Global Legislation and Its Discontents
Gianluigi Palombella
University of Parma - Faculty of Law
May 28, 2012
Abstract:
This paper deals with ‘legislation’ flourishing in the global sphere from a large number of sources, in the lack of a ‘central authority’ and of a unified system. Legal philosophy, international and constitutional law, legal sociology are focusing on the nature of the transformations of law and the multiplicity of levels of order. Current redefinitions of the notions of legality and validity as well as ambitious attempts at a global constitution deserve some scrutiny and have to cope with the very fact that legislation on the global sphere bears unprecedented features: being issued from deracinated sources, altering the scope and functions of legislation-as-we-knew-it, developing ‘managerial’ and regulatory modes, reversing the distinction vis à vis 'administration', electing functional rationalities with 'limited responsibility', loosing connection to the comprehensive well being of social communities. Despite devices of accountability focused upon by ‘global administrative law’ scholars, ‘global’ legislation remains a source of discontents.
Eventually, the promises of legal form and the ideal of the rule of law are at stake in keeping alive the distinction between global decision making and universalizability. The future of global legislation (as well as its legitimacy) shall depend not only on shared criteria of legality in a number of rule-generative processes, but also on how they shall interfere against each other or against the autonomy of less-than-global orders: that is, on the justice-related, legal quality of the relationships between the plurality of orders.
This paper deals with ‘legislation’ flourishing in the global sphere from a large number of sources, in the lack of a ‘central authority’ and of a unified system. Legal philosophy, international and constitutional law, legal sociology are focusing on the nature of the transformations of law and the multiplicity of levels of order. Current redefinitions of the notions of legality and validity as well as ambitious attempts at a global constitution deserve some scrutiny and have to cope with the very fact that legislation on the global sphere bears unprecedented features: being issued from deracinated sources, altering the scope and functions of legislation-as-we-knew-it, developing ‘managerial’ and regulatory modes, reversing the distinction vis à vis 'administration', electing functional rationalities with 'limited responsibility', loosing connection to the comprehensive well being of social communities. Despite devices of accountability focused upon by ‘global administrative law’ scholars, ‘global’ legislation remains a source of discontents.
Eventually, the promises of legal form and the ideal of the rule of law are at stake in keeping alive the distinction between global decision making and universalizability. The future of global legislation (as well as its legitimacy) shall depend not only on shared criteria of legality in a number of rule-generative processes, but also on how they shall interfere against each other or against the autonomy of less-than-global orders: that is, on the justice-related, legal quality of the relationships between the plurality of orders.
Number of Pages in PDF File: 20
Keywords:
legality, validity, global governance, legitimacy, pluralism, justice,
global constitutionalism, legal theory, international law,
constitutional law, global lawFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2067427
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