 1945, or that joined that organization since, shared answers to all these questions when they joined. It also seems unclear whose opinion, among the different officers or citizens of these states, counts as manifesting a state opinion.
Nor has there been sufficient practice by nations or statements by their foreign ministries to provide a firm answer. Nor does there seem any disposition among states to accept, in the spirit of a positivist approach to law, that a body applying international law, like the International Court, should be deemed to have discretion to impose whichever answer it wishes.
If the theory that consent is the ultimate basis of international law were persuasive, then we would quickly come to an interpretive dead end on such questions. Fortunately it is not persuasive, even if we set aside the difficulty that sometimes nations are treated as bound by rules to which they have not consented.
There are more fundamental problems. Consider, first, the proposition that international law is created for nations, without any formal treaty, when they accept that certain constraints on their acts and policies are required not just by decency or prudence but as a matter of law. This assumes that in some way nations decide for themselves whether some constraint they accept is imposed as a matter of law and not just decency.
What principle—what “rule of recognition”—do they supposedly follow in making that discrimination? It won't do to say that they follow the principle that what they regard as law is law. They need some other standard to decide what they should regard as law.
Suppose we say: they accept the principle that what other nations accept as law is law. But then the other nations that each nation treats as making law for it need a test of what to treat as law for themselves. Our explanation must break out of the circle somewhere.
Suppose we say: the requirement means that law is created by convention, by the fact that each nation accepts some constraint because and only so long as other nations do. But not all conventions generate obligations; there are many conventions of convenience that people are morally free to disregard when they wish so that the convention ends.
When do conventions create legal obligations? The idea of customary law presupposes that there is some different, more basic principle at work, in the identification of international law, or at least that the subjects of international law think there is some such principle at work. We need to ask: what is that more basic principle? If we find an answer, it is that more basic principle, not the fact of consent, that provides or is thought to provide the grounds of international law.
--
Now consider the claim, even more fundamental for the consent thesis, that treaties create international law for the parties to those treaties. Treaties are signed at a particular time: the all-important United Nations Charter nearly seventy years ago.
Nations change dramatically over such periods of time. Boundaries change, regimes and constitutional structures change. We personify states when we treat them, rather than their citizens, as the subjects of international law, and we might therefore be tempted to say that just as individual people are bound by promises long after they make them, so are states, in spite of all these changes.
But the fiction of a continuing national person, as distinct from its structure of government and its individual citizens, cannot bear that weight. It seems unfair that people should suffer serious disadvantage only because politicians chosen by entirely different people under entirely different constitutions signed a document many generations ago.
We cannot justify that disadvantage by any analogy to the law of contract: contracts cannot bind people not parties to them. True, the domestic law of some states makes treaties a continuing obligation of the state. The American constitution, for example, declares treaties part of “the Supreme Law of the Land.” But what domestic law creates it can destroy: a state would not be bound by international law if it were free, through its domestic legal processes, to unbind itself.
We need an explanation why the citizens of contemporary Ruritania have an obligation under international law that cannot be canceled by any new Ruritanian political process. It does not serve to declare that international law contains a more basic principle—pacta sunt servanda—that treaties must be respected over generations.
What makes that more basic principle part of international law? It would, once again, be circular simply to reply that states consent to that principle when they sign treaties. Compare the familiar institutions of promising.
As many philosophers have pointed out, there is mystery in the bare assumption that promising creates obligation. How can an individual change his moral situation just by speaking a runic phrase? If we want to explain why promises do create moral obligations, we must point to different, more basic moral principles that a promise invokes. Philosophers have suggested a variety of such principles.8We must look for similar, more basic principles within international law.
--------------
II
I draw this conclusion: we cannot take the self-limiting consent of sovereign nations to be the basic ground of international law. The temptation to do so is understandable. It makes international law compatible, as I said, with the doctrine of state sovereignty.
It also resonates with a very popular conception of political legitimacy: that coercive dominion can be justified only by the unanimous consent of those subject to that dominion. That conception of legitimacy generated the social contract tradition in political philosophy and the artificial conceptions of consent that were necessary to sustain that tradition. I have argued elsewhere that these accounts all fail and are anyway unnecessary because consent is neither a necessary nor a sufficient ground of legitimacy.9
We must locate the source of political obligation elsewhere: in my view, we must locate it in the more general phenomenon of associative obligation.
