An International Rule of Law

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).

Revista de Direito Internacional

Despite the assertion of the need to promote the Rule of Law in the international sphere, there is still a great terminological imprecision regarding the concept. Such imprecision generates criticism regarding the use of the term in international relations, raises doubts about the possibility of adopting an international concept of Rule of Law and makes it difficult to delineate the measures to be taken for its promotion. In this original research, conducted by the deductive method and characterized as being theoretical, qualitative, descriptive, bibliographic and documental, it is sought to debate the existing problems for the acceptance of a basic concept of the term Rule of Law in the international sphere, as well as to identify in what sense the Rule of Law should be understood, what are its inherent elements and how it can be achieved and promoted in such sphere. The hypothesis articulated is that even though domestic concepts of the Rule of Law cannot be transposed to the international sphere, enough elements can be found in such sphere to support the adoption of an international conception of the term. Adopting a theoretical constructivist approach, it is concluded that the promotion of the Rule of Law in the international sphere depends on the construction of a social environment in which the obligation/authority of international law is recognized, a construction that is carried out by constant practices of legality.

Hague Journal on the Rule of Law, 2009

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 ([email protected]). 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.

The rule of law at the international level depends on national law. The behaviour of the major states, and in particular the permanent members of the Security Council, will be a determining factor for the maintenance of international peace and security in the future. The future of the rule of law at the international level depends on national court, in order to ensure states, organizations and individuals comply with their obligations under international law.

Global Constitutionalism

The international rule of law is a somewhat ubiquitous concept yet, as idea, it is marred by ambiguity and disagreement and, as ideal, constantly frustrated by the institutional conditions of the decentralised international legal order. Rather than necessarily undermining the concept, however, I argue that these structural conditions cause a kind of conceptual rupture, resulting in seemingly opposed or contradictory idealisations. On the one hand, the international rule of law can be understood as what Terry Nardin has called the 'basis of association' in international relations. This understanding places importance on the legal form as an end in itself, whereby the structural or institutional autonomy of international law is critical to the peaceable conduct of international relations. On the other hand, however, the rule of law exists as an unfulfilled promise of an order to come: it is distinctly anti-formalist in nature, stressing the functional capacity of international law to actually constrain political actors (primarily states) and thus seeking to develop more effective international institutional mechanisms. Although these competing idealisations give rise to a certain contradiction and inherent tension, their conceptual opposition is, I believe, critical to an understanding of authority and accountability dynamics in an era of 'global governance'.

International Community Law Review, 2008

The constitutional principles of the state under the rule of law require, as a precondition, that a normal situation exists. The article argues that this Schmittian idea can be transposed to an international debate on the international rule of law. The constitutional reforms proposed by Schmitt in 'Legality and Legitimacy' focusing in his search for an ethos of law were in the concrete situation of Weimar, neither attuned to the legal spirit of the times (positivism) nor suited to taking a course of action in the midst of tumultuous political events. However, as a theoretical work on liberal constitutionalism 'Legality and Legitimacy' contributes to the discussion on the lack of inherent rationality of the liberal (international) rule of law: the ethos of the rule of law is an outsider. The final part of the article uses the example of the mandate system of the League of Nations to support the claim that the value of a descriptive thesis of the vulnerability of the rule of law to power, lies in enabling a more realistic approach, in terms of ethical agency and power relations, to the margins of the rule of law or the grey zones.

European Journal of International Law, 2012