ARTICLE
The rule of law beyond the state: Failures,
promises, and theory
Gianluigi Palombella*
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.
1. Introduction
A “rule of law” that lies beyond the state may concern the reach of law into
the global setting. It may refer to some global law, as yet still uncertain
and undefined, as a component of some governance processes that are, as
a whole, outside of states’ control.1 Separate regimes may connect into
* Professor of Legal Philosophy and Sociology of Law in the Faculty of Law, University of Parma (Italy). Email:
[email protected]
1
Sabino Cassese has focused on “the establishment of global regulatory systems” that are held to
be “driven by three tendencies: the states’ pooling of some of their own tasks in bodies operating at
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I•CON, Volume 7, Number 3, pp. 442–467 doi:10.1093/icon/mop012
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The rule of law beyond the state: Failures, promises, and theory 443
networks lacking a “unitary design” and through nonhierarchical links,
thus growing as a whole with no center and no predesigned plan.2 Networks
of networks have developed within the international space,3 and diverse
actors—like NGOs and multinational companies,4 or informal bodies or
private institutions5 crossing the borders of nation-states—populate a kind
of polycentric society, which is hardly based on the states’ authority and
control alone, and require a revision of the Westphalian concept of world
order.6
New realities call for the coordination among sources of law that are far
from being organized. New recipes are evoked for solving the problem of rules
conflict, fragmentation, and the lack of democratic control, and relevant
attempts are made in order to conceptualize the multilevel set of fundamental
rules, emerging in the international world, and capable of playing a constitutional role.7
It appears that even if some legal fabric is developing beyond states,
however, international law may be one of its ingredients. Certainly, on the
one hand, one cannot conceive of global law just as an evolutionary stage of
a level other than their own, the need of sub-state bodies to forge relationships with each other,
and increased co-operation among international organizations at the global level.” Sabino Cassese, Administrative Law without the State? The Challenge of Global Regulation, 33 N.Y.U. J. INT’L L. &
POL. 663, 677 (2005). Another strand traditionally focused on the development of a lex mercatoria
and the alternative to (hard) formal law as “soft law”; see, for example, from a huge bibliography,
FRANCESCO GALGANO, LEX MERCATORIA (Il Mulino 1993); Harmut Hillgenberger, A Fresh Look at Soft
Law, 10 Eur. J. INT’L LAW 499 (1999). For some introductory definitions of “governance” cf. DAVID
HELD & ANTHONY MCGREW, THE GLOBAL TRANSFORMATIONS READER: AN INTRODUCTION TO THE GLOBALIZATION
DEBATE 68 (Polity 2001).
2
Cassese, supra note 1, at 677.
3
ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 135 (Princeton Univ. Press 2004).
4
See generally, NON-STATE ACTORS AS NEW SUBJECTS IN INTERNATIONAL LAW (Rainer Hofmann ed., Duncker
& Humblot 1999).
5
E.g., the Basle Committee for cooperation among national central banks. Cf. Anne-Marie Slaughter, “Governing the Global Economy through Government Networks,” in THE ROLE OF LAW IN INTERNATIONAL POLITICS: ESSAYS IN INTERNATIONAL RELATIONS AND INTERNATIONAL LAW 177 (Michael Byers ed.,
Oxford Univ. Press 2000).
6
See, e.g., Neil Walker, Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of
Normative Orders, 6 INT’L J. CONST. L. (I•CON) 373 (2008). Notably, Walker does elaborate on the
stability of the new disorder as a qualitative change. See also discussion infra § 6.
7
E.g., Theodor Schilling, On the Constitutionalization of General International Law (Jean Monnet
Working Papers, June 2005), available at http://www.jeanmonnetprogram.org/papers/05/
050601.html. With reference to economic law, Ernst Ulrich Petersmann, State Sovereignty,
Popular Sovereignty and Individual Sovereignty: From Constitutional Nationalism to Multilevel
Constitutionalism in International Economic Law? (European University Institute Working
Papers, No. 2006/45).
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international law, traditionally encompassing the interplay among states’
wills.8 It has been made clear that global administrative law, for instance,
has grown up in large measure by trespassing on the national, regional, global divides. On the other hand, however, international law is itself affected by
the very same processes and has produced new layers in the last fifty years,
as is commonly agreed, that, beyond the state-transactional level, have given
rise to a regulative and organizational law as well as to a “community” erga
omnes (or super partes) law.9
Moreover, within international law, dogmatically held to deal with interactions between states and where no other subjects are allowed to emerge, individuals have actually been addressed increasingly and touched directly by
conventional law or by administrative resolutions and orders issued by supranational organs. In this complex and uncertain legal environment, the question may be posed asking what is the potential or the role, if any, that the
concept of the rule of law can play10 when we try to disentangle it from state
territorial sovereignty or from the rights-based law of our constitutional
democracies and to project its normative content beyond its most familiar
domain.
In what follows I will focus only on a more limited issue that belongs among
the general concerns raised by the transformations of international law as
interstate law. One of the relevant problems that arises in this context—even
before the complaint about the absence of any democratic control over the
choices made by global or international actors (or the United Nations Security
Council and the like)—regards the consequences for individuals and rights
guarantees vis-à-vis the exercise of power. Private actors11 as well as traditional public institutions, such as states (and an impressive array of administrative bodies), can be agents of rights infringements, just as much as
international organizations and supranational authorities.
Certainly, the rule of law is the most pertinent ideal that can be invoked when
what is at issue are the role, structure, and quality of law, and it precedes logically
8
Francisco La Porta, Globalization and the Rule of Law, in LAW AND JUSTICE IN A GLOBAL SOCIETY 263
(Manuel Escamilla & Modesto Saavedra eds., Editorial Univ. de Granada 2005).
9
ANTONIO CASSESE, INTERNATIONAL LAW 217 (2d ed., Oxford Univ. Press 2005); J. H. H.Weiler, The Geology of International Law; Governance, Democracy and Legitimacy, in ZEITSCHRIFT FÜR AUSLÄNDISCHES
ÖFFENTLICHES RECHT UND VÖLKERRECHT [ZaöRV] 547 (2004); Gianluigi Palombella, The Rule of Law, Democracy, and International Law. Learning from the US Experience, 20 RATIO JURIS 456 (2007).
10
Sabino Cassese has produced seminal works on the understanding of the rule of law, through
global administrative law. For instance, cf. supra note 1, at 683 and 690, he has stressed the function of “rights globalization,” the provisions of guarantees for the addressees, mainly rights of participation and of defense, that were originally developed as a part of “traditional administrative
law.” See generally Sabino Cassese, OLTRE LO STATO [BEYOND THE STATE] (Laterza 2006).
Gunther Teubner, Globalised Society, Fragmented Justice: Human Rights Violations by “Private”
Transnational Actors, in LAW AND JUSTICE IN A GLOBAL SOCIETY, supra note 8, at 547.
11
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The rule of law beyond the state: Failures, promises, and theory 445
and even historically the development of Western modern constitutionalism.
While the contemporary appeal to a world constitutionalism seems to be the
most ambitious claim for the new era, the rule of law may, nonetheless, be
required as a basic condition for a decent legal environment, regardless of whether
it extends within or beyond the state. After all, the problem of the rule of law
appears to be even more urgent than the construction of a cosmopolitan republic
or the achievement of a democratic global structure of power.
Insofar as democracy and the rule of law can support and mutually
strengthen each other, they are both desirable and largely compatible.
Nonetheless, the rule of law asks for some law to face, limit, or even counterbalance power, regardless of its forms, structures, and those who wield it.
Accordingly, the rule of law is endowed, as well, with a conceptual independence from democracy; it applies to and confronts any form of power and government, and, in turn, eventually it takes different incarnations in different
times and places.12 In what follows, since the rule of law refers to law per se,
I do not need to assume any preunderstandings concerning its necessary
inherence in the domain of the state, while I will be inclined to consider it as
destined, essentially, to contrast with the monopoly of law and power.
