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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

1 McBride, Keally, Mr. Mothercountry: The Man Who Made the Rule of Law (New York: Oxford University Press, 2016), pp. 42, 43CrossRefGoogle Scholar.

2 Ibid., p. 159.

3 James Stephen as quoted in McBride, Mr. Mothercountry, p. 42.

4 Scott, Shirley V., “International Law as Ideology: Theorizing the Relationship between International Law and International Politics,” European Journal of International Law 5, no. 3 (1994), pp. 313–25CrossRefGoogle Scholar.

5 Shklar, Judith, Legalism: Law, Morals, and Political Trials (Cambridge, Mass.: Harvard University Press, 1986)Google Scholar.

6 United Nations, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,” Report of the Secretary-General, August 23, 2004, UN Doc. S/2004/616, para. 6, as cited in Bingham, Tom, The Rule of Law (London: Penguin, 2011), pp. 110–11Google Scholar.

7 Bell, Duncan, “Ideologies of Empire,” in Bell, Duncan, Reordering the World: Essays on Liberalism and Empire (Princeton, N.J.: Princeton University Press, 2016), p. 91CrossRefGoogle Scholar. See also Alvarez, José E. for “empire of law” in relation to public international law, in “Contemporary International Law: An ‘Empire of Law’ or the ‘Law of Empire,’” American University Law Review 24, no. 5 (2009), pp. 811–42Google Scholar.

8 “Classical territorial forms . . . well-demarcated territorial entities on the model of nation-states with clear boundaries.” Pitts, Jennifer, “Political Theory of Empire and Imperialism,” Annual Review of Political Science 13 (2010), pp. 211–35CrossRefGoogle Scholar. David Lake defines “empire, especially of the overseas form, in which one ethnically distinct polity governs another.” Lake, David A., “International Legitimacy Lost? Rule and Resistance When America is First,” Perspectives on Politics 16, no. 1 (2018), p. 9CrossRefGoogle Scholar.

9 For instance, the “linguistic imperialism” of American English in Phillipson, Robert, “The Linguistic Imperialism of Neoliberal Empire,” Critical Inquiry in Language Studies 5, no. 1 (2008), pp. 1–43CrossRefGoogle Scholar.

10 Hardt, Michael and Negri, Antonio, Empire (Cambridge, Mass.: Harvard University Press, 2000)Google Scholar.

11 Wood, Ellen Meiksins, Empire of Capital (London: Verso, 2005)Google Scholar; also Inderjeet Parmar's discussion of Kautsky, Karl on “ultra-imperialism” in “The U.S.-Led Liberal Order: Imperialism by Another Name?” International Affairs 94, no. 1 (2018), pp. 151–72Google Scholar.

12 Michael Ignatieff, “The American Empire; The Burden,” New York Times Magazine, January 5, 2003, www.nytimes.com/2003/01/05/magazine/the-american-empire-the-burden.html.

13 Pitts, “Political Theory of Empire and Imperialism,” p. 225. Consider Immanuel Wallerstein's definition of “hegemony”: “hegemony in the world-system means by definition that there is one power in a geopolitical position to impose a stable concatenation of the social distribution of power.” Wallerstein, Immanuel, After Liberalism (New York: The New Press, 1995), p. 25Google Scholar.

14 Hurd, Ian, How to Do Things with International Law (Princeton, N.J.: Princeton University Press, 2017)Google Scholar.

15 The Vienna Convention on the Law of Treaties sets it out as “every treaty in force is binding upon the parties to it and must be performed by them in good faith” (Art. 26).

16 Hossain, Kamrul, “The Concept of Jus Cogens and the Obligation under the U.N. Charter,” Santa Clara Journal of International Law 3, no. 1 (2005), p. 73Google Scholar.

17 Cf. Mary Ellen O'Connell, who says that “international law's claim to be law is based ultimately on belief.” O'Connell, Mary Ellen, The Power and Purpose of International Law: Insights from the Theory and Practice of Enforcement (New York: Oxford University Press, 2008), p. 9CrossRefGoogle Scholar.

18 Alvarez, “Contemporary International Law.” Lisa Hajjar gives an excellent account of the interlacing of law and practice, legality and illegality, justification and secrecy, in “The Afterlives of Torture,” Middle East Research and Information Project, MER283 – America First 2.0, Vol. 47 (2017).

19 John Bolton, for instance; also Helms, Jesse, “American Sovereignty and the UN,” National Interest 62 (2000–2001), pp. 31–34Google Scholar.

20 Kreps, Sarah Elizabeth and Arend, Anthony Clark, “Why States Follow the Rules: Toward a Positional Theory of Adherence to International Legal Regimes,” Duke Journal of Comparative and International Law 16 (2006), pp. 331–414Google Scholar.

21 Waltz, Kenneth, Theory of International Politics (New York: McGraw-Hill, 1979), p. 88Google Scholar.

22 Lake, “International Legitimacy Lost?” p. 7.

23 Koremenos, Barbara, The Continent of International Law: Explaining Agreement Design (Cambridge: Cambridge University Press, 2016)CrossRefGoogle Scholar.

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.

28 Hurd, Ian, “Enchanted and Disenchanted International Law,” Global Policy 7, no. 1 (2016), pp. 96–101CrossRefGoogle Scholar.

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.

33 Venzke, Ingo, “Is Interpretation in International Law a Game?” in Bianchi, Andrea, Peat, Daniel, and Windsor, Matthew, eds., Interpretation in International Law (New York: Oxford University Press, 2015)Google Scholar.

34 Kennedy, David, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton, N.J.: Princeton University Press, 2004), p. xviiiCrossRefGoogle Scholar.

35 Lake, “International Legitimacy Lost?”

36 Hurd, Ian, “Authority and International Courts: A Comment on ‘Content Independent’ Social Science,” in Alter, Karen, Helfer, Laurence, and Madsen, Mikael, eds., International Court Authority (New York: Oxford University Press, 2018)Google Scholar.

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.”