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Law Beyond the State
 Law Beyond the State
Dynamic Coordination, State Consent,
and Binding International Law

C A R M E N E . PAV E L

1
1
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Library of Congress Cataloging-in-Publication Data

Names: Pavel, Carmen E., author.
Title: Law beyond the state : dynamic coordination, state consent, and
binding international law / Carmen E. Pavel.
Description: New York, NY : Oxford University Press, [2021] |
Includes bibliographical references and index. | Contents: Hume’s dynamic
coordination and international law—Normative judgment, realism, and
international law—The international rule of law—The compatibility
of constitutional democracy and international law—Constitutionalism
and pluralism : two models of international law.
Identifiers: LCCN 2020027364 (print) | LCCN 2020027365 (ebook) |
ISBN 9780197543894 (hardback) | ISBN 9780197543917 (epub) |
ISBN 9780197543924 (oso) | ISBN 9780197543900 (updf)
Subjects: LCSH: International law. | Constitutional law. | Rule of law.
Classification: LCC KZ3410.P383 2021 (print) | LCC KZ3410 (ebook) |
DDC 341.01—dc23
LC record available at https://lccn.loc.gov/2020027364
LC ebook record available at https://lccn.loc.gov/2020027365

DOI: 10.1093/​oso/​9780197543894.001.0001

9 8 7 6 5 4 3 2 1
Printed by Integrated Books International, United States of America
 To my mom Ioana
Cu afectiune si gratitudine, acum si intotdeauna!
 CONTENTS

Foreword ix

Introduction 1

1. Hume’s Dynamic Coordination and International Law 29

2. Normative Judgment, Realism, and International Law 58

3. The International Rule of Law 86

4. The Compatibility of Constitutional Democracy and

International Law 111

5. Constitutionalism and Pluralism: Two Models of

International Law 140

Conclusion 175

Notes 185
Index 191
 FOREWORD

A few years back, at the start of this project, I was telling a colleague about
a talk I was invited to give at another university. He asked what the talk
was called, and I said, “Why Do We Need International Law?”
“Do we!?” he quipped sarcastically. I found this to be a common, al-
beit tactfully implicit, attitude among my colleagues in political science
and philosophy. In these fields, international law is a relatively new,
marginal subject. As distinguished from global justice, which has been
getting increasing attention in political philosophy since the 1990s, or in-
ternational relations, which has been on the radar of political scientists
pretty much continuously since political science became a discipline, the
rules and institutions of international law barely register as topics worth
investigating.
I aim to change that. I am joining an energetic group of scholars working
at the intersection of international law and political philosophy who high-
light the important questions, dynamics, and effects of international law
on states and individuals, such as David Lefkowitz, Jiewuh Song, Eva
Pils, Steven Ratner, Andreas Føllesdal, Evan Fox-​Decent, Evan Criddle,
Fernando Tesson, Kit Wellman, Andrew Altman, Alejandra Mancilla,
Samantha Besson, Allen Buchanan, and Leif Wenar. Their reasons for
contributing to this emerging interdisciplinary field might be different
than mine. My personal experience is that the more I learn about interna-
tional law, the more numerous my reasons become. But chief among them
are the following:
x F oreword

• International law is a very peculiar kind of law. If you ask,

“peculiar in what way?,” the answer depends on our models
of law, which are largely inspired by the operation of law in
domestic, state-​based contexts. International law is illuminated
by our conception of law built on these models, but it also
raises fundamental challenges for them. International law is
important because it requires us to consider with fresh eyes the
question: “What is law?”
• International law also changes the relationship states have to
each other, through rules about the use of violence, permissible
conduct in war, the division of territorial boundaries, and the
exchange of diplomatic representatives. By determining their
physical boundaries, access to resources, and the limits of their
legal jurisdiction, international law constitutes states as entities
with legal rights and responsibilities that set limits on and shape
processes of internal governance.
• Most fundamentally, international law also shapes the
relationship that states have with their own citizens, so it
matters to individuals in a “first-​personal” way. International
law regulates international travel, communication, mail services,
trade in raw materials, food, and clothing. It sets limits on
the permissible ways governments can treat their citizens and
foreigners, regulates access to goods and services, and enables
states in or impedes them from achieving domestic policy goals
that affect the welfare of their citizens.

