Self introduction:Ivan Cardillo, Italian, Lecturerat Zhongnan University of Economics and Law, Law school. Editor for the China Guiding Cases Project, Stanford Law School; hold a Ph.D Degree on “Comparative and European legal Studies” at TrentoUniversity (Italy), Law School, and a Magister Degree in Law (“the Europeanand transnational law track”) Trento University (Italy), Law School,score 110cum laude;I’m member of the European China Law Studies Association, EuropeanAssociation of Chinese Studies, Society for Anglo-Chinese Understanding, TheInternational Society for Chinese Law and History (ISCLH).

Research interests: Comparative law,Comparative History of Law, Chinese Legal Culture, Legal Theory

The term “constitutionalism” is still identified with the state and itsdemocratic governance. The actual experience of globalisation and the new formsof transnational governance designates an atypical relation between citizens andstate, state and state, regions and international dimension. The traditionaltype of governance which constitutional states were supposed to represent andensure it's now changing. In the same time a feeling of no confidence towardsthe traditional institutions and their policies generates a big lack ofinterest. The power relations should be rethought, considering these newperceptions of political power and the necessity of democracy in the enlargedtransnational space of political action.In the same time we have to underlinethat most of the international cooperation started from an economic interest,and only later they started considering the “social” interests. Reliableevidence of this is the European Union experience.

How is possible to combine the idea of rule of law, social justice,economic interests and democracy? Which are the necessaries checks andbalances? Are the values, such us democracy, exportable? What's the role ofmulticulturalism? The difference between west and east still make sense?

These are the new tasks of the actual doctrine about state theory andsovereignty, “the central challenge faced by international philosophers in the21^st century”[1].The purpose of this paper is to underline some critical points in thecontemporary international integration process.

   I. THE PHENOMENON OFGLOBALISATION

The globalisation phenomenon seems to be the beginning of a new era, an unforeseeablelegal system's development. Is it true? Harold Berman wrote:

A radical transformation of a legalsystem is, however, a paradoxical thing, since one of the fundamental purposesof law is to provide stability and continuity. Moreover, law – in all societies– derives its authority from something outside itself, and if a legal systemundergoes rapid change, the questions are inevitably raised concerning thelegitimacy of the sources of its authority. In law, large – scale sudden change– revolutionary change – is, indeed, “unnatural”. When it happens, somethingmust be done to prevent it from happening again. The new law must be firmlyestablished; it must be protected against the danger of another discontinuity.Further changes must be confined to incremental changes[2].

The legal globalisation appears as a necessary answer to the need ofstability for our society, characterized by continuous and fluently changes.This is a natural consequence of the personal freedom and the drop of nationallimits and borders. In this contest the authority of law should survive and bemore careful to the social needs. The concept of authority is, now, strictlyrelated to that of political stability. Law must be considered as a historicalphenomenon, we have to consider its historicity. It must not only evolve butalso must be seen to evolve[3].This is possible if we pay attention to the plurality of the sources of law.Law is not just the will of the strongest. This is an important assumption in aglobalised legal contest.  The newconditions should be incorporated in the legal system, to avoid greatrevolution of political, economic and social orders. In the history“fundamental changes in law have inevitably been interlocked with fundamentalchanges in other structural elements of social life”[4].

We are facing a critical point for the western legal tradition. It is acrisis of legal values and of legal thought, in which the entire legaltradition is being challenged. This crisis is generated from social, economicand political transformations. The whole legal tradition is challenged from theconfrontation with eastern civilizations and eastern philosophies. Today thebeliefs or postulates, that founded in the past time the substratum for thelegal systems, are rapidly disappearing from the law and from the consciousnessof the vast majority of citizens, the people as a whole. Berman wrote:

The law is becoming more fragmented,more subjective, geared more to expediency and less to morality, concerned morewith immediate consequences and less with consistency or continuity. Thus thehistorical soil of the western legal tradition is being washed away in thetwentieth century, and the tradition itself is threatened with collapse[5].

The actual crisis of law is also the crisis of the idea ofcentralization and bureaucratization of all aspects of life, inherited from thelegal thought of the eighteenth – century Enlightenment. The state isn'tanymore the indisputable owner of society. The social dimension is growing asan independent force, hardly to control and to direct.

A new theory, a new conception of law, is indispensable to create newpatterns of compliance and to avoid revolutionary consequences.

