The Crisis of Corporatism and the Rise of International Law

Abstract

In recent years, a number of legal theorists have expressed scepticism about the growing potency of international law.1 In particular, these theorists are critical of international human rights law, and they reserve the greatest hostility for the judicial bodies responsible for enforcing it. Some of these theorists formulate their reservations about international law in neo-classical categories. From very different points across the political spectrum, they criticise the rise of international law and human rights conventions as marking unmandated intrusions on the classical sphere of sovereign state autonomy (Grimm, 1991: 31; Young, 2003: 536; Rabkin, 2007: 7; Loughlin, 2009). Other theorists, by contrast, opt for a more socio-economically refined perspective. They claim that the rise of international legal conventions reflects hegemonic interests in international society, and they argue that the growth of a court-led international or, perhaps, transnational legal/political system establishes favourable conditions for international investment, especially in historically insecure or unstable economic settings (Farber, 2002: 96–8; Hirschl, 2004, 2007; Schneiderman, 2008: 4; Rodriguez-Garavito, 2011: 165). These two bodies of analysis are very different. However, they have common pre-conditions, and, in key respects, they converge around conventional constructions of national sovereignty (see, for example, Henkin, 1999: 4). First, both claim that there exists a deep antinomy between national and international law, and that the growing force of international law derives from acts and conventions that are external to national political systems. Second, both claim that rising transnational judicial authority weakens the democratic power of national states, and that the rise of liberal international law violates principles of collective national self-legislation.