Legitimacy and Legality in International Law: An Interactional Account

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It has never been more important to understand how international law enables and constrains international politics. By drawing together the legal theory of Lon Fuller and the insights of constructivist international relations scholars, this book articulates a pragmatic view of how international obligation is created and maintained. First, legal norms can only arise in the context of social norms based on shared understandings. Second, internal features of law, or ‘criteria of legality', are crucial to law's ability to promote adherence, to inspire ‘fidelity'. Third, legal norms are built, maintained or destroyed through a continuing practice of legality. Through case studies of the climate-change regime, the anti-torture norm, and the prohibition on the use of force, it is shown that these three elements produce a distinctive legal legitimacy and a sense of commitment among those to whom law is addressed.

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Editorial Reviews

From the Publisher
"But Legitimacy and Legality is also so well argued and thought-provoking that even staunch opponents of its starting points will draw much benefit from it."
-Nico Krisch,Hertie School of Governance
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Product Details

Meet the Author

Jutta Brunnée is Professor of Law and Metcalf Chair in Environmental Law at the University of Toronto.

Stephen J. Toope is President and Vice-Chancellor of the University of British Columbia.

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Table of Contents

Table of Cases

Table of Treaties


Introduction 1

1 An interactional account: the hard work of international law 5

2 IR theory and legal obligation 9

3 Interactional theory and its application 15

1 An interactional theory of international legal obligation 20

1 Introduction 20

2 Fuller's legal theory 20

3 Fuller and international law 33

4 Conclusion 55

2 Shared understandings: the underpinnings of law 56

1 Introduction 56

2 Shared understandings in international society: the contribution of IR 56

3 Shared understandings and interactional law 65

4 Diversity and power in international society 77

5 Conclusion 86

3 Interactional law and compliance: law's hidden power 88

1 Introduction 88

2 Interactional obligation and compliance distinguished 92

3 The role of obligation 94

4 Promoting compliance: lessons from interactional law 98

5 Conclusion 124

4 Climate change: building a global legal regime 126

1 Introduction 126

2 The global climate regime: key features and evolution 131

3 Shared understandings 141

4 Criteria of legality 177

5 Practice of legality 194

6 The Copenhagen Accord 204

7 Conclusion 216

5 Torture: undermining normative ambition 220

1 Introduction 220

2 Shared understandings 223

3 The prohibition on torture and the criteria of legality 250

4 Prohibiting torture and the practice of legality 259

5 Conclusion 268

6 The use of force: normative ebb and flow 271

1 Introduction 271

2 The prohibition on the use of force 273

3 Exceptions to the prohibition on the use of force 284

4 Conclusion 349

Conclusion 350

1 Shared understandings 350

2 Adherence to the criteria of legality 351

3 Continuous practice: the hard work of international law 352

4 Interactional international law: what we do not claim 354

5 Implications for international law-makers 355

Bibliography 358

Index 388

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