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Theory of international law

Reasonable stability vs. radical indeterminacy

A disanalogy between domestic rule of law and humanity-based international law
Alberto Puppo
p. 81-102
Translation(s):
Razonable estabilidad vs. indeterminación radical

Abstract

The main argument of this article is based on a functional disanalogy, between what I will call ‘international humanity-based law’, constituted by human rights and criminal law, and the domestic rule of law. If we adopt a functionalist approach, the attention has to be focused both on Rule of Law’s pragmatical objective – a reasonable stability – and on its means – formalism and legality, for dealing with indeterminacy. Do international key players share such values, embedded in the Rule of Law’s political project? Does humanity-based international law fulfil the requirements of the Rule of Law? The conclusion of this work is that institutions and mechanism to which usually legal scholars refer when stating that a legal order is a Rule of Law, are almost absent in humanity-based international law. That implies that radical indeterminacy is, in humanity issues, a too strong obstacle for achieving the ideal of the Rule of Law.

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Excerpt

In open access from December 2018.

Outline

1 Introduction
2 Humanity-based law vs. the rule of law: a functionalist approach
3 Rule of law and relative stability: taking universalisability seriously
4 Dealing with radical indeterminacy: the rule of law vs. oceanic feeling
5 Conclusion

First lines

Non domandarci la formula che mondi possa aprirti,
sì qualche storta sillaba e secca come un ramo.
Codesto solo oggi possiamo dirti,
ciò che non siamo, ciò che non vogliamo.
Eugenio Montale, ‘Non chiederci la parola’, in Ossi di Seppia (1923)

1 Introduction

In this paper, by identifying some deep differences between domestic and international law, I shall present some arguments about what international law is not, and about what its key players do not want. If I am right, there is a risk that some discourses on international law – those that underestimate these differences – sacrifice neutrality on the altar of an ideological pursuit or are, at the very least, victims of irrational hope.

Of course, the fact in itself that a theory has a normative goal is not a problem at all. The problem arises when the line between description and prescription is blurred. Statements about actual law lose all pretension to scientificity if there is an evident mismatch with the reality they pretends to pur...

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References

Bibliographical reference

Alberto Puppo, « Reasonable stability vs. radical indeterminacy », Revus, 30 | -1, 81-102.

Electronic reference

Alberto Puppo, « Reasonable stability vs. radical indeterminacy », Revus [Online], 30 | 2016, Online since 07 December 2018, connection on 01 May 2017. URL : http://revus.revues.org/3698 ; DOI : 10.4000/revus.3698

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About the author

Alberto Puppo

Profesor asociado, Departamento de Derecho, ITAM (México).

Address: ITAM, Departamento de derecho, Rio Hondo, 1 - Progreso Tizapán, 01080 Ciudad de México, México.

E-mail: apuppo@itam.mx

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