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The constitutional search for greater justice is the animating principle that guides or should guide constitutional amendment and constitutional change whenever and wherever it occurs. Almost all states and governments formally declare their constitutional commitment to justice, liberty, and the rule of law. Yet reports on constitutional amendment from nations throughout the world remind us that we live at a moment of constitutional peril. The general trend of constitutional government in many states has been towards greater corruption, violence, and arbitrary action. This illustrates the dual and parallel importance of constitutional principles and constitutional structures in securing the rule of law. Constitutional principles animate the constitutional structures that apply our constitutional principles in practice. Constitutional amendment and constitutional change can be formal, informal, cultural, and even at times, illegal. Which techniques are appropriate will vary according to the circumstances. The failure of widely shared and well-developed formal or structural constitutional arrangements to prevent the decline of the rule of law in the early twenty-first century confirms the important role that informal and cultural constitutional change have always played in the development of constitutional justice. While constitutions can declare the importance of liberty, justice, and the public welfare, and establish constitutional checks and balances to protect them, they cannot guarantee good faith. That depends on the lawyers, judges, and scholars who make the constitution real.

American conceptions of precedent developed and are best understood in the context of the American common law tradition in which they have played a decisive role since the first English settlement of America in the early seventeenth century. Old common-law attitudes toward precedent are so deeply ingrained in the behavior of American lawyers and judges that they hardly rise to the conscious level. This can produce a certain confusion, when judges try to explain the principles behind their decisions, but there has been a remarkable consistency in practice, maintained by attitudes passed from generation to generation within the American legal profession.Whether they are interpreting the common law, statutes or constitutions, American judges respect their own precedents as a "principle of policy" rather than as an "inexorable command." American judges find it easiest to overturn precedents when experience has proved them to be unworkable or a long line of subsequent cases has gradually undermined their foundations. They find it hardest to do so when property, contracts, or liberty is at stake. Reason is the ultimate measure of the law, but judicial departures from precedent require special justification to warrant the inevitable damage they cause to the settled expectations of a law-abiding society.

The United States of America has not ratified the treaty establishing a permanent international criminal court, and it is highly unlikely to do so. This is not simply a question of delay caused by cumbersome ratification procedures; rather, it reflects deep-seated opposition by the U.S. executive branch and by many members of Congress. The United States voted against the Rome Statute of the International Criminal Court1 when it was adopted on July 17, 1998, at the U.N. Diplomatic Conference of Plenipotentiaries. President William J. Clinton approved signature of the statute on the last day that a state, by signing, could continue to take part in discussions on ICC matters.2 But he stressed that he did so largely to remain "in a position to influence the evolution of the court," adding that "I will not, and do not recommend that my successor submit the treaty to the Senate for advice and consent until our fundamental concerns are

A state governed by the rule of law describes a state where both private and public powers are removed from the administration of justice and are regulated by law. The rule of law serves the public good of the community as a whole. It is a system where laws rule and not men. The law determines what is necessary in a society to prevent domination and oppression and to promote the common good. As people seek justice through law, the rule of law comes at first from men itself, because men obey rules they believe to be just and arise against ones they consider unjust. The value of the rule of law lies in the fact that it prevents arbitrary judgments, secures justice, and prevents tyranny and oppression. It limits the power of those who have authority. The government must first control the people and then it must be obliged to control itself. It must therefore be stable and constitutional and it can therefore be implied that some states are not ready to implement the rule of law, because the governments cannot be trusted. The author argues that the most important step towards the rule of law is when judges are independent of executive and legislative powers. Constant attention to the combination of powers in a state is required, because only in this way can laws be created for the common good. Law must be separated from arbitrary power.

