Human Dignity and Law by Riley Stephen

Author:Riley, Stephen
Language: eng
Format: epub
Publisher: Taylor & Francis (CAM)
Published: 2017-10-12T16:00:00+00:00

This grounds a distinctive opposition within international legal argument. International legal arguments attempt “to explain why the law it projects is both normative and concrete – that is, not vulnerable to the criticism of being apologetic or utopian” (Koskenniemi 2006, 158). It is not simply that international legal arguments are divisible into those that are utopian and those that are apologetic. Rather, each position represents a hazard from the perspective of the other position: we must valorise state consent lest we be considered utopian; stress moral justification lest we be mere apologists for state action. Nevertheless, one position cannot be understood without the other, there being no position outside these poles from which the ‘right legal answer’ becomes possible.

There are important threads here which, together, allow us to critically intertwine moral cosmopolitanism, a morality of governance, and international law. In making international legal arguments, we cannot escape from making our justifications ultimately rest upon the conventional sources of international law or the extrinsic justification they draw upon. Human dignity arguments, like any other arguments in international law, are judged by how well they distance themselves from being ultimately ‘utopian’ or ‘apologetic’. Put more sharply, any explicit appeals to human dignity in international legal argument should not be taken to be evidence of the moral or legal maturity of the system: the force of any such argument can always be traced, with equal force, to its legal validity within positive law or the justificatory force of moral obligation outside positive law.

For example, humanitarianism in the name of human dignity is contradictory. On the one hand, we find arguments retrospectively apologising for state action and legally rationalising as the formation of customary law (rather than utopian defence of a moral end). On the other hand, humanitarianism is taken to represent the emergence of moral maturity in the international community (rather than a statist defence based on regional security or custom). The precise foundation and force of human dignity in this context can remain opaque (as per Tsagourias’s analysis above) provided it contributes to rationalising these broadly defensible ends. And the presence of the discourse of human dignity in international law remains, therefore, ambivalent. It is not possible to divide those uses in international law that are ‘mere’ positive law or ‘mere’ rhetoric from those that have a ‘progressive’ meaning. No simple evaluation of that kind is possible within international legal discourse itself.

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