The Empire of International Legalism

2018 ◽  
Vol 32 (3) ◽  
pp. 265-278 ◽  
Author(s):  
Ian Hurd
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Political System ◽  
Global Order ◽  
Appropriate Behavior ◽  
Law And Politics ◽  
Legal Obligations ◽  
Legal Justification ◽  
The Relationship ◽  
International Rule

AbstractThe international rule of law is a political system of governance. It rests on the expectation that governments will abide by their legal obligations and so defines what counts as appropriate behavior for states. The relationship between law and politics in global governance is better understood as an empire of global legalism than as an anarchic world of sovereign states. Legal justification is the lingua franca of legitimation contests among governments, as states strive to show that their preferred policies are lawful and that those they oppose are unlawful. Seeing the world this way helps to show the political content of international law: neither a neutral framework that sustains all viewpoints nor an inherently progressive contribution to global order, international law is a political system of governance that advances some interests at the expense of others, and our attention should be directed toward assessing which interests are served by the turn to global legalism and at whose expense.

The Empire of International Legalism

2019 ◽  
pp. 129-138
Author(s):  
Ian Hurd
Keyword(s):  
Foreign Policy ◽  
International Law ◽  
Rule Of Law ◽  
Political Authority ◽  
International Affairs ◽  
Legal Obligations ◽  
Foreign Policies ◽  
Legal Justification ◽  
To Come ◽  
International Rule

This concluding chapter argues that the international rule of law is a structure of political authority. It creates a hierarchy in international affairs in which legal obligations are superior and governments are subordinate. The structure depends on and is reinforced by the widespread practice of legal justification by states. Within that structure, international law is at once constraining, empowering, and constituting of the foreign policies of governments. The chapter uses the language of “empire” to describe this structure. It is a centralized and hierarchical system that unites its subjects under a single political authority, the empire of international legalism. Under the empire of international legalism, policy must be made consistent with legal obligations. However, this just means that foreign policy decisions have to come with legal reasons, and political disputes turn into arguments over what the law permits or forbids. In theory, one cannot say what the results will be.

Weaving a Tangled Web:Hapeand the Obfuscation of Canadian Reception Law

2008 ◽  
Vol 45 ◽  
pp. 55-96 ◽  
Author(s):  
John H. Currie
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Potential Role ◽  
Supreme Court Of Canada ◽  
Customary International Law ◽  
The Rule Of Law ◽  
Legal Obligations ◽  
Canadian Law ◽  
The Relationship

SummaryThe majority Supreme Court of Canada judgment inHape— a case concerning extraterritorial applicability of theCanadian Charter of Rights and Freedoms— is premised on three aspects of the relationship between international and Canadian law: (1) the interaction of customary international law and Canadian common law; (2) the role of Canada’s international legal obligations inCharterinterpretation; and (3) the potential role of customary international law as a source of unwritten principles of the Canadian Constitution. This article reviews pre-existing law in all three of these areas and analyzes a number of innovations apparently introduced thereto, with little or no explanation, by the majority inHape. It concludes thatHapeseriously exacerbates an already uncertain relationship between international and Canadian law, with fundamental consequences for the rule of law in Canada.

Theorising the international rule of law

2008 ◽  
Vol 34 (3) ◽  
pp. 385-401 ◽  
Author(s):  
TERRY NARDIN
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Global Order ◽  
The Rule Of Law ◽  
Recent Trends ◽  
Kantian Theory ◽  
International Rule

AbstractRecent trends in international law scholarship recycle objections to international law advanced by an earlier generation of political and legal realists. Such objections fail to understand the place of international law in the global order. To understand that place, we must distinguish the idea of the rule of law from other understandings of law. That idea is an inherently moral one. Theories of international law that ignore the moral element in law cannot distinguish law as a constraint on power from law as an instrument of power. A Kantian theory of international law can help to recover that moral element.

The Permissive Power of the Ban on War

2019 ◽  
pp. 58-81
Author(s):  
Ian Hurd
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Political System ◽  
Use Of Force ◽  
Political Costs ◽  
Self Defense ◽  
Legal Constraint ◽  
Political Choices ◽  
International Rule

This chapter examines a classical area of international law: the use of force by states. The ban on war is often cited as the centerpiece of the modern international legal-political system and used to distinguish the contemporary age from earlier, less legalized periods. Liberal convention sees the ban on war as a legal constraint on states' political choices; states seeking to uphold the international rule of law are advised to refrain from using force against other states. However, this understanding is flawed. The UN Charter outlaws some kinds of war and permits others, such as those undertaken in self-defense. The chapter then demonstrates that the Charter is a mechanism by which law sorts the motivations for war into lawful (self-defense) and unlawful (all others) categories. It thereby creates a framework to legitimate wars and reduce their political costs. The Charter is not antiwar: it is explicitly permissive of war so long as the claimed motive is self-defense.

scholarly journals Good Medicine for Bad Politics? New Realism in the International Rule of Law

2018 ◽  
Vol 112 ◽  
pp. 255-258
Author(s):  
Ian Hurd
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
International Crisis ◽  
New Realism ◽  
Legal Obligations ◽  
Good Medicine ◽  
Law Of Nations ◽  
The Law ◽  
Compliance With The Law ◽  
International Rule

When an international crisis erupts it is common to hear experts say that the situation would be improved if all parties uphold their international legal obligations. From the Syrian war to Burma's massacres to Guantánamo torture, faithful compliance with the law of nations is often prescribed as part of the cure for policies gone wrong. My work is motivated by curiosity about how international law comes to be seen as a universal good and its effects when invoked as “good medicine for bad policies.” Compliance with international law often appears in policy and scholarly analyses like a magical machine that transforms hot disagreements about what should be done into cool solutions that serve the interests of everyone. My work examines this idea with a degree of skepticism and holds it up against some empirical cases. I suggest a return to pragmatic realism regarding the politics behind the international rule of law.