Universal human rights provided the primary legal justification for the American Revolution and have therefore been at the heart of the American law from the earliest years of the Republic. The inherent and inalienable rights of all human beings were cited in the Declaration of Independence of the United States, protected in the federal Bill of Rights and independently guaranteed by the separate constitutions of every state in the Union. American law and American lawyers consider support for universal rights to be the ultimate basis of all legitimate government, everywhere. So intimate is the connection between universal rights and the American legal tradition that in the eyes of the American government and courts most international declarations and covenants recognizing universal rights are simply restatements of existing United States law and established constitutional guarantees. This leads to a persistent and lingering suspicion of international authorities and tribunals that presume to revise or improve upon settled American understandings of human rights law. For the most part Americans view their federal courts as the most legitimate and accurate authorities on rights, because of their well-developed jurisprudence and perceived impartiality. As foreign and international tribunals develop deeper and more sophisticated rights traditions, American law and courts will take these more into account, as has already occurred in several recent Supreme Court decisions. Authority will flow to whichever officials and courts prove the most accurate in identifying and protecting universal human rights.

The Chapter discusses the relationship in United States law between State, Federal and international authorities on universal human rights. All U.S. State constitutions and the Federal Constitution recognize the “inherent” or “inalienable” rights of humanity. Yet despite having long accepted the binding force of universal human rights, United States courts and public officials have been hesitant to recognize non-U.S. authorities when identifying, interpreting, or enforcing these rights in practice. The U.S. government and courts view most international treaties and declarations concerning universal human rights as simple restatements of existing constitutional guarantees. United States courts and public officials have generally weighed foreign evidence of the requirements of universal human rights according to the legitimacy, importance, and probative value of the source. The undemocratic and illiberal nature of many international institutions makes it unlikely that the United States Federal or State legal systems will cede final control over such questions to non-U.S. or multinational authorities at any time in the near future.

The rule of law has a long history in the aspirations of oppressed peoples everywhere1. Developing societies seek to establish the rule of law, well-regulated societies seek to preserve it, and most governments claim to maintain it, whatever the nature of their actual practices2. This makes the rule of law a nearly universal value, endorsed by the United Nations General Assembly, for example, which has repeatedly identified “human rights, the rule of law and democracy” as “universal and indivisible core values and principles of the United Nations.”3 The Universal Declaration of Human Rights, approved by the Assembly without dissent, recognized that “…it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law.”4 These ringing assertions, repeated or paraphrased by the European Convention on Human Rights5 the American Convention on Human Rights,6 the African Charter on Human and Peoples Rights7 and numerous other regional agreements and national constitutions,8 illustrate the necessary moral component always present in appeals to the “rule of law.” The “rule of law” in its usual sense implies the fulfillment of justice and the negation of government by and for the benefit of those in charge.9

An Introduction to the Rule of Law in Comparative Perspective.- The Rule of Law in Ancient Greek Thought.- The Liberal State and Criminal Law Reform in Spain.- Some Realism About Legal Certainty in the Globalization of the Rule of Law.- Is Goal-Based Regulation Consistent with the Rule of Law?.- Reflections on Shakespeare and the Rule of Law.- America's Constitutional Rule of Law: Structure and Symbol.- Constitutions Without Constitutionalism: The Failure of Constitutionalism in Brazil.- Rule of Law, Power Distribution, and the Problem of Faction in Conflict Interventions.- The Rule of Law in Transitional Justice: The Fujimori Trial in Peru.- The Interaction of Customary Law with the Modern Rule of Law in Albania and Kosova.- Dualism, Domestic Courts, and the Rule of International Law.

This article discusses the relationship in United States law between State, Federal and international authorities on universal human rights. All U.S. State constitutions and the Federal Constitution recognize the “inherent” or “inalienable” rights of humanity. Yet despite having long accepted the binding force of universal human rights, United States courts and public officials have been hesitant to recognize non-U.S. authorities when identifying, interpreting, or enforcing these rights in practice. The U.S. government and courts view most international treaties and declarations concerning universal human rights as simple restatements of existing constitutional guarantees. United States courts and public officials have generally weighed foreign evidence of the requirements of universal human rights according to the legitimacy, importance, and probative value of the source. The undemocratic and illiberal nature of many international and foreign institutions makes it unlikely that the United States Federal or State legal systems will cede final control over such questions to non-U.S. or multinational authorities at any time in the near future.

