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Behind Relative Normativity: Rules and Process as Prerequisites of Law

By Jason A. Beckett

Abstract

For some 13 years, Prosper Weil's defence of the classic liberal understanding of public international law went largely unchallenged. Recently, however, John Tasioulas, in an attempt to promote and support a theoretically credible natural law perspective, launched an influential and wide‐ranging critique of Weil's position. The present paper offers an analysis of that critique. It is suggested that Tasioulas' counter is unfair and ineffectual; both of these charges stem from Tasioulas' deployment of Dworkin's interpretative concept of law. This is unfair because Dworkin offers a theory of adjudication, not of obligation; one which, moreover, is inappropriate to public international law. Nonetheless, the deployment of Dworkin is an implicit acceptance of the necessity of process in norm creation; but, as Tasioulas conflates norm creation and application, the procedure tendered comes too late to play this role. This is compounded by the fact that the procedure deployed begs its own subversion in the international arena. The key point here is that, even if it were not unfair, inappropriate and late, Dworkin's theory simply could not perform the function it is allocated

Year: 2001
DOI identifier: 10.1093/ejil
OAI identifier: oai:lra.le.ac.uk:2381/3096
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