Law for States: International Law, Constitutional Law, Public Law

Abstract

The divide between international and domestic law runs deep in Anglo-American legal thought. Domestic law is taken to be the paradigm of how a legal system should work. International law, by comparison, seems different and degraded. The international legal system has no centralized legislature or hierarchical court system authorized to create, revise, or specify the application of legal norms, and as a result is said to suffer from irremediable uncertainty and political contestation. Out of deference to state sovereignty, international law is a "voluntary" system that obligates only states that have consented to be bound, and thus generally lacks the power to impose obligations on states against their interests. Consequently, the content of international law often reflects the interests of powerful states. And to the extent international law diverges from those interests, powerful states often interpret away or ignore it. They are able to do so because the international legal system lacks a super-state enforcement authority capable of coercing recalcitrant states to comply. These characteristics of the international legal system have led realists and other skeptics to conclude that, in both form and function, international law is a qualitatively different and lesser species of law - if it qualifies as law at all.

Constitutional law, in contrast, has been subject to few such doubts. But perhaps it should be. This Article argues that constitutional law in fact shares all of the features that are supposed to make international law so distinctively dubious. In mapping out these commonalities, the Article suggests that the traditional divide between domestic and international law obscures what is, for many purposes, a more important and generative conceptual divide between law for states and law by states. The ways in which both international and constitutional law differ from ordinary domestic law follow from the distinctive aspiration of legal regimes for states - or "public law" - to constitute and constrain the behavior of states and the distinctive difficulty these regimes face of not being able to rely fully on the institutions of their subject states for implementation and enforcement.