When states use legal forms – Essay on Abbot et al’s model of
The Concept of Legalization
Question: Where in between Row I “high legalization” and Row VIII “low legalization” do legal rules start having a significant impact on state choices?
Abbot et al divide the term of legalization into three criteria to create a model with which Political Scientists and International Lawyers could be able to measure and differentiate different legal statuses of international agreements. The division into the variables obligation, precision and delegation shall provide the ability to score international institutions on the different characteristics according to whether the characteristic may or may not be possessed. Through the scoring of “High” or “Low” in each of the three categories, a possible outcome of eight different forms of international institution legalization is given. Starting from Row I, in which all three categories are scored with “High” and which is referred to with the term “Hard law”, Table 1 (p.406) shows all the possible combinations, ending with row VIII which presents the softest form of commitments. The authors identify the edges of the graphic as ideal types, on one side the hard law and its full legislation, on the other side an anarchical state, still organized by institutions as sovereignty and diplomacy, but operated by principles as the balance of power or spheres of influence. For each stage Abbot et al state examples that might fit into the actual category.
The authors state that, “to come from a commitment to a rule, discourse is needed” (402). Legal discourse is understood as discourse on text, purpose, history, interpretation admissible exceptions, applicability to situations and facts. It changes the way in how to argue a topic. The following shall provide a discourse which determines in which row of the model one can start to speak of a significant impact on state choices. “Significant” in this context shall be understood as shaping a decision situation in such a way, that the actual outcome is different than it would be without the existing institution. In other words, how legal must a legal rule be to shape state decisions?
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- Timo Dersch (Author), 2012, When states use legal forms – Essay on Abbot et al’s model of The Concept of Legalization, Munich, GRIN Verlag, https://www.grin.com/document/206095