Remarks on the Normativity of International Legal Rules and Global Constitutionalism

• Date: 01 December 2016
• Published date: 01 December 2016
• DOI: http://doi.org/10.1111/raju.12145
• Author: Tomasz H. Widłak

Remarks on the Normativity

of International Legal Rules

and Global Constitutionalism

TOMASZ H. WIDŁAK

Abstract. The article reflects on the possibility of conceptualising the complex prob-

lem of the normativity of international legal rules, including in particular the phe-

nomenon of “relative normativity.” The author utilises the critical potential of

Ronald Dworkin’s proposal for a new philosophy of international law to reflect on

the classical accounts explaining normativity of international law. By building on

Dworkin’s argument, the author argues for a constitutional account of international

law. The far-reaching constitutional proposals may provide a more complex and

coherent set of possible rationalisations of international legal rules. International law

is in great need of a comprehensive theory that could better explain its normative

character as well as its sources, and it is argued that international constitutionalism

has the potential toserve this purpose.

1. Introduction: Relative Normativity and the Need for International

Legal Theory

The philosophical conundrum of the normative character of legal rule is far from

being solved. The specific question of the normative nature of international legal

rules occupies an even more debatable space (Armstrong, Farell, and Lambert

2007). Starting from John Austin’s famous claim that international law is not really

law but merely a form of positive morality, lawyers and philosophers have often

asked themselves about the normative nature of international law and proposed

different lines of argument on what essentially makes rules of international law

normative and compulsory in their character. Legal normativity can be conceptual-

ised as law’s claim to authority, that is, “its claim to provide its legal subjects with

exclusionary albeit prima facie reasons for action through binding legal norms”

(Besson 2010, 173).

With the growth of international law and an unprecedented intensification of

international relations in the second half of the twentieth century, the problem of

the normative character of international legal rules has become even more compli-

cated. In his famous article published over 30 years ago, Weil (1983, 442) criticised

ongoing developments in international law, which he labelled “relative

normativity.” The phenomena that have blurred the clear-cut picture of the

V

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Ratio Juris. Vol. 29 No. 4 December 2016 (506–518)