The End of Law: The ISIL Case Study for a Comprehensive Theory of Lawlessness
70 Pages Posted: 6 Sep 2015 Last revised: 19 Dec 2015
Date Written: December 18, 2015
Can the U.S. respond lawfully to persistent and intense episodes of lawlessness in the face of U.N. Security Council gridlock? The global reaction to ISIL’s occupation of Syrian territory makes this more than an academic question. As it stands, significant weight of authority supports that U.S. air strikes in Syria are unlawful despite the documented atrocities committed by ISIL (as well as Syrian government forces) upon the Syrian civilian population.
This Article submits that academic and political commentators ask the wrong question. Lawlessness such as the one currently witnessed in Syria is both absolute and impervious to legal response. Speaking of a lawful response therefore is meaningless. The Article argues that lawlessness progresses domestically in three stages: (1) pragmatic lawlessness, constituting a temporary loss control by the government apparatus; (2) formal lawlessness, constituting a loss of authority of the government apparatus; and (3) functional lawlessness, constituting a loss of the social fabric necessary to support any authoritative social decision. It theorizes that international law progressively loses its own authority to address lawlessness because of a transnational transference of lawlessness; this transference becomes complete at the functional lawlessness stage. The Article submits that lawlessness in Syria has reached functional levels. The Article theorizes finally that the U.S. must act to counteract the corrosive effect of functional lawlessness extra-legally in order to protect its national security interests and forestall more serious systemic losses of authority on the international plane.
Deploying this theoretical construct, the Article argues that academic and political commentators focus on a tool that is inefficient and potentially counterproductive, namely the escalation of purely coercive responses. The Article concludes that only policy responses specifically tailored to restore authority by strengthening the capabilities of those affected by lawlessness can be successful and provides specific policy proposals how to achieve this end.
Keywords: jurisprudence; international law; ISIS
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