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Outcasting: Enforcement in Domestic and International Law

98 Pages Posted: 2 Nov 2011  

Oona A. Hathaway

Yale University - Law School

Scott J. Shapiro

Yale University - Law School

Date Written: November 1, 2011

Abstract

This Article offers a new way to understand the enforcement of domestic and international law that we call “outcasting.” Unlike the distinctive method that modern states use to enforce their law, outcasting is nonviolent: it does not rely on bureaucratic organizations, such as police or militia, that employ physical force to maintain order. Instead, outcasting involves denying the disobedient the benefits of social cooperation and membership. Law enforcement through outcasting in domestic law can be found throughout history - from medieval Iceland and classic canon law to modern-day public law. And it is ubiquitous in modern international law, from the World Trade Organization to the Universal Postal Union to the Montreal Protocol. Across radically different subject areas, international legal institutions use others (usually states) to enforce their rules and typically deploy outcasting rather than physical force. Seeing outcasting as a form of law enforcement not only helps us recognize that the traditional critique of international law - that it is not enforced and is therefore both ineffective and not real law - is based on a limited and inaccurate understanding of law enforcement. It also allows us to understand more fully when and how international law matters.

Keywords: international law, treaties, World Trade Organization, Enforcement, jurisprudence

JEL Classification: F10, K00, K33, K40, K42

Suggested Citation

Hathaway, Oona A. and Shapiro, Scott J., Outcasting: Enforcement in Domestic and International Law (November 1, 2011). Yale Law Journal, Vol. 121, No. 2, p. 252, 2011; Yale Law School, Public Law Working Paper No. 240. Available at SSRN: https://ssrn.com/abstract=1952784

Oona A. Hathaway (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)

Scott J. Shapiro

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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