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The Legitimating Role of Consent in International Law

29 Pages Posted: 10 Jul 2010 Last revised: 16 Dec 2011

Matthew J. Lister

University of Pennsylvania - Legal Studies Department

Date Written: December 8, 2010

Abstract

According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but important role for actual consent in legitimating international law. While actual consent is not necessary for justifying the enforcement of jus cogens norms, at least when they are narrowly understood, this leaves much of international law unaccounted for. By drawing on a Lockean social contract account, I show how, given the ways that international cooperation is different from cooperation in the domestic sphere, actual consent is both a possible and an appropriate legitimating device for much of international law.

Keywords: International Law, Consent, Foundation, Legitimation of International Law, Ius Cogens, Enforcement, John Locke, Social Contract, International Courts, David Hume, Hobbes

Suggested Citation

Lister, Matthew J., The Legitimating Role of Consent in International Law (December 8, 2010). Chicago Journal of International Law, Vol. 11, No. 2; University of Penn Law School Public Law Research Paper No. 10-22. Available at SSRN: https://ssrn.com/abstract=1636885

Matthew J. Lister (Contact Author)

University of Pennsylvania - Legal Studies Department ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States

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