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
David Goldstein

