Legality Beyond the State

Inquiry into law beyond the state, or indeed within it, necessarily presupposes a concept of law. Consider, for example, H.L.A.’s account of international law.1 Hart famously characterizes law in terms of a union of primary and secondary rules.2 Understood in functional terms, primary rules govern actions, while secondary rules govern rules. Hart also pays particular attention to a special class of secondary rules, namely those that create specific offices whose occupants are empowered to identify, alter, apply, and enforce a society’s rules. An advanced legal system, then, is a practice of holding accountable constituted by both a hierarchy of norms—primary rights and duties, and secondary powers and immunities—and a hierarchy of agents—rulers and ruled. On the basis of this conceptual framework and his observation of international legal practice, Hart concludes that international law is a legal order but not a legal system.3 Though certainly insightful, I worry that Hart’s functional account of law sweeps too broadly. Specifically, it fails to distinguish between three forms of social order, or practices of holding accountable, in which rules figure centrally: the legal, the managerial, and the economic. Therefore, I propose to categorize practices of holding accountable on the basis of normative criteria, namely their satisfying to some minimally adequate degree, and perhaps much better than that, a regulative ideal governing the exercise of political power.4 I will then detail some of this conceptual framework’s advantages for productive inquiry into human affairs, focusing in particular on the contemporary international order—a practice of holding accountable, though perhaps not a legal one, that is beyond, albeit not apart, from the state.