scholarly journals ‘Rules about rules’ and the endogenous dynamics of international law: Dissonance reduction as a mechanism of secondary rule-making

2014 ◽  
Vol 3 (2) ◽  
pp. 236-273 ◽  
Author(s):  
THERESA REINOLD ◽  
MICHAEL ZÜRN
Keyword(s):  
International Law ◽  
Causal Mechanism ◽  
Conceptual Tool ◽  
The Rule Of Law ◽  
Social Science Theory ◽  
Causal Mechanisms ◽  
Science Theory ◽  
Rule Making ◽  
Secondary Rule ◽  
Dissonance Reduction

AbstractWe can observe some developments that indicate a further strengthening of human rights and the rule of law even after 2001. These developments are puzzling as they occurred despite largely unfavourable scope conditions. This article offers an account of these developments that focuses on dynamics endogenous to the law. These internal dynamics provide a causal mechanism that sets in once a certain threshold of legalization has been reached. We employ the Hartian notion of secondary rules which we think is an especially helpful conceptual tool to analyse the endogenous dynamics of legal systems. To the extent that law is programmed towards consistency, secondary rules become necessary in an environment of rapidly increasing legal density to govern the complexity resulting from this proliferation of norms. Upholding consistency is necessary to maintain the autonomy of law in a Luhmannian sense and the ‘morality’ of the legal system in a Fullerian sense. Our goal is to show this and at the same move beyond an argument of system or normative functionality by identifying causal mechanisms that can explain the law’s built-in drive towards secondary rules, and that are in accordance with broader social science theory. We use some insights from cognitive psychology to develop these causal mechanisms further. While testing these causal mechanisms would be beyond the scope of this paper, we hope to provide the conceptual tools for future empirical research on the dynamics of secondary rule-making and offer some empirical illustrations to demonstrate how dissonance reduction operates in practice.

The ‘Responsibility Not to Veto’, Secondary Rules, and the Rule of Law

2014 ◽  
Vol 6 (3) ◽  
pp. 269-294 ◽  
Author(s):  
Theresa Reinold
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Security Council ◽  
The Rule Of Law ◽  
International Legal Order ◽  
Politics And Law ◽  
Legitimacy Crisis ◽  
Rule Making ◽  
Secondary Rule

In this article I argue that the concept of secondary rules provides a useful tool for analysing the interplay of politics and law in the evolution of the ‘responsibility not to veto’, which represents an attempt to subject the Security Council to the rule of law. Secondary rules help to maintain the law’s overall coherence, thereby bolstering its legitimacy and hence its ability to effectively govern human conduct. Most accounts of secondary rule-making overstate the role of power while underestimating the need for powerful states to argue within the parameters set by the law itself. This contribution, by contrast, explores the interaction of power and law, and the role of secondary rules therein. It shows that the international legal order currently lacks coherence as there is no consensus on overarching principles. Hence, the legitimacy crisis of the Security Council is at the same time a legitimacy crisis of international law.

The Sociology of the State: The State as a Conceptual Variable

2010 ◽  
Author(s):  
Yale H. Ferguson ◽  
Richard W. Mansbach
Keyword(s):  
International Law ◽  
The State ◽  
Decision Makers ◽  
Early Modern Europe ◽  
Sovereign State ◽  
Social Science Theory ◽  
Science Theory ◽  
Collective Goods ◽  
Degree Of Certainty ◽  
Globalized World

The “state” is the theoretical and empirical bedrock of the international relations field, yet it is a hotly debated concept and is routinely defined to suit the normative and/or empirical ends of scholars and practitioners. It is thus a conceptual variable. The state has so many “meanings” and connotations that the term must be carefully defined every time it is used. Perhaps the most that can be said, with any degree of certainty, is that today the sovereign state has a recognized status in international law, continues to be an important identity symbol for many citizens, and is the focus of citizen demands for the provision of collective goods. Beyond such a statement, the going gets far more difficult. Different “schools” of social science theory view the state with different lenses. Whether the concept of state has any applicability to polities that predated early modern Europe is dubious. In any event, the state and all its variants were contingent products of particular times and European space, and states have continued to adapt and evolve over the centuries to such an extent that the “modern” state bears little resemblance to its Westphalian predecessor. Indeed, modern states themselves evince such a remarkable diversity that they have little in common with one another except sovereign legal independence. That status, in turn, is not to be confused with “real” independence, which has become increasingly evident in our present-day substantially globalized world. The traditional “inside/outside” distinction offers little consolation to state decision makers who find the “outside” severely constraining their capacity to offer their citizens security and welfare. The state’s “crisis of authority” has only worsened with the spread of illiberal populist nationalism and the “return of geopolitics.”