Return to the distinction I drew earlier between two concepts of law: a sociological concept, useful to social scientists deciding how most conveniently to classify law as one type of system of social control, and a doctrinal concept that figures within the operation of such systems by allowing people to invoke a special kind of right or obligation.
We share the sociological concept as what I have called a criterial concept: we can sensibly agree or disagree in the application of such concepts because we share roughly the same criteria of application. The concept of a triangle is also a criterial concept: we share that concept because we use the same test—a three-sided figure—for deciding what is or is not a triangle.
Some criterial concepts are vague, however. We share roughly the same tests of application for the concept of a book, but in some cases these shared tests are not decisive. We may, if this proves convenient either practically or theoretically, agree to stipulate a more precise sense of “book.” That is what astronomers did for the concept of a planet, and what Hart proposed to do for the concept of international law.
The doctrinal concept of law is very different. It is not a criterial but an interpretive concept: we share it not by agreeing about tests for application but by agreeing that something important turns on its application and then disagreeing, sometimes dramatically, about what tests are therefore appropriate to its use, given that its application has those consequences.10
Any theory about the correct analysis of an interpretive political concept must be a normative theory: a theory of political morality about the circumstances in which something ought or ought not to happen. Since the doctrinal conception of law is interpretive, we provide a theory of the grounds of law by posing and answering questions of political morality.
That, to my mind undeniable, fact poses the most general problem of jurisprudence.
We know that there is a difference, often profound, between what the law is and what it ought to be. But if what the law is itself depends on a moral theory, then how can we make that distinction?
In Justice for Hedgehogs, and earlier work, I offered this answer (which I here state roughly): we identify the law of a community by asking which rules its citizens or officials have a right they can demand be enforced by its coercive institutions without any further collective political decision. Americans have the right, on demand, to the benefits that past congressional legislation, properly interpreted, awards them.
They may also have the right that future legislation improve those benefits, but they have no right that the coercive force of the state be used to secure those further benefits unless and until that future legislation is actually adopted. We count the former right a legal one; we count the latter, if it exists, a moral one. We articulate law, then, as part of political morality—but very much a distinct part. We ask: which political rights and obligations of people and officials are properly enforceable on demand through institutions like courts that have the power to direct coercive force? That is a moral question whose answer is a legal judgment.
This very abstract account of the relation between law and morality must not obscure how the distinction actually works in practice: in how judges and academic lawyers identify particular rules of law in concrete circumstances.
They do not ask themselves basic questions of political philosophy about which rights are properly enforceable on demand. They begin in answers to those questions that they take to go without saying. They agree, in America and most other places, that only the political constitution, legislation pursuant to that constitution, and past judicial decisions can create rights enforceable on demand.
There is often controversy about how particular constitutional clauses, statutes, and precedents should be interpreted, but that controversy does not challenge the sole authority of these sources.
The value of the abstract account lies in the possibility it provides of justifying—or challenging—these settled working assumptions. We justify them—if we can—through a political theory that combines an attractive conception of political legitimacy together with a convincing conception of the special political virtue of fairness, one that makes history, convention, and expectation particularly pertinent to the identification of rights that are enforceable on demand, and to the isolation of those rights from other political rights, including some that contradict them, that are not enforceable on demand.
(Some purported legal systems cannot be justified in that way. Then we face the complex interpretive question whether such systems give rise to any genuine legal rights.)11 That is much better than simply taking the settled practices as brute facts or seeking some mythical social-fact rule of recognition they all supposedly exemplify.
It is better, among other ways, because these justifications cast an interpretive shadow. They encourage theorists to refine their theories of constitutional and legislative interpretation, for instance, by asking which interpretive methods best serve democracy and fairness so understood. I do not mean, to repeat, that judges interpreting statutes must explain, in each case or ever, why the best theories of democracy and fairness support their interpretive methodology.
