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The Perils of Global Legalism$
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Eric A. Posner

Print publication date: 2009

Print ISBN-13: 9780226675749

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226675923.001.0001

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The Flaws of Global Legalism

The Flaws of Global Legalism

Chapter:
(p.28) Chapter Two The Flaws of Global Legalism
Source:
The Perils of Global Legalism
Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226675923.003.0002

If the rule of law has flourished in the United States and many (though not most) other states, why can't it flourish internationally? The global legalist might point out that individuals overcome domestic collective action problems by consenting to a domestic government that has the power to pass laws and punish those who violate them. If individuals can overcome collective action problems in this way, why can't states? Or, why can't individuals, acting through their states, solve global as well as within-state collective action problems? William Ian Miller has written of a quasi-legal system in early Iceland, one that lacked sophisticated legal institutions but seemed to keep a degree of order. Robert Ellickson has also described various settings in which people maintain complex cooperative relationship without relying on legal institutions. Why can't the same occur at the global level? This chapter examines the flaws of global legalism as well as the institutional weakness of international law. This weakness can be attributed to three problems: legislation without legislatures, enforcement without enforcers, and adjudication without courts.

Keywords:   global legalism, international law, legislation, legislatures, enforcement, adjudication, courts, legal institutions, collective action problems

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