Within this framework, I will show some circumstances wherein the rule of
law—which is not only cherished but expressly mentioned by states, regional
and supranational organizations, laws, and judicial pronouncements—has a
chance of acquiring some normative universality. This goal will be connected
(section 7) to the ongoing practice of confrontation between diverse actors and
legal orders, to the options of “recognition,” and eventually to the formation of
some normative constants, with validating functions (vis-à-vis candidate
norms), that are intended on a different level than that of the parties’
transactions.
This latter task cannot be a credible option unless relevant actors examine
the consistency and coherence of their own interpretations and disentangle
legal categories from double-standards-based practices depending on contexts,
jurisdictions, and domains (whether domestic, international, supranational,
and so forth). Such a task is necessary in the interplay between international
law and domestic law, especially when the questions at stake involve justice
toward individuals; this is a concern that, according to the rule-of-law ideal,
cannot be forfeited in the face of power, and even less so in the name of power,
whether that of the UN or of “democratic” states.
I shall cite examples to confirm that resorting to the rule of law within the
traditional environment of international law might generate unresolved difficulties, on the one hand, since appealing to the rule of law in the name of some
universalistic “monism” can prove itself unilateral and narrow-minded. On
12
Cf. Gianluigi Palombella, The Rule of Law and Its Core, in RELOCATING THE RULE OF LAW 17 (Gianluigi
Palombella & Neil Walker eds., Hart 2009).
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the other hand, reliance on the democratic pedigree of normative orders (in
some “dualist” vein) might do no better, especially when circumstances require
squaring a circle by accommodating normative claims related to state legal
order, fundamental rights, or international law. Unsurprisingly, in recent cases
brought before supranational courts, such as the European Court of Justice, or
domestic courts, such as the Supreme Court of the United States, various conceptions of the rule of law have been laid down with different contents and
different degrees of breadth and depth. Beyond the specific matters at stake,
whether concerning the safeguards of international law for Guantánamo
detainees or the fundamental rights of persons targeted by a United Nations
Security Council resolution, the import and notion of the rule of law have been
brought to the fore and interpreted in ways that reveal the uncertainty surrounding the concept and the rather idiosyncratic or instrumental use of it.
Thus, there are also clues to what may be called the rule of law’s dark side,13
which are all the more apparent when it is appealed to in the middle of a conflict between an alleged international legal order and state sovereignty or constitutional democracy. However, it is against the instrumental use of law that
the rule-of-law ideal can be ultimately understood.
2. Superimposing one “rule of law”?
It is commonly recognized that through the developments of international law
in the last sixty years, the “right” and the “good,” evoked through an appeal to
the general interest of humanity, have actually been given some voice. The
Charter of the UN and the Declaration of Rights, the growth of human rights,
humanitarian law, and consolidated customary law (such as, say, the Geneva
conventions) possess a normative content that international law scholars
would straightforwardly consider enforceable in domestic legal orders. From
the international law just mentioned some control over domestic systems is
expected legally. Thus—or so the argument goes—the more we are able to
build a common international order, mainly in a top-down direction, the more
we can hope for the essential guarantees of rights, human dignity, justice, liberty, and even democracy to be widely established. The universal reach of a
common international law, in other words, is presented as an opportunity
whose availability should spread, overcoming the resistance of all those ideologies according to which national legal systems still have unsurpassable borders
and still remain—other things notwithstanding—self-contained. According to
such notions, sovereignty itself should be given another meaning, different
13
Cf. various chapters, including Gianluigi Palombella, The Abuse of Rights and the Rule of Law, in
ABUSE: THE DARK SIDE OF FUNDAMENTAL RIGHTS (András Sajó ed., Eleven 2006). For a general view of the
hidden role of the rule of law qua political weapon to legitimize plunder against weak parties by
powerful actors, see UGO MATTEI & LAURA NADER, PLUNDER: WHEN THE RULE OF LAW IS ILLEGAL (WileyBlackwell 2008).
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The rule of law beyond the state: Failures, promises, and theory 447
from the traditional understanding. The “old” sovereignty was, in fact, intended
to assure, among other things, the disposability of a territorial sphere as a sort
of property, where no one from outside the borders could interfere, still less
impose some normative objective decided elsewhere and deriving from the
sphere of another legal system (whether of regional or international extension). The old way is challenged by the purportedly progressive allure that
seems to support internationalist-universalistic attitudes.
In this connection, any steps forward in overcoming the self-enclosure of
domestic legal orders may be considered a sign of advancement. A more monist standpoint is seen as one sharing the benefits of virtuous universalism; it
can foster the spreading of the rule of law, and it serves the ideals of dignity,
liberty, and respect for individuals’ fundamental rights. However, despite this
being rather understandable, of course, we should pay attention to exceptions
as well. The theoretical congruence between the rule of international law and
the protection of liberty and human rights, in fact, can be endangered and
reversed.
The Kadì case, recently decided by the European Court of Justice,14 is
among the most telling in this regard. The judgment of the European Court
of First Instance15 had upheld a European Council regulation freezing the
funds of Mr. Kadì on the basis of a United Nations Security Council resolution concerning counterterrorism measures. This first judgment denied any
protection whatsoever to the fundamental rights—the right to property, the
right to be heard, the right to judicial review—that Mr. Kadì claimed had
been infringed by way of the European Council regulation, implementing
the UN Security Council decision. Although the judgment by the CFI has
been reversed by the European Court of Justice, it remains, nonetheless,
instructive and illuminates the limits and weaknesses of some similar attitudes toward international law. In what follows, I will consider it more as
an example of a wider theoretical stance than as a first instance judicial
decision, now reversed.
In fact, if not for its disappointing conclusion, the CFI decision was, nonetheless, welcomed owing to its favorable attitude toward the rule of law in the
international world. The court’s reasoning actually confirmed that the Security
Council resolutions are binding not only on UN member states (UN Charter, art.
103) but also on the European Community,16 which should be held responsible
14
ECJ, Joined Cases C-402/05 P, Yassin Abdullah Kadì and Al Barakaat International Foundation
v. Council & Commission, 2005 E.C.R. II-3649, Judgment of 3 September 2008 (hereinafter ECJ
Kadì).
15
Case T-315/01, Kadì v. Council and Commission, 21 September 2005, [2005] ECR II-3649
(hereinafter, CFI Kadì). In November 2005 Kadì brought an appeal against the decision of CFI
(decided by ECJ, see supra note 14).
16
CFI Kadì, § 205.
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for compliance. Thus, harmonization between states, Community, and United
Nations system was pursued, so that scholars who look at the decision with a
view to a more unitary or even “monist” account of international legality17
believe that the court “is to be congratulated … for accepting the primacy of
the UN system without any general restrictive caveats—with one exception
only.”18 The exception refers to jus cogens norms,19 against which not even
Security Council resolutions can retain any binding effect (CFI Kadì decision, §
230).20 One can understand that in the view of a unitary comprehensive legality—which would include states as well as supranational and international
systems—there could develop a hierarchical order, where primacy is granted
for the international norms. This conclusion is, in the abstract, of great importance to an internationalist mind-set. But some more cautious comments
apply.21
While it is assumed, fairly, that the European Community is a “community of law” and is based on the “rule of law,”22 nonetheless, the rule of
law of the wider international system must, in any case, prevail on the basis
Christian Tomuschat comments: “The Community can live quite well under the regime suggested by the Court, a regime which unambiguously acknowledges the primacy of those parts of
the UN legal order which are binding on the Member States of the world organization” (Christian
Tomuschat, Case Law: Case T-306/01, Yusuf and Al Barakaat Int’l Foundation v. Council and
Commission; Case T-315/01, Kadì v. Council and Commission, judgments of the Court of First
Instance of 21 September 2005, 43 COMMON MARKET L. REV. 543 (2006).
17
18
Id. at 545.
