Law for States: International Law, Constitutional Law, Public Law
Goldsmith, Jack L., Levinson, Daryl, Harvard Law Review
TABLE OF CONTENTS I. INTRODUCTION 1792 II. THE PROBLEM OF UNCERTAINTY 1801 A. International Law 1803 B. Constitutional Law 1808 C. Public Law 1817 III. THE PROBLEM OF ENFORCEMENT 1822 A. International Law 1824 B. Constitutional Law 1830 C. Public Law 1840 IV. THE PROBLEM OF SOVEREIGNTY 1843 A. International Law 1845 B. Constitutional Law 1852 C. Public Law 1858 V. CONCLUSION 1862
The divide between international and domestic law runs deep in Anglo-American legal thought. Domestic law is taken to be the paradigm of how a legal system should work. Legal rules are promulgated and updated by a legislature or by common law courts subject to legislative revision. Courts authoritatively resolve ambiguities and uncertainties about the application of law in particular cases. The individuals to whom laws are addressed have an obligation to obey legitimate lawmaking authorities, even when legal rules stand in the way of their interests or are imposed without their consent. And in cases of disobedience, an executive enforcement authority, possessing a monopoly over the use of legitimate force, stands ready to coerce compliance.
Measured against the benchmark of domestic law, international law seems different and deficient along each of these dimensions. International law has no centralized legislature or hierarchical court system authorized to create, revise, or specify the application of legal norms, and as a result is said to suffer from irremediable uncertainty and political contestation. Out of deference to state sovereignty, international law is a "voluntary" system that obligates only states that have consented to be bound, and thus generally lacks the power to impose obligations on states against their interests. As a result, the content of international law often reflects the interests of powerful states. And to the extent that international law diverges from those interests, powerful states often interpret it away or ignore it. They are able to do so because the international legal system lacks a super-state enforcement authority capable of coercing recalcitrant states to comply. These characteristics of the international legal system have led realists and other skeptics to conclude that, in both form and function, international law is a qualitatively different and lesser species of law--if it qualifies as law at all.
Constitutional law, in contrast, has been subject to few such doubts. Conceived as the overarching framework for, and thus inseparable from, the statutes, regulations, and common law rules that comprise the familiar domestic legal system, constitutional law sits securely opposite international law on the domestic side of the divide. Unlike the decentralized and institutionally incomplete international legal system, moreover, constitutional law in the United States and other countries appears closer in form to ordinary, paradigmatically "real" domestic law because it typically features a proto-legislative enactment and amendment process, as well as an authoritative judiciary to resolve ambiguities about meaning and to enforce obligations against government officials. In contrast to the dubious efficacy of international law, constitutional law is generally assumed to serve as an important and effective constraint on government behavior, a meaningful check on the interests of the powerful.
The perceived differences between international and constitutional law have taken on a normative cast as well. For centuries, theorists have worried about how to reconcile the legal constraints of international law with the idea, or ideal, of state sovereignty. Sovereignty is supposed to mean that states cannot be subject to any higher authority; international law and the institutions it creates seem to represent just such authorities. …