Towards Reinforcing or Contesting the Vision of the Rule of Law? (original) (raw)
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The Rule of Law in Global Governance. Its Normative Construction, Function and Import.
What does the Rule of law contribute in the frame of global governance? While addressing metamorphoses of law and the multiple legalities in the global context, this paper shows that the rule of law can consistently be extended externally being cherished internally. It takes seriously the concurrence of different legalities in their diverse 'formats', and the challenge of the "global administrative law" theoretical and empirical model. At the meta-level of the relations among legalities, the Rule of law has an essential role to play: it affects interactions and interdependence, and can cause content-dependent assessments to develop, without supporting self-closure or monistic dogmas. This originates from the normative implications of the rule of law ideal (between couples like accountability and responsibility, the right and good, justice and power) but appears to open a forward looking research agenda on global governance. Professor of Legal Philosophy and Sociology of Law, University of Parma (glpalomb@unipr.it). A version of this chapter was delivered at the 'Straus Institute" and the NYU Law School IILJ 2010. rule of law, as analyzed by P. Craig, "Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework." Public Law, 1997 (Autumn), 467-487. 5 In the modern history, law contributed to this achievement by the separation of powers, an independent judiciary, legal protection of other principles (and rights) even vis à vis legislation (and the democratic or sovereign principle itself), and by fixing pre-given rules for the exercise of legitimate power in a non-arbitrary way. The last aspect though, wouldn't tell the whole story, and if taken alone would be misleading. As the pre-constitutional (XX and XIX) Rechtsstaat (or Stato di diritto) proved, power's formal steps can be non-arbitrary, rule-based, hierarchically rigorous, and still legislation (let alone the whim of the Executive) can monopolize the social available normativity in a legally dominating way. Contrariwise, a dual structure of law, better apparent in the rationale of the English rule-of-law tradition (including common law and judge made law), is a reason why the power, from the legal point of view, is neither " unlimited " nor " unbridled ". 5 those in power (a rule by law). Thus, the Rule of law concerns, at the familiar level of polities, the balance between competing sides of law, as in the medieval couple jurisdictio and gubernaculum, the tension between 'the right' and 'the good', and between justice and power.
This paper addresses the rise of global regulatory regimes within a broader theoretical framework of the international rule of law. Section 1 focuses on the question of who should be ultimate beneficiaries of the international rule of law, and it challenges Waldron's claim that these should be individuals, rather than states. This section shows that, depending on the nature of a particular regime, states could also benefit from the global adherence to the rule of law. Section 2 explores what is required for a global regulatory regime to conform to the international rule of law value. Since central to this value has to be the very same idea that exists on the domestic level, that of "bounded government" which is restrained from acting outside its powers, a global regulatory regime has to meet a set of procedural and substantive requirements stemming from domestic administrative law, but adapted to peculiarities of the international level. Finally, Section 3 tries to show that the capacity of these regimes to excel the rule of law principles immanent to administrative matters is intricately connected to their putative "legality". It transpires, however, that jurisprudential effort of conceptualizing global administrative law largely depends on its prior task of settling much broader issues, such as the relation between the core and peripheral concept of international law and the theoretical sustainability of "graduated normativity" of international legal instruments.