19
Peremptory norms such as jus cogens are those that, according to Vienna Conventions on the
Law of Treaties, May 23, 1969, art. 53, render void a treaty conflicting with them. According to
CASSESE, supra note 9, rules banning slavery, genocide, and racial discrimination and the rule banning torture have become customary. They impose community obligations, as noted in the dictum
in the ICJ Barcelona Traction case, and moreover “have acquired the status of jus cogens.” Id. at
394.
In the Court’s view in Kadi §231, the contents of jus cogens are the “mandatory provisions
concerning the universal protection of human rights… intransgressible principles of international customary law.” The Court recalls the advisory opinion of the International Court of Justice, The Legality of the Threat or Use of Nuclear Weapons, July 8, 1996, Reports 1996, p. 226, §
79; and Advocate General Jacobs’s Opinion in Case C-84/95, Bosphorus v. Minister for Transport,
Energy, and Communications and Others, 1996 E.C.R. I-3953 § 189, 65. In its advisory opinion,
the ICJ held that “a great many rules of humanitarian law applicable in armed conflict are so
fundamental [as] to be observed by all States whether or not they have ratified the Conventions
that contain them.” Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996
I.C.J. 79 (July 8).
20
21
It has been held that the “judicial review” of the European regulation by the European Court
would boil down to an inadmissible indirect (review) judgment of illegality of the UN Security
Council resolution on the basis of its alleged infringement of fundamental rights. CFI Kadì, §§ 218,
225).
22
Id. at § 209.
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The rule of law beyond the state: Failures, promises, and theory 449
of a hierarchical—top-down—principle of the subordination of lower
institutions and domestic systems. Unless it is the case of a jus cogens
norm,23 the rule of international law prevents domestic review from taking
place. Thus, everything shifts so as to fall within the scope and content of
the exceptional case, the jus cogens ambit. And it is here that the fundamental rights to property, to be heard, and to judicial review (allegedly infringed,
according to Kadì’s claim) are, for different reasons, considered by the court
unsuited to number among those protected by the intransgressible rules of
the jus cogens sphere.24
What strikes one, at first, as many have noticed, is that the powerful UN
Security Council can exercise its functions by directly interfering with the
rights of individuals without any safeguards in the structures and procedures of the UN sanctions’ system, which can decently substitute for a minimal protection of human rights or conformity with the fundamental
principles of law current among “civilized nations.” Second, it is rather puzzling that such antiterrorism provisions affecting the fundamental conditions of life for individuals are not permitted to be reviewed internally by
domestic tribunals (based on the argument that any such revision would
end up preventing the states or the Community from complying with the
rule of international law).
It is to be stressed here that these conclusions are maintained as compatible
with the rule of (international) law and are thought to be, ultimately, its result.
Thus, one must ask how a rule-of-law concept can be invoked in order to override the substantive protection of rights afforded in domestic systems. As is
clear, it is the conception of the rule of law that lies at the center of the
problem.
3. Some hints on “which” rule of law
In very concise if general terms, the different meanings and various import
assigned to the notion of the rule of law display levels of varying depth and
thickness. A first level might be described as “a law of rules” with which one is
to comply. Such a notion treasures the sheer existence of a legal order and its
provision of control over uncertainty. It pertains to the prevention of arbitrary
power, lato sensu, and to some requirements for the law to be able to guide
behaviors. This level of meaning, therefore, is not far from the one endorsed by
Joseph Raz, who listed a set of requirements that, in turn, elaborated on those
23
But sometimes this is contested. See also Anthony D’Amato, It’s a Bird, It’s a Plane, It’s Jus Cogens!,
6 CONN. J. INT’L L. 1 (1990). Among the first and most influential theorizations of jus cogens is the
work of Alfred Verdross. See Alfred Verdross, Forbidden Treaties in International Law, 31 AMER. J.
INT’L L. 571 (1937).
24
CFI Kadì, from § 238 to the end is dedicated by the Court to the rejection of the claims founded
on the infringements of fundamental rights.
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first suggested by Lon Fuller, quite regardless of the moral value that the latter
recognized in the resulting effect.25
However, it is true that the rule of law is conceived of differently along a
scale of degrees, and we are persuaded, sometimes, to go further and include in
the concept the protection of fundamental rights, say, or the full content of a
liberal democratic or welfare state.26 Implicit in this paper is the lurking suspicion that both hypotheses—regarding the formal view of the rule of law as a
law of rules or the substantive, constitutionalist, and democratic version—are
questionable. This is partly because either they end up equating the rule of law
with the functioning efficiency of a legal order as such, or, on the contrary,
they ask the rule-of-law ideal to match some one of its possible historical and
institutional incarnations in order to incorporate some extraneous, though
valuable, objectives, such as the democratic control of power, the satisfaction
of the material needs of individuals, and the like.
In general, I do not believe that the interpretation of the rule of law as a law
of rules to comply with would be faithful to and reflective of the historical
record of the rule-of-law ideal and the ways in which it has developed, at least
since the thirteenth century through, say, the influential nineteenth-century
account by Albert Venn Dicey to the present debate.27 As a general caveat it
should be borne in mind that the rule-of-law ideal, throughout this historical
itinerary, refers to features that the law is meant to embody, mainly in order to
ensure protection from a monopolization of power and on the basis of some
positive law that is factually and legally located beyond the reach of the sovereign and his mere whim.
The above-mentioned features have defined mainly the separation of powers and the respect for rights gradually developed through Western constitutional history; they were designed to ensure both government’s right to rule
25
Generality, clarity, promulgation, stability, consistency between rules and behaviors, nonretroactivity, noncontradictory rules, nor requiring the impossible: see LON FULLER, THE MORALITY OF LAW,
33 (2d ed., Yale Univ. Press 1969). Importantly, Andrei Marmor has argued that legal positivism,
as such, has no objections to the fact that the foregoing requirements bear some moral virtue beyond their functional value; therefore, there is no reason to assume that such recognition of the
possible moral virtue of these requirements implies a natural law view, despite this being held commonly by natural law lawyers. Cf. Robert P. George, Reason, Freedom, and the Rule of Law: Their
Significance in the Natural Law Tradition, 46 AMER. J. JURISPRUDENCE 249 (2001). Legal positivism is
not at stake because it simply maintains that the validity of law does not reside or depend on its
moral value but on social facts (i.e., on its sources). Andrei Marmor, The Rule of Law and Its Limits,
23 LAW & PHIL., 39, 41 (2004). On the moral value of the rule of law, see also Neil MacCormick,
Natural Law and the Separation of Law and Morals, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS 123
(Robert P. George, ed., Clarendon Press 1992).
26
See Paul P. Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework,
1997 PUBLIC LAW 467; and T. R. S. ALLAN, CONSTITUTIONAL JUSTICE (Oxford Univ. Press 2001).
27
Cf. Gianluigi Palombella, The Rule of Law as an Institutional Ideal, 1 COMP. SOC. (forthcoming
2010).
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The rule of law beyond the state: Failures, promises, and theory 451
and the limitations on that right. In the view I have developed elsewhere, the
historical records may be summarized as showing the rule-of-law rationale as
one referred to (and to be based on) a duality of law, where some other positive
law, one beyond the sovereign’s law, exists that escapes the purview of the
dominant exercise of sovereignty. In its medieval roots, the law was deemed to
be only partly gubernaculum, that is, under the will of the sovereign. It was also,
partly, jurisdictio, where the fundamental laws of the land lie beyond the sovereign’s reach, as Charles McIlwain reminded us.28 That duality is visible in subsequent times, mainly in the constitutional coupling of rights and legislation as
terms endowed with equal standing. In Continental Europe one can say, reasonably enough, that such an achievement—finally granting equal force to
rights before legislation—was reached only recently, and as the result of the
constitutional restructuring of the state in the second half of twentieth century. However, such a rationale shows a fil rouge, one that is not a priori incapable of realization even beyond the state.
