Beyond ‘Thin’ and ‘Thick’: The International Rule of Law and the Idea of Normative Authority

Abstract

This paper addresses some of the conceptual challenges that internationalisation of the rule of law creates for its conventional political and legal doctrines. It is first of all submitted that domestic and international jurisprudence exist and develop as two ‘pocket universes’ in a sense that they belong to the same fabric of reality and share some of the fundamental features, 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 absolute powers of kings, princes, and nobles. This history and such struggles are something international law has never known, and for this reason 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 and stripping it down of ideological and historical layers. Its core meaning, though seemingly trivial (‘laws must be obeyed’), brings a normative claim relevant to any legal order. For the subjects to obey the law, it must at the very least provide for the practical opportunity of obedience, i.e. law’s claim to authority must be realisable. From such a perspective, the idea of the (international) rule of law appears to be linked to the idea of authority of (international) law. The article further addresses the differences of the structures of authority in domestic and international law by submitting that authority can be mediated or unmediated. Mediation of authority, typical for domestic law, presupposes the existence of officials that are functionally and institutionally differentiated from the subjects of law; this picture of authority also grounds the narrative of the rule of law as developing from ‘thin’ to ‘thick’. Authority of international law is by and large unmediated because of its horizontal nature, which also entails that the metaphor of ‘thin’ and ‘thick’ rule of law is of little relevance here; both formal and substantive virtues of law count together and may get interchanged as pieces of Lego. Such reconstruction allows to reframe the central concern of the international rule of law enquiries. Instead of trying to fit it to the procrustean bed of domestic theories, international legal scholarship must focus on defining conditions under which international law’s claim to authority is realisable.