Between a Rock-Hard Reality and a Pious Wish Place: Postema on the Rule of Law Beyond Borders

Abstract

AbstractIn the final chapter of Law’s Rule, his recently published tour de force on the nature, value, and viability of the rule of law, Gerald Postema defends the desirability, possibility, and actuality of an international rule of law. I contend that his attempt to defend the latter two claims fall short of what is needed, focusing in this essay on his argument for the possibility of a rule of law beyond state borders. Postema moves quickly from an argument for the existence and efficacy of international law to the conclusion that an international rule of law is no pious wish. Yet as I explain, the refutation of rule-skepticism does not suffice to refute rule of law skepticism. Indeed, I demonstrate that Postema misconstrues the most interesting and plausible challenge to an international rule of law he considers, namely the economic analysis of international law, and consequently his response misses the mark. The economic account of how international law works, together with those developed by TWAIL scholars and Marxist theorists of international law, pose far greater challenges to the possibility of an international rule of law than those Postema considers, as each offers a plausible explanation for why any attempt to realize that ideal is doomed to fail. To address these challenges, theorists should look to Postema’s discussion of the institutions and culture that foster fidelity to the rule of law, rather than his remarks on a global rule of law.