After all, the rule of law as a fil rouge, down through the centuries, shows a
normative ideal concerning the law and not just the requirements for law—
whatever form it may take—to exist. In this connection, the preconstitutional
nineteenth- and twentieth-century Rechtsstaat in Continental Europe can be
shown, in itself, to be nonarbitrary, rule-based, hierarchically rigorous, one
where the administration of power was submitted to legislation alone, and,
nevertheless, far from the distinctive rationale of the English rule-of-law root.29
In turn, the latter, when compared with the legislative power of the Continental
European state, also prevents the sovereign’s legislation from being the sole
source of the law. The true reason why a sovereign’s actions can be neither
“unlimited” nor “unbridled” is that, beyond the free (and legitimate) exercise of
gubernaculum, a jurisdictio side of law has been positively developed, which lies
beyond his reach.30 Thus, it can be said that the ideal refers naturally to the
above-mentioned duality of law and to its ancient roots and is oriented toward
preventing a monopoly over the sources of law and any subsequent legal domination. The ideal refers to (and is in need of) the existence, within a legal order,
of some other positive law that stands, somehow, on a separate side, either
belonging to the common law, as in the English tradition, or receiving a supralegislative guarantee by a constitution or by whatever institutional instruments might be required, from time to time, for such a result to be feasible. Of
course, the concept concerns the composition and sources of law, and, as such,
can be referred to the international setting as much as to the domestic order.
28
CHARLES MCILWAIN, CONSTITUTIONALISM: ANCIENT AND MODERN 67–92 (Cornell Univ. Press 1947).
29
I dealt with the issue in Palombella, supra note 12.
30
In the case of the liberal democratic constitutional state, this is due to the equal force eventually
granted, by way of a constitution, to rights and other principles, on the one side, and the democratic principle of legislation, on the other.
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Accordingly, among the alternative and mainstream views, I would exclude
the version that takes the import of the rule of law to be satisfied through rule
by law. From the perspective of the rule by law, the rule of law means that, for
example, in international law, its addressees, states in particular, “should obey
the law. They should treat it as authoritative and let it guide and constrain
their actions.”31 Such an interpretation possibly misunderstands the main
problem of the rule of law and risks being unfaithful to its import, since it sets
aside the fact that sovereigns are ceteris paribus entitled to make the law themselves and to change it at will; and all the more so in the international environment. This interpretation may be mainstream, but it would hardly make sense
of the motto, “the rule of law, not men.”32
If one follows the reconstruction of the concept—for instance, taking
account of a line seemingly drawn by scholars like George Haskins, Arthur
Goodhart, and Phillip Reid33—the rule of law stands in clear contrast with the
rule by law,34 thereby excluding a simple instrumental use of law as the appropriate interpretation. On the contrary, at issue is precisely the fact that the law
is built up in an institutional context, where it has developed into a substantive
fabric somehow beyond legislative purview; moreover, it has grown in such a
way as to appear, from the vantage point of the powerful legislator’s will, to be
a legal given that the latter has no authority to reverse. And thus, this resistance by “another” law, which is nonetheless “positive,” is the reason why the
rule of law is not the “rule of men,” where the latter is understood as the whim
of the political sovereign. Of course, this view does not match up with those
narratives that are content with listing the features that the law needs to
embody in order to be law, thereby overlooking much of the issue at stake, not
least the problem of the monopolization and instrumentalization of law.
4. Theoretical analysis and living law shortcomings
4.1.
When considered through the lens of this conception of the rule-of-law ideal
(which I am recommending), the European Court of First Instance reading
seems rather unsatisfactory. A unitary (monist) world under the UN Charter
31
Matthias Kumm, International Law in National Courts: The International Rule of Law and the Limits
of the Internationalist Model, 44 Va. J. INT’L L. 22 (2003).
32
More about this in Palombella, supra note 27.
33
Arthur L. Goodhart, The Rule of Law and Absolute Sovereignty, 106 U. PA. L. REV. 947 (1958); JOHN
PHILLIP REID, RULE OF LAW: THE JURISPRUDENCE OF LIBERTY IN THE SEVENTEENTH AND EIGHTEENTH CENTURY (North
Illinois Univ. Press 2004); George L. Haskins, Executive Justice and the Rule of Law: Some Reflections
on Thirteenth-Century England, 30 SPECULUM 529 (1955).
34
Such reference to the rule of law as a rule by law is, however, held by various scholars. E.g.,
Kumm, supra note 31; Stéphane Beaulac, The Rule of Law in International Law Today, in RELOCATING
THE RULE OF LAW 197, supra note 12.
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and compliance by states and the European Community are the only ingredients of an alleged rule of law that are taken to matter in actuality. The importance of compliance by states and the Community, thus creating a coherent
hierarchical order, dominates the field. However, the CFI upheld a certaintybased concept of the rule of law. As ambiguous as it is, this idea can hardly be
distinguished from that which ultimately equates the rule of law with a “law of
rules”; that is, compliance with rules fixed in one jurisdiction.35 This line of
reasoning, among others, mirrors the oldest and once the most cherished conception of the civil law countries, following the codification of law in the nineteenth and twentieth centuries and, mainly, before constitutional progress took
place following the Second World War. In some sense, it can be summed up by
the motto dura lex, sed lex.36 On a similar premise, the court, while overestimating “certainty” and hierarchy, undervalues and disregards the fact that the UN
system of sanctions lacks any legal safeguard for protecting individuals
(although it targets them) and that it works just on a one-sided, power-based
law. So to speak, it is a gubernaculum law, where no jurisdictio is made visible
(that is, the “other” side of the legal fabric, under the rule-of-law ideal, as suggested above).
Yet, rather than being an essential feature of the rule of law, the simple and
single imperative that “law has to rule” (and as a “law of rules”) soon converts
itself into a source of contradictions and, in most cases, of unacceptable
consequences.
On the basis of that deceptive and narrow presupposition, although theoretically idealized as a universal standard, the rule of law becomes a systemdependent (or jurisdiction-dependent) notion. This connection between the
quest for legality as compliance and the system-relative nature of the rule of
law is highly significant. It brings with it some further implications, theoretically, owing to the short-circuited consequence that originates from conflating
the normative semantic of the concept with the mere mirroring of positive law
existing as a fact within state borders.
Certainly, on substantive grounds, one should ask which ideal of law are we
actually pursuing when it is precisely the rule of law that would prevent us
from taking account of, say, human rights, which international law generally
protects (as well as the right to be heard or to judicial review and—to some
debatable extent—of property). But quite apart from this first substantive issue,
the supremacy of the UN Security Council and of the international order turns
out to allow for a normative power that may prove, to an almost unlimited
extent, unchecked despite its potential conflict with local law. This interpretation of the overwhelming value of “universality” and of hierarchy, set against
domestic orders, paves the way to legitimate contestations. Such “universality,”
35
Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989).
36
Cf. Gustavo Zagrebelski, IL DIRITTO MITE [THE MILD LAW] (Einaudi 1992).
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meant as a closed order, translates the rule of law into a kind of parochial concept and, as such, is allowed to be blind toward external confrontations and
learning. Such a self-referential stance misunderstands the primacy of the rule
of (international) law and permits it to become compatible with an arbitrary
exercise of power, domination, violation of liberty, and the like, and thus in
stark contrast with the most general intuitions concerning the rule of law
through the last centuries.
