The Rule of Law Beyond the State: Failures, Promises and Theory

International Journal of Constitutional Law, Vol. 7, No. 3, pp. 442-467, 2009

26 Pages Posted: 31 May 2012

See all articles by Gianluigi Palombella

Gianluigi Palombella

Scuola Superiore Sant'Anna di Pisa; university of Parma

Date Written: 2009

Abstract

Resorting to the 'rule of law' within the traditional environment of international law generates difficulties, especially when circumstances require us to square the circle by accommodating normative claims with state legal orders, fundamental rights, and democracy. Unsurprisingly, in recent cases brought before supranational courts, such as the European Court of Justice (Kadì and Al Baarakat, for example), or domestic courts, such as the United States Supreme Court (Hamdan, for example), the import and notion of the rule of law have been interpreted in ways that reveal the uncertainty surrounding the concept and the rather idiosyncratic or instrumental uses to which it is put. Through the analysis of such instances, this article proposes a restatement of the rule of law that better explains its use beyond state borders. Then, it shows how the relation between different orders, as a factual matter, does not obey some monist hierarchy and does not even reflect the logic of the 'dualism' of self-contained systems. Given that the autonomy of legal orders is a vital contemporary reality, confrontation between them and with international law appears to be replacing the formal primacy of sources as well as blind or dogmatic closure by content-dependent constitutional assessments. In this connection, a road taken in the European environment shows that communicative pluralism can embark on a practice of giving reasons inherently capable of producing common standards, the rule of law, and thin lines of principle. All of these factors are ingredients that might finally evolve further into a rule of recognition for the international legal order.

Keywords: rule of law, international law, constitutional law

Suggested Citation

Palombella, Gianluigi, The Rule of Law Beyond the State: Failures, Promises and Theory (2009). International Journal of Constitutional Law, Vol. 7, No. 3, pp. 442-467, 2009. Available at SSRN: https://ssrn.com/abstract=2070502

Gianluigi Palombella (Contact Author)

Scuola Superiore Sant'Anna di Pisa ( email )

Italy

university of Parma ( email )

Via Universita 12,
Parma, 43100
Italy

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