International Rule of Law in a Discourse of Doubts

The article gives description of main approaches to the international rule of law definition and its role in global civil society. The author analyses different rule of law definitions, suggested by foreign scholars. The main focus is placed on the international version of the rule of law concept. Special attention is given to the interrelation between somestic and international manifestations of the researched phenomenon. It is concluded that the idea of the international rule of law is quite challenging, because it is represented by a system of various characteristics (options).

Revista de Direito Internacional

Despite the assertion of the need to promote the Rule of Law in the international sphere, there is still a great terminological imprecision regarding the concept. Such imprecision generates criticism regarding the use of the term in international relations, raises doubts about the possibility of adopting an international concept of Rule of Law and makes it difficult to delineate the measures to be taken for its promotion. In this original research, conducted by the deductive method and characterized as being theoretical, qualitative, descriptive, bibliographic and documental, it is sought to debate the existing problems for the acceptance of a basic concept of the term Rule of Law in the international sphere, as well as to identify in what sense the Rule of Law should be understood, what are its inherent elements and how it can be achieved and promoted in such sphere. The hypothesis articulated is that even though domestic concepts of the Rule of Law cannot be transposed to the international sphere, enough elements can be found in such sphere to support the adoption of an international conception of the term. Adopting a theoretical constructivist approach, it is concluded that the promotion of the Rule of Law in the international sphere depends on the construction of a social environment in which the obligation/authority of international law is recognized, a construction that is carried out by constant practices of legality.

2010

Review of International Studies, 2008

Recent 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.

Polish Review of International and European Law, 2012

wisdom

In order to be perceived as legitimate by those subject to it, a system of legal norms should be free of contradictions. The very idea of justice is incompatible with an erratic interpretation and, subsequently, arbitrary application of norms. Systemic contradictions make actions by state authorities unpredictable. However, at the domestic as well as at the international level, considerations of power and interest have often made of the respective body of norms a “hermeneutical minefield.” The international legal order in particular contains contradictions even between the most basic principles such as state sovereignty, self-determination and the rules of international humanitarian law. While, at the national level, the authority of constitutional courts may help to eliminate contradictions and inconsistencies, there exists, apart from limited regional arrangements, no such separation of powers at the international level. The lecture analyzes, inter alia, the systemic, destabilizin...

Hague Journal on the Rule of Law

Domestic and international jurisprudence exist and develop as two ‘pocket universes’ in a sense that they belong to the same fabric of reality, but at the same time many concepts shift their meaning when moved from one pocket to another. This is of a paramount importance for the idea of the rule of law, which in domestic setting was forged in the flame of civil wars and struggles against the rulers. This history and such struggles are something international law has never known, and thus any direct transplantation of the domestic images of the rule of law to international realm are doomed to fail. This entails a need in deconstructing the rule of law. Its core meaning (‘laws must be obeyed’), brings a normative claim relevant to any legal order. The idea of the (international) rule of law appears to be linked to the idea of authority of (international) law. There are differences of the structures of authority in domestic and international law as authority can be mediated or unmediat...

Global Constitutionalism

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'.

British Yearbook of International Law, 2018