Rethinking the Rule of Law
In an Era of Globalisation, Privatisation, and Multiculturalisation
Programme directors: Prof. H.S. Taekema and Prof. J.D. Temperman
Traditionally when legal scholars thought about the rule of law, the primary focus was the nation-state. This focus has become problematic. The nation-state is increasingly dissolving into international legal institutions and international forms of governance. Its grounding in a shared national identity is put under growing pressure, not only by this increasing international intertwinement but also by increased migration. Meanwhile, the uncontested sovereignty of the nation-state within the public sphere is eroding because of increased privatisation — a well nigh universal pattern in western democracies that are driven, not least, by the increased competitiveness of the globalized world. In the global scramble for investment and economic activity, states have to become lean and mean and jettison tasks that have long been considered the core business of the state.
These developments vis-à-vis the rule of law can be summed up in three large trends, globalisation, multiculturalisation and privatisation. In themselves, these trends are not new, but they are presenting unprecedented and ever more complex problems for the notion of the rule of law. The globalisation of law, to begin with, demands a rethinking of rule-of-law conceptions and ways to protect people against arbitrary power. The glaring market failures in the financial sector have recently cast doubt on the faith in market solutions and self-regulation, mechanisms that long seemed to offer solutions for the challenges of globalisation, to provide this type of protection. The increased immigration that goes hand in hand with globalisation, in turn, has led to highly diverse societies with ethnic and religious minorities that are linked into transnational communities in unprecedented ways through new media and communication technology. This multiculturalism has elicited a fierce backlash in many countries and poses many new questions on how to deal with diversity. Finally, the privatisation of tasks that used to be thought of as public, presents the problem of how the protections that used to be afforded by the Rule of law can be extended to cover services provided by private parties. When public tasks are privatised, people will need to be protected against the arbitrary exercise of private power.