Academic Year 2009-2010
Gianluigi Palombella is Professor of Legal Philosophy at the University of Parma ( Italy). He received his Ph.D and J.D. from the Scuola Superiore di Pisa, where he taught in the Faculty of Law, until 1997. He has been a visiting fellow at several universities worldwide, including Yale, Northwestern, UNSW (Sydney), and Senior Professorial Fellow at the EUI (Florence). On the boards of numerous research programs in Italy and abroad, as well as the editorial boards of several specialist journals, he has authored some eight books, translated in other languages, on legal thought, democracy, fundamental rights, European and comparative constitutionalism, including more recently L'autorità dei diritti (The Authority of Rights 2002) and Dopo la certezza (After Certainty, 2006). Among his most recent publications, The Rule of Law, Democracy and International Law (Ratio Juris, Dec. 2007); The rule of law beyond the State (I*Con, July 2009) and the volume Relocating the Rule of Law (Oxford 2009) which he co-edited (with Neil Walker).
Rule of Law in Extra-National Governance
I come to the issues identified in the Orientation Paper from the perspective of legal theory and jurisprudence. One feature of “Global Governance” is the existence of networks and non-hierarchical interactions which often cut themselves free from formal legal ties and governmental control. They have attained a specific gravity which is having a major impact on the international system.
What role, if any, does law play in such an environment? How might one conceptualize the relationship between these new forms of international governance and law and legal institutions? What meaning does (or should) the concept of the ‘rule of law’ have when it detaches itself from State Centered discourse and migrates to the more amorphous zone of international governance. In answering these, and related, questions I will be building on my earlier work which reconstructs the notion of the rule-of-law as a relational equilibrium between law-as-justice and law-as-power.
From this perspective a second feature of global governance emerges: International Law is typically understood as having developed as a transactional instrument, a regulative fabric engendering diffuse administrative law, a super partes domain of community obligations -- the means of negotiated governmental policies or a transmission belt for internationalized regulatory layers. I will be interested in exploring the extent to which international law, considered through the prism of Global Governance, may also be understood as autonomous and non-instrumental -- irreducible to regulatory functions or political teleology.
Finally, as Global Governance mapping develops, one “thick” answer to the problem of its avoidance of the ‘rule-of-law’ has been to re-write countervailing commitments in terms of universal values and constitutional structures. My third concern would be to explore the extent to which this invites a novel understanding of the public character of the international sphere. How is the “public” in public international law to be framed? Does it, should it, embody Global Governance practices? And how would this redefinition impact our conception of the “good” for a universal community? Perhaps “thinner” concepts such as fairness may better serve the community.