DRAFT VERSION – DO NOT CIRCULATE FURTHER Legal Interpretivism beyond the State Alexander Green * This paper is a manifesto for an interpretivist theory of international law. Legal interpretivism is the theoretical approach to law and legal reasoning developed by Ronald Dworkin, which will be sketched in more detail below. I will distinguish interpretivist from DǁoƌkiŶiaŶ theories of international law because I believe that whilst an iŶteƌpƌetiǀist appƌoaĐh to iŶteƌŶatioŶal laǁ is ǀiaďle, DǁoƌkiŶs own work on the subject is neither adequate nor true to his own methodology. I will begin by setting out the core tenants of the interpretivist approach, which I will assume for present purposes is the correct way in which to investigate legal phenomena (and, as shall be dealt with later on, ethical, moral and political problems as well). Next, I shall highlight three difficulties that interpretivism might be supposed to face in the interŶatioŶal ĐoŶtedžt. I ǁill theŶ look at DǁoƌkiŶs oǁŶ ǁoƌk oŶ iŶteƌŶatioŶal laǁ and argue that it is not a viable interpretation of the international legal system but rather a reformist argument of political philosophy from first principles. I then suggest an interpretation that avoids at least two of the difficulties supposedly faced in the international context. Finally, I will indicate what questions must be answered in order to complete this project and roughly sketch the beginnings of an answer. 1. Legal Interpretivism If the fundamental question of legal theory concerns the Ŷatuƌe of laǁ, theŶ DǁoƌkiŶ is uŶusual iŶ that he Đoŵes to it obliquely. For him, such abstractions are essential only to the extent that addressing them is required by the more practical matter of identifying the law on any given issue. 1 Furthermore, he conceives of law as interdependent with the reasoning through which it is determined. For Dworkin, legal metaphysics and legal epistemology are integrated, rather than independent. 2 As a result of this interdependency, law can only be investigated by someone actively participating in it as a social practice. 3 This means that the issue of how to responsibly determine legal standards is both practically and necessarily anterior to the abstract nature of law. The process Dworkin suggests for undertaking this task is as follows: "(i) The soĐial pheŶoŵeŶoŶ laǁ is Đapaďle of pƌe-interpretive identification. Before interpretation, however, we know nothing about it other than it exists and where to look in order to begin an investigation about it. (ii) When we begin looking we will discover that certain legal practices (activities, attitudes or pƌopositioŶs that ǁe ĐaŶ justifLJ as legalͿ ǁill ďe ĐoŶsideƌed paƌadigŵs. These paƌadigŵs foƌŵ the starting point of interpretation. (iii) OŶe iŶteƌpƌets these paƌadigŵs as a Đoŵplete doĐtƌiŶe, pƌoduĐiŶg a theoƌLJ of legalitLJ oƌ the poiŶt of laǁ. (iv) This theory allows one to reach conclusions about the content of other laws that expand (or otherwise alter) the list of paƌadigŵs ;the post-iŶteƌpƌetiǀe stageͿ. (v) This, iŶ tuƌŶ, alloǁs oŶe to ŵodifLJ oŶes theoƌLJ of laǁ ;ďLJ ƌetuƌŶiŶg to stage thƌeeͿ. 4 This breakdown illustrates how a purposive account of law in general both emerges from and feeds into the question of what the law requires in any given case. 5 However, three clarifications must be made. First, the paradigms mentioned here are provisional only, because they are determined exclusively by participant consensus, which (without some additional principle to explain why consensus deserves respect) is morally inert. Any paradigm can be * Research student and Teaching Fellow, University College London; Graduate Teaching Assistant, London School of Economics and Political Science (email: alexander.green.09@ucl.ac.uk) I am grateful to the participants of the UCL Laws Work in Progress Forum for their comments, particularly Lea Raible, Simon Palmer and Oisin Suttle. 1 Ronald Dworkin, Law’s Eŵpire (Oxford: Hart Publishing, 1986), 1; Ronald Dworkin, Justice in Robes (Cambridge, MA: Belknap Press, 2006), 8- 9; 185-186 2 Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Belknap Press, 2011), 82-87, 116; Alexander Green, EdžpaŶdiŶg Laǁs Eŵpiƌe: IŶteƌpƌetiǀisŵ, MoƌalitLJ aŶd the Value of LegalitLJ, ϰ;ϭͿ European Journal of Legal Studies (2011), 121-150: 128. I am grateful for Miguel-Jose Lopez-LoƌeŶzos papeƌ Tƌuth aŶd KŶoǁledge iŶ Laǁ ;oŶ file ǁith the authoƌͿ, ǁhiĐh suggests iŶtegƌatioŶ to ďe aŶ iŵpoƌtaŶt geŶeƌal faĐet of the relationship between legal metaphysics and epistemology. 3 Law’s Eŵpire, 48-53; Justice for Hedgehogs, 66-67, 404-405 4 Green, EdžpaŶdiŶg Laǁs Eŵpiƌe: IŶteƌpƌetiǀisŵ, MoƌalitLJ aŶd the Value of LegalitLJ, ϭϮϭ-122 (references omitted), see: Law’s Eŵpire, 48-49, 65, 72, 87, 89; Justice for Hedgehogs, 160-163 5 The iŵpoƌtaŶĐe of this ĐoŶtiŶuuŵ is ofteŶ uŶdeƌplaLJed iŶ the liteƌatuƌe. Foƌ edžaŵple, see: Başak Cali, OŶ IŶteƌpƌetiǀisŵ aŶd IŶteƌŶatioŶal Laǁ, ϮϬ;ϯͿ European Journal of International Law (2009), 805-822: 807