Accordingly, this concept misunderstands the Kelsenian priority of the
international legal order37 and mistakes it for the rule of law. In the foregoing
remarks, however, the latter is intended as an institutional setting for law and
is not equated with the validity structure of functioning legal orders per se (as
it would be, were we simply to follow the equivalence between “rule of law,”
Rechtsstaat, Rechtsordnung). Thus, it cannot coincide with the mere existence
of a legal order, with the operational dynamics of rule delegation, and in the
absence of any other qualifications. The rule of law refers to a different issue; as
an institutional ideal, in its more complex and historical meaning, it does not
merely identify the essentials necessary for a legal order to exist. The rule of law
surely points to a complex and debated set of ingredients and characters, which
the existing law may be asked to achieve and embody; it functions as a normative standard. Thus asking for the rule of law to be respected does exceed the
Kelsenian question per se, because it is external to the latter. Therefore, it does
not end up with a neutral or formal statement about the hierarchy of normative ranks (within a “monist” conception) between international and domestic
orders, as would follow from Kelsenian theory. The rule of law does not comport with the “inevitable” logic of the Stufenbau; nor does it require the domestic legal order to be a necessarily derivative order, descending by a normative
delegation from the international order. On the contrary, both orders are confronted with an ideal the achievement of which they may commit themselves
to as a possibly shared standard.
Finally, were we to turn from the Kelsenian view to its opposite, we might,
nonetheless, experience uneasiness. We might encounter some raw version of
the dualist mind-set, one that hinges on—and directly leads to—the identification of the rule of law with the law (or the mere respect for it) in force in each
separate jurisdiction, whether international or national. Before giving moreattentive consideration to this last claim, we may acknowledge, as rather
ironic, the narrow conception—alluding to the rules to be respected in one
37
Hans Kelsen turns the unity between states and international order into an inverting move,
which makes the domestic orders descend through a logical authorization from the international
order, instead of vice versa. See HANS KELSEN, REINE RECHTSLEHRE [PURE THEORY OF LAW] 150 (Deuticke
Verlag 1934). One should also see the first work of Kelsen relevant to this issue: HANS KELSEN, DAS
PROBLEM DER SOUVERÄNITÄT UND DIE THEORIE DER VÖLKERRECHTS: BEITRAG ZU EINER REINEN RECHTSLEHRE [THE
PROBLEM OF SOVEREIGNTY AND THE THEORY OF INTERNATIONAL LAW: A CONTRIBUTION TO A PURE THEORY OF LAW]
(Mohr 1920).
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The rule of law beyond the state: Failures, promises, and theory 455
jurisdiction—that emerges despite the fact that the international legal order is
the subject, and despite the global nature of its extent and addressees. Needless
to say, a connection between the narrow view of the rule of law and such a
dualist understanding is, in addition, apparently incapable, in and of itself, of
providing foundations for the claim to the actual hierarchical supremacy of the
rule of international law over domestic law.
4.2.
While the rule of law, as an ideal, may be achieved to different degrees in different places, and despite the diverse incarnations necessary for it to be feasible in
diverse contexts, its normative meaning does not essentially change. Thus,
any notion of the rule of law as something relative, its meaning varying from
jurisdiction to jurisdiction, is unacceptable. Indeed the claim is not coherent.
For example, if we take into account of the hints provided by linguistic usage
(not to be a priori disparaged when legal concepts are in question), the phrase
the “rule of law… in this jurisdiction”38—if it is used to vindicate something
conceptually dependent on what the law may be in each particular jurisdiction—looks like an odd sentence indeed to Continental European eyes. And the
oddity would be even greater should the rule of law, in this phrase, mean “Stato
di diritto,” or “Rechtsstaat” (as European Union documents translate the
expression “rule of law”). One would not speak of a “‘Stato di diritto’ in this
jurisdiction”; first, because the normative typology that “Stato di diritto”
evokes is not relative to jurisdiction; second, because “Stato di diritto” does not
refer to law, but to the territorial entity of the state, which already is the jurisdiction. Of course, a European Continental scholar may accept that the present
European constitutional states do embody standards well suited to achieving
the rule-of-law ideal. This is because the ideal’s normative content is approximated in those states relatively closely. It is in the light of this premise that
European Union’s ongoing reference to fostering and strengthening the rule of
law, even outside the borders, can be understood.
The EU has relied on the rule of law as an internal achievement, which
becomes a criterion of legal acceptability in external relations, mainly within
our neighborhood policy and in the whole of our conditionality-based attitudes
toward candidates, past and present, seeking EU membership.39 Europe does
include the rule of law among its fundamental values, as it does with liberty or
democracy or human rights. And it is clearly something that any jurisdiction
may be expected to fulfill.
Yet let me recall that the imperative of conformity with the existing positive
law in force, whatever it may be, can be both unfaithful and ill-suited to the
38
See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557 (2006), at 635.
39
See Jorrit J. Rijpma & Marise Cremona, The Extra-territorialisation of EU Migration Policies and the
Rule of Law (EUI Working Papers, 2007/01). In general, MARIE L. FERNANDEZ ESTEBAN, THE RULE OF LAW
IN THE EUROPEAN CONSTITUTION (Kluwer 1999).
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rule-of-law ideal. It is from this angle that the phrase “the rule of law… in this
jurisdiction,” a phrase used by the U.S. Supreme Court, spurs the need for a
closer look. Does such an expression betray a particular frame of mind, and
does it bear any consequences?
One significant occasion was the Supreme Court’s famous 2006 Hamdan v.
Rumsfeld decision declaring the military commissions ordered by the U.S. president unconstitutional. According to the Supreme Court, the Uniform Code of
Military Justice (UCMJ) “conditions the President’s use of military commissions
on compliance not only with the American common law of war, but also with
the rest of the UCMJ itself, insofar as applicable, and with the ‘rules and precepts of the law of nations’… including, inter alia, the four Geneva Conventions
signed in 1949.... The procedures that the Government has decreed will govern Hamdan’s trial by commission violate these laws.”40 The commissions did
not afford those minimal protections to detainees, including protection from
the “passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”41
Moreover, by creating such military commissions, the U.S. president had used
a power that is not his own, is not “implied”42 in times of war, and has not been
conferred upon him but must be deliberated and delegated by the Congress.
This is why the Court can affirm, with a confident solemnity, that “in undertaking to try Hamdan and subject him to criminal punishment, the Executive
is bound to comply with the rule of law that prevails in this jurisdiction.”43
Does it make any difference, then, whether one appeals to the rule of law “that
prevails in this jurisdiction” rather than the rule of law sans phrase?
Although the two steps are connected, the decision of the Court recognizes,
on the one hand, that the judicial rights of Mr. Hamdan have to be protected,
that the international, fundamental principles of law recognized by civilized
nations are to be respected and, on the other, that the separation of powers
does not allow the president to abuse his powers.
However, the relevance of rights and international norms is granted, here,
not per se but as mediated by inclusion within the laws of the land. Democracy
and the separation of powers are at the heart of the justificatory arguments
that the majority of the Court offered for such an outcome. The structural
aspect is, in other words, the prevailing one, and, in particular, it does explain
40
Hamdan v. Rumsfeld, 548 U.S. 557, 613 (2006). According to the Court, the Geneva conventions—and the requirements of Common Article 3—are “judicially enforceable” because they are
part of the law of war (art. 21 of UMCJ).
41
Geneva Convention Relative to the Treatment of Prisoners of War art. 3 § 1(d), Aug. 12, 1949,
6 U.S.T. 3316, 75 U.N.T.S. 135.
42
“Implied powers” are part of the US Constitution, according to the Supreme Court (M’Culloch
v. State, 17 U.S. 316 (1819).
43
Hamdan, 548 U.S. 635.
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The rule of law beyond the state: Failures, promises, and theory 457
the Hamdan case decision as “democracy forcing.”44 This is clearly confirmed
through the words of the concurring opinion of Justice Stephen Breyer:
“Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability
to deal with danger. To the contrary, that insistence strengthens the Nation’s
ability to determine—through democratic means—how best to do so. The
Constitution places its faith in those democratic means. Our Court today simply does the same.”45
Certainly, the Supreme Court decision was rightly welcomed as a fundamental step reaffirming not only the separation of powers but also the longstanding tradition of U.S. compliance with the Geneva conventions and other
rules of international law. However, the true objective, in “this jurisdiction,”
was to allow democratic deliberation to stand in contrast with presidential
autocracy.
