Deriving the International Rule of Law: An Unnecessary, Impractical and Unhelpful Exercise
Paul Scholten Centre Colloquium with Paul Burgess. Discussant: Ronald Janse (PSC)
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The content of the international Rule of Law is frequently debated. In this debate, domestic Rule of Law conceptions are frequently—explicitly or implicitly—used to derive the concept’s international formulation. By reference to the historical, social and political contexts in which the most commonly invoked domestic conceptions were formulated, I argue that deriving the international Rule of Law in this way is unnecessary impractical and unhelpful. I do not propose an alternative international Rule of Law conception; my aims are more modest. By suggesting any conception of the international Rule of Law must be identified without recourse to the domestic conception, I seek merely to increase clarity and foreclose one aspect of the debate regarding the (international) concept’s content.
In questioning whether it is possible to internationalise (the domestic) the Rule of Law, I identify two methodologies commonly used to determine the content of the international concept: first, the augmentation of ‘thin’ domestic Rule of Law ideas with other—often ‘thicker’—ideas; and, second, the identification of the international Rule of Law through a commonality in purpose or function with the domestic concept. I then consider some of the problems that beset this practice: cherry picking suitable desiderata (to fit a theory); the (strained) use of desiderata that were formulated at a time before the modern international legal order existed; the creation or augmentation of existing ‘thin’ ideas with ‘thick’ ideas where this does not maintain the original authors’ intention; and the flawed assumption that there can be some common descriptive or normative goal meaningfully divined. In consequence of these problems, I argue attempting to derive the international Rule of Law in this way—as is common in the debate—is both impractical and unhelpful.
Notwithstanding this conclusion, I argue that the debate is, itself, unnecessary. In making this argument, I place principal focus on two authors whose domestic Rule of Law conceptions are commonly—and problematically— deployed in the debate regarding the international concept’s formulation: Dicey and Hayek. By arguing these domestic conceptions should be read in their historical context—as the authors were responding to problems specific to their time that include, for example, fears associated with and prompted by totalitarianism or the mass delegation of administrative powers—I suggest the domestic Rule of Law cannot and should not be internationalised because the context in which the frequently invoked domestic conceptions were framed fundamentally differs to the contemporary international arena. As the domestic ideas are incapable of being internationalised, the foundation—that the domestic concept can be internationalised—underlying the debate regarding how internationalisation of the concept should be achieved is removed.
My arguments have two outcomes: first, particular—domestically derived—desiderata should not be construed as being necessary for or indicative of any international Rule of Law; and, second, as the domestic Rule of Law cannot be internationalised—and even though there may, ultimately, be some commonality with the formulation of an international conception—any international formulation should, specifically, represent a fundamentally separate conception. I do not suggest that there is not, or cannot be, an international Rule of Law. What I do, however, argue is that the international Rule of Law should be formulated without recourse to the domestic ideas and that the debate associated with the derivation of the international Rule of Law is unnecessary, impractical and unhelpful.
Research colloquium, organised by the Paul Scholten Centre. This colloquium is open to all, no registration required. A copy of the paper can be obtained via firstname.lastname@example.org.
Paul Burgess is a PhD candidate at the University of Edinburgh and currently a visiting scholar at the Paul Scholten Centre.