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An Interpretivist Approach to International Law

  • DONG-A LAW REVIEW
  • 2018, (81), pp.59-86
  • DOI : 10.31839/DALR.2018.11.81.59
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law
  • Received : September 27, 2018
  • Accepted : November 15, 2018
  • Published : November 30, 2018

Jungwon Park 1

1단국대학교

Accredited

ABSTRACT

Despite the intellectual profoundness of interpretivism with respect to the nature of law, the potential of its application to international law has not received much attention. This article is concerned with the possibility of broadening the academic horizon in the field of international law through interpretivism. The concept of interpretivism was developed by the great legal philosopher Ronald Dworkin, whose posthumously published article “A new philosophy for international law” has triggered much impetus towards the understanding of international law through an interpretivist approach. Whereas his previous treatment of interpretivism focused on domestic law, the concept is also clearly relevant to international law. Given the core onus of interpretivism, which requires all participants in law practices to provide their best arguments to justify existing law practices in question, interpretivism should be equally applicable to international law practices. In other words, the interpretivist approach makes it possible to overcome the limitations of theories derived from legal positivism and natural law, thereby creating a better understanding of the nature of international law. Indeed, interpretivism, in which the concept of law is understood as an ‘interpretive’ rather than a ‘criterial’ concept, is especially relevant to the proper understanding of international law practice, which has been a controversial subject among international actors. In spite of the differences between domestic and international societies, constant dialogues and debates employing potentially best arguments and rebuttals are necessary for the purpose of justifying the maintenance or change of law practices in both contexts. In the case of states, this process facilitates the establishment of consensus in a global community. However, it is also true that interpretivist accounts of international law have been criticized by many international law scholars. There are two principal criticisms levelled at the interpretivist approach to international law: the first, advanced by legal positivists, is that interpretivism is nothing more than extremely subjective moralism. The second is that the interpretivist approach is irrelevant to international law, because interpretivism was only meant to be focused on the domestic law community, rather than international society. These criticisms, however, seem groundless and unconvincing. Beyond the importance of two fundamental principles in international society—mitigation and salience (both proposed for the first time in Dworkin’s aforementioned article)—the fact that international law itself is an inherently interpretive concept makes the interpretivist approach necessary and relevant to international law. The interpretivist approach to international law will be more concretized and developed through detailed analyses of diverse international issues overtime.

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