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The Ethos of the Rule of Law in the International Legal Discourse: Portrait of an Outsider

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The constitutional principles of the state under the rule of law require, as a precondition, that a normal situation exists. The article argues that this Schmittian idea can be transposed to an international debate on the international rule of law. The constitutional reforms proposed by Schmitt in 'Legality and Legitimacy' focusing in his search for an ethos of law were in the concrete situation of Weimar, neither attuned to the legal spirit of the times (positivism) nor suited to taking a course of action in the midst of tumultuous political events. However, as a theoretical work on liberal constitutionalism 'Legality and Legitimacy' contributes to the discussion on the lack of inherent rationality of the liberal (international) rule of law: the ethos of the rule of law is an outsider. The final part of the article uses the example of the mandate system of the League of Nations to support the claim that the value of a descriptive thesis of the vulnerability of the rule of law to power, lies in enabling a more realistic approach, in terms of ethical agency and power relations, to the margins of the rule of law or the grey zones.

Affiliations: 1: LL.M., doctoral candidate at the University of Helsinki and Research Fellow at the Erik Castrén Institute of International Law and Human Rights


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