Sovereign States and their International Institutional Order
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Sovereign States and their International Institutional Order Carrying Forward Dworkin’s Work on the Political Legitimacy of International Law Samantha Besson 1,2 # Springer Nature Switzerland AG 2020
Abstract
International law’s legitimacy has come under serious attack lately, including, and maybe even more so, in regimes considered democratic. Reading Dworkin’s New Philosophy for International Law in the current context is a timely reminder of the centrality of the political legitimacy of international law. Interestingly, indeed, his account does not succumb to the (however progressive) cosmopolitan ideal of an international political community. Nor is it reducible to a concern for domestic justice in which political legitimacy is only self-regarding. By revisiting seventeenth century international legal theories, Dworkin sends both cosmopolitans and statists back-to-back. He (re-)discovers a third way in which to conceive of statehood today: not on its own, but in a mirror-image fashion and against the background of the international institutional order without which there would be no equal sovereign States, but no individual equality either. Carrying Dworkin’s argument forward, this article identifies and discusses three of its crucial contributions with respect to the objects, subjects and institutions of international legitimacy that deserve further attention. It concludes with different proposals regarding the design and organization of other international institutions than States, both public and private, by reference to their relationship to States (and their people). According to Dworkin, this should enable us to improve not only the legitimacy of the international institutional order as whole, but also the political legitimacy of each State therein since both are mutually related. Many thanks to the organizers of the 13-14 September 2019 Balzan Conference on Dworkin’s Later Work and of the 18 November 2019 Edinburgh International Legitimacy Seminar for their kind invitation. Thanks also to the participants for their critiques and comments, to an anonymous reviewer for his or her comments, and to a former research assistant, Milène Hauri, for her editorial aid.
* Samantha Besson samantha.besson@college–de–france.fr
1
Droit international des institutions, Collège de France, 75005 Paris, France
2
Public International Law and European Law, University of Fribourg, 1700 Fribourg, Switzerland
Jus Cogens
Keywords Ronald Dworkin . International law . Political legitimacy . Democracy . Cosmopolitanism . State consent . Reasonable disagreement . State sovereignty . International institutions . Individual equality . International institutional order
1 Introduction In 2013, one of Ronald Dworkin’s later essays was published posthumously with an ambitious title: A New Philosophy for International Law (NPIL).1 This took many of his readers by surprise as Dworkin had never directly addressed international law issues in his legal philosophy before.2 His moral–political conception of law was mostly thought to be
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