All of these facets of international law make it a fascinating topic for po-
litical philosophy, which is concerned primarily with how to justify the
authority of legal and political institutions. This book contributes to this
justificatory enterprise by turning its attention to the authority of interna-
tional law over states. It addresses skeptics which hold that international
law should not have any, or much, authority over states. But it asks further
what kind of international law ought to have such authority. Therefore, the
book is not simply a defense of the status quo, but takes a critical look at
F oreword xi

the ways in which existing rules of institutions may be defective from the
standpoint of minimal requirements of justice and the rule of law.
This is a project that would not have started without the help and sup-
port of my good friend and mentor David Schmidtz and the staff, both
academic and administrative, of the Center for the Philosophy of Freedom
at the University of Arizona. They created an open-​minded space and gave
me the resources to go do my own thing, and for an academic there is no
greater gift. The University of Arizona’s philosophy community remains
for me a model of welcoming, open-​ended engagement, and of the serious,
creative exchange of ideas. Graduate seminars were (and I am sure still
are) famous as places that welcome all those interested, and the balance
of students and faculty was fairly even. Everyone enjoyed the business of
doing philosophy in a relaxed, jovial atmosphere, which often continued
over drinks. People like Dave, Jerry Gaus, and many others created the
kind of intellectual community that comes closest to a philosophical
utopia. I am grateful to them and my colleagues in the Freedom Center—​
Dan Russell, Steve Wall, Guido Pincione, and Michael McKenna—​as
well as to the graduate students with whom I worked and formed lasting
friendships, such as Chad van Schoelandt, Danny Shahar, Sarah Raskoff,
Brian Kogelmann, Jeremy Reid, Lucy Schwartz, and many others. Some
of them sat in my Philosophy of International Law class and were out-
standing and engaging conversational partners. Most of all, thanks are due
to Gayle Siegel and Rosie Johnson for keeping everything afloat with their
professionalism—​and lovely snacks.
I have been fortunate to move from one ideal intellectual community
to another. My colleagues in the Department of Political Economy (DPE)
at King’s College London and in other parts of the college, particularly the
Law School, have offered the essential intellectual support to refine and
complete this project. DPE was started as an experiment ten years ago
and is perhaps unique in the United Kingdom as a successful integrator of
philosophers and political theorists, economists, and political scientists. In
other words, it is a true Philosophy, Politics, and Economics utopia, which
works not just because it was designed with this kind of interdisciplinarity
in mind—​it owes much to that—​but because it nurtures some of the most
xii F oreword

thoughtful, able, imaginative, and fun academics I know, who genuinely

value each other and add value to each other’s work. A true measure of
how lucky I feel to be their colleague is how much I miss spending time
with them during this pandemic. I have been made to feel truly welcome
at the Law School by John Tasioulas—​who served until recently as the di-
rector of the Yeoh Tiong Lay Centre for Politics, Philosophy & Law—​Eva
Pils and her wonderful Human Rights, Development, and Global Justice
seminar series, Ashwini Vasanthakumar, Lorenzo Zucca, Massimo Renzo,
Leif Wenar, and many others. To them I owe the opportunity to engage
on an ongoing basis with legal scholars and practitioners of international
law, human rights law, international criminal law, jurisprudence, and legal
philosophy.
I have presented this work before many audiences, all of whom have
significantly shaped the final version. I thank the following audiences
at these universities and events: the University of Arizona; the Global
Constitutionalism conference at the National University of Singapore; the
Brave New World conference at the University of Manchester; Legitimacy
Beyond the State: Normative and Conceptual Questions Justitia Amplificata,
Bad Homburg; The Political and Legal Theory of International Courts and
Tribunals annual workshop PluriCourts, University of Oslo; University of
Amsterdam workshop Should States Do It Alone? New Perspectives on
the Legitimacy of Multilateral and Bilateral Power Structures; University
of Hamburg; Cambridge University (Contemporary Political Theory
Seminar Series); Oxford University (Nuffield Political Theory Workshop);
McGill University (Legal Theory Seminar); University of Michigan Law
School; University of East Anglia; Catholic University of Lisbon; UK-​Latin
America Political Philosophy Research Network Workshop; University
College London; ECPR Joint Sessions Workshop; PPE Society Meeting;
American Political Science Association Meeting; Eastern American
Philosophical Association Meeting; and the ECPR General Conference.
The individuals who have listened to, read, and engaged with the ideas
in this book are too numerous to list. But special thanks must go to Lucy
Schwartz, Brian Kogelmann, Stephen Stich, Cord Schmelzle, Antoinette
Schertz, Andreas Føllesdal, Patrick Taylor Smith, Terry Nardin, Steven
F oreword xiii

