THEME 1: The theory of rule of law in context
The overarching hypothesis of this research project is that the functional and the normative approaches to rule of law and human rights can inform each other and should be integrated. Methodologically, this requires a contextual approach, which builds on the historical, philosophical and social justifications of these ideas. Integration of the two perspectives may be achieved along the following lines.
Acknowledging that a particular value may have an instrumental role in one context, and the role of an end to achieve in another context, enables a combination of the perspectives theoretically. This claim builds on pragmatist philosophy and ethics to construct an overarching account of legal and political values. An integrative account builds on criticisms that a focus on either of the two approaches leads to blind spots for either the instrumental role of human rights protection and rule of law guarantees in furthering collective goals, or for the importance of the intrinsic values enshrined in law.
The rule of law may be defined as a central ideal of legal systems, both national and international, the value of which needs to be given concrete shape in response to the particular context in which it is at work. Whereas a core value of reducing abuse of power is to be pursued, what problems of abuse and which rule of law solutions are at stake needs to be determined in context. The functional dimension of the rule of law may be included in this by seeing the pursuit of rule of law values as a corollary of instrumental uses of law. Although instrumentalization can turn into subordination of law to other goals and rationales, this is not necessarily so. In particular, we study the bottom-up instrumental use of law by those who are not in a position of power, but who mobilize law for broader goals of equality and human rights, appealing to law’s normative principles in the context of political aims.
THEME 2: Value clashes in a globalized context
Particular challenges arising in the context of human rights and rule of law are linked to various forms of pluralism. Next to the plurality of actors which is central to the project, the project’s focus is on forms of legal pluralism and value pluralism in relation to rule of law and human rights protection and promotion, and the value pluralism it entails.
These forms of pluralism impact the decision-making of courts, in particular on a supranational or international level, such as the European Court of Human Rights, and the decision-making of governmental and regulatory agencies in transnational and global settings, such as EU agencies and various bodies in public international law. This is evident in relation to law, technology and the environment, law, culture and religion, and law and development. The functional perspective focuses on measurable goals but has a blind spot for values such as human dignity or substantive equality. The normative perspective focuses on these values but tends to ignore wider social goals such as the need for adequate regulation regarding food safety, environmental sustainability or countering terrorism. The result is that the rule of law and human rights are often not considered when policy and regulatory strategies are determined and that courts furthering the rule of law and human rights are increasingly criticized for ignoring the complex regulatory questions that policy makers routinely face. The approach taken here creates opportunities to recognize and embed the small steps that are already being taken in practice, for instance by the World Bank and the European Court of Human Rights, and to further enhance the joint pursuit of economic, social and legal objectives.
THEME 3: Public and private actors
A contextual analysis of the settings in which the rule of law and human rights are at work tends to emerge in spaces in which a plurality of communities, peoples and public entities increasingly encounter one another often because of global interconnectedness.
This research project is interested in how private entities as powerful entities with legal significance for norm creation and implementation, also enter into debates on the rule of law and human rights and through their interactions with public actors, create sites of norm contestation, norm generation and even their own methods of norm implementation.
Through a socio-legal contextual lens we can identify acts of resistance, some of which may occur in a court room and some outside, that can be traced to these increasing sites of contestation. Examples of contestations and interactions between public and private actors can be taken from the burgeoning fields of business and human rights, international investment law, counter-terrorism and legal mobilization. They might include actions against unlawful or illegitimate abuses of public or private power in the context of striking workers and activists at a mine, tensions over trade agreements, findings of child slavery in a global supply chain, struggles against land expropriation and the displacement of communities, civic led advocacy for broader goals of equality and human rights, contestations over imbalances of power in international arbitration mechanisms that typically award large compensatory sums against weak states in favour of deep pocket private actors and the now routine local struggles for all types of human rights in a variety of globalized contextual sites.
These contexts present challenges to the normative makeup of the rule of law given that the latter is a concept typically associated with public rather than private law. It is increasingly unclear what happens to core concerns such as sovereignty, legal authority and access to remedies as these concerns fragment beyond the ordinary realm of public law and find a space amongst the transnational real world engagement and encounters between private actors, civil society members, lawyers, judges and activists. Furthermore, it is not clear if and how, private actors are themselves taking on board and functionalizing rule of law and human rights commitments within their own operations. For example, by incorporating the rule of law into the 2015 Sustainable Development Goals which expressly include private actors as responsible for its poverty reduction and rule of law project, the concept has taken on a ‘transnational’ scope. How private actors are defining and implementing these commitments, the consequences, both intended and unintended, of these processes as they interact with communities and civic groups and what these interactions mean for the rule of law, and for public actors committed to the rule of law, are a concern of this research project.