Richard Collins on “Two Idea(l)s of an International Rule of Law”

Room 4034, Osgooode Hall Law School, Ignat Kaneff Building

"Two Idea(l)s of an International Rule of Law"

Kindly note that this event has been postponed to next week, details to follow shortly.

The international rule of law is a somewhat ubiquitous ideal in legal and policy debates yet, as a concept, it is marred by ambiguity and disagreement and, as an ideal, it is constantly frustrated by the political, structural and institutional realities of the international legal order. Rather than altogether undermining the international rule of law, however, I will suggest that these conditions make its application at the international level somewhat ‘indirect and complex’ (Nardin, 1983, p 183). On the one hand, the international rule of law can be understood by reference to what Nardin (drawing on the philosophy of Michael Oakeshott) called the ‘basis of association’ in international relations. This understanding lays stress on the importance of the legal form to the conduct of international politics, where mutual antagonisms are transferred from the battlefield to regimes and institutions that are legally-structured and constituted in accordance with agreed-upon rules and principles. On this view, legal argumentation is seen as an important end in itself, without necessarily (and naively) assuming that it will be determinative of any specific normative outcome. Nevertheless, this somewhat formalistic understanding has been under pressure since the early twentieth century, being progressively supplanted by a rival, more demanding and purposive vision. On this view, the rule of law is seen in quite ‘anti-formal’ and functional terms, bound up with the promise of institutionalism and the goal of developing legal mechanisms capable of constraining and pacifying the conduct of international politics. Rather than resolve the tension between these two understandings, however, I argue that they exist in a healthy and important antagonism in securing order and accountability in contemporary ‘global governance’


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