The Rule of Law, Inequality, and the International Criminal Court

Abstract

The rule of law is not a transcendent principle or objective fact but a regulative ideal. The core of this ideal is that different legal subjects are mutually constrained by noninstrumental obligations. Stated somewhat differently, the rule of law means that there are certain legal ends that cannot be legitimately sacrificed or used for some other's purpose(s). Paradoxically, the rule of law is employed or used for different purposes in world order, whether acknowledged or not or whether directly intended or not: The ideal of noninstrumental obligations can function to secure rather instrumental, yet by all means principled, goals. This article examines one of the overlooked and, indeed, masked purposes of the rule of law: regulating or managing (the effects of) inequalities. The rule of law has a complicated relationship to inequality. On the one hand, it promotes the liberal myth of formal equality as constitutive of legal subjects as ends; on the other hand, the rule of law is blind to substantive inequalities among legal subjects. In other words, the rule of law tends to accept and reinforce some forms of (in) equality as given; legal equality is an inherent property of a normatively appropriate system, and substantive inequalities are--indeed, they must be--viewed as facts that are fundamentally and causally outside of that system. To claim that the rule of law is a regulative ideal is to recognize its potential and even power in supporting different political orientations toward world order. There are at least three distinct models of the global rule of law, Westphalian, liberal legalist, and critical. Section 1 of this article outlines and contrasts these distinct models, highlighting how the rule of law functions in different arguments about the nature of legal obligations in world order. The Westphalian and liberal-legalist models assume that a noninstrumental rule of law creates an order in which legal subjects are free from illegitimate coercion or abuse. They differ most fundamentally, however, on who the most important legal subjects ought to be, sovereign states or human beings; additionally, they diverge on whether certain powerful legal subjects ought to be granted exceptional discretionary powers and privileges. By contrast, a critical model is skeptical that the rule of law is really (or solely) about noninstrumental legal relations; it instead focuses on how ideals, and the institutions they support, have purposes that are rooted in prevailing political, social, and economic forces. (1) Drawing from critical models, section 2 examines how the rule of law functions in relation to the inequalities of world order. The rule of law can function in ways that are more conservative or more progressive, even in the context of Westphalian and liberal-legalist models. More conservatively, the rule of law is used simply to manage and to contain (the effects of) substantive inequalities that are assumed to reside outside of the formal requirements of legality. Arguably, however, more progressive visions of the rule of law are possible: The critical realization that the rule of law is seriously undermined, delegitimized, and threatened by substantive and other inequalities potentially leads to extralegal efforts at promoting a fairer or more just distribution of wealth and social power. In other words, the liberal postulates within Westphalian statist and liberal individualist conceptions of the global rule of law are conceivably made sensitive to the contradictions and tensions that underlie the political order and individual freedoms that the rule of law legitimizes. Section 3 extends this analysis by way of examining the fledgling International Criminal Court (ICC). Although normally cast as simply a principled triumph of liberal legalism over the Westphalian model, the ICC is, I argue, also a function of changing perceptions of how the rule of law relates to larger problems of global inequality. …