A Reply to Dworkin's New Theory of International Law

Adam S. Chilton 

University of Chicago Law School
August 10, 2013

University of Chicago Law Review Dialogue, Vol. 80, pp. 105-115, 2013 
Abstract:      
Scholars have long debated whether states are obligated to follow international law. In a posthumously published article, Professor Ronald Dworkin recently contributed to this debate, arguing states have a prima facie obligation to follow international law. Professor Dworkin suggests that this obligation arises not because the international legal system is based on consent (as many have suggested), but instead because states are obligated to improve their political legitimacy, and international law can help to do so by correcting the shortcomings of the state-sovereignty system. That is, international law can help provide a check against states that would abuse their own citizens, or can help compensate for the fact that states acting alone cannot solve global problems requiring coordination. Professor Dworkin argues that this theory has the advantage of both justifying the sources of international law — such as customary international laws states cannot opt out of — and providing a principle to guide international law’s interpretation.

Professor Dworkin’s theory, however, is at best incomplete and at worst fatally flawed; it may provide an account of why international law should be binding over autocratic states that would shirk their obligations to their own citizens and others, but it does not explain why democratic states have a general obligation to comply with laws they disagree with or that are against their interest. Moreover, if the international community took Professor Dworkin’s theory of interpretation seriously, it would result in states being less willing to negotiate deep international agreements in the future.

Number of Pages in PDF File: 11

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2323538