Research Programmes
Rethinking the Rule of Law

Clusters

For the period 2016-2017 the cooperative focus has shifted to five research clusters which embody new areas of joint attention and collaboration.

For the full text of the research programme (including the subprogrammes of 2010-2015), please click here.

Cluster 1

The Rule of Law and the ‘Nobody’ Problem (Non-State Actors and Expert Knowledge)

Cluster leaders: Alessandra Arcuri & Florin Coman-Kund

In the book of Odyssey, Homerus tells the story of Ulysses in the land of the Cyclopes. To escape the terrible giant Polyphemus, Ulysses tells him that his name is Nobody. When blinded by Ulysses, Polyphemus calls his fellow giants for help, shouting that Nobody had blinded him. This cluster of research will be studying what we call the ‘Nobody’ problem for the Rule of Law paradigm.

Authority in contemporary legal systems is increasingly exercised by a multitude of actors that are traditionally not considered as law-makers. These include technical experts, agencies, subsidiary bodies of international organizations, private-public partnerships, regulatory networks, or more generally, assemblages of different actors. Their atypical nature renders these actors ‘nobodies’ in the legal field. While there is increasing, if scattered, evidence as to their capacity of exercising public authority, it is difficult to trigger their accountability because we lack the legal vocabulary to call them. Legally these are ‘nobody’.  Think for instance of the role of the Troika in the Greek crisis. While it is evident that many legally relevant decisions matured within this body, legal avenues to challenge these decisions were foreclosed because legally the Troika is ‘nobody’.

The direct or indirect production of legally relevant decisions by these actors (irrespective of their formally legally binding character), and more generally their exercise of public authority in various guises, has been recurrently considered as problematic. While the legal scholarship has started to pay attention to this phenomenon, the institutions, mechanisms, and concepts enabling these actors to become part and parcel of the legal realm remain under-researched.

The main ambition of our research cluster is thus to study the implications of this phenomenon for the rule of law. In order to do that, we will ask: how is the authority of these ‘nobodies’ exercised in practice? What are the processes by which allegedly non-legally bindings decisions turn into legal acts and compelling standards applicable in various legal orders? What are the sources of authority of these ‘nobodies’? What forms of accountability do already exist and what types of accountability mechanisms are fit for ‘capturing’ this quasi-legal phenomenon? 

This research cluster will thus tackle perceived legitimacy gaps in the widest sense, including accountability, procedural safeguards, participation, openness and transparency, legal review mechanisms, and examine these issues in light of current understandings of the rule of law. In this context it will be researched whether existing rule of law theoretical underpinnings and benchmarks are well suited for framing the increasingly complex and inter-linked regulatory processes, where these non-traditional actors (‘nobodies’) play an important role.

Alternatively, it will be considered whether similar or different legal-normative benchmarks are appropriate for legitimizing the regulatory process in different arenas (global, EU, national) and whether a reconceptualization of the rule of law is required with a view to grasp the complexities and dynamics of these multi-level and multi-actor regulatory decision-making processes. While keeping a legal focus (e.g. by combining and comparing EU law, public international law and global administrative law), this cluster will also embark upon interdisciplinary approaches by integrating insights from political science, public administration, and science and technology studies. Moreover, normative-theoretical perspectives on rule of law, legitimacy, accountability, etc. will be complemented with empirical methods and case study research mainly for theory testing and theory building purposes.

Exemplary policy areas featuring prominent developments of expertise-based decision making processes, standards and actors at the intersection between global, European and state legal orders will be comprehensively examined through in-depth case studies. In this respect, fields like food safety, registration of medicines, aviation safety, registration of chemicals, economic and financial governance will serve as cases in point.

Cluster 2 

Creating and securing sustainable and inclusive prosperity in economic globalisation

Cluster leaders: Fabian Amtenbrink, Anastasia Karatzia & René Repassi

Economic globalisation and the resulting intertwinement of international, supranational, and national law give rise to new challenges in conceptualising and implementing the rule of law, including our understanding of public interest and the way in which public power should be exercised. In the context of globalisation, economic governance is no longer confined to the national or even the supranational level. This is all the more so given the fragmentation of public power between state and non-state actors, as well as across the national, European, and international levels.[1]

We aim to address these challenges by looking into economic governance from three perspectives: global, EU, and national economic governance. Starting from the premise that economic governance constitutes a toolbox for achieving economic policy objectives such as sustainability, inclusion, and – ultimately – prosperity, the research questions of this cluster will revolve around two closely interlinked themes:[2]

  1. Economic globalisation and national determination

Considering that economic governance is a means to achieve prosperity, what is the impact of economic globalisation on the common good? How does prosperity have to be defined and ensured in light of the social fabric and protection standards? National and supranational legislators, policy makers, and courts increasingly have to consider the interrelations between the various legal systems vis-à-vis challenges that surpass national determination. How can legal protection and enforcement in a globalised economy be understood and how is this understanding compared with that of traditional enforcement mechanisms at the state level?

  1. Democracy and economic globalisation

In the context of economic globalisation, decision-making is not necessarily in line with traditional democratic and legitimacy considerations. For instance, in the context of globalisation, governance in the European and Monetary Union (EMU) is affected in complex ways by developments on the global level. The influence of these developments on the design of EMU governance gives rise to issues of legitimacy and accountability. Issues of a similar nature emerge from the proliferation of (supranational) agencies and international fora including informal networks established and operating at the global level (e.g. G20; Basel Committee on Banking Supervision, the Joint Forum of International Financial Regulators).