Rule of Law Dynamics in an Era of International and Transnational Governance
SSRN Electronic Journal, 2011
rule of law agenda has increasingly targeted I Os, transnational actors, and nonstate parties that now play a rnore significant role in rule 111aking and governance. 'The international and transnational nature of 1nodern governance presents 111ajor challenges for the rule ofl;nv prornotion agenda, at a ti1ne V1 1 hen the less-than-stellar results of traditional state-oriented rule of hnv pro111otion have led lo increased doubts about the \visdo1n and feasibility of lhe enterprise (Carothers 2006a; Taylor 2009; Trebilcock and Daniels 2008; Trubek 2006). l-1ave the 1najor actors in the rule oflaVv• field, including the "great po\vers" and IOs, altered their strategies, prograrns, and practices to reflect the shift to new levels and 11ew fonns of governance? Do rule of law standards apply to nev.,1 international and transnational fonns of regulation? Should they he 111odified to fit the different context? Ca11 the interactions behvcen national and international levels be structured so that they do not heco1ne a ne\v source of rule of law violation? Does international hnv provide a clear and acceptable sel of standards that can fonn a co111n1on baseline for rule oflaVv• pron1otion applicable to both states and ne\v fonns of governance? Finally, how does rule oflavv pron1o!ion, y.,1hether or not it is based 011 standards of international hnv, cope \vith the \Viele variety of forrns ot' resistance fro1n the targets of rule of lavv pro1notion? To contribute to our understanding of rule of lnVv• pro1notion, this volu1ne seeks to address the dyna111ics of nt!e of law in an era of international and transnational governance. It uses the tenn "dynan1ics" to refer no! only to the increasing international and transnational cli1ne11sions of rule of law pron1otion 2 but also to the interaction between the international and clon1cst-ic levels oflaV1 1. It conceptualizes these levels as a two-w•ay rclahonship: International hnv influences rule of la\v develop1nen1-at the do1nestic and local levels; at the sa1nc tirne, precisely because of its potenlial effects, rule of 1aVv' standards are being sought at the international level itself. 'I'he dyna1nics of rule of law also enco1npass the interaction bctV1 1 een rule of lavv pro1notion and rule of law conversion.1-'l-1e success of rule ofhnv pro1notion depends not only on the attractiveness of the rule of la\N concept but also on the y., 1 ays it is pro1notccl and the \vays it is received. T'o be effective 1 rule of law pro1noters need to take into account the response and feedback froin recipients 1 and they 111ust adapt their n1ethods accordiHgly. 'f'his long-recognized truth rc1nains relevant when rule We follow the established practice in international relations, using "international" to refer to activities taking place between states and "transnational" to refer to societ;1l cross-border activities (see, e.g., the chapters in Cnrlsnaes, Risse, aud Si1ninons 2002). International prohle1ns are accordingly the result of dynainics between states, whereas transnational proble1ns are the consequence of cross-border socicbl ;,ictivities. Consequently, inten1ational governance refers to regulations set up and carried out by states. This includes international law, as defined by the state-controlled sources of international law. Transnnl'ional governance, in contrast, refers to se!f~regulation :-unong societal actors. Such regulation is not part of international law as traditionally understood. Many uses of"global governance" contain both cotnponents, transnational mid international governance. In this volun1e we look at interuational efforts of rule of bw diffusion (see chapter by Schi1ninelfe11nig, this volu1ne) as well as transnational efforts (see Heupel, this volunie). V/e also look at develop1nents in international nonns (see, e.g., Aust and Nolte, this vohnne) as well as tnmsnational nonns (see Schuppert, this volu1ne).
Global law’ and governmentality: Reconceptualizing the ‘rule of law’ as rule ‘through’ law
European Journal of International Relations, 2012
This article challenges the optimism common to liberal IR and IL scholarship on the 'rule of law' in global governance. It argues that the concept of the 'rule of law' is often employed with sparse inquiry into the politics of its practical meaning. Specifically, the article focuses on liberal research that advocates the emergence of a 'global' judiciary, and the claim that judicial governance will marginalize state power and authority. Rather than employ a zero-sum conception of power, this article regards a prospective global legal system less as a constraint on state power and more as a rationale for rule 'through' law by vested actors. To make the argument, Michel Foucault's concept of 'governmentality' is combined with Barnett and Duvall's notion of 'productive power' to denote how legal techniques of power are integral to the construction of social 'truth' and consequently the governance of conduct. This is further associated with Koskenniemi's critical scholarship on the power of law's perceived objectivity and universality. In this vein, the article questions how liberal scholars use the American judicial model (the Marbury ideal) to claim that an institutionalization of 'global' judicial authority can deliver the rule of 'no one' in global governance. A governmentality perspective is then applied which suggests that the lack of supreme constitutional rules at the global level makes judicial governance less a check than a means to propagate normative standards conducive to dominant state power.
