The Rule of Law Under Extreme Conditions and International Law: A Law and Economics Perspective

Abstract

The ‘rule of law’ has attracted a lot of scholarly writings as well as political and public rhetoric in recent years. On the one hand, scholars found that adherence to the rule of law can be regarded as the most significant explanatory factor for various measures of a country’s success, both in social - quality of life - realm and in the pure economic realm. On the other hand, various governments’ responses to terror threats since 9/11, including responses of established liberal democracies, brought about a surge in positive and normative writings, as well as public debates, about the rule of law under extreme conditions or the deviations from the rule of law, even by the most liberal democracies. However, the international law aspects regarding the rule of law under extreme conditions is a field that had received almost no attention so far. Discussing the rule of law under extreme conditions in the international arena from a Law and Economics perspective raises several challenges. First, although the concept of the rule of law as an ingredient of the ‘good’ state, is established (although its precise definition is not agreed upon), the basic definition of the rule of law in the international arena is a much more virgin field. Second, Extreme conditions may challenge the normative and positive analysis of the rule of law. The theory of the state from which we derive the common understanding of the principle of the rule of law deals with the regular operation of collective life, institutions and decision-making. Under extreme conditions most countries establish a different form of the rule of law (an emergency constitution, as phrased by some), compromising some of its essentials during regular times. It can be argued on the normative level that this is justifiable; but to what extent and in which format? There is no coherent paradigm yet for the analysis of the desirable as well as the de-facto rule of law “balance” (e.g. state security versus human rights) under extreme conditions. The third major challenge relates to the definition of those extreme conditions that merit a special look vis-a-vis the rule of law. Three types of extreme conditions have been discussed by the literature: (1) belligerency, war, terror and alike; (2) natural and man-made disasters; and (3) political or economic meltdowns. Are extreme conditions in the international arena identical to extreme conditions in the context of the state? Is the familiar distinction between the three types of extreme conditions referred to in the context of the state applicable to the international sphere?I will try to contribute a few preliminary thoughts about each of these challenges, highlighting the perspective of Law and Economics. Section 1 will explore the concept of the rule of law in the international arena and in international law; Section 2 will elaborate on the economic philosophical foundations of the theory of the state and will examine their applicability to the international sphere and to extreme conditions; Section 3 will focus on the characterization of extreme conditions vis-a-vis the rule of law, including a short overview of the models put forward in the literature and also some methodological remarks for those who engage with a Law and Economics approach towards this topic.