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Constitutional Theory

Law for States: International Law, Constitutional Law, Public Law

International law has long been viewed with suspicion in Anglo-American legal thought. Compared to the paradigm of domestic law, the international legal system seems different and deficient along a number of important dimensions. This Article questions the distinctiveness of international law by pointing out that constitutional law in fact shares all of the features that are supposed to make international law so dubious. In mapping out these commonalities, the Article suggests that the traditional international/domestic distinction may obscure what is, for many purposes, a more important and generative conceptual divide. That divide is between “public law” regimes like international and constitutional law that constitute and govern the behavior of states and governments and “ordinary domestic law” that is administered by and through the governmental institutions of the state.