Rule of Law Promotion and Legalization beyond the Nation-State

The infamously capricious Roman tyrant Nero was said to post his edicts high on the columns of Rome so that his subjects would find them difficult to read and were thus more likely to violate them. What we can learn from this anecdote is that uncertainty about the law’s content promotes non-compliance, and that the rule of law requires that legal rules display certain features, such as publicness, clarity, non-retroactivity, etc. These features enable the law to discharge one of its core objectives, namely to stabilize actors’ normative expectations in an otherwise rather volatile world. To be sure, one way of achieving this is to commit government to fundamental primary rules of behavior; yet commitment to primary norms alone does not suffice for upholding the rule of law. What is needed beyond such primary norms are secondary norms which regulate the (trans-)formation, application, and interpretation of primary norms. Secondary rules, to use Hartian language, solve the conundrum of the law’s validity by establishing rules of recognition. They enable the progressive development of the law, for instance when changed political circumstances call for new norms (rules of change); and they provide means to settle norm conflicts and ways to interpret indeterminate norms (rules of adjudication).
In this project we seek to obtain a better understanding of how processes of inter- and transnational contestation lead to the emergence and transformation of the rules about the rules, and how this affects the prospects for realizing the rule of law beyond the nation-state. Since there has been remarkably little theorizing on this question, the object of our study is to generate a set of hypotheses about potentially relevant factors and subject these to a first plausibility probe. We propose to conceptualize secondary rule-making in terms of dissonance reduction; a concept which we exported from Leon Festinger’s pioneering work in the field of social psychology. In order to illustrate our argument, we discuss three empirical cases which correspond to Hart’s tripartite scheme of secondary rules: As an example of a contested rule of recognition, we trace the negotiations over Article 52 of the Vienna Convention on the Law of Treaties, according to which a treaty is invalid if its conclusion has been procured under duress. Secondly, we discuss the principle ex iniuria ius (non) oritur as a rule of change, which received renewed attention after NATO’s war on Serbia in 1999. Finally, we will trace the negotiations at the 2010 Review Conference of the Rome Statute over the jurisdictional dimension of the crime of aggression. Overall, this project underlines that even formal conceptions of the rule of law are never politically neutral, because the rules about the rules are as much products of power struggles as the rules themselves.