Why promulgating international law is a key US interest

Political realists tend to be wary of international law, seeing it as an artificial and foreign encroachment on domestic sovereignty. Goldsmith and Posner argue that states’ commitment to international law is illusory; states will only comply with any particular provision of international law as long as their self-interest so warrants, and will abandon it as soon as this ceases to be the case.[1] Such views are especially prominent in the US, where constitutional obstacles and political conservatism have kept the US from playing as active a role in the international legal order as one might expect for a country of its stature. For instance, the US is one of only two countries (along with Somalia) that has not ratified the Convention on the Rights of the Child, and one of only three countries (along with Sudan and Israel) to have withdrawn its signature from the Rome Statute of the International Criminal Court; both are major treaties which the US itself played an active role in drafting. There has even been sporadic (if mostly marginal) talk over the years of withdrawing from the United Nations.

US conservative opposition to international law can best be summarized in the words of John Bolton, former ambassador to the UN:

It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest

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I’ve Grown Accustomed to Her Law

Have you ever found yourself visiting someone else’s home, and upon entering, removing your muddy shoes at the door – even though you weren’t asked to? A trivial nicety perhaps – or an APPALLING DEGRADATION OF YOUR PERSONAL FREEDOMS? Shouldn’t I have the right in a free society to wear my disgusting footwear wherever I want? If someone invites me into his home, he should either make it clear that the invitation is conditional on my acceptance of certain terms and conditions (such as removing my street shoes), or accept that I can wear whatever I want. In other words, restrictions on my personal freedom should only arise through some sort of explicit consensual agreement.

The same could be said for tipping in restaurants; I never agreed to pay an additional, discretionary surcharge on top of the price of my meal, so why should I be bound to do so? In this sense, I don’t think it’s unreasonable to say that every restaurant is like a Stalinist regime (“in Soviet Russia, restaurant eats you!”). I could continue with more examples – and I will. Why do I have to greet people by smiling and shaking hands (or even “faire la bise”), instead of my preferred greeting: staring intensely at one another in silence for several minutes? It’s as if my personal interactions are regulated by some invisible totalitarian system.

It’s not…

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Legal Pluralism – A Primer

A number of my previous blog postings made extensive reference to the buzzword “legal pluralism” which one finds abound in contemporary legal literature. Instances of legal pluralism can be found in the recent debate on faith-based arbitration in Ontario, in the Beth Din courts of New York, and in the family law structure of the Philippines.[1] A discussion on the very term “legal pluralism” is important so that its underlying assumptions can be uncovered and scrutinized rather than passing the relevant discussion unnoticed.

I. Defining Legal Pluralism

At its core, the concept of legal pluralism serves two purposes. The first purpose is to discredit the doctrine of legal centralism. Griffith’s seminal paper on legal pluralism defined the ideology of legal centralism as a claim that “law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions”.[2] The state thus holds a monopoly over the administration of law, and is the sole source of legitimizing authority as to what constitutes “law”. Legal centralism follows a liberal conception where “state institutions operate according to strict principles of equality and neutrality”,[3] based on the assumption that state law is logically coherent.[4] According to legal pluralists, legal centralism is conceptually parasitic to the development of descriptive theories of the…

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