Human Dignity and the Foundations of International Law

International lawyers have often been interested in the link between their discipline and the foundational issues of jurisprudential method, but little that is systematic has been written on this subject. In this book, an attempt is made to fill this gap by focusing on issues of concept-formation in legal science in general with a view to their application to the specific concerns of international law.

In responding to these issues, the author argues that public international law seeks to establish and institutionalise a system of authoritative judgment whereby the conditions by which a community of states can co-exist and co-operate are ensured. A state, in turn, must be understood as ultimately deriving legitimacy from the pursuit of the human dignity of the community it governs, as well as the dignity of those human beings and states affected by its actions in international relations. This argument is in line with a long and now resurgent Kantian tradition in legal and political philosophy.

The book shows how this approach is reflected in accepted paradigm cases of international law, such as the United Nations Charter. It then explains how this approach can provide insights into the theoretical foundations of these accepted paradigms, including our understanding of the sources of international law, international legal personality and the design of global institutions.

Auteur

Patrick Capps is Professor of International Law at the University of Bristol.

Contenu

Introduction
1 Philosophical Problems for International Lawyers
Conceptions of International Law in Space and Time
Scepticism in the Philosophy of International Law
Theory and Practice
Conclusion
2 The Methodological Problem
The Methodological Problem in Legal Science
The Methodological Problem
Is International Law Racist?
The Ontological Problem
Conceptual Analysis and Focal Analysis
Conceptual Analysis
Focal Analysis
Conceptual Analysis, Focal Analysis and the Raw Data
The Legal Scientist
Conclusion
3 The Conceptual Analysis of International Law
Hart's The Concept of Law as a Form of Conceptual Analysis
Legal Positivism
Hart's Concept of Law
Hart's Non-ambitious Concept of Law
Hart's Ambitious Concept of Law
International Law as an Indeterminate Form of Law
Usages and Conventions
The Legal Scientist, the Ordinary Language User and the Legal Official
Law as a Social Practice
Theoretical Values
Law as a Conventional Practice
Paradigm Cases and the Internal Point of View
Conclusion
4 Focal Analysis and Ideal-Types
Purposivity and International Law
Human Dignity and the Purpose of International Law
Normative Positivism and International Law
Focal Analysis and Ideal-Types
Action and Axiology
Ideal-Types
The Ideal-Type and Collective and Institutionalised Social Practices
General Concepts
Weber on International Law
Ideal-Types and Practical Reasonableness
The Concept of International Law Relies upon the General Concept of Law
Purpose and Meaning
Practical Reasonableness and Ideal-Types
Components of the Concept of International Law
5 Practical Reasonableness and Human Dignity
The Idea of Human Dignity
Human Dignity as Empowerment
The Substantive Question
Generic Features of Agency
Distributive and Authoritative Questions
The Authoritative Question
Action and the Generic Features of Agency
The Universalisation of Generic Rights
The Distributive Question
The Concept of International Law
Dignity in the Kingdom of Ends
From the Kingdom of Ends to Positive Law
Conclusion
6 The Logic of the Autonomy Thesis
The Autonomy Thesis
Structure of the Autonomy Thesis
Hobbes' Version of the Autonomy Thesis
Kant's Version of the Autonomy Thesis
Oppenheim's Version of the Autonomy Thesis
Weil's Version of the Autonomy Thesis
Failure of the Autonomy Thesis
Adjudication and Function
Legitimacy as a General Condition for the Success of the Autonomy Thesis
The Autonomy Thesis and International Law
Public Practical Reasons
Practical Reasonableness and the Law
Conclusion
7 Law as a General Concept
The Bare-Autonomy Thesis and the Integrated-Autonomy Thesis
Moral Reasoning and Law
Ideal and Non-ideal Theory
Justification of the Autonomy Thesis
Immorality of the State of Nature
Law as a Community Governed by an Omnilateral Will
Kant's Justification for Law
Enforcement
Justification of the Integrated-Autonomy Thesis
Law Constitutes our Freedom from Dependency
Rousseau's Concept of Law
The General Concept of Law
Conclusion
8 The Foundations of the International Legal Order
A Justification for International Law
Civil Incorporation and the Sovereign State
The State and Civil Incorporation
Sovereignty and Collateral Moral Rights
The State and Agency
International Legal Order
Kant's 'State of War'
Why is the State of War Not-rightful?
The Integrated-Autonomy Thesis and the Sovereignty of International Law
Institutional Design
International Legal Order as a Suprastate System
International Legal Order as an Interstate System
Interstate or Suprastate Institutional Design?
Conclusion
Lauterpacht and the Progressive Interpretation of International Law
Unanswered Questions
9 The Discontinuity Thesis
Alternatives to International Legal Order
Sovereign States are Not Similar, in Relevant Ways, to Human Agents
A Rejection of the Universal State, Not International Legal Order
The Sovereign State Cannot be Considered an Agent
Transgovernmental Law Instead of International Law?
Rejection of International Legal Order
Sovereign States are Not Similar, in Relevant Ways, to Human Beings
Prudence and International Legal Order
The Environment in which Sovereign States Find Themselves is Not Similar in Relevant Ways to the Environment in which Human Beings Find Themselves
Are International Relations Not Unreasonable?
Approximations to International Law
Surrogates, Analogues and Approximations
The Possibility of Perpetual Peace
Conclusion
10 International Legal Order in Ideal and Non-ideal Theory
Ideal Theory
Norm-Creation
Custom
Interpretation
Enforcement
Failure of Interstate Design for Ideal Theory
Non-Ideal Theory
Juridical and Moral Concepts of the State
Institutional Architecture and Norm-Creation
Enforcement
Self-Defence
The Concept of International Law and the Role of the International Lawyer
Conclusion
Bibliography
Index