THE ISSUE OF INTER-LEGALITY: AT A GLANCE
The inter-legality project aims at conceptualizing and explaining one of the most challenging phenomena in the contemporary legal scenario, namely the more and more complex and composite character of law interlocking State, regional, international and global legality. Currently, States are still the main actors at the forefront of both national and international law, as they have been in the last centuries. They pursue general aims within their own communities. States strive to advance the welfare of their constituencies as a whole and they largely employ law as an instrument to their aims.
On the other hand, new instances of legality have come up: intra-State, supra-State, trans-State and super-State legalities as well as trans-state forms of lawmaking. They regulate almost all the relevant fields in contemporary law: security, health, climate, trade, human rights, sport, environment, investments, intellectual property, food, water, and so on. Whether stemming from quasi-State entities like the EU, single functional regimes (such as WTO or WHO), hybrid or informal entities, or boiling down to “private” forms of law, contrary to the State, they have cross-State competence, but functionally limited by sector-specific ends. They share responsibilities and manifold regulatory powers; moreover, they hold mutual relations that need careful examination.
At the same time, much has changed in the old horizon of international law, where new sources and unprecedented authorities appear to exceed the original inter-states domain of the international legal order.
Finally, Courts are facing new tasks and especially national Courts are at the centre of divergent commitments, between gate-keepers in their jurisdiction and the duty to deliver justice and comply with inter- and supra- national law.
Full awareness of this complex scenario seems to be missing. The assumption that spheres of legality can run like separate cycles is fallacious. Albeit differentiated, different legalities as well as governance authorities have an indivisible impact on people, and their matters and contents are bound by material interconnectedness.
Interconnectedness as a global phenomenon is largely undertheorized, although it is instead well known inside State-law, both as regards the relatedness of objects of regulation and the allocation of competences: as to the latter, federal/regional regimes are cases in point, given the difficulty to sharply separate central and peripheral powers, and the recurrent need for further coordination mechanisms. Even though functional divisions are conditions for efficient governance, the purported isolation is a myth. Extra-state legalities only work through impinging over other legalities on both horizontal and vertical plane; State orders are crossed by an indefinite number of normativities sourced elsewhere, and are called upon to compliance, cooperation, implementation, engaging through political and administrative apparatuses.
The most venerable and well-established theories in legal scholarship are inadequate at both conceptualizing and handling this composite law.
Kelsen’s dream to reach peace through an overarching global legality lives in contemporary monism, also updated as global constitutionalism. Yet, monism is necessarily hierarchic and suppresses, at the end, the plurality of law. Its contemporary version superimposes an overarching legality of global constitutional principles. In doing so, it mostly mirrors a State-based understanding of law but lacks its essential political and social embeddedness. Moreover, it presupposes some thicker and shared global legality that is doubtful.
Dualism, on the other hand, is intrinsically perspectivist: if every legal system is autonomous and self-regulating, it has always conceived of external legalities as sheer ‘facts’. Such a perspectivism downplays the material interconnectedness of contemporary composite law and does not allow to take external normative claims seriously.
Finally, pluralism overcomes the shortcomings of monism and dualism, as it does not presuppose a problematic overarching legality and is able to recognize different normative orders as autonomous and equally “legal”. However, it suffers of a deadly deficiency as it still regards legal orders as “systems”, intellectual constructions elaborated by relying on separate fundamental norms. Legality is limited to these closed spheres and the relations between them are to be practiced at best on the political side. As a result, it lacks both the theoretical capacity to conceptualize the relations emerging from the material interconnectedness as properly legal and the practical capacity to provide guidance to officials and practitioners.
Thus, there is no genuine understanding of the composite character of law in the current contemporary setting. We purport to fulfill this lacuna at both the theoretical and the practical level.
We aim at reinterpreting the idea of inter-legality, introduced by Sousa Santos, moving it away from its original sociological sense towards a legal dimension. In this sense, inter-legality is the concept that denotes both the state of affairs of contemporary composite law and the theory that purports to conceptualize it. As a theory, it aims to be both descriptive and normative. As for the descriptive side, we purport to provide an understanding of law that overcomes the shortcomings of monism, dualism, and pluralism. Thus, the project elaborates the perspective of inter-legality to elucidate the intertwinement of different legalities in the State/extra-States setting and face recurrent problems, namely (i) the fading of the venerable holistic and systematic quality of law, (ii) of the ordering notion of judicial and legislative jurisdiction, (iii) the spreading of uncertainty, divergent decision-making, one-sided interpretations of interconnected matters.
We provide case studies relevant to different lenses of analysis, as the research units will work in symbiosis on different areas, namely constitutional (LUISS), administrative (Tuscia), and international law (Bicocca), while a common theoretical framework will be provided at the jurisprudential level (Sant’Anna). We shall refer both to laws/regulations facing inter-regimes, inter-systemic matters, and to judicial cases.
As for the normative dimension of the project, our work aims at recommending conceptual tools to cope with inter-systemic problems and bring about: (i) the recognition of interconnections among legal regimes; (ii) the conceptualization of the relations between different legalities as genuinely legal, (iii) the construction of a “law of the case”, a composite law resulting from the factual concurrence or conflict of a number of normative claims sourced from different and interconnected orders. Inter-legality takes into account all the claims made by the different interconnected legalities. We expect to provide a better account of conflicts that overcomes the narrow perspective of closed orders, weaves the premises for an operational concept of jurisdictional responsibility grounded on the composite of relevant law, fosters a culture of justification in the view of comprehensive contextual assessments.
As a result, we strive for a consistent impact on theories/paradigms of law in the work of scholars, interpreters, judges, lawyers, and a corresponding practical impact.
In brief, we aim at:
- addressing the shortcomings of the current mainstream doctrines when describing regulations and adjudications on inter-systemic issues;
- collecting empirical data from varied fields, e.g. security, human rights, food safety, protection of the environment, immigration and identify significant case-studies in order to test the theory of inter-legality;
- analysing roles and functions of both national and international, administrative and judicial, authorities, their interaction and confrontation in dealing with inter-legal issues;
- providing such authorities with guidance to tackle cases of inter-legality and take up the challenge of avoiding injustice even in conditions of competing and conflicting legal regimes.