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Keywords

ISIL; Lawlessness; case study; problem; Syria; Consent-Based; Iraq; International Law; threat

Abstract

This Article has five parts. Part I sets out and adopts the basic premises of the jurisprudential perspective championed by Professor Reisman and sketches his argument that legal solutions can always be fashioned in a meaningful and realistic manner. Part II discusses the development of ISIL in the Middle East. Part III analyzes the lawlessness problem created by ISIL for the affected local communities and explains how loss of control, left unattended, transforms into a loss of authority of prescription by destroying the social fabric needed for legal processes to have meaning. Part IV develops how municipal lawlessness has a contagion effect on the international plane through what this Article calls the transnational transference of lawlessness by comparing international legal reactions to ISIL’s putative establishment of a caliphate in Syria and Iraq. Part V sketches how the contagion effect can be stopped by means of the diagnostic tools developed in Parts III and IV. The Article demonstrates that both public debate and scholarly engagement so far have focused on the wrong question: whether or how to use force to wrest control of territory from ISIL. Given the progression of lawlessness from loss of control to loss of authority mapped in Part III of the Article, this incorrect focus is understandable. But to be effective, the debate instead must focus directly on how authoritative decision-making processes can be rekindled and protected in Syria, Iraq, and beyond. These structures were degraded not just by ISIL, which may well be a symptom of failing authority structures rather than its proximate cause; in fact, these structures were sabotaged by Western and Ottoman colonial powers long before ISIL sought its opportunity on Arabian soil. Perhaps counter-intuitively, use of force that does not also address and re-strengthen the social fabric in the region could well be worse long-term than no use of force at all. Given the human toll in the region—and the role as other than an innocent bystander of Western powers—the normative end of law should inspire us towards more effective—and more authoritative—forms of intervention.

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