Burgess, P; (2019) Deriving the international Rule of Law: an unnecessary, impractical and unhelpful exercise. Transnational Legal Theory , 10 (1) pp. 65-96. 10.1080/20414005.2019.1609813.

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Abstract

The content of the international Rule of Law is frequently debated. In this debate, domestic Rule of Law conceptions are frequently—if only indirectly or implicitly—used to derive the international concept. I argue this derivation, and the debate regarding the form of any derivation, is unnecessary because the domestic conceptions frequently used as a foundation for the formulation of the international concept cannot be internationalised. This happens as the context in which such concepts were framed fundamentally differs to the contemporary international arena. I also argue deriving the international Rule of Law in this way is both impractical and unhelpful as derivation necessitates the arbitrary selection of aspects of domestic conceptions to formulate the international concept. I do not suggest there is not, or cannot be, an international Rule of Law. I do, however, argue the international Rule of Law should be formulated without recourse to domestic ideas.

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