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Informal Regulation and the Hyper-Responsiveness of International Law

  • Theresa Reinold (a1)
Extract

Monica Hakimi has offered a thought-provoking and timely analysis of how the jus ad bellum operates, placing on the agenda of international legal scholarship a regulatory dynamic that has thus far remained underappreciated. While I believe that a discussion of this dynamic is overdue and thus welcome her plea to take informal regulation seriously, I find some of her underlying assumptions about the nature and function of international law problematic. Therefore, rather than applaud the manifold insightful points Hakimi makes, this essay zeroes in on two related assumptions in her article that I find questionable: first, Hakimi's reasoning about the law-creating effects of informal regulation and, on a related note, the distinction between legality and legitimacy; and second, her tendency to embrace uncritically the particularistic nature of informal regulation. Both points implicate what I term the “hyper-responsiveness” of the law, that is, the (problematic) notion that every momentary political constellation should be reflected in the content of the law. In embracing law's hyper-responsiveness, Hakimi's article sidesteps a discussion of the ambivalent implications of informal regulation.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Monica Hakimi, The Jus ad Bellum's Regulatory Form, 112 AJIL 151 (2018).

2 Id. at 155–56 (emphasis added).

3 African Union Peace and Security Council, Communiqué, PSC/PR/COMM. (DCXLIV) (Dec. 12, 2016).

5 S.C. Res. 2337 (Jan. 19, 2017).

6 Id.

7 Resolution on The Gambia, What's in Blue (Jan. 19, 2017); Michelle Nicols, U.N. Backs West African Efforts to Install New Gambia President, Reuters (Jan. 19, 2017).

8 Resolution on The Gambia, supra note 7.

9 UN SCOR, 72d Sess., 7866 mtg. (Jan. 19, 2017).

10 Id.

11 Id.

12 Ironically, the intervention at the same time violated the rule of law at the global level, because an organization from a lower level of governance (ECOWAS) arrogated to itself powers that were reserved to an authority at a higher level of governance (the Security Council). See, e.g., Antenor Hallo de Wolf, Rattling Sabers to Save Democracy in The Gambia, EJIL:Talk! (Feb. 1, 2017).

13 Olivier Corten, The Controversies Over the Customary Prohibition on the Use of Force, 16 Eur. J. Int'l L. 803, 815 (2005).

14 Id. at 817.

15 Niklas Luhmann, The Unity of the Legal System, in Autopoietic Law: A New Approach to Law and Society 17 (Gunther Teubner ed., 1988).

16 Hakimi, supra note 1, at 182.

17 Prosper Weil, Towards Relative Normativity in International Law?, 77 AJIL 413, 430 (1983).

18 Id. at 440–41.

19 See, e.g., Niklas Luhmann, Das Recht der Gesellschaft 18–19 (1993).

20 Gunter Teubner, Law as an Autopoietic System 71 (1993).

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