Ratner, Evan Fox-​Decent, Omar Farahat, Catherine Lu, Steven Ratner,

Annie Stilz, Kim Henningsen, Dan Bodansky, Peter Niesen, Markus
Patberg, Dan Russell, Duncan Bell, John Filling, Cecil Laborde, Dario
Maestro, Luke Wilson, Kate Powers, Michael Frazer, Christopher
Meckstroth, Francisco García Gibson, Jiewuh Song, Oisin Shuttle, William
Hasselberger, Ashwini Vasanthakumar, Eva Pils, Evan Criddle, Paul Sagar,
and Robin Douglass. My students Tereza Rasochova and Alejandro Martin
Rodriguez provided invaluable research assistance in the early stages of
the project. David McBride was a patient and supportive editor at OUP,
and the two anonymous referees made important suggestions on the last
version of the manuscript. All my work is an attempt to meet the high aca-
demic standards set by my PhD adviser, John Tomasi. I am grateful to him
for not lowering the bar.
Versions of ­chapters 1 and 3 of this book have appeared in print or
online before. “Hume’s Dynamic Coordination and International Law”
appeared in Political Theory (forthcoming, online first), https://​ doi.
org/​10.1177/​0090591720921831 (reprinted here with permission from
Sage). “The International Rule of Law” appeared in Critical Review of
International Social and Political Philosophy 23, no. 3 (2020), https://​doi.
org/​10.1080/​13698230.2019.1565714 (reprinted here with permission from
Taylor & Francis). The first chapter has benefited from a John Templeton
Foundation grant on “Philosophy, Politics, and Economics” while at
the University of Arizona. The last two chapters have benefited from a
John Templeton Foundation grant, project 60688 “The Ideal of Self-​
Governance,” administered by the Center for the Study of Governance
and Society at King’s College London. I thank my former colleague Emily
Skarbek and current colleagues Sam De Canio and Mark Pennington for
facilitating it.
It seems so strange to publish a book during a pandemic, to believe that
ideas still matter, and to have the luxury to consider the long-​term health
of our institutions, when other, more pressing issues loom so large. I am
grateful for the love and support of my family and friends, particularly
my wonderful children, Carla and Luca, who have sustained me during
the last year with board games, meals cooked together, jokes, and lots of
xiv F oreword

hugs. Jim’s friendship, good cheer, and willingness to walk long miles with
me have been invaluable through the last stage of getting the manuscript
ready for publication. Finally, I dedicate this book to my mom, to whom
I owe everything.
September 2020
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 Artificial Intelligence - Revision Notes
Winter 2022 - Program

