The Rule of Law in Global Governance. Its Normative Construction, Function and Import

Abstract: This paper divides in two parts. The first part elaborates on the difference among categories of “legalities” that have developed on the globe, and considers their shapes and thickness as irreducible to the uniform notion of a “global law”. Different pictures and explanations affect sensibly in epistemic and pragmatic sense the understanding and the potential of the law in relation to global governance. It is the very fact of metamorphoses of law along diverse legal “formats” (one has to think of WTO, ISO, ICANN, WHO, ICLOS- about 2000 specialized global regimes-, of the newly coined “Global Administrative Law”, of transnational merchant law, of regional order of the EU, of the international legal order, of State orders, and so forth).Despite their phenomenological diversities (law as community related, law as functional regulation of field global practices, law as an interstate or as trans-community normativity, and the like) legalities overlap, sometimes in unpredictable ways and on a case by case basis.In the second part, I return to the concept of Rule of law, drawing on the institutional concept of it, as equilibrium and non domination, that I have at more length elaborated elsewhere. In the inevitable interference and confrontation between plural regulations bearing on the same activities, parties involved and legalities concerned have different depths, different “social embeddedness”, different addressees, legitimacy, functions, universalisability, purposes: how the fact of diversities of formats can be made to matter? This question prompts the role of the Rule of law, that is taken here as conceptually separate from other venerable ideals, concerning democracy or human rights. What does the Rule of law contribute in the frame of global governance? It can consistently be extended externally, being cherished internally. Rule of law concerns at this meta-level the relations among legalities, and can cause content dependent assessments to develop as a matter of confrontation in a pattern of legal public and rational discourse, making claims to be heard, differences to be considered, without supporting neither sheer self closure nor monistic dogmas. I explain how the Rule of Law contributes to re- frame a non substantive scheme of coexistence, a legal condition for the weaving of further rules of recognition: thus, out of the need of interaction and interdependence, this ideal concerning the quality of legal matrix works as well as a template of the tension toward responsible consideration of countervailing claims, preserving the equilibrium tension between the right and the good, and preventing one sidedness and unilateral conceptions of the good from being shielded “globally” by a merely instrumental code of legality.To download this paper in full by Gianluigi Palombella,originally an International Legal Theory Colloquium Paper “Institute for International Law and Justice” at the New York University School of Law, from the Social Science Research Network website, see:
ssrn.com/abstract=1561289