Law for Leviathan : Constitutional Law, International Law, and the State

The state makes law. But the state is also subject to law in two realms: international law and constitutional law. But how in the international realm can law be enforced against powerful states in the absence of a super-state standing above them? How far can moral and legal frameworks developed around ordinary persons be extended to apply to personified Leviathans? The book argues that these kinds of questions are equally applicable to the second major regime of law for states, constitutional law. By assimilating constitutional and international law as parallel projects of imposing law upon the state, this book brings focus to the concept of "law for Leviathan" as a distinctive legal form.

For the past several centuries of Anglo-American legal thought, law has been paradigmatically understood as the product of the state. The state, operating through the legal and political institutions of its government, imposes law on the people who are its subjects. Over the same centuries, however, the development of international law and constitutional law has made the state itself subject to law. These systems of law for states necessarily work differently. For one thing, law for states must do without a super-state or government standing above the state, capable of creating and enforcing law. For another, the state is a unique kind of legal subject, calling for different behavioral models, moral standards, and regulatory techniques than those developed for ordinary people. It is precisely these differences that have long marked international law as a curious, and in many eyes dubious, form of law.Constitutional law, in contrast, has seldom been subject to the same doubts, or fully understood as different in kind from legal systems run by and through the state. As a result, constitutionalists have lagged their internationalist counterparts in coming to grips with the common project of making the state the subject rather than the source of law. By assimilating constitutional and international law as parallel projects of imposing law upon the state, and by highlighting the peculiarities of the state as a subject of law, this book aspires to close that gap, and to bring focus to Law for Leviathan as a distinctive legal form.