Jack Goldsmith and Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1792 (2009).

It is a staple of the international law literature that international law is not or might not “really be law” because, among other things, it lacks what H.L.A. Hart refers to as a “rule of recognition.”  The contrast is most stark when one compares international law with domestic or municipal law.  In the case of the latter, there is widespread convergence of opinion on valid sources of law and even relative agreement about how to construe those sources.  It is the absence of such convergence that leads some (e.g., “realists” who maintain that power is the best explanation for the behavior of states) to conclude that international law is not law at all.

And what of constitutional law?  The conventional wisdom is that domestic constitutional law is not only law, it is perhaps the most important example of domestic law.  Constitutional law may not be as “solid” as municipal law, but it is certainly much more like “law” than international law could ever hope to be.  As Goldsmith and Levinson unassumingly put the matter, “[t]his Article questions whether these apparent differences between international and constitutional law really run as deep as is commonly supposed.” (1794) Continue reading "Rethinking “International Law”"

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