Abstract
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 unmediated. Mediation of authority, typical for domestic law, presupposes the existence of officials that are functionally and institutionally differentiated from the subjects of law. Authority of international law is by and large unmediated because of its horizontal nature. 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.
Highlights
In the recent decades, the international rule of law1 has become a topical yet conceptually challenging idea
I submitted that the rule of law should be considered as part and parcel of a conception of normative authority, and that what is traditionally approached as requirements or principles of the rule of law are conditions under which a claim for authority of a certain normative order is realisable
How does it change our perception of the international rule of law?
Summary
The international rule of law has become a topical yet conceptually challenging idea. 3 See ‘Declaration of the high-level meeting of the General Assembly on the rule of law at the national and international levels’, UNGA Res 67/1 (24 Sep. 2012) UN Doc A/RES/67/1, para. Many attempts of conceptualising the international rule of law, it still lacks shape and appears as a nebulous ideal. This contribution offers a framework for conceptualising the international rule of law as a meaningful idea. 2, I show that theories of the rule of law must be deconstructed in order to reveal their core concern which, it will be submitted, relates to the normative authority. I present the international rule of law as a set of conditions under which international law’s claim to authority is realisable I present the international rule of law as a set of conditions under which international law’s claim to authority is realisable (Sect. 3)
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