Introduction

2020 ◽  
pp. 1-30
Author(s):  
Charles W. Greenbaum ◽  
Muhammad M. Haj-Yahia ◽  
Carolyn Hamilton
Keyword(s):  
Social Science ◽  
International Law ◽  
Political Violence ◽  
Social Science Research ◽  
Science Research ◽  
Major Goal ◽  
Relative Lack ◽  
Social Science Theory ◽  
Science Theory

The introductory chapter presents the major goal of this volume: creating a forum for the integration of three areas: theory and research on the effects of exposure to political violence (EPV), intervention to aid victims of EPV, and the prevention of EPV. It notes the relative lack of application of social science research and theory to prevention of EPV. The chapter presents suggested definitions of political violence and what is meant by child, and describes the gap between international law forbidding political violence to children and a recent increase in children’s EPV. The chapter also presents an overview of social science theory related to research and intervention and descriptions of the three sections in the book. Section I involves research on effects of EPV, Section II addresses intervention, and Section III discusses prevention of EPV. The introduction concludes with summaries of each chapter and a description of the relation of these chapters to the overall perspective of the book.

Social Science Theory for Environmental Sustainability

2018 ◽  
Author(s):  
Marc J. Stern
Keyword(s):  
Social Science ◽  
Environmental Sustainability ◽  
Persuasive Communication ◽  
Practical Applications ◽  
Social Science Theory ◽  
Science Theory ◽  
The Social ◽  
Communication Conflict ◽  
To Come ◽  
Sustainability Challenges

Social science theory for environmental sustainability: A practical guide makes social science theory accessible and usable to anyone interested in working toward environmental sustainability at any scale. Environmental problems are, first and foremost, people problems. Without better understandings of the people involved, solutions are often hard to come by. This book answers calls for demonstrating the value of theories from the social sciences for solving these types of problems and provides strategies to facilitate their use. It contains concise summaries of over thirty social science theories and demonstrates how to use them in diverse contexts associated with environmental conflict, conservation, natural resource management, and other environmental sustainability challenges. The practical applications of the theories include persuasive communication, conflict resolution, collaboration, negotiation, enhancing organizational effectiveness, working across cultures, generating collective impact, and building more resilient governance of social-ecological systems. Examples throughout the book and detailed vignettes illustrate how to combine multiple social science theories to develop effective strategies for environmental problem solving. The final chapter draws out key principles for enhancing these efforts. The book will serve as a key reference for environmental professionals, business people, students, scientists, public officials, government employees, aid workers, or any concerned citizen who wants to be better equipped to navigate the social complexities of environmental challenges and make a meaningful impact on any environmental issue.

Legitimacy

2019 ◽  
Keyword(s):  
International Law ◽  
The State ◽  
State Sovereignty ◽  
International Courts ◽  
The Rule Of Law ◽  
State Legitimacy ◽  
The Relationship ◽  
Supranational Institutions

This collection brings together scholars of jurisprudence and political theory to probe the question of ‘legitimacy’. It offers discussions that interrogate the nature of legitimacy, how legitimacy is intertwined with notions of statehood, and how legitimacy reaches beyond the state into supranational institutions and international law. Chapter I considers benefit-based, merit-based, and will-based theories of state legitimacy. Chapter II examines the relationship between expertise and legitimate political authority. Chapter III attempts to make sense of John Rawls’s account of legitimacy in his later work. Chapter IV observes that state sovereignty persists, since no alternative is available, and that the success of the assortment of international organizations that challenge state sovereignty depends on their ability to attract loyalty. Chapter V argues that, to be complete, an account of a state’s legitimacy must evaluate not only its powers and its institutions, but also its officials. Chapter VI covers the rule of law and state legitimacy. Chapter VII considers the legitimation of the nation state in a post-national world. Chapter VIII contends that legitimacy beyond the state should be understood as a subject-conferred attribute of specific norms that generates no more than a duty to respect those norms. Chapter IX is a reply to critics of attempts to ground the legitimacy of suprastate institutions in constitutionalism. Chapter X examines Joseph Raz’s perfectionist liberalism. Chapter XI attempts to bring some order to debates about the legitimacy of international courts.

