Interactional international law and the practice of legality

Brunnée, Jutta; Toope, Stephen J.; Adler, Emanuel; Pouliot, Vincent

doi:10.1017/cbo9780511862373.008

Cited by 27 publications

(19 citation statements)

References 34 publications

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“…23 On the other hand, inspired by the twentieth century natural law theoretician Lon L. Fuller, social constructivists such as Jutta Brunnée and Stephen J. Toope refer to "the practice of legality" in an attempt to ground the authority of law on the social substance of shared and agreed understandings beneath its formal sources. 24 In our small globe, would Thomas Aquinas, Hans Kelsen, or Prosper Weil regard themselves as natural or positivist international lawyers? Or neither?…”

Section: The Praxis Of Politicsmentioning

confidence: 99%

What is Positivism Today?

Rovira

2020

AJIL Unbound

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This essay focuses on the understanding of positivism in Prosper Weil's time, its trajectory since, and how that trajectory reflects changes that have occurred in global society in the intervening years. The world to which Weil spoke is neither in scientific nor in political and cultural terms the same as ours. Key positivist notions, such as neutrality or Weil's critique of the ideal of the unity of the international community and of the invocation of higher moral values, appear to chain sound normative principles while letting loose real power. At any rate, Weil's ideas have not survived globalization or the critical and historical turn taken in the discipline of international law. And yet “Towards Relative Normativity?” arguably owes its lasting significance to its grasp of the weight of the authority of law in international society.

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Section: The Praxis Of Politicsmentioning

confidence: 99%

What is Positivism Today?

Rovira

2020

AJIL Unbound

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“…8 For an overview of constructivist research in global constitutionalism, see Wilkens (2017). 9 On the rule of law as 'a practice of legality', see Brunnée and Toope (2011). For a critique of the theory's incorporation of LL Fuller's criterion of legality, see Liste (2011: 592).…”

Section: The Constitution In Global Constitutionalismmentioning

confidence: 99%

‘We the heads of state …’: Pitfalls of global constitutional practice

Kuntz

2020

Glob. Con.

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Constitutions are social and historical artefacts that take part in the government of humans. Based on a comparison of how contemporary ‘global’ and historical ‘local’ constitutional documents establish power relations between ‘humans’ and their ‘government’, this article suggests that both types of documents involve different constitutive logics. Global constitutional documents create a ‘new normativity’ – a reversed constitution – that turns the historical relationship between pouvoir constituant and pouvoir constitué on its head. Such documents shift the primary responsibility for human rights from governments to humans. Research in the academic field of global constitutionalism omits this constitutional reconfiguration. By offering a more historically sensitive and reflexive account of constitutionalization, the field of global constitutionalism can realize an as yet unexplored critical potential.

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“…As Jutta Brunnée and Stephen Toope note in their account of interactional law, 'Stating a norm, even through formal means like treaty or custom, may be a step in creating law: but without the mutual engagement of social actors in a community of practice, the formal norm will not exert social influence.' 79 Where international human rights and humanitarian norms lack social grounding based in shared understandings, they risk decay. Interpretive manipulation and practical non-compliance can spread alternative principles antithetical to human rights.…”

Section: Implications For Promoting Human Rightsmentioning

confidence: 99%

Human rights abuses at the limits of the law: Legal instabilities and vulnerabilities in the ‘Global War on Terror’

Sanders

2017

Rev. Int. Stud.

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Law following and law breaking are often conceptualised as polar opposites. However, authorities in liberal democracies increasingly deploy a strategy of what I callplausible legalityin order to secure immunity and legitimacy for proscribed practices. Rather than ignore or suspend law, they construct legal justifications for human rights abuses and other dubious policies, obscuring the distinction between legal compliance and non-compliance. I argue this is possible because instabilities in legal rules make them vulnerable to manipulation and exploitation. By tracing American rationales for contentious ‘enhanced interrogation techniques’, indefinite detention, and ‘targeted killing’ practices in the ‘Global War on Terror’, I show that law need not always be abandoned or radically reconstituted to achieve troubling ends and that rule structures enable certain patterns of violation while limiting others. The international prohibition on torture is robust and universal, but provides vague definitions open to interpretation. Detention and lethal targeting regulations are jurisdictionally layered and contextually complex, creating loopholes and gaps. The article concludes by reflecting on implications for the protection of human rights. While law is not wholly indeterminate, human rights advocates must constantly advocate shared legal understandings that constrain state violence.

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Interactional international law and the practice of legality

Cited by 27 publications

References 34 publications

What is Positivism Today?

What is Positivism Today?

‘We the heads of state …’: Pitfalls of global constitutional practice

Human rights abuses at the limits of the law: Legal instabilities and vulnerabilities in the ‘Global War on Terror’

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