Prepared by: Teaching Assistant Brown

Date: July 28, 2025

Topic 1: Practical applications and examples

Learning Objective 1: Problem-solving strategies and techniques
• Case studies and real-world applications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Learning Objective 2: Literature review and discussion
• Best practices and recommendations
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Learning Objective 3: Practical applications and examples
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Learning Objective 4: Fundamental concepts and principles
• Problem-solving strategies and techniques
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Learning Objective 5: Key terms and definitions
• Problem-solving strategies and techniques
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 5: Diagram/Chart/Graph]
Remember: Comparative analysis and synthesis
• Critical analysis and evaluation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Practice Problem 6: Interdisciplinary approaches
• Theoretical framework and methodology
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Important: Case studies and real-world applications
• Study tips and learning strategies
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
[Figure 8: Diagram/Chart/Graph]
Remember: Interdisciplinary approaches
• Problem-solving strategies and techniques
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Important: Key terms and definitions
• Learning outcomes and objectives
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Review 2: Learning outcomes and objectives
Remember: Critical analysis and evaluation
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Example 11: Learning outcomes and objectives
• Fundamental concepts and principles
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Practice Problem 12: Statistical analysis and interpretation
• Problem-solving strategies and techniques
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Comparative analysis and synthesis
• Research findings and conclusions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 14: Diagram/Chart/Graph]
Remember: Experimental procedures and results
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Important: Case studies and real-world applications
• Learning outcomes and objectives
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Key Concept: Practical applications and examples
• Experimental procedures and results
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Remember: Historical development and evolution
• Best practices and recommendations
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Definition: Theoretical framework and methodology
• Research findings and conclusions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Key Concept: Learning outcomes and objectives
• Statistical analysis and interpretation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 20: Diagram/Chart/Graph]
Summary 3: Interdisciplinary approaches
Note: Fundamental concepts and principles
• Assessment criteria and rubrics
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 21: Diagram/Chart/Graph]
Definition: Key terms and definitions
• Practical applications and examples
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Remember: Historical development and evolution
• Historical development and evolution
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
[Figure 23: Diagram/Chart/Graph]
Example 23: Learning outcomes and objectives
• Historical development and evolution
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 24: Diagram/Chart/Graph]
Practice Problem 24: Problem-solving strategies and techniques
• Case studies and real-world applications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
[Figure 25: Diagram/Chart/Graph]
Definition: Comparative analysis and synthesis
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Key Concept: Theoretical framework and methodology
• Experimental procedures and results
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Definition: Statistical analysis and interpretation
• Learning outcomes and objectives
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Example 28: Critical analysis and evaluation
• Problem-solving strategies and techniques
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Remember: Interdisciplinary approaches
• Best practices and recommendations
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Appendix 4: Practical applications and examples
Note: Statistical analysis and interpretation
• Fundamental concepts and principles
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Important: Study tips and learning strategies
• Practical applications and examples
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Practice Problem 32: Problem-solving strategies and techniques
• Critical analysis and evaluation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Remember: Research findings and conclusions
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Remember: Learning outcomes and objectives
• Assessment criteria and rubrics
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Important: Current trends and future directions
• Best practices and recommendations
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Practice Problem 36: Theoretical framework and methodology
• Current trends and future directions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Practice Problem 37: Problem-solving strategies and techniques
• Case studies and real-world applications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Note: Research findings and conclusions
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Key Concept: Interdisciplinary approaches
• Critical analysis and evaluation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Results 5: Literature review and discussion
Practice Problem 40: Best practices and recommendations
• Historical development and evolution
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Learning outcomes and objectives
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Remember: Literature review and discussion
• Case studies and real-world applications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Note: Ethical considerations and implications
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Example 44: Ethical considerations and implications
• Assessment criteria and rubrics
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
[Figure 45: Diagram/Chart/Graph]
Remember: Study tips and learning strategies
• Best practices and recommendations
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Best practices and recommendations
• Interdisciplinary approaches
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 47: Diagram/Chart/Graph]
Practice Problem 47: Experimental procedures and results
• Case studies and real-world applications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Definition: Current trends and future directions
• Case studies and real-world applications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Note: Comparative analysis and synthesis
• Problem-solving strategies and techniques
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Topic 6: Historical development and evolution
Note: Interdisciplinary approaches
• Critical analysis and evaluation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 51: Diagram/Chart/Graph]
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