Your rule of law is not mine: rethinking empirical approaches to EU rule of law promotion

Abstract

The promotion of the "Rule of Law" is a leading ambition of the EU's external action (Article 21 TEU). The dominant approach in most policy documents is to define the rule of law in terms of legal and institutional checklists. However, several authors have criticized this "anatomical" approach and have argued for a "sociological" approach. In this paper, I will discuss two empirical models of the rule of law. Most current studies follow the model of the "Rule of Law in Action." This approach is based on Roscoe Pound's distinction between the "law in the books" and the "law in action." I will argue that this conventional approach has several shortcomings. I will therefore introduce an alternative model, based on Eugen Ehrlich's concept of the "living law." The principal concern of the "Living Rule of Law" model is not the level of social support but rather the social definition of the rule of law. To assess the strengths and weaknesses of both approaches, I will apply both models in a case study about rule of law reform in a refugee camp on the Thailand-Burma border. It will be concluded that empirical research is essential to evaluate the EU's external action. Moreover, empirical studies based on the model of the Living Rule of Law support a legal pluralist approach, which focuses on the user perspective of citizens and which recognizes the contested notion of the rule of law across cultural borders.

Revisiting the Rule of Law

“…Teleological theorists insist that the best way to extrapolate the necessary conditions for the rule of law is to make such inquiry sociologically specific to particular times, places, and circumstances. If an anatomical exercise of the accountgiving kind is to be pursued at all, the aim at most should be to provide open-ended working models of the rule of law, tailored to the specificities of local circumstances (Hertogh, 2016;Krygier, 2017: 133-68).…”

The rule of law: origins, prospects and challenges

“…Community-based rules can indeed strengthen the rule of law in areas where weak states and legal institutions can hardly deliver, for instance, in the field of disputes resolution. 118 Legal pluralism is also present within states with a strong penetration of the private sector. In this respect, it is arguable that private standards have also developed as a major source of norms in various fields ranging from environmental sustainability, fair trade to consumers' protection.…”