The international rule of law and the domestic analogy

2015 ◽  
Vol 4 (3) ◽  
pp. 365-395 ◽  
Author(s):  
IAN HURD
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal Theory ◽  
Theory And Practice ◽  
Global Politics ◽  
The Rule Of Law ◽  
Theory Of Practice ◽  
Joseph Raz ◽  
Anglo American ◽  
International Rule

AbstractA surge in academic interest in the interaction of international law with international politics has recently raised the profile of the rule of law in global politics. The idea of an ‘international rule of law’ is central to many accounts of international order, and to both political science and legal scholarship. Despite its popularity, the concept is rarely defined or examined. This article considers the theory and practice of the international rule of law. It shows first that the international rule of law cannot be deduced from the conventional Anglo-American version of the rule of law in domestic legal theory, as sketched by Joseph Raz and others. It then considers two competing versions of a distinctly international concept of the rule of law, one based on a positivist theory of compliance and the other on a structurationist theory of practice. The former is more common in legal and political scholarship but the latter accounts better for the political power of international law in relation to states.

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?.

scholarly journals THEORIES OF VAGUENESS AND THEORIES OF LAW

Legal Theory ◽  
2019 ◽  
Vol 25 (2) ◽  
pp. 132-152
Author(s):  
Alex Silk
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Theory And Practice ◽  
Legal Interpretation ◽  
Philosophy Of Law ◽  
Conventional Meaning ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
Content Determination ◽  
The Law

ABSTRACTIt is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, legal content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law.

United Nations Targeted Sanctions, the International Rule of Law and the European Court of Justice's Judgment in Kadi and al-Barakaat

2010 ◽  
Vol 79 (1) ◽  
pp. 113-140 ◽  
Author(s):  
Fredrik Stenhammar
Keyword(s):  
United Nations ◽  
International Law ◽  
Rule Of Law ◽  
Financial Assets ◽  
The Rule Of Law ◽  
Community Law ◽  
European Court ◽  
Economic Warfare ◽  
Domestic Law ◽  
International Rule

AbstractThis article analyzes the judgment of the European Court of Justice in the Kadi and al-Barakaat case from the perspective of international law and the rule of law among nations. The conclusions drawn are with regard to international law and thus not necessarily decisive for the application of domestic law and Community law to the issue of targeted United Nations (UN) sanctions. It is argued that targeted UN sanctions in the form of blacklisting and freezing of financial assets are lawful under applicable international law as a species of economic warfare. Even if, contrary to expectation, they were unlawful when first introduced, consent and active participation on part of the European states mean that they are in all likelihood precluded from protesting against them now. The European Community Court's judgment cannot affect the validity under international law of targeted UN sanctions. If it turns out that the UN sanctions can no longer be accommodated within Community law, which is an implication but by no means an immediate result of the judgment, it will be for each state to apply its national legislation and continue to implement the sanctions, disregarding Community law if necessary. This would be a serious test of the European states' professed devotion to international law.

‘The Law of Nations Is Common to All Mankind’

2018 ◽  
Author(s):  
Susan Longfield Karr
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Common Good ◽  
Legal Theory ◽  
The Rule Of Law ◽  
Law Of Nations ◽  
The Common ◽  
Fundamental Categories ◽  
Ius Gentium ◽  
Universal Rule

For humanist sixteenth-century jurists such as Guillaume Budé, Ulrich Zasius, Andrea Alciati the ‘rule of law’ was central. In response to the use of law and legal theory to legitimize arbitrary forms of authority, they called for substantive reforms in legal education and practice, which could alleviate the dangers of masking the arbitrary will of rulers with the language of security, utility, and the common good. By focusing on fundamental categories such as ius, natural law, and ius gentium they effectively argued for a universal ‘rule of law’ that could hold political and legal authorities to a higher criterion of justice. In so doing, they redefined fundamental legal categories, ideas, and terms that continue to underpin and structure modern understandings of universal jurisprudence and international law to this day.

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.

scholarly journals Centre-periphery tensions in legal theory and practice: can law and lawyers resist urban imperialism?

2012 ◽  
pp. 1-8 ◽  
Author(s):  
Kim Economides
Keyword(s):  
Rule Of Law ◽  
Social Inclusion ◽  
Legal Theory ◽  
Theory And Practice ◽  
Legal Rights ◽  
Technological Support ◽  
The Rule Of Law ◽  
Legal Professionals ◽  
Basic Assumptions ◽  
The City

This paper questions some basic assumptions of legal theory, education and practice from the perspective of rural, remote and regional (RRR) legal communities beyond the metropolis. Legal ideologies and values fundamental to the legitimacy of the modern state, such as the Rule of Law, are embedded in most law curricula and reinforced at every stage of the educational continuum, and commonly assert that law, legal rights and access to courts of law apply equally regardless of physical location or social status. Despite this, indigenous and other excluded groups living in peripheral communities frequently experience law differently from their urban counterparts, as do legal professionals living and working outside the city. The key issue examined concerns how centre-periphery tension should best be managed in the future regulation of law and lawyers. What kind of policies and strategies may genuinely assist social inclusion and to what extent should law and legal practice accommodate diversity? How and to what extent should lawyers and para-legals represent the interests of communities rather than private individuals in RRR areas of Australia? What kind of training and technological support do they require? The paper aims to set out some choices that confront policymakers while drawing upon international experience that may offer some guidance.

