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Plausible LegalityLegal Culture and Political Imperative in the Global War on Terror$
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Rebecca Sanders

Print publication date: 2018

Print ISBN-13: 9780190870553

Published to Oxford Scholarship Online: August 2018

DOI: 10.1093/oso/9780190870553.001.0001

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Permissive Constraint

Permissive Constraint

Law, Power, and Legal Culture

(p.17) Chapter 2 Permissive Constraint
Plausible Legality

Rebecca Sanders

Oxford University Press

Can legal norms limit state violence? International relations and international law scholarship provide a variety of answers to this problem. Realist, decisionist, and critical theorists conceptualize law as permit, as a weak constraint on and tool of powerful states. In contrast, liberals and constructivists emphasize law’s capacity to constrain states for rationalist and normative reasons. This chapter examines whether these contending perspectives adequately account for how authorities navigate legal rules across legal cultures. It argues that legal cultures of exception and secrecy tend to operate in accordance with the assumptions of law as permit, while largely aspirational cultures of human rights fulfill a vision of law as constraint. In the United States’ contemporary culture of legal rationalization, law serves as a permissive constraint. Permissive legal interpretation has enabled American officials to establish legal cover for human rights abuses, while legal norms simultaneously delimit the plausibility of legal justification.

Keywords:   9/11, global war on terror, human rights, international relations theory, international law, legal culture, realism, decisionism, liberalism, constructivism

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