Interactional legal theory, the international rule of law and global constitutionalism

Jutta Brunnée and Stephen J. Toope

Chapter 17 in Handbook on Global Constitutionalism, 2023, pp 240-252 from Edward Elgar Publishing

Abstract: Constitutionalism can be fruitfully explored through the lens of our interactional theory of international law. Legal norms arise from social norms based on shared understandings. What distinguishes law from other types of social ordering is adherence to specific criteria of legality, commonly associated with the rule of law. When norm creation meets these criteria and is matched with norm application that also satisfies legality requirements, actors can pursue their purposes through law. Both order and authority come from within law, from a continuing practice of legality. We do not discern fully formed constitutionalism in current global society, but we do see evidence of a modest rule of law. As legal-constitutional processes are reinforced, the interactional law framework demonstrates that a feedback loop can be created whereby actors within global society learn collectively to value the rule of law more highly, thereby permitting greater strides in constitutionalism. None of this is inevitable. Building interactional law, and reinforcing the rule of law, is a constant effort of practice. One can imagine a rule of law that is not fixed in deep Western values; a constitutionalism that attends to profound global diversity. The criteria of legality that underpin interactional international law are primarily procedural in nature. In treating the rule of law as the fundamental component of constitutionalism, we reduce the need to find an inclusive political community to justify constitutionalism. Of course, one cannot presume the agreement on a need for law. Assertions of almost unconstrained sovereignty and states’ ‘right’ to use force are rife amongst contemporary authoritarian regimes. Resisting this understanding of international relations remains an urgent task.

Keywords: Economics and Finance; Law - Academic; Politics and Public Policy (search for similar items in EconPapers)
Date: 2023
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