Their training and experience, supplemented, we might hope, by some academic curiosity, will form their working and largely unexamined methods. It does mean, however, that those judges who interpret the most critical constitutional clauses, particularly those who write books explaining their methods, should be more sensitive to these questions than they seem to be.12
-----------------------
III
How far can we construct an international jurisprudence on the same understanding? How far can we treat international law as a part, but a very distinct part, of what morality and decency require of states and other international bodies in their treatment of one another? We must abandon the positivistic, supposedly consent-based jurisprudence of international law: that is flawed beyond redemption.
We should return to what I take to be a golden age of the subject, seventeenth-century European politics, to an at least partially moralized conception of international law.
But we face a problem. We can draw that distinction easily for national legal systems because we find institutional structures there that provide an appropriate vocabulary. These structures broadly distinguish between courts, which have the responsibility and power to enforce rights and obligations on demand, and other sorts of political institutions, like legislatures, that do not.
So we can helpfully frame our basic political question in institutional terms: we can ask what rights courts have the responsibility and right to enforce. But no such structure, in any but the most rudimentary form, is yet in place in the international domain, and none can be expected soon.
Here is my suggestion. Let us imagine (though initially not in much detail) an international court with jurisdiction over all the nations of the world. We imagine that cases can be brought before that court reasonably easily and that effective sanctions are available to enforce the court's rulings. Of course that is fantasy upon fantasy, at least for the far foreseeable future. But bear with me.
If we can imagine such a court, even as fantasy, then we can frame a tractable question of political morality. What tests or arguments should that hypothetical court adopt to determine the rights and obligations of states (and other international actors and organizations) that it would be appropriate for it to enforce coercively?
This is a moral question but a special one because judicial institutions with compulsory jurisdiction and sanctions at their disposal are subject to special moral standards of legitimacy and fairness. They have no right to declare and enforce general standards of comity, decency, or wisdom. We can identify a general theory of what it would be appropriate for such an institution to enforce as the foundation of international law.
Is it a serious objection to this counterfactual exercise that there is not—and in indefinite foreseeable circumstances cannot be—a court of that character? No international court can now deploy effective coercion without the cooperation of powerful nations who would, as a practical matter, refuse to submit to a court of the power we are imagining. I offer the counterfactual exercise only as a way of providing a scheme for identifying international law, not, at least in the first instance, as a way of persuading anyone to accept that law.
Of course, it would be an important part of the exercise whether a hypothetical court would be right in endorsing its own hypothetical authority. Perhaps there are sound reasons of political legitimacy why such a court should not exist. In the next section I will explain why I think it would be legitimate, and answer in a very general, abstract way the question of what standards and methods it would be appropriate for it to adopt if it did exist.
But, in advance, we should distinguish two issues about the practicality of a theory of international law. First, is it sensible to try to develop a theory of the grounds of international law that is unlikely to be accepted by powerful nations because their power would be limited if they accepted it? It seems so, for various reasons.
First, even powerful nations now claim to defer to international law: they appeal to their conception of what that law requires or permits to justify their actions. The Bush administration repeatedly declared that international law permitted its treatment of terrorist suspects, for example. It would be important to undermine such claims by showing that a much more persuasive account of international law contradicts them.
Second, a time may come, sooner than we suppose, when the need for an effective international law is more obvious to more politicians in more nations than it is now. Climate change, for example, may provoke that shift in opinion. It would be a shame if lawyers and philosophers had not improved the jurisprudential discussion of international law before that day arrived. If the standing theories of international law are radically defective, as I have suggested they are, we have at least an intellectual responsibility to propose a better one.
Second, does the fact that a legal theory is unlikely to be generally accepted soon show that it is not only impractical but wrong? There are two reasons why we might think so. The first is conceptual: if we accept the positivist account of international law, which bases law on consent, then of course a theory to which almost no one is likely to consent is obviously a false theory.
But we reject that account. The second is internal: a better theory, which grounds international law on moral principle, may show that a particular claim of international law is unsound if there is no prospect of general endorsement.
Later in this article I defend the importance of a principle of salience in international law. In some circumstances, this principle makes the authority of more concrete principles depend on the prospect of wide acceptance. The effect of this second kind of impact of acceptance on law is retail, not wholesale. We must wait and see.
No hay comentarios.:
Publicar un comentario