Academic

Linarelli on International Law & Practical Authority

By Lawrence Solum

John Linarelli (University of La Verne College of Law) has posted International Law: Practical Authority, Global Justice (Proceedings of the 103rd Annual Meeting, American Society of International Law, 2009) on SSRN. Here is the abstract:

Contribution for the 2009 American Society of International Law Annual Meeting Panel, Visions of International Law: Insights from Normative Theory.

And from the paper:

[T]here is hope for a positivist account of international law. The main worry about positivism is its reliance on the state for secondary rule officials. The traditional notion of positivism is as an account of state dominated, municipal, territorial, legal systems, which I classify as the political conception of positivism. A transnational conception of positivism is possible. While I cannot provide a detailed account here,2 a transnational conception of legal positivism, one removing the state as an enabling condition for a legal system, would seem to require that five conditions be met: (1) acceptance by the participants in the legal system of the rules of the system as valid, binding, and authoritative; (2) systemic qualities of normative consequence within the putative legal system that make the normative order the system represents intelligible or comprehensible to the participants; (3) secondary rules and secondary rule officials, though they can be distributed across different state and non-state hierarchies; (4) shared agency between secondary rule officials demonstrating sufficient mutual responsiveness and joint commitment to a legal system; and (5) primary rules dealing with issues that legal systems usually deal with, such as property, contract, and dispute resolution.

Full post as published by Legal Theory Blog on October 12, 2010 (boomark / email).