Beyond the Mission Civilisatrice: The Properties of a Normative Order within an Internationalized Territory
Published online by Cambridge University Press: 13 July 2006
Theorizing about the operation of law in an internationalized territory involves three discrete dimensions, according to which this article is structured. First, liberal legal forms are transmitted without being subject to mediation by a ‘sovereign’. The diffusion of imported norms represents the precise telos of a mission civilisatrice of a postcolonial institution-building mission. Such internationalization projects realize their liberalizing potential through a complex process where they provide legal continuity while importing legal forms that emphasize discontinuity and progress. In the second dimension, the article accounts for the asymmetric co-government setting exhibited in Kosovo in which law is both municipal and international. The syncretic nature of legal sources limits attempts to establish a ‘hierarchy’ of norms in an internationalized territory. Further, the promised advent of a liberal future is challenged by what this article identifies as the third characteristic of such a transitory legal order – the unaccountability of the international administering agent. These three properties of a normative order entail a paradox in which the aspirations of a fiduciary administration operating in the slipstream of liberal internationalism and its ‘civilizing mission’ are qualified by the absence of key criteria of a Rechtsstaat – the democratic creation of laws, the separation of powers, legal certainty, and the judicial control of normative acts.
- 2006 Foundation of the Leiden Journal of International Law