The unfoundedness of objectivism

The structure of legal argument revisited

I started this book by the observation that international lawyers are like lawyers in general in believing that they can produce statements relating to the social world which are “objective” in some sense that political, ideological, religious or other such statements are not. I hastened to add that this did not signify any committal to naïve views about the automatic character of law-application. I tried to define objectivity as loosely as possible without detracting from the way in which international lawyers themselves think about the law and about the character of their statements about it. I did this by the twin criteria of concreteness and normativity and left these on purpose ambiguous so as to allow maximal coverage. By “concreteness” I meant that the law was to be verifiable, or justifiable, independently of what anyone might think that the law should be. By “normativity” I wanted to say that the law was to be applicable even against a State (or other legal subject) which opposed its application to itself.

Stated in such a fashion, I believe that the minimal conditions for objectivity are met. The identity of law vis-à-vis political opinions can be upheld only if both concreteness and normativity can be provided for. For if the law could be verified, or justified, only by reference to somebody's views about what the law should be like, it would have no distance from that person's political opinions.