On Interpretivism and International Law
| DOI | 10.1093/ejil/chp038 |
| Pages | 805-822 |
| Date | 01 August 2009 |
| Year | 2009 |
| Published By | Oxford University Press |
The European Journal of International Law Vol. 20 no. 3 © EJIL 2009; all rights reserved
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EJIL (2009), Vol. 20 No. 3, 805–822 doi: 10.1093/ejil/chp038
On Interpretivism and
International Law
B a șak Ç ali *
Abstract
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. Exter-
nal 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.
1 Introduction
Interpretivism 1 as a general theory of law has been received with indifference by theo-
rists of international law.
2 A principal reason for this, according to Beckett, is that the
work of Ronald Dworkin, the pioneer of legal interpretivism, concerns the attributes
of law in a single political community and, therefore, does not have anything to say
* Lecturer, Department of Political Science, University College London. Email: b.cali@ucl.ac.uk.
1 R. Dworkin, Law’s Empire (1986) and R. Dworkin, Justice in Robes (2006).
2 Aspects of Dworkin’s interpretivism have been applied to particular sectors in international law: e.g., the
adjudication at the European Court of Human Rights: Letsas, ‘ The Truth in Autonomous Concepts: How to
Interpret the ECHR ’ , 15 EJIL (2004) 279; and customary international law: Tasioulas, ‘ In Defence of Relative
Normativity: Communitarian Values and the Nicaraguan Case ’ , 1 OJLS (1996) 85; Tasioulas, ‘ Customary
International Law and the Quest for Global Justice’, in A. Perreau-Saussine and J.B. Murphy (eds), The
Nature of Customary Law: Philosophical, Historical and Legal Perspectives (2007), at 307. These works,
however, do not concern the relevance and applicability of interpretivism to general international
law.
806 EJIL 20 (2009), 805–822
about international law.
3 This is correct in the literal sense. Dworkin has not written a
full-length treatment of international law. His views refer to single political communi-
ties as background conditions for his substantive views on law.
4 Dworkin, however,
has written on the nature of law as a normative social practice and the adequacy and
weaknesses of rival doctrinal philosophical camps such as legal positivism, pragma-
tism, natural law, legal realism, and anti-foundationalism in accounting for that
normative nature.
5 Given that all these doctrinal philosophical camps have extended
to discussions on the normative nature of international law, irrespective of the fact
that their roots are in the jurisprudence of domestic law,
6 it is surprising that interpre-
tivism has not received a comparable amount of attention.
The central aim of this article is to supply an argument for the relevance of inter-
pretivism to the theoretical and normative debates about international law and its
central claim that law is an interpretive concept. While I draw liberally on Dworkin’s
discussion of interpretivism, my argument is certainly not a second-guessing of
Dworkin’s views on international law.
7 More importantly still, my aim is not to advo-
cate a transfer of the substantive views that Dworkin has on the meaning of law in a
single political community onto international law.
8 That would be a different project
all together. My aim is to identify what insights interpretivism could provide to
international lawyers in understanding international law.
This article is composed of two parts which correspond to the two key tasks that
have to be completed in order to show the relevance of interpretivism to the general
theory and practice of international law. The fi rst task is to draw out what the central
features of interpretivism are which make it a theoretically distinct contribution to
understanding the nature of law. This will be done in the second section of the article
by giving an account of the central assumptions of interpretivism and how it goes
3 Beckett, ‘ Behind Relative Normativity: Rules and Process as Prerequisites of Law ’ , 12 EJIL (2001)
627.
4 Dworkin’s defence of liberal egalitarianism in political philosophy, too, fundamentally concerns itself
with principles as to how sovereigns ought to treat their citizens. See generally R. Dworkin, The Sovereign
Virtue (2000); J. Burley (ed.), Dworkin and His Critics (2004); R. Dworkin, Is Democracy Possible Here?:
Principles for a new Political Debate (2008).
5 See in particular Dworkin, Justice in Robes, supra note 1.
6 On positivism see generally Weil, ‘ Towards Relative Normativity in International Law? ’ , 77 AJIL (1983)
413; Nardin, ‘ International Pluralism and the Rule of Law ’ , 26 Rev Int’l Studies (2000) 95; Simma and
Paulus, ‘ The Responsibility of Individuals for Human Rights Abuses in Internal Confl icts: A Positivist
View ’ , 93 AJIL (1999) 302. On Pragmatism, see A. M. Slaughter, A New World Order (2004). On anti-
foundationalism see M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argu-
ment (2nd edn, 2006); D. Kennedy, The Structure of Legal Argument (1986). See also Çali, ‘ How would
You Like your Change Done Today, Madame? ’ , ESIL Inaugural Conference International Legal Theory
Agora Paper, available at: www.esil-sedi.eu/english/pdf/Cali.PDF ; and T. Nardin, Law, Morality and the
Relations of States (1999).
7 Indeed at some crucial points my conception of interpretivism may take a different direction from
Dworkin’s.
8 On an attempt to transfer some of the views in Dworkin’s account of law onto the international plane see
T. Franck, Fairness in International Institutions (1995); M. T. A. Brus, Third Party Dispute Settlement in an
Interdependent World: Developing a Theoretical Framework (1995); and Tasioulas, ‘ International Law and
the Limits of Fairness ’ , 13 EJIL (2002) 993.
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