Legal normativity: Requirements, aims and limits. A view from legal philosophy Elena Pariotti University of Padova elena.pariotti@unipd.it
INTRODUCTION
emerging technologies (uncertainty; extremely fast development) globalisation Shift from government to governance are the main current challenges to legal regulation
Such challenges lead to reflect on nature structure purposes limits of legal normativity
KEY-CONCEPTS IN THE CURRENT THEORETICAL ACCOUNTS FOR LEGAL NORMATIVITY Legal pluralism (horizontal, vertical) coexistence of a plurality of legal orders decentralized position of the state increasing non-state norms Soft law norms which in principle have no legally binding force but which nevertheless may have practical effects Governance Regulatory approach that is not based on government action and aims at fostering coordination processes among different (public and private ) actors
PRESENTATION AIMS To show: 1) some features taken by legal normativity due to globalisation, several forms of interactions among legal orders, and legal pluralism 2) the unsuitability of formalistic approaches to legal normativity to maintain that 3) the retreat from formalism should not amount to dissolving legal normativity into social, moral, political normativity 4) Legitimating a non-formalistic view of law, open to acknowledgement of some forms of pluralism, meets the democracy ideal according to the requirements of the globalisation age.
BASIC ISSUE Is there any specificity in legal normativity? On which basis can we distinguish it from moral, social and political normativity?
CONCEPTUALIZATION ISSUES
WHAT IS LAW? Western understanding of law arises in the modern age and is heavily affected by the process of codification of law This understanding of law is indebted to legal positivism fully identification between law and norms formalism: law is identified by the form of norms, by the structure of legal order, and by making procedure state-based view of law law is by definition state law voluntarism: subordination of law (in terms of identification and justification) to political power (law This view has being undermined by the retreat of the State from legal, political, economic decisions
SOME RELEVANT DEFINITIONS OF LAW Law is a set of norms, it essentialy consists in a given legal order normativist theories; theories of law based on the source thesis Law is an outcome of organization that is inherent to society (where there is society, i.e. organization, here there is law as well) (anti-voluntarism, critique to state-based understanding of law and defence of legal pluralism) Law is composed of institutions created through legal norms (norms are tools of law, which in itself is something more than norms) Institutions are abstract concepts through which it is possible to ascribe meaning to congeries of human actions (neo)institutionalist theory
CONCEPTUAL CLASSIFICATION OF LEGAL NORMS PRINCIPLES wide range norms implicit or explicit characterised by vagueness and indeterminacy may require balancing in orderto be applied RULES More precise norms (compared to principles) STANDARDS benchmarks of technical performance which substitute the enactment and fast modification of detailed rules
Principles tend to move across legal orders with regard to many legal processes, such as globalization (of law) cross-fertilization among legal notions and norms belonging to different legal systems construction of multilevel regimes European multilevel constitutionalism
LEGAL PLURALISM, SOFT LAW AND THE CONCEPTUALIZATION OF LAW
The emergent role of soft law In many domains European integration International law (human rights law) Transnational law Hard law is integrated or supported by soft law tools Having recourse to soft law is becoming the key of the governance model
SOFT LAW is composed by norms which in principle have no legally binding force but which nevertheless may have practical effects includes: guidelines and raccomandations of institutional bodies; declarations; private regimes norms (e.g. lex mercatoria); self-regulation tools (fully voluntary selft-regulation and enforced selfregulation) o Private codes of conduct (company codes, trade association codes, multistakeholder codes) o Intergovernmental codes of conduct or guidelines o Certification systems (in between hard and soft law)
The issue is not whether soft law is relevant or not BUT whether it should be regarded as law