Between Law and Social Norms: The Evolution of Global Governance
Ratio Juris, 2009
It is commonplace that economic globalization poses new challenges to legal theory. But instead of responding to these challenges, legal scholars often get caught up in heated yet purely abstract discussions of positivist and legal pluralist conceptions of the law. Meanwhile, economics-based theories such as “Law and Social Norms” have much less difficulty in analysing the newly arising forms of private and hybrid “governance without government” from a functional perspective. While legal theory has much to learn from these approaches, we argue that they fail in one crucial point: They cannot uphold the analytical distinction between law and non-law. The reasons for this shortcoming are theory-immanent in that the economic theories' focus on efficiency and their actor-based perspective are necessarily blind to “law's own rationality.” We therefore propose to further develop those functional approaches to the study of global governance by complementing them with elements from Niklas Luhmann's systems theory of law. This will provide us with a conceptual framework for analyzing the workings of global governance regimes without ignoring their potential for “legalisation” and “constitutionalisation.” As we will show in three concrete examples (Corporate Social Responsibility, lex mercatoria, and internet regulation) we can thus describe the evolution of new forms of legal regulation beyond the nation-state. This will also allow us to draw some preliminary conclusions on the role of law in the context of globalization and, at the same time, show the direction for further empirical research.
Around the Pyramid: Political-Theoretical Challenges to Law in the Age of Global Governance
Revista de Direito Internacional, 2018
The idea of global governance has become central to debates on international relations. It has been hailed as the most performing strategy to articulate the multiple, concurring, sometimes conflicting interests of the increased number of global players. The relevance of this popularity goes much beyond the practical reasons often invoked in favor of its adoption. It bespeaks a process of a deep transformation of the very theoretical frameworks within which Law, in general, and international Law, in particular, have been conceived. This paper argues that prevailing understandings of global governance risk contributing to depoliticize the exchange between States, as it usually overemphasizes the supposedly technical, objective dimension of performance indexes while underemphasizing the political choices embodied in their design. It has as its main theoretical sources the works of OST and KERCHOVE, SUPIOT (2015), FOUCAULT (1998), SOUSA SANTOS & RODRIGUEZ-GARAVITO (2005).
Journal of World Sociopolitical Studies, 2020
The traditional approach to international law granted states an absolute monopoly in making international law and it discussed the rights and powers of states as a sole subject of international law. However, the proliferation of norms made by non-state actors raises questions with regard to the status of the actors as well as the legitimacy of the norms in the international fora, while it also challenges the state-centric orientation of international law. In consideration of the foregoing, customary law-whichwas traditionally comprised of two statebased elements of practice and opinio juris, as an important source of international law-has been faced with a strand of inquiry: can non-state actors generate international customs? Through 1) an in-depth survey of scholarly arguments regarding law-making in certain circumstances that could also belong to private parties; and 2) a close examination of the lex mercatoria as an example of existing international customs developed by non-state actors, this article tries to clarify a) the legitimacy crisis of a more inclusive approach to international law and b) proposes opportunities whereby non-state actors could participate in the law-making process.
American Journal of Comparative Law, 2008
The rule of law is almost universally supported at the national and international level. The extraordinary support for the rule of law in theory, however, is possible only because of widely divergent views of what it means in practice. Disparate national traditions posed few problems while operating in parallel, but efforts to promote the rule of law through international organizations have necessitated a reassessment of this pluralism. This article proposes a core definition of the rule of law as a political ideal and argues that its applicability to the international level will depend on that ideal being seen as a means rather than an end, as serving a function rather than defining a status. Such a vision of the rule of law more accurately reflects the development of the rule of law in national jurisdictions and appropriately highlights the political work that must be done if power is to be channeled through law. two anonymous referees were kind enough to comment on earlier drafts -though not so kind as to take responsibility for errors that remain. This article draws upon passages first written for the "rule of law" entry in the MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (Rüdiger Wolfrum ed., forthcoming).
The rule of law beyond the state: Failures, promises, and theory
Resorting to the " rule of law " within the traditional environment of international law generates diffi culties, 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 refl ect 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 fi nally evolve further into a rule of recognition for the international legal order.