The Rule of International Law

Abstract

I. This Article will focus on how one should think about rule of in international arena. Asking about rule of in international arena is not just asking whether there is such a thing as international law, or what it is, or what we think of particular treaties (such as human rights covenants), or of value of customary international law, or of enforceability of international in our own courts. The phrase the rule of law brings to mind a particular set of values and principles associated with idea of legality. (1) These values and principles are ancient focus of our allegiance as lawyers. The rule of is one of most important sources of dignity and honor of legal profession, and an awareness of principles and values that it comprises ought to be part of all lawyers' professional ethos, something that disciplines spirit and attitude that lawyers bring to their work. True, rule of is not only value that lawyers serve. Lawyers must serve justice too, for justice is part of law's promise. (2) And, of course, lawyers serve interests of their clients and of society generally. But rule of constrains lawyers in their pursuit of these other goals: they pursue justice and social good through rule of law, not around it or in spite of it. This Article will talk particularly about obligations rule of imposes upon lawyers as they act in various capacities. Is it clear what rule of demands of lawyers in international arena? Many people think it demands less in international arena--that it demands less of a national government in international arena, for example, than in domestic arena--not just because there is less international but also because a different attitude toward rule of is appropriate in international affairs. This Article is skeptical about that suggestion, and I shall present a number of reasons for rejecting it. II. To begin with, what does rule of require of lawyers in municipal arena? (3) Usually one thinks of rule of as a requirement placed on governments: government must exercise its power through application of general rules; it must make those rules public; it must limit discretion of its officials; it must not impose penalties on people without due process; and so on. But rule of applies to individual, too. So, what does rule of require of ordinary citizen? Well, it requires that she obey laws that apply to her. She should be alert to changes in law; she should arrange for her legal advisors to keep her informed of her legal obligations; she should refrain from taking into her own hands; and she should not act in any way that impedes, harms, or undermines operation of legal system. Every ordinary citizen has these obligations and can properly expect assistance of her legal advisors. As ordinary citizen goes about her business, she may find that there are areas where imposes minimal demands. on her or no demands at all, instead leaving her free to her own devices. This is not a matter of regret. Allegiance to rule of does not mean that citizen must wish for more law--or less freedom--than there is. Neither does it require that she play any part in bringing fresh into existence if she does not want it. She must obey where it does exist, but she has no particular obligation where it does not. It is not up to individual citizens or businessmen to do lawmakers' job for them. For example, they have no duty to extend scope of law's constraint (in accordance with common sense, morality, spirit of law, social purposes, or anything else), if sources of do not disclose an unambiguous enactment to that effect. We can take this point even further. According to most conceptions of rule of law, individual citizens are entitled to laws that are neither murky nor uncertain but are instead publicly and clearly stated in a text that is not buried in doctrine. …

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