Cardinal Richelieu between Vattel and Machiavelli

2018 ◽  
Author(s):  
Anthony Carty
Keyword(s):  
Seventeenth Century ◽  
International Law ◽  
Rule Of Law ◽  
Natural Law ◽  
Historical Research ◽  
Practical Implementation ◽  
The Rule Of Law ◽  
God's Will ◽  
Legal Thought ◽  
Rule Of Reason

The view that no form of international law existed in seventeenth-century France, and that this time was a part of ‘prehistory’, and thus irrelevant for international legal thought today is challenged. In addition, the traditional claim of Richelieu to be an admirer of Machiavelli and his Ragion di Stato doctrine to the detriment of the aim of concluding treaties and keeping them (as sacred), is refuted by careful historical research. In Richelieu’s thinking, there is a role for law to play but it is law as justice, law in the classical natural law tradition. Those who rule are subject to the rule of law as justice, the rule of God, or the rule of reason. In Richelieu’s world, kings and ministers are rational instruments of the practical implementation of God’s will on earth.

Due diligence as a secondary rule of general international law

2021 ◽  
pp. 1-30
Author(s):  
Richard Mackenzie-Gray Scott
Keyword(s):  
International Law ◽  
Due Diligence ◽  
Legal Practice ◽  
Formed Part ◽  
International Law Commission ◽  
Domestic Law ◽  
Secondary Rule ◽  
Law Making ◽  
Law Commission ◽  
Do So

Abstract The conventional understanding of due diligence in international law appears to be that it is a concept that forms part of primary rules. During the preparatory stages in creating the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) focused on due diligence as though it could have formed part of secondary rules. Despite this process, no due diligence provision forms part of the ARSIWA. Yet a number of the final provisions are based on primary rules. This is because the ILC relied on the method of extrapolation in attempts to create secondary rules. Extrapolation is a method of international law-making by which the output of an analytical process is reproduced in a different form following an examination of its content that exists in other forms. In using this method, the ILC attempted to create secondary rules by extrapolating from primary rules. Yet it did not do so with respect to due diligence. However, due diligence can be formulated and applied differently by using this same method. This article analyses the steps of this process to construct a vision of where international legal practice should venture in the future. In learning from and amalgamating the dominant trends in different areas of international and domestic law, this article proposes that due diligence could exist as a secondary rule of general international law. By formulating and applying due diligence as a secondary rule, there is potential to develop the general international law applicable to determining state responsibility for the conduct of non-state actors.

Personhood, belonging, affect and affliction

2021 ◽  
pp. 003802612110192
Author(s):  
Alex Broom ◽  
Sophie Lewis ◽  
Rhiannon Parker ◽  
Leah Williams Veazey ◽  
Katherine Kenny ◽  
...  
Keyword(s):  
Life History ◽  
Social Science ◽  
Photo Elicitation ◽  
Social Science Theory ◽  
Science Theory ◽  
Flow Through ◽  
Caring Relations ◽  
Cultural Origins

What does migrancy mean for personhood, and how does this flow through caring relations? Drawing on life history interviews and photo elicitation with 43 people who identify as migrants and live with cancer, here we argue for the significance of recognising complex personhood as it inflects illness and care. Drawing on social science theory around temporalities, moralities and belonging, we assemble a series of cross-cutting themes at the intersection of personhood and care; relations that transcend cultural origins yet are vividly illustrated in relation to migrant pasts. In seeking a multidimensional view of personhood, we attend to the intersecting layers of complexity that make up care in this context vis-a-vis an emphasis on forms of difference, vulnerability and otherness. In this way, we develop an approach to personhood and care that broadens the lens on migrancy and cancer, but also, one that speaks to the importance of recognition of complexity and how it shapes care more generally.

International ethics and international law

1992 ◽  
Vol 18 (1) ◽  
pp. 19-30 ◽  
Author(s):  
Terry Nardin
Keyword(s):  
International Relations ◽  
International Law ◽  
Rule Of Law ◽  
International Affairs ◽  
International Ethics ◽  
The Rule Of Law ◽  
Ethical Significance

In this paper I am going to argue a familiar but still controversial thesis about the relation between international ethics and international law, which I would sum up in the following list of propositions:First, international law is a source as well as an object of ethical judgements. The idea of legality or the rule of law is an ethical one, and international law has ethical significance because it gives institutional expression to the rule of law in international relations.Secondly, international law—or, more precisely, the idea of the rule of law in international relations—reflects a rule-oriented rather than outcome-oriented ethic of international affairs. By insisting on the priority of rules over outcomes, this ethic rejects consequentialism in all its forms.

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