Chapter

Global Legalism and Domestic Law

in The Perils of Global Legalism

Published by University of Chicago Press

Published in print September 2009 | ISBN: 9780226675749
Published online March 2013 | e-ISBN: 9780226675923 | DOI: http://dx.doi.org/10.7208/chicago/9780226675923.003.0005
Global Legalism and Domestic Law

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In recent years, a new battleground between global legalists and their adversaries has appeared. The battle involves the extent to which international law is to be given direct legal effect in the United States—that is, without first receiving the endorsement of the political branches. Three cases illustrate this point—the Hague Invasion Act, a bill to prevent reliance on foreign law, and the Avena case—in the first of which, foreign nations shrink America's freedom of action on the battlefield without obtaining American consent. In the second case, American courts incorporate foreign and international law so as to constrain the political branches (and states). In the third case, Congress prevents an international institution of which the United States was already a member from interpreting international law contrary to Congress's own goals. The latter case is related to the general problem of “international delegation.” This chapter, which discusses global legalism vis-à-vis domestic law and examines the “incorporation” of international law into domestic law, also looks at Jeremy Rabkin's argument regarding sovereignty and democratic theory.

Keywords: global legalism; domestic law; United States; international law; Jeremy Rabkin; sovereignty; democratic theory; Hague Invasion Act; Avena case; incorporation

Chapter.  9967 words. 

Subjects: Public International Law

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