An International Rule of Law

2021 ◽  
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal System ◽  
Rule Based ◽  
The Rule Of Law ◽  
Globalizing World ◽  
International Legal System ◽  
Elusive Concept ◽  
International Rule ◽  
Selection Of

The “international rule of law” is an elusive concept. Under this heading, mainly two variations are being discussed: The international rule of law “proper” and an “internationalized” or even “globalized” rule of law. The first usage relates to the rule of law as applied to the international legal system, that is the application of the rule of law to those legal relations and contexts that are governed by international law. In this context, the term international rule of law is often mentioned as a catchphrase which merely embellishes a discussion of international law tout court. The international rule of law is here mainly or exclusively used as shorthand for compliance with international law, a synonym for a “rule based international order,” or a signifier for the question whether international law is “real” law. This extremely loose usage of the term testifies its normative and symbolic appeal although it does not convey any additional analytic value. The second usage of the rule of law in international contexts covers all other aspects of the rule of law in a globalizing world, notably rule of law promotion in its widest sense. The increasing interaction between national and international law and between the diverse domestic legal orders (through law diffusion and reception, often again mediated by international law) is a manifestation of the second form of the rule of law. The structure of this bibliography roughly follows this bifurcation of the Rule of Law Applied to the International Legal System and the Rule of Law in a Globalizing World. Next to these two main parts, three further, separate sections discuss questions that arise at the intersection of the two variants or are of crosscutting importance to the rule of law as a whole. This includes sections on the Rule of Law as a UN Project: A Selection of UN Documents on the Rule of Law, the Interaction between the International and Domestic Rule(s) of Law, and the (International) Rule of Law: A Tool of Hegemony?.

Introduction

2019 ◽  
pp. 1-18
Author(s):  
Ian Hurd
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Social Practice ◽  
Good Governance ◽  
World Politics ◽  
International Conflicts ◽  
Legal Forms ◽  
The One ◽  
International Rule

This introductory chapter provides an overview of the politics of the international rule of law. The big debates in world politics today are inseparable from international law. Controversy over what is and is not legal is standard fare in international conflicts, and commitment to rule of law is presumed a marker of good governance. Yet the politics of the international rule of law are not so simple and are rarely investigated directly. This book shows that international law is properly seen not as a set of rules external to and constraining of state power but rather as a social practice in which states and others engage. They put the political power of international law to work in the pursuit of their goals and interests. Indeed, governments use international law to explain and justify their choices. This is both constraining and permissive. On the one hand, states must fit their preferences into legal forms. On the other hand, they are empowered when they can show their choices to be lawful. Thus, international law makes it easier for states to do some things (those that can be presented as lawful) and harder to do others (those that appear to be unlawful). The book then looks at how the concept of international law is used in world politics and to what ends.

The Rise and Decline of the International Rule of Law and the Job of Scholars

2019 ◽  
pp. 56-65
Author(s):  
Anne Peters
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
John Rawls ◽  
Political Climate ◽  
Scholarly Writing ◽  
Economic Climate ◽  
International Scholarship ◽  
Research Questions ◽  
Object Of Study ◽  
International Rule

International law feeds on preconditions which it cannot guarantee itself. International scholarship, too, must come to grips with pre-conditions and existing parameters over which it has no control itself. But such scholarship must not ‘succumb’ to these factual and ideational realities by adapting its methods and findings to any given political, social, and economic climate. It is the job of international legal scholars to produce ideas in a spirit of realist utopianism (John Rawls). Depending on the existing parameters, these ideas are apt to shape attitudes and actions, or not. Such scholarship also needs to distance itself from its object of study in order not to lose its capacity to criticize the law and the practice. How far exactly scholarly writing should transcend or keep aloof from the prevailing political climate and from concerns of feasibility depends on the research questions under discussion and is a matter of judgment. The style of scholarship suggested here is illustrated by the work of three eminent scholars whose careers continued through different political eras more or less favourable to the international rule of law: Hersch Lauterpacht, Antonio Cassese, and Josef Kunz.

5 Obligations of International Organizations, 5.2 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt , Advisory Opinion, [1980] ICJ Rep 73

2016 ◽  
Author(s):  
Brölmann Catherine
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Advisory Opinion ◽  
Customary International Law ◽  
Legal Obligations ◽  
The Icj ◽  
Legal Character ◽  
First Time ◽  
The Relationship

The 1980 WHO Advisory Opinion elaborates on the general legal obligations (grounded in the duty of co-operation and good faith) that are part of the relationship between an international organization and its host state. In this opinion the ICJ possibly for the first time articulated this relationship as a set of mutual obligations between legal equals. The opinion moreover enunciates the sources of international legal obligations binding upon international organizations (IOs): the treaties they conclude (uncontroversial); I customary international law; their constitutions. The Court uses the proverbial reassurance of UN member states in saying that the WHO is not a ‘super-state’. Finally, in accepting jurisdiction the Court explicitly separated the legal character of the question from the political considerations motivated by that question.

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