Papers by Gianluigi Palombella
Questions of International Law, 2023
After modernism and post-modernism, can Metamodernism shed the ultimate light on contemporary law... more After modernism and post-modernism, can Metamodernism shed the ultimate light on contemporary law and its present realities, still understood through the lenses provided by legal positivism and post-positivism? The article intends to uphold the word (metamodernism), recently surfacing in the Russian legal discourse, to set it free from that contingent invocation, and deepen its import and potential in explaining the features and the rationale of the legal fabric in the actual tension between democracy and international law, domestic and external legal sources, as well as in mirroring the circumstances of “in-between-ness” that, according to the author, define both the Rule of law and the status of law as “inter-legality”.
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Italian law journal , 2022
The article addresses the understanding of ‘fundamental’ rights and their relations to public goa... more The article addresses the understanding of ‘fundamental’ rights and their relations to public goals. Do fundamental rights need to stand in stark contrast against the public goals normativized within a legal order? The question is relevant in different ways in the State and in the inter- and supra- national setting. By referring to a notion of ‘fundamental’ rights, the first part deals with the institutional (dis-) embeddedness of rights in the domestic legal orders, an issue which features in winding interpretive paths vis à vis public goals. A second part asks how the relation between rights and goods can fare beyond the State domain, taking into account the main legal transformations of the international contemporary legal fabric and some of its ‘community’- related commitments.
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Kutafin Law Review
The article revolves around the question whether, given some very “fundamental threats” to future... more The article revolves around the question whether, given some very “fundamental threats” to future generations’ living, their very conditions of survival can be construed as rights. The issue has to tackle the problem of the non-existence of the presumptive holders of such a right, as well as with the problem of their (non-)identity. The article shows the reasons for separating what we owe to future persons under the challenge of some fundamental threats for humanity from our will to hand down our cultural and ethical ideas of the good information and eventually from paternalistic or selfish imposition upon future generations of our irreversible choices. The framework refers essentially to a conceptual grammar of justice. Moreover, it is suggested to articulate rights through the lens of “disposability” and “non-disposability” principles.
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Hague Journal on the Rule of Law, 2009
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Italian Law Journal, 2021
The development of legal governance interweaves a number of layers of legalities
mutually exclusi... more The development of legal governance interweaves a number of layers of legalities
mutually exclusive and reluctant to partake in a global overarching and harmonising
architecture. An array of legal ‘software’, self contained legal regimes pierce the veil of
State systems. This article explains, also through a number of judicial cases at the Italian,
European and International Courts, what a theory of inter-legality can contribute to the
understanding of and how it can cope with inter-systemic issues and the overlapping of
self-related normativities. It looks at the uneasiness of State legal orders vis à vis
external sources and draws the lines of inter-legality as a method in adjudication and
legislation, eventually turning to the inter-legal character of human rights.
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Ratio juris, 2021
Access to justice reveals its contours through, and is best understood for, its dynamic nature. C... more Access to justice reveals its contours through, and is best understood for, its dynamic nature. Conceptually, it shows a number of peculiar oscillations within couplets of opposites, like rights and structure, autonomous and derivative right, and substance and procedure. What does make for its foundational nature, and how does the latter differ from and coexist with access as a fundamental right? It belongs to the requirements of the rule of law and plays a foundational role towards legality, beyond being counted among the most fundamental rights. Despite its apparent procedural character, it has a substantive value, as well as a peculiar "generative" function. The article enquires into these conceptual features by looking at the ways through which access to justice is provided in the main European and international legal documents, as well as at its progress under judicial interpretation.
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STRENGHTENING HUMAN RIGHTS PROTECTION, ED BY RONEN, DAVID & SHANY, CAMBRIDGE UNIVERSITY PRESS 2021, 2021
The chapter presents access to justice, in the transnational setting, as a
‘right to law’. By ref... more The chapter presents access to justice, in the transnational setting, as a
‘right to law’. By referring to several examples and decisions of higher
courts, access to justice is seen, of course, as a right and as a basic premise to the realisation of human rights. What is its conceptual consistency? As I submit, access to justice is much more than a ‘human right’, in so far as it resembles the value of a ‘right to have rights’: it is a ‘foundational right’ insofar as it features as a kind of ‘right to law’. At the same time it shows a dual nature: as a rule of law essential element or as an individual right; as a procedural or a substantive right; as a derivative or core right. Unsurprisingly, it is by upholding it in one of its different semblances that courts, legislatures, and scholars are able to enhance or downplay its potential. Finally, despite the fact that access to justice should be conceived of as a foundational right, that is, a premise to overcoming
arbitrariness and lawlessness, it is often denied based on legal arguments,
or in truth, prevented by observance of the rule of law: in the transnational
setting, when countervailing norms endowed with alleged primacy
are at stake.