Stakeholder Applications

2014 ◽  
Vol 14 (4-5) ◽  
pp. 944-968
Author(s):  
Anja Matwijkiw ◽  
Bronik Matwijkiw
Keyword(s):  
International Relations ◽  
International Law ◽  
Rule Of Law ◽  
Criminal Law ◽  
Critical Reflection ◽  
International Criminal ◽  
Legal Theory ◽  
International Criminal Law ◽  
The Rule Of Law ◽  
Separation Thesis

Given that talk about “stakeholders” have become commonplace in international law and international relations, the authors examine some of the issues that arise from an account of the theoretical, jurisprudential, and doctrinal parameters that can be derived from competing frameworks. For the specific purpose of international criminal law, the authors concentrate on the single most important question: whether stakeholder applications constitute advantages or disadvantages in a philosophy of law approach to the rule of law. It appears that current matches with concepts, norms and strategies warrant, as a minimum, more critical reflection. Incorporating stakeholder applications from various UN-documents, the ambiguities and inadequacies of these – in comparison to non-UN alternatives and contemporary legal theory of an idealist and progressive orientation even seem to substantiate arguments against too close affiliations with the trend, especially because the separation thesis recently re-emerged in broad frameworks.

scholarly journals Theory of lawmaking in classical general legal theory and in the anthropological approach of law

2019 ◽  
Vol 2019 (3) ◽  
pp. 43-48
Author(s):  
Вадим Павлов ◽  
Vadim Pavlov
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Theory And Practice ◽  
Soviet Period ◽  
Modern Theory ◽  
The Rule Of Law ◽  
Regulatory Impact ◽  
Anthropological Approach ◽  
Theory Of Law ◽  
Law Making

the article deals with the development of the modern theory of law-making process. The main changes that took place in the sphere of law-making in the post-Soviet period are analyzed. The importance of the use of such a modern law-making tool as regulatory impact assessment is considered. The analysis of the process of lawmaking from the perspective of anthropology of law is offered. The rule of law and its normativity in the anthropological approach do not precisely express the essence of law, but are only its substantive basis. The essence of law is necessarily expressed with the participation of a person in law, a subject involved in legal interaction. In addition to the rule of law and human rights in law, the third element of legal reality is significant – the fact of legal life, which reveals both the normative properties of the legal system, and reveals the legal properties of a person in law. Thus, in the anthropological approach, the rule of law and the normativity of law in comparison with the classical theory of law-making acquire a new meaning, characterized by the fact that in a General sense it can be called anthropologization of law, the acquisition of its human dimension. On this basis, the theory and practice of lawmaking should focus on the development of the doctrine of the interpretation of law, as well as on the practice of its implementation.

The ‘Rule of Law’ and International Political Economy: Starting a conversation

2007 ◽  
Vol 28 (2) ◽  
Author(s):  
Christopher May
Keyword(s):  
Political Economy ◽  
International Law ◽  
Rule Of Law ◽  
Research Agenda ◽  
International Political Economy ◽  
Legal Regime ◽  
Global System ◽  
The Rule Of Law ◽  
Legal Structures ◽  
International Rule

AbstractAlthough there have always been some scholars in International Political Economy (IPE), who have acknowledged the importance of (international) law, even in recent writing on global governance the actuality of legal structures is often unexamined, and the valorisation of the ‘rule of law’ accepted relatively uncritically. Thus, while certainly there has been a frequent examination of parts of the global legal regime (international law in various sectors, or issue areas) few if any scholars have attempted a more general account of the ‘rule of law’ as it relates to IPE. This article develops a research agenda for establishing a more robust and detailed account of law in IPE, focussing on the ‘rule of law’ as a crucial entry point for IPE-based analysis to fruitfully engage with legal scholars. The article begins to lay the ground work for a multi-disciplinary account of the international rule of law, that would question the sometime casual reification of law, and seek to understand why increasingly the ‘rule of law’ is seen as a master value of the global system.

The International Rule of Law

2015 ◽  
Vol 28 (3) ◽  
pp. 403-417 ◽  
Author(s):  
KENNETH J. KEITH
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
International Court Of Justice ◽  
The Rule Of Law ◽  
Peaceful Settlement ◽  
International Court ◽  
Personal Qualities ◽  
The Difference ◽  
International Adjudication ◽  
International Rule

AbstractThe ‘rule of law’ is a concept at the very heart of the United Nations (UN) mission declared its Secretary-General, Kofi Annan. What does the concept mean internationally? The paper considers its role in international adjudication; in the UN more generally; in terms of the acceptances of the compulsory jurisdiction of the International Court of Justice (ICJ); the difference between thick and thin definitions of the concept; equality before the law; the requirement of clarity and certainty by reference to interpretation of treaties and maritime delimitation; compliance by Governments with international law; and the peaceful settlement of international disputes; and concludes with the importance of personal qualities and professional qualities.

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