THE RULE OF LAW AS AN INSTITUTIONAL IDEAL

The Rule of Law as an Institutional Ideal Gianluigi Palombella University of Parma - Faculty of Law CHAPTER 1, in THE RULE OF LAW AND DEMOCRACY. INTERNAL AND EXTERNAL ISSUES, L. Morlino and G. Palombella, eds., Brill Publishing, 2010 Abstract: This article aims at offering an innovative interpretation of the potentialities of the "rule of law" for the XXI Century. It goes beyond current uses and the dispute between formal and substantive conceptions, by reaching the roots of the institutional ideal. Also through historical reconstruction and comparative analysis, the core of the rule of law appears to be a peculiar notion, showing a special objective that the law is asked to achieve, on a legal plane, largely independent of political instrumentalism. The normative meaning is elaborated on and construed around the notions of institutional equilibrium, non domination and "duality" of law. The ideal of the Rule of law can be considered as one a) consistent with its historical constants, instead of being forged on purely abstract basis; b) extendable to contemporary institutional transformations, beyond the State, thus making sense of its recurrent presence in legal documents, also as a critical tool; c) conceptually sustainable on a legal theoretical plane, where it is located without falling prey to the debate about the morality of valid law. Contents: 1. Introduction 2. Preliminary semantics: the "rule of men" and the "rule by law" 3. The European legislative State 4. The Rule of law 5. Jurisdictio and Gubernaculum, the Right and the Good 6. Balance, liberty and non- domination 7. The Law, Valid Law, and the Rule of Law 8. Legacy and Prospects of the Rule of Law