Positivism simply denies the very concept of soft law Soft law can be properly addressed only moving by certain premises rejecting state-based views of law focusing less on the enactment stage and more on the implementation stage softness may be regarded as a property which is possible to ascribe to norms with regard to their degree of obligation precision delegation
Lessons from the lex mercatoria debate Current lex mercatoria is the transnational law of economic transactions, orienting the, and stemming from, the conduct of economic private actors, and capable of being applied by judges or arbitrators as a source of legal rules (Teubner; Carbonneau) The current form taken by lex mercatoria moves from an amorphous soft law to codified legal rules (mostly given by the UNIDROIT Principles of International and Commercial law) It is a good example of: process of deformalization of legal sources (erosion of hierarchy as leading criterium in finding and applying law) emergence of the role of non-state actors in law making functional specialisation of law complex nature of the relationship between non-state law and state law
THE STATUS OF LEX MERCATORIA Does it exist as an autonomous legal regime? Which are its relationships with domestic law? The ancient lex mercatoria was an amalgam of state and non-state rules and procedures, kept together by its subject: the merchants (Michaels, 2007) XX century lex mercatoria intended to offer an alternative to state law Current lex mercatoria does not seem to be a self-sufficient legal system fully independent from the state: Like older form, current lex mercatoria tends to be law without political influence but unlike its older form, it tends to take the form of layed down positive rules arbitrators are no longer merchants, but experts in international commercial law International arbitration is interdependent with domestic courts (arbitral awards, court decisions, autonomous law merchant norms and domestic law are cited and used in decisions without hierarcical distinction) UNIDROIT Principles are not the only applicable law for arbitratore Should it be regarded as law?
From the pyramidal model The view of law identifying law with legal order and state, in which hierarchy is the key for explaining Legal validity law creation and law application legal coherence and certainty is challenged as the role of state in law shaping is fading
to the network model A new model, based on the net image, has been proposed: the network model of law (Ost) The newtork is here a framework composed by knots which are mutually linked by rules of functioning This model stresses, in the current form taken by legal normativity, its openness and the lack of hierarchy
INTERLEGALITY Another way to describe this is to talk about interlegality rather than legal pluralism Provided that interlegality means as not much the existence of a static variety of normative systems which are strictly separated from each other a dynamic variety of normative operations, in which parallel norm systems of different origin stimulate each other, interloc and permeate, without coalescing into united super-systems that absorb their parts, but permanently coexist as heterarchical formations Is there any conflict between normative coherence and operative interlegality?
In search for distinctive criteria for legal norms A norm is a legal norm when: Formalistic criteria: has been established by a competent body Is envisaged by legal sources belongs to a legal order/system - i.e. its validity depends on the validity of a higher norm in the same system (it has been produced according to the rules established in the higher norm) is supported by sanctions Anti-formalistic criteria: meets some given functions that are associated to legal purposes is recognised as a (valid) legal norm by legal Officials is used by judges to justify their decisions
FROM LEGAL ORDER TO LEGAL SPHERE The reference to a normative context seems to continue being relevant to define a norm as a legal norm Nevertheless, it is clear, from an empirical point of view, that normative contexts tend to arise through the mix of elements from different legal orders (domestic, international, foreign) actors promoting the shaping of normative contexts may be also nonstate actors the main criterium according to which this assemblage is made is not belonging (to a given legal order) but function. Therefore, it should be concluded that the normative context that is necessary to qualify a norm as a legal one is no more the system, but something more similar to a sphere.