Could these issues be considered by revisiting the lenses through which policy outcomes of supranational and international policymakers are assessed? For example, there may be a need to reconsider the relevance of global administrative law (GAL) principles and standards as a yardstick to assess economic globalisation. If this is so, what would it mean for issues such as the relevance of human rights considerations in economic governance?

[1] See Rule of Law research programme, Subprogramme I: ‘Decrypting the public power paradigm in denationalizing and privatizing legal orders’

[2] Dani Rodrik, The Globalization Paradox (OUP, 2012).

Cluster 3

Conceptualizing the rule of law in a dynamic context

Cluster leader: Sanne Taekema

In this cluster the focus is on explanatory and evaluative accounts of the rule of law idea in a changing social and political environment. What changes and continuities of the rule of law can we discern in response to the dynamics of legal regimes and the interaction between law and policy? As well as exploration of overarching conceptual questions on the rule of law, research will concern more concrete instruments and procedures and evaluate these as rule of law instantiations.

The question of how to conceptualize the rule of law is particularly urgent in light of the plurality of actors involved in legal decision-making in international and transnational governance. In light of the different roles and views of such legal actors, normative, value-based rule of law thinking needs to be related to more instrumental views of rule of law policy. This question also entails a broader concern with the concept of law: how do we conceptualize legal orders and the meaning of the rule of law in such conceptualizations? Here, we also draw on interdisciplinary research, especially from a humanities perspective, to understand and problematize the normative claims of law and the perspective of the judge.

Procedural questions arise with transnational problems such as security and immigration policy, in which national, regional and international procedures prompt research on the quality and legitimacy of decision-making. The impact of procedural mechanisms and efforts to engage citizens in governance structures are a primary concern. Theoretical and historical investigation of procedural elements of the rule of law tradition will be complemented with research on particular issues and policy areas.

Cluster 4 

Human Rights and Diversity

Cluster leader: Kristin Henrard

Western societies have been ‘multicultural’ since the end of colonialism. The related population diversity in states has only expanded due to incessant migration streams, and recently also an actual refugee crisis.  Following a move towards multicultural policies in several European countries, embracing diversity, more recently the focus has shifted towards problematizing this diversity, from a range of perspectives. The related challenges for governments are manifold, and go hand in hand with fundamental legal questions, often inviting reassessments of longstanding rule of law values.

Questions arise about what can reasonably be expected from governments regarding the respect for and protection of separate ethnic, religious and linguistic identities of minorities, also given the perceived threat to ‘national cultures’. To what extent can migrants be considered (new) minorities and what does this then mean in terms of entitlements? Revisiting the interpretation of the scope of application of fundamental rights and the scope of positive state obligations in this respect arguably imply ‘stretching’ the rule of law, or at least the ‘law’ in the rule of law. 

Conversely, questions arise about what can be expected from new-comers regarding ‘integration’ (integration requirements) while respecting their fundamental rights? What does state neutrality in relation to religion imply?

Furthermore, the recent heightened influx of asylum seekers confronts governments with their limited resources. This in turn raises complex questions about state obligations regarding social and economic rights, tying into broader questions about the relation between austerity measures and human rights. The migration and refugee crisis furthermore triggers more profound challenges to state sovereignty, and invites rethinking the role of ‘nationality’ and ‘legal status’ as relevant marker for ‘access’ and ‘participatory’ rights in the current mobile world. 

An overarching question for this cluster concerns the implications of the right to equal treatment, which encompasses not only the right to effective protection against invidious discrimination, but also a right to differential treatment (accommodation) insofar as one finds oneself in a substantively different position.

Synergies with the work of the EUR Institute on Migration and Diversity are actively pursued.

Cluster 5 

The citizen as consumer and producer of dispute resolution and regulation

Cluster leaders: Annie de Roo and Rob Jagtenberg

This cluster continues to investigate RRL’s overall central research question: “What do the changing trends of globalisation, privatisation and multiculturalisation entail for the legitimacy of law as the order that is to curb power and provide a normative direction?”

The initiative for this cluster stems from work undertaken in subprogrammes III (briefly put: the role of the courts and other modes of dispute resolution) and IV (briefly put: inter-disciplinary perspectives). Here it was found that mere doctrinal legal analysis has no explanatory potential by itself. Another strategy is to focus on the actors involved in accessing, operating and shaping the law. An underexplored key player here is ‘the citizen’. The concept of citizen is closely associated with ‘nation-state’ and ‘national legal system’, the validity of the latter concepts exactly being called into question in the RRL programme.

Key questions envisaged are: How do citizens as addressees or users of the law cope with overcoming obstacles to access the legal process? To what extent has privatisation (e.g. in social care systems) created such obstacles? Has the process of globalization ignited a counter-movement of localisation? If so, which role is envisaged for large cities/conurbations (like Rotterdam or e.g. Shanghai); is there scope for any local legal pluralism and would that mean the demise of the rule of law?

Does localisation facilitate co-creation of regulation and dispute resolution by citizens and local government (e.g. burgerinitiatief)? If so, what are the consequences of such local regulation and dispute resolution? Which constraints (set at national/global level) are to be reckoned with?

This cluster partly fits in with on-going NWO research on hybrid local governance (headed under the present RRL programme).