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diritto e questioni pubbliche, 2018
Intento di questo articolo è proporre la nozione di interlegalità, come una peculiare prospettiva... more Intento di questo articolo è proporre la nozione di interlegalità, come una peculiare prospettiva sul diritto, giungendo infine a identificarne attraverso casi e pronunce delle alte corti sia le visibili tracce sia i potenziali sviluppi. Nel moltiplicarsi di ordini e regimi giuridici che si confrontano in assenza di una effettiva gerarchia, i paradigmi basati esclusivamente sui concetti di validità e sistema giuridico siano essi monisti, dualisti o pluralisti sono ancora in grado di riflettere la complessità contemporanea? La principale constatazione che suggerisce un approccio di interlegalità non riguarda solo il fatto della coesi- stenza tra legalità che appartengono a mondi normativi paralleli (il commercio internazionale, la sicurez- za, la salute, l’ambiente, i diritti umani, il welfare statale, e così via) ma soprattutto l’inesorabile intercon- nessione materiale, relativa alla sostanza degli oggetti da essi regolati, la quale finisce per suscitare domande essenziali circa natura e funzione della legalità. Senza cedere alla tentazione ricorrente tra gli studiosi di disegnare teorie che aspirano a realizzare promesse di costituzionalismi globali, mettere a fuoco l’interlegalità consente di modificare la prospettiva epistemica sul diritto. Interlegalità promuove una cornice teorica che non solo sfugga allo stallo dell’alternativa tra monismo e dualismo, ma rielabori l’eredità e le “scoperte” del pluralismo giuridico, muovendo al di là di esse.
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hague journal on the rule of law, 2020
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THE CHALLENGE OF INTER-LEGALITY, ED. BY J. KLABBERS & G. PALOMBELLA, 2019
a general manifesto, intended as a full-fledged presentation of inter-legality, addressing normat... more a general manifesto, intended as a full-fledged presentation of inter-legality, addressing normative problems as well. It starts by asking whether in conflicting and overlapping inter-legality occurrences, hardly arbitrated by hierarchy, the system-based paradigms are still capable of reflecting the present complexity and the material inter-connectedness affecting nature and functioning of legality. Inter-legality entails a change of the epistemic perspective on law, and presents a new scenario for delivering justice: while discussing milestone cases, the chapter designs a theoretical frame on the law, not only avoiding the monist/dualist alternatives, but also offering an appreciation and re-location of the achievements of legal pluralism. Inter-legality reaches beyond both
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Call, 2019
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Apply! for the Special Workshop, Luzern Legal Philosophy World Congress, July 2019, 2018
Legal thinking is anchored upon a series of dichotomies. The concept of a (state) legal order is ... more Legal thinking is anchored upon a series of dichotomies. The concept of a (state) legal order is often explained upon the basis of distinguishing the internal and external, public and private, local and global, and ultimately law from non-law. Globalization is said to call these divisions into challenge. If taken seriously, this entails a series of transformations for legal philosophy, e.g., what should be the point of departure for legal theory? Should more traditional debates in legal philosophy (e.g. on positivism and non-positivism, or the nature of the authority of law) be reorganized? Which criteria are relevant for this? At a fundamental level, the direction of possible research questions remains unsettled. There is the possibility of questioning the significance of globalization to legal philosophy, or reappraising the state in legal philosophy. These orientations can serve as a preemption, or consequence, of 'statist' arguments as a strand of anti-globalist developments. Upon these grounds, this workshop welcomes applications from authors working on topics including, but not limited to, the following.