   II. NEW LAW PATTERNS OFCOMPLIANCE

The new definition of law should be taken according to governance beyondthe nation-state. The focus is on the social order as the most importantcharacter of the actual legal experience. The traditional scheme of rule of lawshould be combined with the non-legalized social norms. The rule of law requiresthat law bind its authors, as well as ordinary people. This is the expressionof the general principle of equality. In this way we can avoid any arbitraryuse of power.

Is possible a law beyond the nation-state? Law requires that like casesare treated in a like manner. This requires a high compliance rate for anygiven regulation. A high compliance rate depends on two conditions: anestablished monopoly of legitimate force, and a national identity thatdetermines the consent of those who are the targets of a regulation, even ifthey consider the rule inconvenient[6].With the noun “compliance” we denote a “particular type of behaviour, action orpolicy within a specific regulatory or situational context”[7].The will of the actors is not a relevant component. Compliance also comprisesthe differences between obligation and actual behaviour. How is possible to combinethe social dimension with the rule-compliance? Which are the social andpolitical requirements? According to Michael Zürn to study[8] a legal hierarchy, as well as institutionalized monitoring and sanctioning, candevelop effectively within a horizontal context. The best example of this isthe Europe' s organization, where the institutional and legal hierarchy ishigh. In this way it will be easier to find an interaction point through thedifferent national systems in the international dimension. The differencebetween national and international law has become fuzzier. In the light ofglobalization and denationalization the notion of law beyond the nation-statedepends on a strong empirical link between legitimacy and compliance. It isnecessary a general shift towards an increased legalization of internationaland transnational relations[9].To promote and get working this new order it seems important to designinternational institutions so that they allow for institutionalized coercion ina horizontal context.  Michael Zürn wrote:

Compliance is further enhanced ifinstitutionalized horizontal coercion is complemented by compliance managementmechanisms as well as with juridification. More advanced compliance toolsinclude processes of law internalization. Finally, intensive co-operationnecessary raises the hierarchy in the international sphere, but rather the lackof acceptance of governance beyond the nation-state, which seems to be the realAchilles heel of international co-operation. Thus, governance beyond thenation-state requires a qualitative step away from the executivemultilateralism of the post World War II period to a form of sociallyconsented multilateralism in the age of globalization. This Achilles heelalso hampers the development of a “globalization of law”[10].

Now we have to underline the possible relations between compliance andinternational rules. Fore and foremost compliance with commitments is anecessary precondition for effective governance, however, compliance andeffectiveness are nevertheless closely related. This is especially the case ifthe rules require inconvenient behavioural changes of the addresses. In suchcases, explaining the conditions under which inconvenient rules enjoy a highlikelihood of compliance can be understood as an important step towardsunderstanding if and how effective governance beyond the nation-state can berealized. In assessing compliance we distinguish between two dimensions: non-complianceas the difference between facts and norms and non-compliance as a process[11].When an authoritative dispute settlement body has decided that a rule has beenbroken this behaviour is a conceptualization of non-compliance. Indeed thediscrepancy between text and action is no easy undertaking. The intrinsicambiguity of law necessitates acts of interpretation. A good assessment ofcompliance needs to broaden the analytical scope in order to take into accountsubjective valuations on the part. The perfect compliance refers to the absenceof any clear evidence of defection. Nevertheless any assessment must thereforebe carefully argued and formulated with all the necessary reservations. Afurther distinction is that between compliance and recalcitrant compliance.While the former denotes a type of rule-related action, which not only accordswith the prescriptions and proscriptions of a rule but also avoids openlycriticizing the rule, the latter is defined as a type of rule-related action,which combines adherence to the rule with the voicing of an intention to changeit. Thus compliance is only perfect if the addressee not only behaves accordingto the rule but also accepts its legitimacy and refrains from trying tochallenge or change it.

These arguments can be better understood in the procedural field.Procedure seems to be the corner point for the global public law[12].In this sense procedural significance refers to what happens after a complaintof non-compliance has been voiced. This procedural perspective underlines avital distinction between initial non-compliance and more serious compliancecrises. Initial non-compliance refers to non-compliance, which does not lastbeyond the point of its identification by authorized bodies such as a court, amonitoring agency, or another party to the relevant regulation. Such behaviouris most likely if non-compliance happens by accident and is against theexplicit intention of an addressee (benevolent initial non-compliance) or theaddressee is attempting to take a free ride, but still prefers compliance overa breakdown of cooperation (malevolent initial non-compliance)[13].The former is the case, for instance, if a government does not have access tothe necessary technological know-how and thus unintentionally violates therules. The latter may occur if the monitoring capacities of an internationalinstitution are rather weak and an addressee tries to cheat by reaping thebenefit of a rule, while avoiding the cost of complying itself. As Stone Sweetand Caporaso had underline[14]:

The process of establishing the SingleEuropean Market provides ample examples of such behaviour. In a lot of cases ofnon-tariff trade barriers, such as technical standards or national consumer andenvironmental laws, the European Commission called on the European Court ofJustice to force member states' governments to open their national markets togoods and services from other member states.