The question remains, of course, whether a matter like the rule of international law is something that should be subject to majoritarian democracy. One
might fear that the rule of international law, one day, may conflict with the
rule of law “in this jurisdiction,” especially if the latter were interpreted as fulfilled by an unchecked exercise of power, in turn—not by the president—but
by “ordinary politicians” (to evoke one of Bruce Ackerman’s “tracks,” the second being the higher constitutional one).46 The Supreme Court put the question on the basis of confidence in democracy, as Breyer wrote. But democracy
is just one among various possible ideals that Western constitutional states are
said, on a legal basis, to cherish, and it does not in itself guarantee other valuable objectives, like some rights or the rule of international law. Can the legal
duty to provide individuals with the minimum guarantees universally recognized by the most fundamental rules of international law be abstractly wiped
away by a majority vote of the United States Congress?47
Unfortunately, as a matter of fact, the Congress gave a positive answer to
this question. The legislature, in confirming in October 2006 the presidential
will with a new statute, the Military Commissions Act (MCA), showed how a
democracy, in fact, could and would interpret the Supreme Court mandate. As
the UN special rapporteur declared, many MCA provisions “are incompatible
As Jack Balkin writes: “What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more
authority than he already has, and if Congress gives it to him, then the Court will not stand in
his way.” Jack Balkin, Hamdan as a Democracy-Forcing Decision, June 29, 2006, at http://balkin.
blogspot.com/2006/06/hamdan-as-democracy-forcing-decision.html (last visited Feb. 2, 2009).
44
45
Hamdan, 548 U.S. at 636 (Breyer J., concurring).
46
BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (Yale Univ. Press 1992).
47
The answer from the U.S. Supreme Court, later on, has been negative with strict reference to
habeas corpus (U.S. CONST. ART. I, § 9, cl. 2). See infra note 49.
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with the international obligations of the United States under human rights law
and humanitarian law.” The MCA contradicts “the universal and fundamental principles of fair trial standards and due process enshrined in Common
Article 3 of the Geneva Conventions.” It confers on the executive the power to
declare anyone, “including US citizens, without charge as an ‘unlawful enemy
combatant’—a term unknown in international humanitarian law—resulting
in these detainees being subject to the jurisdiction of a military commission
composed of commissioned military officers.” Since detainees are denied the
opportunity “to see exculpatory evidence if it is deemed classified information,”
this “severely impedes the right to a fair trial.” Finally, the denial, even retroactively, of habeas corpus to non-U.S. citizens (including legal “permanent
residents”)—that is, the right “to challenge the legality of their detention”—
appears to be “in manifest contradiction with article 9, paragraph 4 of the
International Covenant on Civil and Political Rights.”48 Only the last point, the
provision concerning the denial of habeas corpus to noncitizens, recently was
declared unconstitutional by the Supreme Court.49 A predictable outcome,
since it could be raised as an internal (domestic) constitutional question, in
other words, a matter falling within the “rule of law… in this jurisdiction.”
5. Toward content-dependent assessments
5.1.
As is well known, deference to the rules of international law is regulated by
constitutional provisions. Interfacial constitutional rules in countries like Italy
(arts. 10, 117) or Germany (art. 25), for example, grant constitutional respect
to the general principles and recognized rules of international law. European
countries, in general, pay careful attention to international law as a matter
that cannot just be managed through the “last-in-time rule”50 of the parliaments (by an ordinary legislative majority quorum).
However, we should recall that in constitutional states, the democratic
principle (and thus the legislative majority) is paired with fundamental rights,
whether substantive or procedural; this balanced duality prevents an unlimited exercise of democratic power and constitutes a guarantee that the law will
not be turned into the mere instrument of governmental will. Accordingly, it is
precisely just such a duality that essentially makes Western democracies excellent candidates for fulfilling, within the domestic order, the rule-of-law ideal.
48
Press Release, Martin Scheinin, Special Rapporteur on the Promotion and Protection of Human
Rights and Fundamental Freedoms while Countering Terrorism, U.N. Doc. A/HRC/10/3 (Oct. 27,
2006), available at http://www.unog.ch/unog/website/news_media.nsf.
49
50
Boumediene, 128 S. Ct. 2229.
On which see, for instance, Julian Ku, Treaties as Laws: A Defence of the Last-in-Time Rule for Treaties and Federal Statutes, 80 IND. L.J. 319 (2005).
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That said, it follows from this perspective that the constitutional democracies’ deference to the rule of law on the international plane will not, in turn, be
meant as a complete subordination to international law, whatever form it may
take. The reason for such deference today is not content independent but relies
on the embedded agreements constituting the acquis of the international law.
What one can call an “other international law” has developed out of the 1948
Universal Declaration of Human Rights to include human rights law, as well as
such instruments as the International Covenant on Civil and Political Rights51
or the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. Similar developments have emerged elsewhere, not
least in humanitarian law during times of war; for example, the Hague conventions (1899 and 1907), and Geneva (1949 and 1977 protocols) and the
above-mentioned article 3 of the Geneva conventions, which was defined in
1986 Nicaragua judgment by the International Court of Justice (ICJ) as one
incorporating “elementary considerations of humanity.”52
Deference to international law first referred to the presumably civilizing role
played by law in shaping and ordering international relations.53 The extension
of the rule of (international) law also came to include those rules that are
thought of as jus cogens54 norms and, today, it need not be reduced to them.
This is all the more the case since so-called community law appears to have
developed, a law that lies outside conventional practices (that is, a law that has
been called, significantly, “super partes law”). The growth of an “other side” of
international law, theoretically applying erga omnes, is meant to resist the normative power of conventional state practices, and it supports the birth of some
expectations about the positive legal existence of a noninstrumental aspect of
international law. In this connection, founded on this duality, the rule of law
can aspire to be a measure of civilization for state behavior and for the UN
organs as well. As a conclusion, no authority can be put beyond the check of
compliance, whether on the international or domestic level.
5.2
The claim that domestic orders’ allegiance to international law is not purely
content-independent refers to such an acquis and indicates a further and competing level of recognition, thereby questioning whether purely formal criteria
can be the ultimate ones. At the same time, it does offer a link between different
legal orders, otherwise unavailable, when some recognizable shared positive
51
ICCPR, adopted Dec. 16, 1966, S. Exec. Doc. No. E, 95-2 (1978), 999 U.N.T.S. 171.
52
Nicaragua v. United States, 1986 I.C.J. 14, § 218 (June 27). The Court recalled its first use of the
expression in the Corfu Channel Case, United Kingdom v. Albania, 1949 I.C.J. 4 (Apr. 9).
53
Cf. MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER
1870–1960 (Cambridge Univ. Press 2004).
54
See supra notes 16 & 17.
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law reference emerges. This can modify our received views and invites more
reflections on methods and consequences. With regard to international law or
the law of supranational organizations one intermediate point of connection,
then, can be seen with domestic orders, based on their positive allegiance to
some connected or identical normative commitments, like the rule of law
itself.
The rule of law in one legal order (for instance, international law or in the
European Union) may rightly be seen as a mere “fact” from the external perspective of another legal order. In the old scenario of sovereign states’ orders,
the role of forms and sources monopolized legal doctrine. However, this view,
which pertains to the most traditional conception of the separation between
the international and the domestic system, would be rather inconsistent with
the current transformations, particularly when the latter cherish the same
normative principle as fundamental and are constitutionally committed to
complying with it as precisely as the first does. Accordingly, if respect for
human rights, say, numbers among the fundamental principles of both international law and domestic law, then neither of them can consider this normative commitment as merely a fact. As the cases recalled above can teach us,
consistency needs to be reached between the normative commitments that are
practiced within the borders and those that a state intends to conform with
externally.
