This objection is therefore in essence a standard positivist objection to theories that require moral judgment in legal propositions.36 International legal positivism, classically defended by Prosper Weil, holds that the content of law is derived from phenomena that can be explained in the real world in order to maintain the distinction between law and «law as it should be».37 The fusion of law and morality is an attitude. undesirable, since each interpreter may have different moral values which, according to him, give meaning to the practice. This would not lead to an adequate interpretation of international law; On the contrary, it would undermine interpretation. When morality is called upon to determine the content of international law, there is a great danger: the views of the powerful can defeat the views of the weak. This would undermine the equal application of the law in all cases, and the law would lose its appeal to law-abiding adherents as an entity distinct from morality.38 This is particularly worrisome in the context of international law, as the power gap (material and resource-based) between states is significant and there is a real danger that the substantive moral views of a handful of states will determine: what law is.39 The decentralized nature of international law is vulnerable to strong individual states that impose their own views as law.40 This objection identifies the solution to this problem by rejecting views that favor moral judgment to fuel legal judgment. It is necessary to define the law by reference to social facts that can be described as such – for example: intentions, rules and secondary practices rather than moral thought.41 The positivist and worthless claim to the content of the law also faces problems of coherence. Some of the central doctrinal issues of international law owe their presence to such inconsistencies.52 At what point did the practice of a number of States in the field of customary international law harden? What happens when half of the states violate a rule and the other half follow it?53 These questions are not answered by examining only the authoritarian practices of states. While it is possible to document and have an overview of what the large number of States have done in Case X with regard to the hardening of customary international law, the problem remains. Take the case of NATO`s intervention in Kosovo in 1999, for which there was no UN Security Council approval. Some States led or supported the intervention, while others strongly opposed it. This information alone is not sufficient to determine the impact that this mixed practice has had on customary international law of humanitarian response.

In the case of the other half of the States and the other half that violate the rule, none of the parts of the cumulative convergent conduct of States alone can tell us what customary law is. We still need a theory on the relationship between contract law and customary international law, on what constitutes general practice in customary international law and on whether the breach of a treaty provision constitutes practice in the context of customary law. The thesis that international law is made by state consent, without asking what role consent plays in a vast web of beliefs about the value of international law, cannot adequately answer these questions.54 In the context of international law, the objection that interpretivism imposes individual morality on law collapses. since interpretivism would insist that the need to combat the morally dubious views of individual states is a concern of the interpreter. in identifying the value system of international law. Such views cannot claim to be the values at the heart of international law, because they do not fulfil the necessary condition for the value of the system not to be something that happens to be valuable to some. One can even go further and argue that the restriction of individual political units (i.e. one of the central aspects of decentralized international law, so that they do not take matters into their own hands, is one of the central aspects of decentralized international law. In other words, the value of legality at the heart of Dworkin`s interpretation of law has significance in international law insofar as it captures the strong intuition that no state can determine what international law is based on its subjective assessments.

In this non-hybrid approach, the principle of the use of force does not mean that the government is occasionally obliged to apply all the standards proclaimed by the authorities or to repeat the mistakes of the past. Rather, it is argued that the morality of forced interaction makes institutional practice relevant to what can or should be done now. The government must take its other measures (legislation, cases, etc.) seriously and act now in a manner that is in principle consistent with that measure. Any past action that cannot be justified according to the scheme that justifies the rest is an action that is irrelevant to what needs to be done now and must be dismissed as a mistake. We need to review our understanding of the principles by which we have acted in the past, which may have led us to such mistakes. As we shall see, another version of interpretivism corresponds to each reading of the assertion that institutional practice and morality together establish legal rights and duties. The first version, hybrid interpretivism, which understands institutional practice as an independent reason, may raise concerns about moral bias in the approach to the metaphysical problem. For it is reasonable to suspect that this kind of interpreter aims to find moral force in law, and the purpose of combining the institutional basis with a moral overlay is to guarantee this force. In the second version, pure or non-hybrid interpretivism, which reflects the second reading of the distinction, there is no room for such distortion.

For, according to this version, morality prescribes the constitutive role that theory attributes to institutional practice; Admittedly, there is no non-morally predefined way in which practice should determine obligations. Unlike positivism and anti-essentialism, legal realism, which has greatly influenced the procedural school of international law, has a number of similarities with interpretivism. Both doctrines affirm that the practice of international law is values-sensitive. See, for example: McDougal, «Some Basic Theoretical Concepts about International Law: A Policy Orientated Framework of Inquiry,» 4 J Conflict Resolution (1960) 337. Interpretivism has been developed by Ronald Dworkin in a number of publications over the past 30 years (see Dworkin`s work cited in the bibliography). Interpretivism, as developed by Dworkin, implies the assertion that the interpretation of the manner just explained is sensitive to values and is fundamental to the nature of law. Many theorists accept that, given the law, a value-sensitive interpretation is necessarily used in its application (e.g., Brink 2001). In this article, we will deal exclusively with interpretivism as a theory about the nature of law and therefore will not consider such views (except as possible misunderstandings of interpretivism). We will focus on explaining Dworkin`s position (but not necessarily his way of defending it) and briefly examine some alternatives regarding the normative nature of legal interpretation. Dworkin believes that the idea of legality in its abstract formulation is not informative and has not yet been clarified. To specify them, one must discover what legality really is by confronting the question of the value of legality.27 Dworkin suggests that the value of a value can be identified by «situating the place of that value in a broader web of beliefs».28 Dworkin`s view is that political values such as legality, Justice or democracy exist.

because they contribute to another, lower, independently identifiable value.29 The precise meanings of the values appear when that very contribution is identified. For this reason, values exist in a network of beliefs, and a value cannot be fully understood without considering where that value lies in a constellation of values. The immediate source of the difficulties lies in the composite character of the ideal of principled coherence employed by hybrid interpretivism, which means that the interpreter must simultaneously aim for coherence and merit, understood as distinct objectives that do not necessarily have to coincide. Given the difficulties, it is not clear whether interpretation could guarantee comprehensiveness, understood as the possibility of resolving all possible disputes (which is often understood as the later, perhaps fundamental, objective of interpretation; see Raz 1994; Finnis, 1987; see also Leiter 2007, who argues that the thesis that there is a correct answer to all legal questions is at the heart of Dworkin`s project). The composite conception of the coherence of principles is imposed on hybrid interpretivism by its fundamental commitment, from which ultimately arise the difficulties: that the starting point of interpretation must be certain norms constituted by the contingencies of institutional communication, and that the purpose of this interpretation is to compare and reconcile in one way or another these norms with ideals.