ESIL Interest Group History of International Law

ESIL Interest Group History of International Law

woensdag 11 juli 2018

SSRN PAPER: Jutta BRUNNÉE & Stephen J. TOOPE, International Law and the Practice of Legality: Stability and Change

(image source: SSRNBlog)

Abstract:
Drawing on the practice-turn in constructivism and in international relations (IR) theory more generally, our interactional law framework provides a counterpoint to the largely static accounts of international law that still prevail in the interdisciplinary literature. We argue that a particular approach to managing stability and change is inherent in, and indeed characteristic of, legality and the rule of law in international as in domestic law. Therefore, to get at law’s distinctiveness, and to understand the specifically legal interplay between stability and change, one must examine law’s internal structure. Furthermore, legality must actually be practiced. For example, the conclusion of a treaty is often just the beginning of a long law-building process – the document alone ensures neither stability nor change in law. Finally, a focus on internal traits and practices of legality allows full consideration of the formal sources of international law as well as the so-called soft norms that are shaping international interaction involving an ever-wider range of actors. Our “interactional law” framework places particular emphasis on what we call the “practice of legality.” We argue that this concept is central to understanding how law can both enable and constrain state actions, and why international law is a distinctive language of justification and contestation. In turn, the focus on stability and change is helpful because it directly confronts some of the persistent doubts and assumptions about international law, in particular in relation to international politics. Our work is animated by the intuition that the dominant views in IR and international law scholarship underestimate international law’s capacity to mediate stability and change, in part because they focus on the surface of law (treaties, statutes etc.) and external factors (interests, enforcement). They neglect the deeper structure of what makes norms law, and the distinctive practices that account for its relative stability and its capacity for change.
Read the full paper here.