Preface.- Notes on Contributors.- 1. The Internationalization of Law and Legal Education Mortimer Sellers.- 2. Reflections on Globalization and University Life Jan Klabbers.- 3. Building the World Community Through Legal Education Claudio Grossman.- 4. Integrating Practical Training and Professional Legal Education James Maxeiner.- 5. Internationalizing the American Law School Curriculum (in Light of the Carnegie Foundation's Report) Larry Cata Backer.- 6. Resolving Multicultural Legal Cases: A Bottom Up Perspective on the Internationalization of Law Wibo Van Rossum.- 7. Maternity Leave Laws in the United States in the Light of European Legislation Candace Kovacic-Fleisher.- 8. Convergence and Mutual Recognition in European Asylum Law Ida Staffans.- 9. Copyright Protection for Works of Foreign Origin Tyler Ochoa.- 10. The Internationalization of Internet Law Paul Przemyslaw Polanski.- Index.

The nineteenth-century doctrines known as “international law” developed out of the eighteenth century “law of nations” which itself grew out of seventeenth-century “ius gentium.”1 Each semantic shift reflected slight changes in scholarly attitudes towards the supranational legal order. Proponents (for example) of the term “international law” sought to promote a positivist doctrine, which would minimize the natural law elements of the old law of nations to privilege the views of governments and states.2 “Jus gentium” implied a common set of fundamental legal principles shared by all peoples.3 Recently, some publicists have started to speak of the “law of humanity” in order to challenge the role of nations and states in determining the world’s legal order.4 While this new usage captures the necessary universalism of supranational justice, it also threatens the premisses that support just institutions, by confusing the nature and purposes of law, nations, peoples and the state.

To be “effective” international law must be obeyed. Often law is obeyed, even by overwhelmingly powerful nations such as the United States of America. Why? Force and coercion cannot be the reason, but fear plays a role — the fear of appearing unjust in one’s own eyes, or in the eyes of one’s friends.

Recently some lawyers and statesmen have begun to cite judgments of the International Court of Justice as if they were decisive evidence of the content of international law. This trend, if it continues, will tend to diminish the influence of international law on the actions of states and others, by arrogating the authoritative determination of the content of international law to a tribunal that was never intended to generate rules of universal application, is ill-equipped to do so, and ought not usually to be viewed as having done so, except in very exceptional circumstances.

The most obvious difference between students of international relations and students of international law arises from the subjects of their inquiry. International relations scholars consider the relations between states. International law considers the norms that govern these relationships (and many other important transactions). Some have characterized this distinction as the difference between “realism” and “idealism,” the difference between what actually is done and what ought to be done by states.1

The fall of the Soviet Union and the liberation of East and Central Europe have emboldened international lawyers to reassert the principles of human rights and democracy that intermittently inspired their predecessors over the last four centuries. Some rely on state practice to justify democratic norms,1 by pointing out that many states now formally recognize some sort of individual or collective right to self-government.2 This is the “positivist” argument for liberal democracy.

One central measure of a government’s legitimate membership (or not) in the international community of nations is the respect that it demonstrates (or not) for fundamental human rights. Human rights are justified moral claims that human beings make on other human beings on the basis of their common humanity. Universal human rights are an important measure of any government’s legitimacy, because they apply in all societies everywhere. This does not mean that all peoples should demand exactly the same structure of rights in their different communities. Circumstances differ from place to place and are never exactly the same. But sincere deliberation about the application of universal human rights to a particular set of circumstances yields remarkable consensus across cultures. Circumstances vary, but human nature does not. Disagreements about the sources, application, enforcement, and limits of universal human rights usually turn on private interests, rather than real differences of perception or understanding.