In this case the non-compliance party have to change its behaviour orthe complaining party withdraws its complaint. This non-compliance happens whenthe addresses disregard the decision of the authoritative body. He simply says,“I do not want to follow the court's ruling”. A prominent example of such behaviouris the European Union's response to several rulings by GATT and WTO panels onthe question of its banana quota system for the imports of so-called “dollarbananas” from countries that are not associates to the Lomé conventions. Foryears Brussels ignored the rulings, accepted countervailing duties, or playedfor time by substituting the obviously illegal quota system with an equallyillegal one thereby forcing the complainant states to take recurrent legalactions to reaffirm the illegality of the European Union's actions[15].In such cases the formalistic argument that non-compliance only exists after ithas been authoritatively assessed is obviously highly problematic and must bereplaced by a subjective assessment of the validity of the claims produced. Inany case it is of the utmost importance that one does not simply assess who isright and who is wrong, but rather offers an overview of both sides of theargument as presented by the relevant actors[16].

We can distinguish four categories of compliance of addressees[17]:

1. “Goodcompliance” if the rule-related actions of an addressee show little or nodifference from the prescriptions and proscriptions of a norm and the addresseedoes not publicly voice its discomfiture with the rule;

2. “Recalcitrantcompliance” if the rule-related actions of an addressee show little or nodifference from the prescriptions and proscriptions of a norm but the addresseepublicly voice its discomfiture with the rule;

3. “Initialnon-compliance” if we observe a significant difference between theprescriptions and proscriptions of a norm and the rule-related actions of anaddressee, as well as a change in the behaviour of the addressee in response toallegations and/or a withdrawal of the complaint;

4. A“compliance crisis” if we observe a significant difference between theprescriptions and proscriptions of a norm and the rule-related actions of anaddressee, but no change in the behaviour of the addressee despite the practicehaving been detected, challenged and/or outlawed by the decision of anauthorized dispute settlement body or court.

Lots of factors, not only themere inconvenience, can persuade the addressee of a rule to consider itinconvenient. These factors are: sanctions, the discursive processes, theresponsiveness of a rule to changing preferences, the degree to which a rule islegalized. “The degree to which addressee comply with inconvenient rules istherefore conceptualized as a function of the degree to which an institutionalsetting or the requisites of a rule provide incentives that are strong enoughto motivate actors to adapt to the requirements of the rule”[18].

There is a pluralism of variables to be considered:

1. Rationalinstitutionalism. Rational institutionalism emphasizes two causal mechanisms,namely sanctions and monitoring:

·         Sanctions:different sanction mechanisms can be distinguished according to their relativecosts, i.e. whether they imply costs which less than offset, offset, or morethan offset the expected benefit to be reaped by an addressee from non-compliance.A comparatively inexpensive sanctioning mechanism, such as publicly blaming anaddressee for its violation of a rule, can sometimes prove to the highlyeffective[19].Sanctioning mechanisms can have an horizontal or vertical enforcement. Thefirst, the traditional self-help strategy, in which actors that are negativelyaffected by the non-compliance of another hold them accountable for their behaviourand seek to punish them directly by adopting the appropriate measures[20].Secondly, vertical enforcement, which presupposes an independent commoninstitution, which on the one hand is able to determine whether an actor hasviolated the rules and on the other hand possesses the power to enforcesanctions against the violator. The importance of an independent commoninstitution rests on two elements. It must possess a considerable degree ofindependence when deciding on cases of non-compliance and the imposition ofsanctions.

