The rule of law beyond the state: Failures, promises and theory

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.
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