Document Type

Working Paper

Publication Date

2012

Center/Program

Roger Hertog Program on Law and National Security

Abstract

Much of the international legal debate about regulating force and self-defence takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions. This article instead focuses on their doctrinal form, or modes of argumentation and analysis through which facts are assessed in relation to legal directives, to illuminate how many of the assumptions about substantive policy goals and risks tend to be coupled with other assumptions about the way international law operates in this field. It shows that the flexible, adaptable standards favoured by some states, scholars, and other international actors and the fixed rules and processes favoured by others reflect not only competing assessments of threats and the policy utility of force wielded beyond the Security Council’s authorization, but also different sets of interlocking, foundational assumptions about international law and the conditions for its effectiveness. These include differences over how legal-doctrinal form relates to external enforcement pressures and how it generates compliance pull within states. This article shows that exposing and prising apart some assumptions underlying doctrinal orientations – assumptions that are usually obscured or overshadowed when debates are framed in terms of substantive permissiveness versus stringency – opens and clarifies options for reforming the legal regime regulating force, and it proposes avenues of further analysis of doctrinal form in this area.

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