Once more, the problem is not truly one of dualist or monist traditions, since
it does not imply that all nations believe in the existence of just one God or just
one system of law. According to the view I have suggested in the foregoing, it
asks us to confront the rule of law as a unitary notion, when understood from
the angle of those legal orders that have made it a part of their positive law
commitments. The question, accordingly, becomes whether some essential
rules of the international “system” are common or trans-systemic rules to the
extent that they can become a point of legal connection among the systems.
In the discussion concerning the Security Council resolution in the Yusuf
and Kadì cases, we have learnt that a monist internationalist theory is not, in
and of itself, the best premise with a view to supporting an international rule of
law. This is because it would have led to superimposing the UN decisions on
domestic orders, preventing any judicial revision from taking place.
However, closer attention, here, would be in order. First, it should not be
questioned that an autonomous system of law does (and should be entitled to)
exercise control over the law enforceable within it.55 It is this basic legal theoretical premise—to offer first-order reasons for the dualist view—that developed, mainly and properly, in order to protect states against internal rebounds
55
Cf. the elaborations on the dualist view offered, more recently, by Gaetano Arangio Ruiz, International Law and Interindividual Law, and Giorgio Gaja, Dualism—A Review, in NEW PERSPECTIVES ON
THE DIVIDE BETWEEN NATIONAL AND INTERNATIONAL LAW 15, 52 ( Janne E. Nijman & André Nollkaemper
eds., Oxford Univ. Press 2007).
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and deficits from the arbitrary exercise of governmental power in external fora.
Thus, the recognition of separate legal orders may turn out to protect the rule
of law, within the domestic domain, against infringements from outside. On
the other hand, whether or not fundamental rights, human dignity, or liberty
are protected somewhere is contingent, and thus, in itself, the respect for
municipal law could turn out to violate them.
The Hamdan case, before the U.S. Supreme Court, followed by the Military
Commissions Act,56 showed that not even a dualist stance proves safe. Rather
than depending on the monist or dualist view in international law, the possibility that the rule of law might be supported beyond the state is due to the conception of the rule of law itself, as something that is not reducible to mere
respect for existing rules.
Accordingly, we should conclude, without undermining the premise that
legal orders are autonomous entities, that the rule of law extends its claims
beyond legal borders. And that it does so by asking for the adoption of substantive and procedural standards that can, according to circumstances, implement the principle itself, mutatis mutandis, whether in time of peace or war,
whether within the municipal constitutional domain or in the international
sphere.
While we are uneasy with identifying the import of the rule of law with the
a priori formal primacy of the international order, as content independent, at
the same time, we hardly can accept the alternative view, which conceives of
the meaning and content of the rule of law as relative to a jurisdiction. We
expect, therefore, the rule of law to be a third chance, a critical measure to which
both municipal and international law have subscribed.
6. Building on the rule of law as a third chance?
We have to admit that the nature of the current changes in the international
world evades subjection to any of the various possible metarules or interpretive
and “ordering” paradigms.57 Nonetheless, in this environment, and perhaps
even more so in this environment, the need for keeping some traces of the ruleof-law ideal alive is felt strongly and for yet one more reason. Normative communication between agents or systems tends to reject the blank-check style of
hierarchical and source-based priorities; it does not conceive of coordination
on the basis of foreseeable and all-encompassing frames of reference. Thus it
follows that content-dependent (see section 5 above) relations are in order,
and, thus, choices are allowed. So it follows that the rule of law might require
that such choices be consistent with normative commitments, instead of resulting
from case by case whim.
56
Pub. L. No. 109-336 (2006).
57
As Neil Walker aptly demonstrates. See supra note 6.
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We find, first, interesting hints in the reasoning of the European Court of
Justice, when upholding Mr. Kadì’s and Mr. Yusuf’s claims to their rights.
“Immunity from jurisdiction” for the European Council’s internal regulation,
when implementing the resolutions of the UN Security Council, cannot be
founded on the primacy that obligations under the Charter of the United
Nations “would occupy in the hierarchy of norms within the Community legal
order.”58 Even if there were such a hierarchy, the primacy over Community
law “would not, however, extend to primary law, in particular to the general
principles of which fundamental rights form part.”59 This means, first of all,
that the primacy of the international order is never content independent. It
coexists with the autonomy of legal orders,60 each pursuing their own review
of their own decisions, even those depending, as in this case, on resolutions
taken in the international order.
However, although incapable of questioning the validity of such resolutions
adopted within an external sphere by an international body, the ECJ believes
these resolutions must be checked nonetheless, if only to assess the constitutionality of the European regulation implementing them. In fact, the examination (review) procedure before the Sanctions Committee of the UN Security
Council actually was considered by the ECJ as incapable of providing adequate
guarantees of judicial protection;61 thus, the “rights of defense” were “patently
not respected.”62 Yet they belong in the general principles of European
Community law.63 Although, according to article 307 EC, international obligations arising from agreements concluded before 1958 should not be affected
by the EC Treaty, nonetheless, the Court rejects the proposition that the
supremacy of UN law (ex art. 103 UN Charter) can override fundamental community principles.64
58
ECJ Kadì., § 305.
Of course, this is fully and conclusively noted by the ECJ, Kadì at §§ 316–317, that “the review
by the Court of the validity of any Community measure in the light of fundamental rights must be
considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced
by an international agreement.”
59
Moreover, “it is not, therefore, for the Community judicature, under the exclusive jurisdiction
provided for by Article 220 EC, to review the lawfulness of such a resolution adopted by an international body, even if that review were to be limited to examination of the compatibility of that
resolution with jus cogens.” Id. at § 287.
60
61
For individuals targeted by its resolutions, see id. at § 322.
62
Id. at § 335.
As the ECJ recalls: “stemming from the constitutional traditions common to the Member States,
which have been enshrined in Articles 6 and 13 of the ECHR, this principle having furthermore
been reaffirmed by Article 47 of the Charter of fundamental rights of the European Union.” Id. at
§335 (internal citations omitted).
63
64
Id. at §§ 303–304.
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Now, instead of trying to interpret such arguments as one more example of
a controversy between monism and dualism, which only risks keeping our
sights confined to an old-fashioned Westphalian paradigm, we should consider
that today we face a relationship between separate legal orders (or regimes),
not just as a question of sources but also as a question of principles. Although
formal sources can be defined, once for all, and so, too, the relation between the
international law and domestic law (thanks, mainly, to interfacial constitutional rules), still, the coherence among the normative principles, which are
enshrined in each order, appears in need of assessment over time. It seems
rather difficult to imagine, today, that the hierarchy of sources between legal
orders will work as such.. Moreover, relations between orders can develop on
the levels where international principled commitments are at stake, and so
some coherence needs to be reached with internal “fundamental” rules.
A general point that has been elaborated through the last decades of the
European rule of law has some relevance here. As the Italian Constitutional
Court wrote in Frontini v. Ministero delle Finanze,65 the limitations on sovereignty, even within the European Communities, have to be connected with the
pursuit of legitimate and valued objectives, and, notably, must be done so
coherently vis-à-vis “fundamental principles” of the member states’ constitutional orders. In general, it holds with the famous “Solange” interplay between
legal orders. Thus, in 1974, the German Constitutional Court affirmed its jurisdiction over European Community normative acts on a content-dependent
basis, assuming, too, that it could renounce it, though only so long as an adequate substantive and procedural system of fundamental rights protection was
working in the European legal order. And, in fact, the Court did renounce it in
1986 (thereby stressing the “Solange” point), insofar as it could ascertain that
such a system had been developed and so long as it remained unmodified.66
One legal order, therefore, is not renouncing its own normative commitments. But more than this—and the point needs to be made in this context—by
giving a reason (content-dependent, namely)67 it commits itself to that reason
and promises that the primacy of supranational order is not only a matter of
jurisdiction but a substantive question as well. For instance, it may entail a
question of fundamental rights protection—a normative standard that shall
condition deference to supranational order and thereby shall also grant it on the
ground of coherence between internal and external orders.
65
Cass., 27 dec. 1973, n.183, Foro It. 314 1974.
