The law’s two sides and their benefits : domestic to international context

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. Thus, as history and comparative institutional analysis show, there is a part of the law that is not under the jurisgenerative power of the sovereign. This feature of law as duality (in the same sense as the medieval jurisdictio and gubernaculum couple) represents a scheme that prevents domination from being perpetrated through the monopoly of law. Such an essential aspect of law -- if it has been realized in the concrete reality of a legal order -- has a normative import that can be measured also beyond the State. It means that sheer exercise of democratic sovereignty is not a sufficient reason for justifying infringement of international law. But in as much as the rule of law is not reducible to compliance to whatever rules, it means as well that the sovereign exercise of rule-making power by the UN Security Council cannot per sé unconditionally oblige State legal orders to infringing, say, fundamental rights. 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").