Humanitarian intervention has always played an important part in international relations. States intervene in each other’s affairs to promote justice, to advance their own interests, or both — but usually call on justice and human rights first in justifying their actions. Even the most extreme apostle of sovereignty, Jean Bodin, conceded that one sovereign may intervene to punish another who governs without regard to the common good of his subjects.1 Some level of interference by governments or individuals to prevent the abuses of others must be tolerated in any case, whatever one’s views, for the same reason that some interference with others must always be legitimate under any legal system: because it cannot be totally avoided. Any action by a state, individual, group of states or group of individuals will have an effect on others, and to that extent interfere with them. The question for lawyers and philosophers cannot be whether intervention is legitimate (because a total prohibition on interference would preclude all action) but rather when intervention is legitimate and when it is not. Law sets limits on how much one person, group of persons, state or group of states may intervene to influence others, and establishes procedures to support official interventions (enforcement), or to prevent improper interventions (delicts or crimes).

Which groups enjoy the right to secede in international law, under what circumstances, and why? The “right to secede” in this context signifies the right of a group of the citizens or subjects of an existing state to remove themselves from its political jurisdiction, taking with them some portion of their former state’s territory, to form a new political entity. Secession diminishes existing states by narrowing their territorial jurisdiction. The right to secede assumes the previous existence of states and depends for its own justification on the antecedent justifications for statehood. When the reasons for secession outweigh the reasons that justify statehood, or serve those ends better than would the continued existence of states within their historical boundaries, then secession will be justified, and citizens will have the right to secede.

This volume has considered 20 important questions in international law from the perspective of the republican principles that support the international legal order. The purpose of this discussion has been neither to engage the numerous authors who have debated these questions in the past, nor to set out a complete elaboration of republican legal theory, but rather to explain in clear terms some basic implications of certain fundamental truths about law and justice that regulate most international legal obligations. States and individuals have a duty to obey and respect proposed international norms only to the extent that proposed norms respect the basic republican principles of international law. These chapters start from first principles to point out some obvious implications of the republican commitment to justice and the common good of all people. International law rests on republican foundations, and would not be just, binding, or interesting if it did not.

With the collapse of the Soviet Union, and the emergence of democracies or quasi-democracies in Russia, South Africa, and throughout South America, the most powerful and persistent opponents of popular sovereignty have receded, or admitted their mistakes, and a sort of democratic triumphalism has entered the legal literature. Where Hugo Grotius once boldly rejected the idea that supreme power necessarily resides in the people, frankly viewing certain peoples (he mentioned Cappadocians) as fit to be slaves,1 some scholars now assert an “emerging right of democratic governance” such that no government should be considered legitimate without free, fair and frequent elections.2

Modern international law began in the seventeenth century as “the law of nature applied to nations.” Lawyers and philosophers studying the natural rights and duties of persons had developed an equal concern for the rights and duties of states.1 States and persons are not the same, as clear-headed advocates of international law such as Emmerich de Vattel readily admitted, but the temptation to recycle good philosophy as law was very strong, some parallels between persons and states are legitimate, and most lawyers have spent as much time representing individuals (not states) as philosophers have spent thinking about individuals (and not states), so the habit of translating doctrine from one sphere to the other remains very strong.

International law developed primarily to serve the needs of the governments of “states,” which is to say, to support the rulers of territorially based subject populations, exercising a monopoly within their boundaries of “sovereign” coercive power. Other non-state international organizations have long existed alongside states, such as the Virginia Company, the East India Company, and the Royal African Company, but none of these institutions enjoyed much formal recognition in the development of international legal structures. Now finally these and similar international economic organizations have finally captured the public imagination, and eager academics seek to apply the insights of institutional economics, law and economics, and industrial organization to international law, to demarcate new lines of competence between states and other international organizations.

Any discussion of the sources of law must also consider when, if ever, the laws should be obeyed. What is the basis of law’s binding force? The essential attribute and ultimate claim of all law is that, as law, it deserves the uncoerced obedience of its subjects. Customary international “law,” to be law, must claim to bind the nations, states and peoples subject to its jurisdiction. To deserve obedience, customary law, like all law, must first substantiate the basis of this claim.1

No inquiry into international law, and its place in the international order, can get very far (or make much sense) without a theory of what law is, and what makes the law worthwhile. The answer to both questions is this: the central element of law in every legal system — what makes law “law” as distinct from other systems of rules or coercion — is law’s claim to codify justice. All laws and legal systems claim to realize justice. Rules that do not claim justice cannot claim to be laws.1 This is not to say that all laws are just, but rather that all legal systems claim to be just, or to realize justice better than other available systems for mediating conflicts and regulating human society.