·         Monitoring.The most threatening sanctions lose credibility if they are not backed bymechanism to detect incidents of non-compliance. There is once again a widespectrum of different ways to monitor compliance[21].We can distinguish between to kind of monitoring: decentralized and centralizedmodel. The first is the traditional way of monitoring compliance withinternational obligations, awarding the task of monitoring to the sole authorityof a contracting party. The basic handicap of the pure form of decentralizedmonitoring is obviously that it either presupposes an interest on the part ofthe addressee to deal faithfully with its obligations or it requires a highdegree of transparency to allow other parties to detect incidences of non-compliance.More elaborate forms of decentralized monitoring exist where international orsupranational institutions formulate mechanisms and procedures, which definehow addressees report their compliance. Such a system of indirect controlexists if contracting parties are under a duty to report regularly upon theimplementation of rules[22].Centralized monitoring presupposes that the institution in charge of the taskis not only equipped with the right to collect information, but also commandsthe resources that enable it to conduct on-the-spot inspections. Thisindependent form of monitoring certainly holds out the promise of moreobjectivity, but it often requires an enormous amount of resources to be effective[23].The most effective form of monitoring would therefore seem to be monitoring bysocietal actors. Societal monitoring refers to a form of monitoring in whichnot only states and the competent authorities of international organizationsbut also affected non-governmental parties have the capacity to monitorgovernmental compliance and report non-compliance to the authors of the rule[24].For instance in the case of human rights violations, affected individuals whoare of the opinion that their national governments have violated their rightsunder the European Convention of Human Rights can ask the European Court ofHuman Rights to declare the practice or law illegal. One of the major strengthsof societal monitoring is that the process of monitoring and establishing casesof non-compliance moves out of the international realm with its emphasis onpolitical considerations. The importance of depoliticizing the monitoringprocess becomes very clear if one compares the number of reported cases of allegednon-compliance by individuals and by state[25].

2. Legalization.Legalization consists in three different variables: juridification, legalinternalization, and civil internalization[26].

·        Juridificationrefers to the degree of autonomy delegated by the parties of a treaty or ruleto a body charged with resolving disputes concerning the application of thattreaty or rule. According to Kratochwil[27] there are two types of dispute settlement procedures: the dyadic and thetriadic variant. The former relies on the ability of the contracting partiesnot only to formulate their individual interpretations and preferences but alsoto reach mutually acceptable solutions. Triadic dispute settlement proceduresare different in that they delegate the authority to re-interpret rules to athird party, which may be an individual or a collective of lawyers, diplomats,or even scientists. Furthermore the degree of juridification is alsostrengthened by the degree of political or juridical autonomy of the disputesettlement system. This refers especially to the procedure with which themediators or judges are selected and to the question of how long they are inoffice and whether it is possible to recall them in case of disagreement. Thepolitical pressure on the selection process can be eased in two ways. One is todefine professional standards for possible candidates. The other option is toentrust the selection of the judges to an independent body. Generally the higherthe degree of independence of the dispute settlement system, the higher thedegree of juridification of the dispute settlement process.

·        Legalinternalization refers to the degree to which a given rule is part of anaddressee's domestic law. Generally international resolutions and declarationsfrequently carry no legal obligation but are merely non- binding statements ofintent. Declarations and resolutions are therefore a rather weak means ofbinding a rule to a legal system. The use of legal instruments means that non –compliance carries with it the threat of legal consequences and proceedings.For instance WTO rules are legally binding to the degree that they carry withthem legal obligations that must be met by the contracting parties. In the EUcase the binding force is more influent, because of the article 234 decrees thatthe national courts are obliged to ask the European Court of Justice for apreliminary ruling in all matters that concern the application of European law.This mechanism has contributed significantly towards conferring “direct effect”on European law, thereby making it domestically enforceable.

·        Civilinternalization inquires into the extent to which a rule confers rights, ratherthan just obligations, on individuals. Any individual rights that did flow fromthe international rules arose strictly as a result of domestic legislation andwere in the discretion of the nation-state. Since the landmark decision of theEuropean Court of Justice in Van Gend en Loos, European rules have gonefar beyond that point. The Court proclaimed that the European Community constituteda new legal order, which comprised not only the member states but also theirnationals. In the Francovich sentence the European Court of Justicefurther enhanced the impact of European law by holding states liable foreconomic damage incurred by citizens because of the failure of member states toimplement European Law[28].