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The PhD in law (coordinator Prof. Gianluigi Palombella) organizes a series of five international ... more The PhD in law (coordinator Prof. Gianluigi Palombella) organizes a series of five international conferences to discuss the role of law in times of crisis from the most diverse visual and disciplinary angles. The first conference, scheduled for 9th November, will examine the topic from the general perspective of the relationship between the legal systems and between the public and private sectors. On November the 26 th , the Conference will address the profiles of regulation in various areas of technological innovation, competition and climate change.The third event, on November the 30 th , will be dedicated to the crisis of democracy, populism and their relations with the legislative-constitutional procedures. On the 6 th of December, the Conference will then examine discuss the role of law in times of crisis in the perspective of the delicate relationship between privacy and control of knowledge in the era of big data. The final event, on the 7 th of December, will deal with the role of criminal law in times of crisis, evaluating with international experts, exponents of the NGOs world and private entrepreneurship if and how criminal law can still respond to the questions posed by the economic crisis and in what terms it must dialogue with other forms of management of illicit risk.
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This chapter shows that the present circumstances of interlegality are better understood as the s... more This chapter shows that the present circumstances of interlegality are better understood as the simultaneous surfacing of diverse structures, patterns, or ‘formats’ of legality whose birth is originally placed in different historical times. Law as Esprit, Jus Gentium, Medieval law, Global Administrative law are chosen as relevant to explaining resilient features encountered in the present transformations of contemporary law. Each shall be given a dedicated, albeit brief, overview. We are living in a neo-medieval concurrency of legalities, further complicated by the different incarnations of ‘Esprit’, especially through the achievement of the State, and by the overwhelming appearance of the deracinated global rule-making; we keep relying on some law of all the peoples that should make sense of disagreements and suggest an albeit limited amount of shared principles or institutions (the jus gentium type).
The increasing value of naming such phenomena as interlegality (not just ‘legality’) lies in the realization that we are to live in each and all of such different formats at the same time, and that the continuous reshuffling of their concurrent or competing rationales demands a revision of our understanding of law, especially in its ‘systemic’ frames, an understanding that at best is attuned to one of those formats, but unfit to make sense of their enmeshing and to cope with it.
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While EU law, UN law, international law generally, or human rights law were all impinging upon hi... more While EU law, UN law, international law generally, or human rights law were all impinging upon his case, Mr Kadi would have asked for justice regardless of the field, the source, the legality, the jurisdiction, and the division of labour that they implement and respond to. Amidst the plurality of orders, regimes, legal systems, and the overlapping of legalities, hardly arbitrated by hierarchy, are the system-based paradigms, be they monist, dualist or pluralist, still capable of reflecting the present complexity? The main concern triggering an inter-legality approach is not the coexistence among legalities as they create parallel worlds of normativity (that of global trade, of world health, of state welfare, of regional security, and so forth) but the resilience of the material interconnectedness that comes to affect the nature and functioning of legality. Without giving into the mainstream temptation of drawing a global constitutional promise, interlegality should attempt at changing the epistemic perspective on law.
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M. Maduro & M. Wind (eds.), The Transformation of Europe.Twenty-Five Years on. Contributors: J. Weiler, N. Walker, G. de Burca, G. Palombella, J. Baquero Cruz, Alec Stone Sweet, A. Bogdandy, K. Nicolaidis, T. Isiksel, A. Somek, F Mayer, H. Micklitz, D. Halberstam, P. Lindseth, M. Maduro, M.Wind
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In recent years, diverse threats across multiple countries to the Rule of law have been brought t... more In recent years, diverse threats across multiple countries to the Rule of law have been brought to the attention of the European Commission. Focus has mainly centred on the Article 7 TEU procedure. This paper argues that EU oversight should be considered as having regard to its internal premises and credibility; the question can be posed whether EU censorship is affected by a ever-encroaching weakness that currently characterises the present relationships between States and regional or supranational orders, whose authority is met at times with resistance. Zooming out from the daily threats to the Rule of law in so-called illiberal or populist governments, this paper scrutinises some usual theoretical tools and conceptual frameworks, namely the connection between arbitrariness and the Rule of law on one hand, and the Rule of law and the overall idea of public law on the other. It suggests that the present crisis is part of a seismic shift of the main components of the idea of public law that underpin the modern and contemporary state. After examining further case law and evidence of arbitrariness and non-arbitrariness that exceeds the features of the Rule of law, this paper challenges the conviction that a generic notion of arbitrariness can capture the problem of illiberal governmental actions, or justify the European Union attitude in responding to a 'Rule of law crisis'.