The legislature is the single most important branch of government in any nation governed by the rule of law. When law rules, the legislature matters, because the legislature makes the laws. The central dilemma for drafters of written republican constitutions has been how to create a legislature that will make laws that advance and protect the common good of all citizens, without favoring one group over others. Legislatures that do not serve the common good subvert the purposes of government by protecting some particular set of private interests, at the expense of the people as a whole.

The problem set for republicans by groups is: which group or aggregation of citizens should count in pursuit of the common good? The relevant collective for the first republic, in Rome, was all Roman citizens, each of whom enjoyed “liberty” (“libertas”), by which the Romans meant equal freedom from arbitrary interference or coercion by others, including officers of the state.1 Republican legal theory depends on aggregating citizens into a group (the “people” or “populus”) who act together to construct a sense of justice and the common good amongst themselves.2 Rome began as a small village with few inhabitants and extensive rights for all citizens. As the Roman empire grew, the rights of Roman citizens diminished, until nearly everyone in the Mediterranean world enjoyed Roman “citizenship” under an arbitrary central government in Rome. The common good gave way to the emperor’s whim, leading many to conclude that size had ruined liberty in Rome, and that only small republics can survive.3

The past is a foreign country, its people strangers and its laws obscure. Like other foreign places, this alien world has much to teach lawyers about how things might have been and are, in our own world and legal institutions. No one can really understand her or his own legal system without leaving it first, and looking back from the outside. The comparative study of law makes one’s own legal system more comprehensible, by revealing its idiosyncrasies. Legal history is comparative law without travel. Historical comparisons give lawyers and legislators the distance that they need to reform and to understand the law, without the distortions of contemporary partisan conflicts, which sometimes trouble other students of comparative law.

Republican legal systems are systems of law and government that embrace the basic tenets of republican legal theory, as developed by Marcus Tullius Cicero, Polybius and their contemporaries, and by their various heirs and imitators in Italy, England, France, and the United States of America.1 Republicans argue that serving the public good constitutes the only sound basis for a just legal order, and conclude that all laws in all jurisdictions deserve public deference only to the extent they do so. The fundamental republican test of a legal system’s legitimacy is whether its laws actually advance the res publica or “common good of the people”.2 Cicero observed that all republics must belong to separate “peoples”, by which he meant to large numbers of persons associated together to create a common sense of justice and shared public good.3 This remains the basis of republican legal theory today. Republican legal systems are whichever systems of law and justice serve the common good of the people the best.

“Public discourse” signifies speeches, publications and other statements made in pursuit of the public good. If (as it is for republicans) the sole aim of government, laws and the state is to serve the common good of the people, then public discourse offers the primary practical technique for finding (or clarifying) what the laws should require. “Public discourse” (in this sense) regards public policy as distinguished from “private discourse” among citizens seeking to develop their own private friendships and interests. This line between “public” and “private” discourse may be difficult to draw, because it concerns the fundamental division of power within society and the state. Public discourse defines and limits the powers of the government, but also of individuals. That which is not public is private, and vice versa, but it is public discourse itself that must, in the end, decide the boundaries. The standards of behavior that should govern public discourse constitute “civility”. Many of these same standards also extend to private discourse, with some exceptions.

The Fourth Section of the Fourth Article of the Constitution of the United States of America pledges that the national government will “guarantee to every state in this Union a Republican Form of Government”. By “republic”, eighteenth-century English-speaking writers meant to signify (as Thomas Paine most famously explained it), whatever government best serves “the purport, matter, or object for which government ought to be instituted, and on which it is to be employed”, which is to say, the “res-publica, the public affairs, or the public good; or, literally translated, the public thing”. From this it follows that whatever government “does not act on the principle of a republic, or, in other words, that does not make the res-publica its whole and sole object, is not a good government”, and “[rjepublican government is no other than government established and conducted for the interest of the public, as well individually as collectively”.1