The inadequacy of state-based conceptions of law does not mean the irrelevance of the normative context in validating a norm as a legal norm What contemporary forms of legal pluralism may show is that normative contexts are constructed (and therefore should be understood) according to new criteria The novelty of criteria consists in irrelevance of state/non state distinction Irrelevance of hierarchy Importance of functions associated to norms Independence of norms from politics (that is why often it is unproperly spoken of independence from state)
TOWARDS A VIEW OF LEGAL NORMATIVITY INCLUDING HARD AND SOFT LAW
WHY TO OPT FOR THE INTERPLAY BETWEEN HARD AND SOFT LAW? With regard to the emerging technologies regulation In the case of emerging technologies, regulation should fulfill three basic purposes: promoting specific policy pathways fostering the constant improvement of achievable safety standards encouraging the uniformity of standards. Soft law instruments can be easier and less costly to negotiate Soft law tools provide more flexibility to cope with uncertainty and make easier for regulation to go together with learning over time Soft law tools are suitable to promote (and not only reflect) participation in regulation and to diffuse responsibility
With regard to globalisation Soft law copes better with pluralism and diversity Soft law allows regulation to implement global criteria, standards, principle (without necessarily neglecting their adaptation to local needs) With regard to the suitability of governance as a regulatory framework Soft law may foster coordination among different normative levels and spheres as well as among different subjects
Effectiveness of soft law soft law is brought into existence because there is a consent on its validity and its purposes. In the case of command-and-control regulation, sanction is the key of effectiveness, and a deficit of control on compliance tends to become a structural deficit of enforcement. This is why soft law may be even more effective than formally binding norms
MAIN CURRENT THEORETICAL ACCOUNTS FOR LEGAL PLURALISM 1. Theory of reflexive regulation law is a catalyst of the processes of self-regulation by which individuals, organisations, and social systems coordinate themselves with the rest of the world The role of law is procedural in character: it consists in structuring and encouraging the process of reflexion in other semi-autonomous social systems, by shaping both their procedures of internal discourse and their methods of coordination with other social systems Law cannot reduce either substantially manage pluralism (Parker)
1. Theory of responsive regulation law should promulgate broad substantive values across a range of self-regulating or semiautonomous social fields law is regarded as intimately connected with politics: Responsive law continually corrects itself in relation to political discussion law is put at the pulsating core of the expression and implementation of social values formal, coercive law is thought of as a last resort when compliance with just legal principles are not possible through voluntary compliance, dialogue and persuasion. (Ayres and Braithwaite, Responsive Regulation) law promulgates substantive values and in doing that it often defer to non-legal processes of deliberation and self-regulation to hear what those values are and how they should be implemented Responsive regulation (its achievements) depends on the will and resources of politics (Parker)
In search for the role of legal normativity in governance Reflexive regulation picture of law seems to construe a partial perspective due to the idea that law is mere procedural coordination of different spheres (and their values). Law cannot (and should not, in order to respect pluralism) promote substantive values Responsive regulation picture gives to law a substantive and leading role, but does not have critical tools in order to assess the values and to defend the specific normativity of law By giving to soft law a legal relevance in shaping governance mechanisms, legal normativity should be given a specific role
The specificity of legal normativity is inherent to law purposes: To protect impartiality To protect public interest To protect (guarantee) rights To tackle (moral and political) values and more widely all other normative spheres without identifying with them
LEGITIMACY ISSUES
soft law CRITICISMS TO SOFT LAW lacks certainty tends to erode rationality in legal norms moves away from the democratic representation perspective and fosters technocratic trends self-regulation could contribute to legal fragmentation by multiplying legal regimes
A DEFENSE OF A REGULATORY FRAMEWORK BASED ON THE MIX OF HARD AND SOFT LAW Soft law and normative pluralism stress the role of communities (at various level and of different kinds) Streching the idea of legality to include soft law could be a countermeasure to the homogenizing effects of globalisation Principles and standards used by soft regulation are often worked out at international or transnational level and implemented as well as improved at local level (e.g. environmental protection, human rights) this preserve legal normativity aspiration to universality and help to approach global problems
Given these aims, the legitimacy of regulation should not focus on the centralized and formal character of rulemaking only procedural advantages should also be considered in assessing and legitimating regulatory tools
The key element for understanding and framing regulatory inputs in light of transnational issues that have arisen as a result of technological development lies in acknowledging the nexus between law and society. This idea has been neglected and even rejected by the formalistic view of law prevailing in the modern age This nexus must be (even critically) retrieved to face the challenges posed by globalization and the diffusion of technology.
OPEN ISSUES How to preserve the integrity of legal normativity in its closer relationships with the social texture? How to protect coherence of law and shape the best coordination among different regulatory spheres and tools? How to combine, in concrete regulation tools, public and sector-based interests?