Two idea(l)s of the international rule of law

Abstract

Abstract:The international rule of law is a somewhat ubiquitous concept yet, as idea, it is marred by ambiguity and disagreement and, as ideal, constantly frustrated by the institutional conditions of the decentralised international legal order. Rather than necessarily undermining the concept, however, I argue that these structural conditions cause a kind of conceptual rupture, resulting in seemingly opposed or contradictory idealisations. On the one hand, the international rule of law can be understood as what Terry Nardin has called the ‘basis of association’ in international relations. This understanding places importance on the legal form as an end in itself, whereby the structural or institutional autonomy of international law is critical to the peaceable conduct of international relations. On the other hand, however, the rule of law exists as an unfulfilled promise of an order to come: it is distinctly anti-formalist in nature, stressing the functional capacity of international law to actually constrain political actors (primarily states) and thus seeking to develop more effective international institutional mechanisms. Although these competing idealisations give rise to a certain contradiction and inherent tension, their conceptual opposition is, I believe, critical to an understanding of authority and accountability dynamics in an era of ‘global governance’.

The International Rule of Law and the Idea of Normative Authority

“…See also John Tasioulas who observes that deducing the rule of law from one or another normative ideal-liberty, justice, right, etc.only obscures its meaning and makes it indistinguishable from what it means for law to be a good law (Tasioulas 2018). 13 In one form or another, these issues are central for the most attempts of conceptualising the international rule of law (Beaulac 2007;Burgees 2019;Chesterman 2008;Collins 2019;Hurd 2015b;McCorquodale 2016;Nardin 2008;Pavel 2019). 9 E.g., the much-celebrated Lord Bingham's account on the rule of law led him to a famous conclusion that the rule of law is 'the nearest we are likely to approach to a universal secular religion' (Bingham 2011, p. 172).…”