Book Review: How to make a State between International and Constitutional Law

Reviewed book: Law for Leviathan: Constitutional Law, International Law, and the State, Oxford University Press (2023) - by Daryl J. Levinson

Book review by Chiara Di Lorenzo

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In Law for Leviathan: Constitutional Law, International Law, and the State, Daryl J. Levinson offers a nuanced exploration of the role that law plays in structuring modern States. It may be argued that it is rather a conventional choice to put the Hobbesian theory at the core of a dissertation of this kind, but the author decides to interconnectedly examine two parallel projects of imposing law upon the State – namely, international law and constitutional law. By doing so, he lays the groundwork for a new way of addressing the challenges that surround a subject of law as unique as the State. Intellectually ambitious, the book may be conceived as a first significant attempt to develop a coherent theory of ‘law for Leviathan’, by stimulating academic thought to pursue this effort of harmonisation further, in a burst of crystal-clear awareness about the fragmentation of legal orders.

The book is divided into three parts, the first dealing with the basic differences between legal systems created by the State and those created for the State, the second tackling the challenge of regulating State power through law, the third discussing the legal framework used to assess State wrongdoing. Throughout this structure, the author maintains that legal systems governing States must differ from legal systems governing individuals. This is because the State, projected as Leviathan, that is to say, a colossal creature that recognises no authority other than himself, is different from an ordinary person. Given that there is no government above States, the law for States needs to recommend behavioural models, impose moral standards and define regulatory techniques that are different from those developed for ordinary people.

Thus, by highlighting the peculiarities of the State when taken as a subject and not a maker of law, Levinson aspires to demonstrate that ‘law for Leviathan’ represents a distinctive legal framework. To this specific end, he develops a parallel analysis of the fundamentals of international law and constitutional law, by carefully comparing the way they put the State at the centre of the complex architecture of legal relationships, thus investigating the raison d’être of both judicial orders. This interdisciplinary reach constitutes an innovative approach, especially due to the fact that international law has features that are highly unusual compared to any existing constitutional order.

From this theoretical inquiry, it derives an attempt – maybe intentional, maybe accidental – to give new dignity to international law, whose very existence as a legal system has often been questioned, precisely because of its undeniable dissimilarity compared to contemporary constitutional arrangements. International law, in its effort to impose prescriptions upon Leviathan, appears to be more conscious of its weaknesses than constitutional law; and internationalists, in their effort to identify the challenges of imposing prescriptions upon Leviathan, appear to have advanced far beyond constitutionalists. The awareness of their own limits, demonstrated by internationalists, stems from the structure of the International community. In fact, its inorganic nature makes States, and their actions and behaviours, indispensable for the survival of this normative system.

Besides, it is constitutional law that the author describes as incapable of grasping the difficulties deriving from the attempt to impose rules on the State. Notably, when analysing the constitutional connotations of the law for States, the book focuses on American constitutional law. So, he somehow overlooks the fact that constitutional systems around the world vary along a number of significant aspects and a theory of law for Leviathan needs to unite not just international law and constitutional law but also the different constitutional systems of law. Anyway, taking into account this interesting comparison, one can easily affirm that the aim of bringing together international law and constitutional law in order to develop a “unified theory of law for States” (p. 18) has been successfully achieved, although without full comprehensiveness.

What is missing is the handling of the main argument with regard to the assessment of the content of norms. This is the third fundamental legal function, which follows the production of norms and precedes the enforcement of norms. In this respect, Levinson starts talking about the necessity for international law and constitutional law to get the consent of States to overcome the seemingly insurmountable obstacle of sovereignty. Consent is, within the specific context of international law, the element upon which the jurisdiction of supranational tribunals rests. However, he does not delve deeply into the topic in order to investigate how law for Leviathan can ascertain the content of norms in an effective manner, that is to say, how international tribunals and constitutional courts can adequately relate to States in order to ensure compliance.

Overall, the book is easy to read and meticulously leads the reader through an intuitive and straightforward text. Law for Leviathan: Constitutional Law, International Law, and the State stands out as an ambitious and innovative work that seeks, although with some limitations, to build a theoretical bridge between international law and constitutional law with the ultimate goal of understanding whether and how moral standards and legal rules can be imposed on sovereign state entities. While some core issues, such as the function of assessing the content of norms, remain unresolved, and some crucial elements, such as the variety of constitutional legal orders, are missing, the book encourages academic reflection about the need to develop the proper tools to regulate the actions and behaviours of the State as a subject of law. Through a critical examination of Hobbesian theory, Levinson makes a significant contribution to the contemporary debate on the role and nature of State power within the global legal order.