David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Resorting to the Rule of law within the traditional environment of international law is generating difficulties, especially when circumstances require to square the circle by accommodating normative claims connected to State legal order, fundamental rights, democracy. In recent cases brought before supranational courts, like the European Court of Justice (e.g. Kadi and Al Baarakat), or domestic courts like US Supreme Court (e.g., Hamdan), unsurprisingly, the import and notion of the Rule of law have been interpreted in such ways as to reveal the uncertainty surrounding the concept and the rather idiosyncratic or instrumental use of it. Through the analysis of such instances, this article proposes a restatement of the rule of law that better explains its use beyond the state borders. Then, it shows how the relation between different orders as a matter of fact does not obey to some monist hierarchy and not even just reflects the logic of self contained systems' dualism. Being the autonomy of legal orders a vital contemporary reality, confrontation between them and with the international law appears to be replacing formal primacy of sources as well as blind or dogmatic closure, by content dependent constitutional assessments. In this connection, a road taken in European environment shows that communicative pluralism can embark into a practice of giving reasons inherently capable of producing common standards, the rule of law, and thin lines of principle. All of them are ingredients which might finally evolve into a further rule of recognition for the international law order. Table of contents: 1. Introduction and premise. 2. Superimposing one rule of law? 3. Some hints on which Rule of law. 4. Theoretical analysis and living law shortcomings. 5. Towards content dependent assessments. 6. Building on the rule of law as a third chance? 7. A practice theory of recognition: re-starting from a Hartian background.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
Nico Krisch (2011). Who is Afraid of Radical Pluralism? Legal Order and Political Stability in the Postnational Space. Ratio Juris 24 (4):386-412.
Similar books and articles
Matthew H. Kramer (2007). Objectivity and the Rule of Law. Cambridge University Press.
John Arthur & William H. Shaw (eds.) (2010). Readings in the Philosophy of Law. Pearson Prentice Hall.
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
Colleen Murphy (2005). Lon Fuller and the Moral Value of the Rule of Law. Law and Philosophy 24 (3):239-262.
Evan Fox-Decent (2008). Is the Rule of Law Really Indifferent to Human Rights? Law and Philosophy 27 (6):533 - 581.
Added to index2009-01-28
Total downloads18 ( #100,258 of 1,139,891 )
Recent downloads (6 months)1 ( #165,020 of 1,139,891 )
How can I increase my downloads?