66
BVerfGE, May 29, 1974, 37, 27; BVerfGE, Oct. 22, 1986, 73, 339–388.
67
One could build further on Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633 (1995). Although Schauer does concentrate on judges, one can transfer the core argument elsewhere; at
least one of the points in “giving reasons”—for example, for rejecting some externally required
behavior because of some opposite internal normative criteria—is that it paves the way to selfcommitment by consistency; in the example, by giving a reason for noncompliance or acceptance,
one commits himself to compliance should the announced internal criteria finally be matched.
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When shifting to the plane of international law, such a method of confrontation among legal systems could only be opposed if one adopts a parochial
conception of international or domestic orders as closed and self-referential
domains, thereby preventing cooperative dialogue about common standards
or worse—once such standards, like the rule of law itself, are among those
legally fundamental in either system.
7. A “practice theory” of recognition: Restarting from a
Hartian background
As a final comment, this interpretation of the Solange example can draw
attention to a method of confrontation between legal orders that may
promise some success in identifying common standards, such as a “unitary
rule of law.” Its potential and significance lies not in finding these
standards but in fostering and supporting their development—the mutual
construction and emergence of their availability as common rules of
recognition.
The questions concerning the legal fabric of the international environment are connected to the transformations of international law. Paradigms
concerning the general frame, whether constitutional, pluralistic, anarchical, and so forth, try to make sense of the whole. By resorting to the logic of
recognition among legal orders, we do not announce a sort of holistic paradigm concerning the world legal order, not even nostalgia for a world
of states alone. Nonetheless, some pertinent theoretical assumptions have
been glimpsed along the way. Some of them may be recalled by invoking
the meaning of a “rule of recognition” as developed in the legal theory of
H. L. A. Hart.
As we know, each legal order does turn on secondary rules, among which
those of “recognition” exist to control validity within a legal system and to
select among candidate norms those belonging within it. Some excessively
simplified theses have been attributed to this doctrine of positive law. One such
claim is that which would reduce the rule of recognition to a mere reference to
the sources, for example, in the English legal order, the formula “What the
Queen in Parliament enacts is law.”68 In reality, the doctrine of positive law has
no difficulty in agreeing, nowadays, with the importance to be ascribed to principles and not only to rules.
Hart confirms that this “rule of recognition,” unlike other rules and norms
(which are “valid” from the moment they are enacted and even “before
any occasion for their practice has arisen”), is a “form of judicial customary
68
Cf. ROBERT ALEXY, BEGRIFF
1992).
UND
GELTUNG
DES
RECHTS [CONCEPT
AND
VALIDITY
OF THE
LAW] 38 (Alber
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The rule of law beyond the state: Failures, promises, and theory 465
rule existing only if it is accepted and practised in the law-identifying and
law-applying operations of the courts.”69 Hart admits that, in the first edition of
his The Concept of Law, he may not have attributed sufficient importance to the
role played in legal reasoning by principles or other relatively open standards.
Nonetheless, he concludes that there is nothing to prevent that role from being
accepted without the need, as his successor Ronald Dworkin would have it, of
denying the very doctrine of the rule of recognition.70 Hart argued, on more
than one occasion, that in some “systems of law, as in the United States, the
ultimate criteria of legal validity might explicitly incorporate besides pedigree,
principles of justice or substantive moral values, and these may form the content of legal constitutional restraints.”71 Moreover, principles may also be identified by virtue of their “pedigree,” much as in the case of “norms” if those
principles are created or adopted by a recognized authoritative source.72 On the
other hand, a rule of recognition may contain further criteria, in addition to
those of “pedigree”73 (that is, in addition to those that refer to the source), for
example, criteria of merit for identifying valid norms. These latter, according to
Hart, do not escape the rule of recognition but are actually included in it,
although in that case the rule will select (norms and) principles on the basis of
their content.74
This narrative, in truth, appears to fit the transformation that occurred
in the European legal orders as well, even as a historical consequence of the
constitutionalization of law after the Second World War. Although plainly
recorded in legal theory, such a transformation has not been tested yet
beyond domestic legal orders. However, it generates a number of subsequent
outcomes, still to be acknowledged, and will do so all the more when
confrontation among legal orders is at stake. Given the fundamental
role exerted by metarules, which are not only source related, that confrontation cannot be framed and treated according to the model of a pyramid of
sources.
A second connotation to this Hartian reference can be brought out with
regard to the rule of recognition as a practical construct. Instead of amounting
to a conceptual or formal set of hierarchical constitutional rules by itself,
69
H. L. A. HART, Postscript, in THE CONCEPT
Oxford Univ. Press 1997).
70
Id. at 266.
71
Id. at 247.
OF
LAW 256 (P. A. Bulloch & Joseph Raz eds., 2d ed.,
72
For example, the principle that “no man may profit from his own wrongdoing” is identified, according to Hart, by the “pedigree test,” because it has been invoked by the courts in numerous
cases. Id. at 265.
73
Id. at 264.
74
Id. at 265.
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the selective criteria of validity within a legal order are those actually
practiced within an institutional system. This implies accepting that the actual
center of gravity of complex legal systems is not in its apex, that is, just
in its table of constitutional values, but in a special practice of recognition,
which makes sense of these values and offers, through time and circumstances, some coordinates of importance, meaning, and effectiveness through
their implementation.75 In a sense, then, one should refrain from thinking that
this perspective might end up entirely matching the positive law of a world
constitutionalism tailored by scholars and courts. On the other hand, it does
seem to me that constitutionalist ideas can take part in fostering and developing the process of such a practice.
My third remark is this: the model of rules of recognition does work as a
boundary building (or defining) process, although one that couples formal
authorities or legal sources with substantive standards of validity. Therefore,
it is not equivalent to the claim of the integrity of universal law, as a matter
of principle, or of a universal community (perhaps, largely before its actual
birth, in fact). In each legal order, the construction of substantive and procedural standards results from the practice of recognition, where officials and
judges, in the medium run, can only share their last word with the public
sphere. The development of this practice beyond the domestic idea of a legal
system, if anything, can only be expected on a similar incremental basis of
confrontation among orders and actors, and, more importantly, only as the
result of this further separate practice. Thus, if it is true, for instance, that
international law is “law”76—that it can be seen as a sui generis system of
law—then the further its passage from a “primitive” condition to maturity,
the more that practice will intensify, thanks to larger participation of all the
relevant protagonists.
When legal orders develop to the point where their relations with each
other flourish, then the nondogmatic construction of common rules of recognition stems from the very need that produced such relations. The so-called
primitive character of international law, considered (owing to a swift underestimation of its realities by Hart himself) incapable of developing adequate
secondary rules, can, nonetheless, construct itself precisely by elaborating on
the basic elements with which complex orders are already endowed. Although
the issue cannot be fully developed here, it may be fairly said that from such
75
If criteria of merit surface as criteria of validity (mostly constitutional principles) what is valid
will no longer depend solely on the accreditation of its source but on a substantive rationality that
can be followed by the judges and the other officials only in a much more deeply-rooted connection
with the “living world.”
76
See THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 5 (Clarendon Press 1995):
“[International law has] attained the status of a mature, complex system with rules and processes
every bit as variegated as those of a nation.”
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premises the protagonists of the international law scenario77 are the builders
of the international rules of recognition.
Thus far, it is not necessarily unrealistic that a rule of law beyond the
state can be constructed. It does not coincide with the international legal
order (in a strict sense) but depends, rather, on a methodology of confrontation among legal orders. It can result from interweaving separate rules
of recognition and practices and will be as concrete, in the end, as those
practices will be.
77
That this scenario has not only states as protagonists has been already said. It might be added,
however, that unless judges are meant to come down from heaven, the practice of recognition
shows a complex sociological interplay, where the contributions of all those protagonists, in the
medium run, end up revealing the true state of affairs, whether conceived of as power based, ethically loaded, pluralist, unilateral, and so forth.