The first self-consciously “republican” ideology originated in the senatorial opposition to Gaius Julius Caesar, and implies a procedural commitment to certain “republican” political and legal institutions, usually attributed to Rome’s republican constitution of 509–49 BC. The basic desiderata of republican government, as articulated in the republican legal tradition derived from Rome, secure government for the common good through the checks and balances of a mixed constitution, comprising a sovereign people, an elected executive, a deliberative senate, and a regulated popular assembly, constrained by an independent judiciary, and subject to the rule of law. Some republicans would add representation, the separation of powers, or equality of material possessions, to protect public liberty (“libertas”) and avoid Rome’s eventual descent into popular tyranny and military despotism. Republican liberty signifies subjection to the law and to magistrates, acting for the common good, and never to the private will or domination “dominatio” of any private master.1

Despite their dowdy clothing, diffident manners and general obscurity, legal historians have been heroes of social change, without whom the United States would not have won its independence, the Civil War might not have been fought, and civil rights would never have reached the heirs of oppressed freedmen in the old Confederacy. Legal history gives lawyers and politicians the courage and imagination to upset conventional wisdom and to challenge entrenched legal hierarchies. Without history (in general) and legal history (in particular) dramatic social change would be much more difficult to achieve.

Much recent scholarship contrasts republicanism with liberalism as the two central and contradictory ideals of modern legal and constitutional thought.1 Both terms continue to attract new meanings, in pursuit of various legal and political goals.2 Recently, some lawyers have contrasted that liberalism which regards law as a necessary evil with republican visions of cultural self-expression through law.3 This misstates the historical origins and best usage of both terms. Looking more closely at the origins and fundamental doctrines of republicanism and liberalism reveals that their principles do not necessarily conflict, and that each endorses law as the necessary vehicle of social justice. Republicanism is the parent of liberalism in Western Europe. They share a fundamental commitment to liberty and differ only in their relative ambition. Liberalism grew out of republican theory, and has never found stability or security, without the protection of a republican form of government.

The crucial assumption of liberalism, as understood by it modern defenders, is that citizens will never relinquish their different and permanently incommensurable conceptions of the good.1 This denigration of reasoned argument as a source of consensus2 has led to a self-styled “republican revival” which reasserts the value of reason in politics.3 Many clauses of the United States Constitution exist, on this argument, largely to prevent private interests from exercising undue influence on public policy.4 The Constitution’ s republican roots seem to offer a basis for transcending society’s diversity in pursuit of the common good, developed through a public process of collective self-determination.5

The specifics of the Roman example, and the various commonwealths that followed it, were available to American republicans in John Adams’s Defence of the Constitutions of the United States of America, which appeared on the eve of the United States Constitutional Convention. Adams’s Thoughts on Government had guided the forms of most of the new American state constitutions, as well as the more recent and widely respected constitution of Massachusetts, which Adams had largely drafted himself. This gave Adams particular authority on the structure of republican government, and explains his considerable influence during the convention, and the importance of his views afterwards. Adams repeated Cicero’s definition of republics as governments for the people, associated in pursuit of the common good, and divided into the one, the few and the many, mixed properly together. Balanced government alone could secure ‘liberty’, and Livy’s ‘government of laws and not of men’. Adams praised Rome as the ‘wisest republic’ with the ‘noblest people’ the world has ever seen, but also reported Tacitus’s grim assessment that republics are ‘easier to commend than to create’.

The United States Constitution, as signed by the Convention on 17 September 1787, and transmitted by Congress to the States, contained many of the republican elements already embraced by earlier American frames of government. It also included some of the modifications suggested by John Adams and other modern commentators to remedy the weaknesses that led the English Commonwealth and Roman republic eventually to fail. The document as a whole is more self-consciously republican1 than any of its predecessors, not only in establishing a senate2 but also in claiming to secure the ‘Blessings of Liberty’3 and to ‘guarantee to every state in this union a Republican form of government’.4 The President and Senate both had to concur in legislation, as Adams would have wished, but the Senate had long, six-year terms, to preserve the dignity and stability of its Roman model.5