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Cutler, A. Claire --- "The rule of law, new constitutionalism, and transnational legality" [2018] ELECD 617; in May, Christopher; Winchester, Adam (eds), "Handbook on the Rule of Law" (Edward Elgar Publishing, 2018) 307

Book Title: Handbook on the Rule of Law

Editor(s): May, Christopher; Winchester, Adam

Publisher: Edward Elgar Publishing

ISBN: 9781786432438

Section: Chapter 18

Section Title: The rule of law, new constitutionalism, and transnational legality

Author(s): Cutler, A. Claire

Number of pages: 15

Abstract/Description:

This chapter examines the global rule of law, which is argued to have little in common with the rule of law in domestic societes. The globalization of the rule of law gives rise to distinctively new forms of constitutionalism and legality: new constitutionalism and transnational legality. Both forms break the historic unity of the state and law in significant ways, transforming state-society relations. The transnational rule of law, evident in the operations of the investor-state regime, challenges conventional understandings of the rule of law by turning the concept of the rule of law on its head. Instead of protecting society from excesses of governmental powers, this regime in fact limits the exercise of governmental powers and subordinates societies to the discipline of investment rules that protect foreign investors. The transnational rule of law significantly delinks law and state, advances the interests of transnational corporate elites, often at the expense of the societies in which they are operating. The transnational rule of law thus raises concerns for all who believe that law can and should be a progressive social force in the world.