Introduction

This chapter examines the project of transformative occupation undertaken by the United States and its allies following the invasion of Iraq in 2003. More specifically, it considers the US occupation in light of two competing sensibilities in international legal argument. On one view, which I term ‘legal formalism’, the purpose of international law is eclectic, intersubjective and value-pluralist: to create the conditions for peaceful coexistence between different political orders and ways of life. This view is commonly associated with the liberalism of the United Nations (UN) Charter, which posits both the subject of international law and its liberty in formal terms as ‘the state’ and ‘sovereign equality’ respectively. On a rival view, which I term ‘instrumental anti-pluralism’, the purpose of international law is to project a universal regime based on a rationally reconstructed and universally authoritative morality. Here the identity of the sovereign as a subject of international law is understood in material terms as ‘the liberal democratic state’ and sovereignty is understood as the equal treatment of legal subjects so defined.

The defining feature of the anti-pluralist view is the notion that the internal characteristics of a state determine its standing in the family of nations. Undemocratic, illiberal, or so-called ‘rogue’ states such as Iraq are not to be regarded as full members of international society and are seen to lie outside of the zone of law.