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The Empire of International Legalism

Published online by Cambridge University Press:  29 August 2018

Ian Hurd
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Abstract

The 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.

Keywords

international lawrule of lawinternational rule of lawempirelegalism
Type
Essay
Information
Ethics & International Affairs , Volume 32 , Issue 3 , Fall 2018 , pp. 265 - 278
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2018 

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References

NOTES

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24 I explore these issues in “The Rule of No Law: Nukes, Drones, and the Horror Vacui,” ch. 5 of Hurd, How to Do Things with International Law, pp. 82–102.

25 See the Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law, “Introduction,” www.un.org/law/programmeofassistance/.

26 “99 times out of 100, following international law is the prudent approach for avoiding provocation and [the] triggering [of] retaliation, further violence and international instability.” Karen Alter, “The Only Way to Counter Russia,” US News and World Report, March 12, 2014, www.usnews.com/opinion/articles/2014/03/11/international-law-is-the-best-tool-to-counter-russias-ukraine-invasion.

27 “The ‘wise men’ of the Franklin D. Roosevelt and Harry S. Truman administrations, who laid the foundations of the contemporary world order, envisioned a world in which all peoples might pursue shared peace, prosperity, and dignity. They hoped to forge a global community under the rule of law, governed by international institutions, in which sovereign nations could cooperate to deter and defeat aggression, trade openly and fairly, and enjoy domestic liberty.” Stewart Patrick, “An Open World Is in the Balance,” World Politics Review, January 10, 2017. See also the discussion in Constance Duncombe and Dunne, Tim, “After Liberal World Order,” International Affairs 94, no. 1 (2018), pp. 25–42Google Scholar.

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29 O'Connell, The Power and Purpose of International Law, p. 14.

30 Cory A. Booker and Oona A. Hathaway, “A Syria Plan that Breaks the Law,” New York Times, January 23, 2018.

31 Ibid.

32 The U.S. military spokesperson said, “This action was taken in self-defense.” Liz Sly, “U.S. Troops May Be at Risk of Mission Creep after a Deadly Gun Battle in the Syrian Desert,” Washington Post, February 8, 2018.

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37 Lake, for instance, sees multilateralism and international institutions as a constraint on U.S. autonomy and distinguishes liberals from conservatives in U.S. domestic politics as those who see this as a good thing for U.S. power and those who see it as a bad thing. Lake, “International Legitimacy Lost?” p. 14.

38 Hurd, Ian, “The Permissive Power of the Ban on War,” European Journal of International Security 2, no. 1 (2017), pp. 1–18CrossRefGoogle Scholar.

39 Alvarez, “Contemporary International Law.”