The Law's Two Sides and Their Benefits: Domestic to International Context

21 Pages Posted: 16 Dec 2013 Last revised: 18 Feb 2014

Date Written: December 15, 2013

Abstract

This chapter maintains that when the law lives up to the ideal of the rule of law, it is organized so to display two internal sides, that are in a mutual tension and concurring with different contents in the legal order as a whole.

Even in the beyond-the-State setting, a recurrent struggle between the supremacy of sources and the substance of legal contents -- available in the relevant system of norms -- takes place. Different patterns have been under scrutiny: from Hamdan case at the US Supreme Court to Al Jedda at the European Court of Human Rights. And only the latter seems to suggest a new way of reasoning, one that reinstates the Rule of law as a notion actually controlling a reflexive and balanced legal answer, beyond the imperative of compliance with the will of the most powerful source of law. Finally, being a notion different from sheer respect for human rights or democracy, and one that deals with a peculiar configuration of law, it would be even too narrow the assumption that the rule of law simply boils down to benefit individuals (against States that should not "be entitled" to its "benefits").

Suggested Citation

Palombella, Gianluigi, The Law's Two Sides and Their Benefits: Domestic to International Context (December 15, 2013). Available at SSRN: https://ssrn.com/abstract=2367980 or http://dx.doi.org/10.2139/ssrn.2367980

Gianluigi Palombella (Contact Author)

Scuola Superiore Sant'Anna di Pisa ( email )

Italy

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
79
Abstract Views
582
Rank
555,299
PlumX Metrics