Statist assumptions, normative individualism and new forms of personality: evolving a philosophy of international law for the twenty first century

Abstract

This article seeks to confirm the relevance of the kind of philosophy of international law espoused by Fernando Teson and encapsulated in his shorthand expression `normative individualism'. At the same time it points to some structural difficulties in accommodating the imperatives of normative individualism in a changing context of personality and identity within the contemporary international order. It argues that it is important to appreciate the diversity of participation in contemporary international life, since a cogent and effective moral critique needs to recognise the range of relevant actors. However, the article does not assume that the goals of normative individualism have been largely achieved. To note that there appears to have been advances in both the practice and the law relating to the protection of human rights does not imply that the role of ethical critique is becoming redundant. There remains an important role for moral critique even in a changed, less state-dominated international landscape. Recent events at the international level have demonstrated – not only on the part of IGOs and INGOs, but also by a number of Western governments – an increasingly vigorous and sometimes belligerent moralism, evident for instance in a new popular vocabulary of `ethical foreign policy', `ethical investment', and the like. While an energetic protection of human rights is to be welcomed on moral grounds, there is still also an important role for ethical argument in assuring the rigour of such policies. In other words, in the future it may be the actions (even though `ethically' inspired) of non-State actors as much as governments which could be scrutinised through the filter of normative individualism.