3. Legitimacy.Scharpf[29] distinguishes between input-legitimacy and output-legitimacy. The formerinquires into the degree to which the procedures used to decide upon a rulewere in accordance with the basic principles of democratic governance. Thisview is not largely accepted[30].Most authors would agree that the participation of addressees and affectedparties is crucial to securing legitimacy both inside and beyond the nation-state[31].Output-legitimacy focuses on the response of the addressees and other affectedparties to the prescriptions and/or proscriptions of a rule. Output-legitimacytherefore asks whether a rule is accepted by its addressees as adequateindependently of the procedures that were used in its enactment. Input andoutput-legitimacy are not necessary always identical. The main theme oflegitimacy is strictly related with the social acceptance and nationalsparticipation to make the issues easy to accept. Participation refers to therelationship between the author of a rule and the rule's addressees. Only ifthe addressees had a chance to participate in the making process of a rule canthey be expected to feel bound by the rule. Social acceptance refers to societyin general, considering the strong influence of magazines and newspapers on thedomestic contest, on the public opinion. In assessing social acceptance we candistinguish between high acceptance, medium acceptance and low acceptance. Highacceptance applies if the public opinion by and large accepts a rule as worthyof being implemented. If public opinion is split into two camps of roughlyequal size, social acceptance is medium. Low acceptance applies if publicopinion by and large rejects a rule[32].

4. Management.The management perspective on compliance distinguishes between two dimensions:the reflexivity of a rule, that is its responsiveness to changing circumstancesand societal perceptions of its purpose; and the question of resources orcapacities of the addressees to fulfil the obligations conferred upon them bythe regulations[33].Rules not only need to be established, monitored and equipped with effectivemeans to sanction non-compliance, but the degree to which addressees arewilling to comply with them also depends on the responsiveness of the rule tochanging perceptions of what should be regulated and which instruments shouldbe used for that purpose[34].It is important to emphasize that every rule can only reflect a certainunderstanding of how to define and cope with a problem. Any such understandingis time-contingent and needs to be permanently updated so as not to lose itspertinence. The importance of flexible mechanism allowing rules to be adaptedto changing circumstances is underlined by empirical studies, which point outthat divergences in interests, in the perceptions of what is a problem and howit is to be solved, need to be permanently reconciled with one another[35].To achieve this result a responsive and opportunistic institution is necessary[36].For the author a responsive institution is “an institution which maintains itsintegrity while acknowledging the legitimacy of an appropriate range of claimsand interest”. Such institution must be guided by a spirit of consultation,while the institution's basic commitments, and its capacity to function, mustbe preserved and protected. On the other hand opportunistic adaptation refersto an institution, which is open to all demands from the outside withoutpossessing the capacity to protect its integrity. In this way a deliberativeforms of interaction is guaranteed. This increase the chances that a rule'saddressees will be convinced that the rule is appropriate in terms of policygoals it promotes and that it is in their own interest to comply with the rule[37].In this way deliberation among scientific experts or other professionalsreduces the potential for conflict on specific policy issues and therebyincrease the chances of voluntary compliance.

A useful understanding of the workings of most compliance mechanismnecessitates taking all four perspectives into account.

