International legal structuralism arrived on the shores of international thought in the 1980s. The arrival was not well received, perhaps in part, because it was not well understood. This essay aims to reintroduce legal structuralism and hopefully pave the way for new, and more positive, receptions and understandings. This reintroduction is organized around two claims regarding the broader encounter between international lawyers and critical theory in the 1980s. The first was a jurisprudential claim about how the critics sought to show how international law was nothing more than a continuation of international politics by other means. The second was a historical claim about how the critics wanted to show that international law had never been anything but politics, and that it always would be. In the view of this essay, both of these claims about international legal structuralism were wrong, and they are still wrong today. For despite the tendency to think of it as a cover for postmodern nihilism or relentless deconstruction or both, legal structuralism offers international theorists an enriching and edifying method for rethinking the relation between law and politics on the one hand, and law and history on the other. It is in the effort to carry a brief for a reawakened legal structuralism that the essay brings focus to some of the early works of Koskenniemi and Kennedy, identifies the semiotic foundations of that work, and ultimately suggests the possibility of a second generation of international legal structuralism.

I shall argue that in some wars both sides are (as a collective) justified, that is, they can both satisfy valid jus ad bellum requirements. Moreover, in some wars – but not in all – the individual soldiers on the unjustified side (i.e. on the side without jus ad bellum) may nevertheless kill soldiers (and also civilians as a side-effect) on the justified side, even if the enemy soldiers always abide by jus in bello constraints. The reason for this is that with regard to some forms of inflicting harm on others one may give special weight to one’s own interests and the interests of those to whom one has special responsibilities when assessing the proportionality of those acts. That is, the proportionality calculation may be agent-relative. This is in particular so in the case of foreseeably preventing innocent and non-threatening people from being saved (for instance, by shooting down a tactical bomber who would have saved them by destroying an ammunitions factory) but less so in the case of the intentional or foreseeable direct harming of innocent and non-threatening people (dropping bombs on people standing near an ammunitions factory). In the light of these considerations, I will then answer the question as to when soldiers may justifiably participate in war (and when not).

This article develops a socio-legal approach to theorizing the construction of peremptory norms in international relations. It argues that due to its focus on formalism and abstract notions of rights, traditional legal treatments have failed to acknowledge the socially constructed nature of higher order norms. To address this shortcoming, the article transfers the concept of jus cogens into the realm of International Relations. Drawing on insights from constructivism and English School theory, it situates law in the context of society and conceptualizes jus cogens as part of international society’s constitutional structure. Proceeding from the assumption that the content and identity of jus cogens depends on the normative character of international society, the article then assesses two possible ‘normative logics’ through which the peremptory status of a norm may be generated. It rejects a solidarist logic, which sees universal norms as the manifestation of cosmopolitan ideas about inalienable rights. Instead, it argues for a pluralist approach to ethics and order that depicts jus cogens as key to the development of international society towards a social site marked by diversity and respect for difference.

Current economic and political developments spotlight the relationship between domestic and global governance and the impact of globalization on both. A key question is whether a sovereign state system, democratic governments, and an integrated global marketplace can coexist. The paper assesses analytic materialist arguments for their incompatibility and the key assumptions on which they rest. The paper describes the extant pressures operating to limit each of the three: how sovereignty and democracy work to constrain globalization, how globalization and sovereignty generate a democratic deficit, and how globalization and democracy lead to limitations upon, and even the transcendence of, sovereignty. How to make the three compatible, and failing that, which facet to restrain, characterizes political contestation in a globalizing age. Global and domestic governance reflect the need to reconcile the combined implications of globalization, sovereignty, and democracy, and to do so by restraining, limiting, or transforming one or more of these features.

The article advances three options to create new ways for thinking about humanity. First, reject humanity and view interconnectedness as state centric rather than human centric, with international law upheld as the bedrock institution of international society. Second, thin humanity puts forward a reductionist view that the value of humankind lies in the human worth of its members – human beings. In short, humanity is the sum of its parts. Third, thick humanity, which views humankind as an independent value in its own right. From this perspective, the value of humanity lies in its ubiquity, which reveals that it is not just more, it is different, to the sum of its parts. It is important to note that this is not a purely theoretical issue. One’s view of humanity shapes one’s view of whether citizens of one state should care for the citizens of another, which lies at the heart of contemporary debates over issues such as the responsibility to protect, human security, and redistributive justice. In so doing, the article speaks to broader debates on humanity that reflects the need for greater interdisciplinary research in the future.