Alternatives to “Legalization”: Richer Views of Law and Politics

Abstract

The authors of “Legalization and World Politics” (International Organization, 54, 3, summer 2000) define “legalization” as the degree of obligation, precision, and delegation that international institutions possess. We argue that this definition is unnecessarily narrow. Law is a broad social phenomenon that is deeply embedded in the practices, beliefs, and traditions of societies. Understanding its role in politics requires attention to the legitimacy of law, to custom and law's congruence with social practice, to the role of legal rationality, and to adherence to legal processes, including participation in law's construction. We examine three applications of “legalization” offered in the volume and show how a fuller consideration of law's role in politics can produce concepts that are more robust intellectually and more helpful to empirical research.

Comment: Fact or artefact? Analysing core constitutional norms in beyond-the-state contexts

“…Beyond-the-state constitutionalism provides a framework for contexts which are governed by a set of less stable and more contested norms than fully constitutionalized modern nation-states. These contexts lack the possibility to refer to a set of social institutions for recognition and appropriateness of legal institutions (Curtin and Dekker 1999;Finnemore and Toope 2001). In the absence of this set of social institutions, individually held associative connotations gain influence on the assessment of recognition and appropriateness.…”

Exploring the consequences of soft law and hard law: implementing international nutrient commitments in Norwegian agriculture

“…International law can be understood as a cooperative process, a product, or both (Finnemore and Toope 2001). While law as a process is most important for international decision-making, law as a product is most important for domestic policy implementation.…”

Legal Frontiers: Targeted Killing at the Borders of War

“…American authorities have displayed a concern for lawfulness and normative appropriateness that at face value is normally associated with an appreciation of the rational benefits of rule-based governance posited by liberals (Keohane 1984;Abbot et al 2000;Slaughter 2004;Ikenberry 2006) and state internalization of standards of legitimate conduct emphasized by constructivists (Finnemore and Sikkink 1998;Finnemore and Toope 2001;Brunnée and Toope 2010). However, closer examination reveals that American engagement with law has been markedly strategic as realists suggest, employing contentious legal interpretations that have elicited extensive criticism.…”