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Title: Perspectives for the emergence of an international rule of law in a global governance context - normative benchmarks for a global rule of law.
Other Titles: Vooruitzichten voor het Ontstaan van een Internationale Rechtsstaat in de Context van Globaal Bestuur - Normatieve Mijlpalen voor een "Globale Rechtsstaat"
Authors: Hachez, Nicolas
Issue Date: 25-May-2016
Abstract: The rule of law has historically been considered as an ideal of social ordering, and is increasingly invoked in relation to the international context. Doubts remain as to the meaning of the concept and as to its applicability to the international realm, the regulation of which is increasingly described in terms of a pluralistic and heterogeneous “global governance”. This PhD thesis shall first attempt to clarify the notion of rule of law in the global governance context. This clarified notion shall then be tested against real-life instances of global governance, namely in food safety standard-setting. The thesis shall conclude by delineating a normative framework for reflecting upon global governance from a rule of law perspective, and offer prospects as to the possible emergence of a “global rule of law”. Finally, it shall address practical recommendations to global governance actors as to how to promote a global rule of law.
Table of Contents: CONTENTS IV
ILLUSTRATIONS VI
ACKNOWLEDGMENTS VII
ABBREVIATIONS IX
I. INTRODUCTION 1
I.1 CAN ANOTHER THESIS ON THE RULE OF LAW SAY ANYTHING NEW? 1
I.1.1 A contingent ideal: The rule of law between chaos and capture 1
I.1.2 Globalization: The new oppression? 8
I.2 AIM AND METHOD 11
II. THE RULE OF LAW AS AN IDEAL 16
II.1 THE TERMS OF THE DEBATE 17
II.1.1 Historical underpinnings 18
II.1.2 The functions of the rule of law: Individual freedom v. social project 21
II.1.3 The various plies of the rule of law 26
II.1.3.1 Thin and formal conceptions 29
II.1.3.1.1 Legality 29
II.1.3.1.2 Legal certainty 31
II.1.3.1.3 Institutional and procedural elements 32
II.1.3.1.4 Critique: The formal rule of law falls short of the ideal 37
II.1.3.2 Thick and substantive conceptions 43
II.1.3.2.1 Substantive limitations to government power 44
II.1.3.2.2 Critique: Legal substance is a matter of philosophy and politics 49
II.1.4 Conclusion: The art of legal systems 51
II.2 THE RULE OF ‘VALID’ LAW 54
II.2.1 Rule by law and rule of the law 55
II.2.2 Authority as the decisive factor 59
II.2.3 Validity as determinative of the law’s authority 65
II.2.3.1 Definition of legal validity and the shaping of legal systems 66
II.2.3.2 Validity as justification: The translation of validity into authority 69
II.2.3.3 Different conceptions of validity and whether they justify authority 79
II.2.3.3.1 Jusnaturalism 80
II.2.3.3.2 Realism 86
II.2.3.3.3 Positivism 90
II.2.3.3.3.1 The rule of recognition and the basic norm 92
II.2.3.3.3.1.1 Hart’s rule of recognition: Collapse into realism? 92
II.2.3.3.3.1.2 Kelsen’s basic norm: Collapse into jusnaturalism? 96
II.2.3.3.3.1.3 Conclusion: Faith as the foundation of the rule of law? 101
II.2.3.3.3.2 Raz’ service conception of authority 102
II.2.3.3.3.3 Inclusive legal positivism 107
II.2.3.3.4 Conclusion 111
II.3 A TRIPLE JUSTIFICATION: LEGALITY, EFFECTIVENESS, LEGITIMACY 113
II.3.1 Legalistic and social dimensions of validity: A tridimensional theory 116
II.3.2 Tridimensional validity and its consequences for the rule of law 127
II.3.2.1 Blurring perceptions of legal validity and authority 128
II.3.2.2 A cumbersome validation and justification process 135
II.3.2.3 Tridimensional validity: Beneficial on balance 138
II.3.3 The three components of validity and their justificatory potential 141
II.3.3.1 Legality: Cognitive justification 141
II.3.3.2 Effectiveness: Instrumental justification 148
II.3.3.2.1 The existence of effects 149
II.3.3.2.2 Effectiveness as performance 150
II.3.3.2.3 Effectiveness as acceptance 153
II.3.3.3 Legitimacy: Axiological justification 154
II.3.3.3.1 Legitimacy as process 159
II.3.3.3.2 Legitimacy as content 166
II.3.4 On the conditions for legality to act as a proxy for the rule of law 175
II.3.5 Conclusion on the rule of law as a function of tridimensional legal validity 183
II.4 FROM THEORY TO PRACTICE: THE RULE OF LAW AS A DIALECTICAL IDEAL 190
II.4.1 Dialectics, jurisgenerative politics, and connectedness 191
II.4.2 Can the rule of law be ‘promoted’? The case of the European Union 205
II.4.2.1 Promoting the rule of law in the EU 208
II.4.2.2 Promoting the rule of law in candidate countries 211
II.4.2.3 Promoting the rule of law in EU Member States 214
II.4.2.4 Promoting the rule of law abroad 224
II.4.2.5 Conclusion 233
III. PROMOTING THE RULE OF LAW IN GLOBAL GOVERNANCE: A BENCHMARKS APPROACH 234
III.1 THE INCREASING RELEVANCE OF GLOBAL GOVERNANCE 235
III.2 CURRENT APPROACHES TO INTERNATIONALIZING THE RULE OF LAW IDEAL 238
III.3 IS PRIVATE GLOBAL GOVERNANCE IN ANY WAY A LEGAL PHENOMENON, AND DOES IT WARRANT A RULE OF LAW CRITIQUE? 246
III.3.1 The private side of global governance 246
III.3.2 Law and private global governance 253
III.4 TOWARDS A BENCHMARKS APPROACH TO THE PROMOTION OF THE RULE OF LAW AT GLOBAL LEVEL 262
III.4.1 Global governance and legality: A plea for transparency 265
III.4.1.1 The question of knowledge 267
III.4.1.2 The question of mandate 270
III.4.1.3 The question of rationality 279
III.4.1.4 Conclusion: Legality, fragmentation and pluralism 281
III.4.2 Measuring effectiveness in global governance 283
III.4.2.1 Changing behavior 284
III.4.2.2 Solving problems 289
III.4.2.3 Setting general norms 294
III.4.2.4 Conclusion: Making global governance instrumental for society at large 296
III.4.3 Legitimacy: Is democracy possible at global level? 298
III.4.3.1 The meaning of legitimacy in global private governance 298
III.4.3.1.1 Democratic v. output legitimacy 300
III.4.3.1.2 Global democracy as public accountability 304
III.4.3.1.2.1 The question of the political community: demos v. public 305
III.4.3.1.2.2 Prospective and retrospective accountability 307
III.4.3.2 A glimpse at the practice 313
III.4.3.3 Concluding remarks 318
III.5 CONCLUSION: THE BENCHMARKS APPROACH IS NOT ANOTHER CHECKLIST 318
IV. THE VALUE AND HUMILITY OF LAW 323
BIBLIOGRAPHY 333
LEGISLATION AND TREATIES 333
CASE-LAW 333
SECONDARY SOURCES 334
Publication status: published
KU Leuven publication type: TH
Appears in Collections:Leuven Centre for Global Governance Studies
Institute for International Law

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