Big rule of law℠ ™(pat.pending)

The normative content of the rule of law (ROL) continues to be energetically contested. ¹ Debates generally proceed on the basis that the ROL – however defined – is a public good. The unstated assumption is that producing this public good is fundamentally a responsibility of the sovereign state, which has the right and (some argue) the obligation to shape, animate and enforce law domestically, while submitting itself to domestic and international legal authority and challenge. When a state’s capacity or willingness to do so is lacking – or perceived as such by other states – those other sovereigns, acting alone or in concert, project their preferred versions of the ROL into ‘weaker’ states. ² This process of projecting the ROL norms through diplomacy, official development assistance, military interventions and humanitarian assistance is both an international phenomenon (when legitimated by international law and sponsored by international multilateral organisations), ³ and a mode of transnational governance, ‘somewhere beyond the reach of the nation-state and below the legal regime of international law and the authority of international organisations’. ⁴