The rule of law beyond the state: Failures, promises, and theory

Abstract

Resorting to the “ rule of law ” within the traditional environment of international law generates diffi culties, 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 (Kadi 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 refl ect 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 fi nally evolve further into a rule of recognition for the international legal order.