III.        ANEW CONSTITUTIONAL FORM

The need of general coordination of rules in the international dimensionrefers to a constitutionalism beyond the state. One way to find a kind ofharmonization is the conflicts law approach. The conflicts law approach can beunderstood as the proper constitutional form of law-mediated transnationaldemocratic governance, as a democratic perspective, which is not dependent onthe establishment of a European state or a world republic[38].Conflicts law issues are present at all levels of governance. They poseproblems everywhere. Their intricacies become more disquieting from level tolevel. Christian Joerges finds out a possible conflicts law approach[39]:The argument proceed in six steps: it start with terminological remarks whichseek to substantiate and to understand the term “conflicts law”, and endeavourto defend its use in post national constellations (Section I). In the followingsection the focus is on the substantive and methodological developments in thelegal systems of constitutional democracies. This move is of central importancefor the whole argument for two reasons. The first concerns the terminology andthe use of the conflicts law notion within the legal systems of nation states.The second concerns the above-mentioned transformation processes, which have,in the light of the increase of regulatory tasks and then through the turn tonew forms of governance, affected profoundly both the social functions of lawand its methodological orientations (Section II). Only after theseterminological clarifications in the first section and the re-construction oflegal transformation in the second section the essay turn to the European andthe trans-European levels of governance. The conflicts law approach is used atboth levels – with an important refinement. It is submitted that the“geological” transformations that have been re-constructed with the legalsystems of constitutional democracies necessitate the development of adifferentiated, three-dimensional conflicts law approach with the firstreflecting the interdependence of the formerly more autonomous jurisdictions,the second dimension responding to the rise of the regulatory state, and thethird dimension considering the turn to governance, in particular, theinclusion on non-governmental actors in regulatory activities and the emergenceof para-legal regimes. The elaboration of these perspectives distinguishesbetween Europe and the international system. In the European Union, which isdiscussed in Section IV, the conflicts law approach can build – in all of itsthree dimensions – upon legal commitments, regulatory and administrativecompetences, which are not available and cannot be pasted onto the transnationallevel. The need to respond to regulatory concerns and to generate transnationalgovernance structures is central at all levels of governance. Hence, there is abasis for a three-dimensional conflicts law, albeit one, which takes thediscrepancies between the European and the international constellation intoaccount. “Irrefutable need” is a notion with normative, as well as functional,connotations. The functional dimension is examined in the analytical frameworksof economic sociology, within which the author seek a non-legal basis for theunderstanding of markets as “social institutions”. The Polanyian notion of the“always socially embedded” economy is a particularly challengingconceptualisation of both the non-legal foundations and the dependencies ofmarkets, not only those of the formerly national economies, but alsocontemporary “markets beyond the state”. This contextual background does notprovide the “solution” to the functional and normative issues of transnationalgovernance. It is, nevertheless, both instructive and of significance for thebroader debate on constitutionalism beyond the state. The author's perspectivesis ambitious: he understand the conflicts law approach as the properconstitutional form of law-mediated transnational democratic governance, as ademocratic perspective which is not dependent on the establishment of aEuropean state or a world republic. Instead, Karl Polanyi’s economic sociologyis invoked as a sociological basis of this vision. It seems to the author that Polanyi’sanalyses of the recurrent tensions between dis-embedding strategies andre-embedding counter-moves capture the unruliness of the post-nationalconstellation adequately –thereby providing new perspectives for anunderstanding of the potential of law to contribute to the social embedding oftransnational markets (Section V).

The purpose of this theory is to try to fill up the democracy lack ofinternational law and global governance[40].  The conflicts law approach:

Distinguishes between vertical, horizontal,and diagonal legal conflicts in the EU, i.e., conflicts about which legal normsapply to a given case. These three types of legal conflict can be applied toMLG (multi-level Governance) generally. Vertical conflicts are conflictsbetween legal regimes at different territorial levels; they occur both betweennational law and EU legislation, and between EU law and WTO rules. Inhorizontal conflicts, the injunctions of different national laws to a givencase diverge. Horizontal legal conflicts occur typically in the context oftransactions involving the movement of persons, goods, or finances acrossnational borders. Diagonal legal conflicts finally occur if regimes at twodifferent levels that apply to different aspects of a given case make contradictorydemands”[41].

The emphasis is put on the procedural mechanisms. They should beflexible and able to interact with the social needs, without lose theirlegitimacy.

According to Della Cananea in the globalised world in emerging a globaladministrative law, which is neither state neither international. It doesn'treflect the traditional dichotomy between internal and external sphere of thestate. When an internal principle moves from the internal application of astate to a supranational application it acquires new characteristics, itbecomes part of the general principles. A stable and durable cohabitationbetween the multiple subjects can be achieved only in the procedural dueprocess of law[42].The author writes:

In ogni caso, una volta che unprincipio sia stato individuato e applicato, entra a far parte del patrimoniodei principi generali del diritto ai quali tutti i poteri pubblici devonoattenersi. Le interazioni tra gli sviluppi comuni e influenza degli ordinamenticreati dagli stati sono tanto strette da sconsigliare, in sede analitica esoprattutto di sintesi, di separarli. Piuttosto, è da prendere molto sul seriola proposizione che, se non esistono da sempre valori universalmente condivisi,vi sia nondimeno una tendenza a riguardarne sempre più alcuni come tali[43].

IV.        CONCLUSION

The actual crisis of the Western Legal Tradition is moving the attentionof the scholars towards the society. Society is becoming the main subject ofthe legal experience. There is no more space for authoritative expressions ofwill, neither for any other formalistic approach. Multiculturalism, autonomy,pluralism are the irrefutable characteristics of any free society. Bermanwrote:

“The pluralism of the Western law, which hasboth reflected and reinforced the pluralism of Western political and economiclife, has been, or once was, a source of development, or growth – legal growthas well as political and economic growth. It also has been, or once was, a source of freedom[44].

Maybe a good way for a general cohabitation and mutual understanding isthe awareness of our diversity and our peculiarities, but also a genuineopening to mutual share of constitutive values, otherwise a new form of racismcan appears[45].