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On Dworkin's shoulders. Principles and Adjudication in International Law. In recent times positiv... more On Dworkin's shoulders. Principles and Adjudication in International Law. In recent times positivist legal theory has focused upon International law, mainly by adapting Hartian validity requirements to the inter-states domain. In turn, Ronald Dworkin has himself extended his theory of law to the international order, in a posthumous work, one that, revolving around adjudication, aims at identifying fundamental principles bearing the raison d'etre of the legal international order. By standing on Dworkin's shoulders, this article shows the relevance of his last attempt, connects its novel to Dworkin's (previous) general theory of interpretivism and applies both to the legal international scenarios, even accounting for those features that Dworkin himself has not taken into consideration. In stepping forward, the article explains how to manage the problematic adaptation of community dependent notions like " integrity " and " equal concern and respect " in the international (unfamiliar) environment, stresses the function of the Dworkinian principles of mitigation and salience, and sees strict legal positivism as inconclusive, also given the transformations of International law in the last 60 years. All the more so, because cases before international Courts show how legal reasoning is ready to evolve toward inter-systemic interpretivism, in the face of problems that positivist legal theory is barely equipped to tackle.In recent times positiv- ist legal theory has focused upon International law, mainly by adapting Hartian validity re- quirements to the inter-states domain. In turn, Ronald Dworkin has himself extended his theory of law to the international order, in a posthumous work, one that, revolving around adjudication, aims at identifying fundamental principles bearing the raison d’etre of the legal international order. By standing on Dworkin’s shoulders, this article shows the relevance of his last attempt, connects its novel to Dworkin’s (previous) general theory of interpretivism and applies both to the legal international scenarios, even accounting for those features that Dworkin himself has not taken into consideration. In stepping forward, the article explains how to manage the problematic adaptation of community dependent notions like “integrity” and “equal concern and respect” in the international (unfamiliar) environment, stresses the function of the Dworkinian principles of mitigation and saliency, and sees strict legal positiv- ism as inconclusive, also given the transformations of International law in the last 60 years. All the more so, because cases before international Courts show how legal reasoning is ready to evolve toward inter-systemic interpretivism, in the face of problems that positivist legal theory is barely equipped to tackle.
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Papers by Gianluigi Palombella
mutually exclusive and reluctant to partake in a global overarching and harmonising
architecture. An array of legal ‘software’, self contained legal regimes pierce the veil of
State systems. This article explains, also through a number of judicial cases at the Italian,
European and International Courts, what a theory of inter-legality can contribute to the
understanding of and how it can cope with inter-systemic issues and the overlapping of
self-related normativities. It looks at the uneasiness of State legal orders vis à vis
external sources and draws the lines of inter-legality as a method in adjudication and
legislation, eventually turning to the inter-legal character of human rights.
‘right to law’. By referring to several examples and decisions of higher
courts, access to justice is seen, of course, as a right and as a basic premise to the realisation of human rights. What is its conceptual consistency? As I submit, access to justice is much more than a ‘human right’, in so far as it resembles the value of a ‘right to have rights’: it is a ‘foundational right’ insofar as it features as a kind of ‘right to law’. At the same time it shows a dual nature: as a rule of law essential element or as an individual right; as a procedural or a substantive right; as a derivative or core right. Unsurprisingly, it is by upholding it in one of its different semblances that courts, legislatures, and scholars are able to enhance or downplay its potential. Finally, despite the fact that access to justice should be conceived of as a foundational right, that is, a premise to overcoming
arbitrariness and lawlessness, it is often denied based on legal arguments,
or in truth, prevented by observance of the rule of law: in the transnational
setting, when countervailing norms endowed with alleged primacy
are at stake.
