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18 results

  • 3 - Some Reflections upon Access to Justice, in the Transnational Setting, as a ‘Right to Law’

  • Edited by Joseph E. David, Yaël Ronen, Yuval Shany, Hebrew University of Jerusalem, J. H. H. Weiler, New York University
  • Book:
    Strengthening Human Rights Protections in Geneva, Israel, the West Bank and Beyond
    Published online:
    13 August 2021
    Print publication:
    26 August 2021, pp 61-81

  • Summary

    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.

  • Non-arbitrariness, rule of law and the ‘margin of appreciation’: Comments on Andreas Follesdal

  • GIANLUIGI PALOMBELLA
  • Journal:
    Global Constitutionalism / Volume 10 / Issue 1 / March 2021
    Published online by Cambridge University Press:
    15 April 2021, pp. 139-150

  • Can citizens’ interest in non-domination be satisfied by the principle of legality and the guarantee of non-arbitrariness? This comment argues that the rule of law requires an internal organization of law that entails an additional positive law, through conventions, common law, judicial precedents or constitutions, which the sovereign cannot legally override. In the supranational context, the rule of law requires an equilibrium of consideration and respect between different legalities by avoiding a legal monopoly of a supreme authority and fostering the interaction among orders based on content-dependent reasons. The same applies to the relations between the ECtHR and member states. The margin of appreciation, taken as a reminder of the complexities of international institutional relationships, embodies a non-domination caveat to consider (the reasons from) the ‘normativities’ of different orders. Nonetheless, as an argumentative tool of the Court, it allows for an often-disputed discretion. Accordingly, better refined guidelines and justifications are required.

The Challenge of Inter-Legality
  • Edited by Jan Klabbers, Gianluigi Palombella
  • Published online:
    18 May 2019
    Print publication:
    30 May 2019
  • The sovereignty of states to enact and enforce laws within their jurisdictions has been recognized since the Treaty of Westphalia in 1648. There are now, however, accepted global legal norms that transcend national sovereignty and hold states accountable for not including their domestic legal regimes. This volume is the first book-length treatment to describe and explain how legal orders can be interwoven, and what to do about it. Coining the term 'inter-legality', this volume provides essays on the history, primary areas of inter-legality, the concept of jurisdiction, and normative developments prompted by inter-legality. Bringing together a wide range of contributors who stem from a variety of different academic backgrounds, this book aims to answer three questions: does inter-legality occur with some regularity? How does it affect traditional legal concepts such as 'jurisdiction' or 'legal order' or 'responsibility'? And what are the normative implications?

  • Constitutional Transformations vs. “Juridical” coups d’ État. A Comment on Stone Sweet

  • Gianluigi Palombella
  • Journal:
    German Law Journal / Volume 8 / Issue 10 / 01 October 2007
    Published online by Cambridge University Press:
    06 March 2019, pp. 941-945
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