GET THE FULL TEXT FREE AT : https://link.springer.com/epdf/10.1007/s40803-020-00140-4?author_access_token=C5dvuYpCaCJVM2KdT7qpJve4RwlQNchNByi7wbcMAY68ntk1bkn6x2HAL2LMBvZeh-dVzQIgm5URFB_38Q6KhiJ0vt3PeD8GhsAifLUXWpVrPRuWblDTHBoAmHpPfYP0pevXWsTDxCeP_Pbh-Dj0gg==
ENVIRONMENT, SUSTAINABILITY AND PRECAUTION IN THE LIGHT OF INTER-LEGALITY .
To address substantive legal problems stemming from fragmentation and conflict among legal orders and regimes, elaborate upon the issues of inter legality, in matters of sustainability, in environmental and agri-food policies and regulations
Apply! https://www.santannapisa.it/it/assegni-di-ricerca-e-selezioni/istituto-dirpolis-environment-sustainability-and-precaution-light
The increasing value of naming such phenomena as interlegality (not just ‘legality’) lies in the realization that we are to live in each and all of such different formats at the same time, and that the continuous reshuffling of their concurrent or competing rationales demands a revision of our understanding of law, especially in its ‘systemic’ frames, an understanding that at best is attuned to one of those formats, but unfit to make sense of their enmeshing and to cope with it.
mutually exclusive and reluctant to partake in a global overarching and harmonising
architecture. An array of legal ‘software’, self contained legal regimes pierce the veil of
State systems. This article explains, also through a number of judicial cases at the Italian,
European and International Courts, what a theory of inter-legality can contribute to the
understanding of and how it can cope with inter-systemic issues and the overlapping of
self-related normativities. It looks at the uneasiness of State legal orders vis à vis
external sources and draws the lines of inter-legality as a method in adjudication and
legislation, eventually turning to the inter-legal character of human rights.
‘right to law’. By referring to several examples and decisions of higher
courts, access to justice is seen, of course, as a right and as a basic premise to the realisation of human rights. What is its conceptual consistency? As I submit, access to justice is much more than a ‘human right’, in so far as it resembles the value of a ‘right to have rights’: it is a ‘foundational right’ insofar as it features as a kind of ‘right to law’. At the same time it shows a dual nature: as a rule of law essential element or as an individual right; as a procedural or a substantive right; as a derivative or core right. Unsurprisingly, it is by upholding it in one of its different semblances that courts, legislatures, and scholars are able to enhance or downplay its potential. Finally, despite the fact that access to justice should be conceived of as a foundational right, that is, a premise to overcoming
arbitrariness and lawlessness, it is often denied based on legal arguments,
or in truth, prevented by observance of the rule of law: in the transnational
setting, when countervailing norms endowed with alleged primacy
are at stake.
GET THE FULL TEXT FREE AT : https://link.springer.com/epdf/10.1007/s40803-020-00140-4?author_access_token=C5dvuYpCaCJVM2KdT7qpJve4RwlQNchNByi7wbcMAY68ntk1bkn6x2HAL2LMBvZeh-dVzQIgm5URFB_38Q6KhiJ0vt3PeD8GhsAifLUXWpVrPRuWblDTHBoAmHpPfYP0pevXWsTDxCeP_Pbh-Dj0gg==
ENVIRONMENT, SUSTAINABILITY AND PRECAUTION IN THE LIGHT OF INTER-LEGALITY .
To address substantive legal problems stemming from fragmentation and conflict among legal orders and regimes, elaborate upon the issues of inter legality, in matters of sustainability, in environmental and agri-food policies and regulations
Apply! https://www.santannapisa.it/it/assegni-di-ricerca-e-selezioni/istituto-dirpolis-environment-sustainability-and-precaution-light
The increasing value of naming such phenomena as interlegality (not just ‘legality’) lies in the realization that we are to live in each and all of such different formats at the same time, and that the continuous reshuffling of their concurrent or competing rationales demands a revision of our understanding of law, especially in its ‘systemic’ frames, an understanding that at best is attuned to one of those formats, but unfit to make sense of their enmeshing and to cope with it.
29 gennaio: 17 alle 19. Discutono: . Aldo Sandulli (LUISS) e Alessandro Andonio, Corte di Cassazione.
- 25 febbraio: 17-19 Bernardo G. Mattarella (LUISS) e Giancarlo Montedoro, Consiglio di Stato.
- 25 Marzo, 17-19 Aristide Police e Massimiliano Atelli, Corte dei Conti.
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