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 foreign policy vis-à-vis emerging powers like Brazil, Russia, India and China (Article 21 TEU). At present, the dominant approach in most policy documents is to define the rule of law in terms of legal and institutional checklists. However, more recently several authors have criticized this ‘anatomical’ approach and have argued for a ‘sociological’ approach to the rule of law (Krygier 2012). However, the details of this new perspective remain unclear. The aim of this paper, therefore, is to develop an empirical approach to the rule of law, which may inform future legal and political debates on EU rule of law promotion.

In this paper, I will discuss two empirical models of the rule of law. I will argue that 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’. The ‘Rule of Law in the Books’ refers to a fixed (legal or philosophical) definition of the rule of law. Empirical research on the ‘Rule of Law in Action’ then looks at the degree to which these principles are implemented in a given justice system. This type of research focuses on the gap between the ‘Rule of Law in the Books’ and the ‘Rule of Law in Action’ and on possible ways to bridge this gap.

I will argue that this conventional approach has several important shortcomings. I will therefore introduce an alternative model, based on Eugen Ehrlich’s concept of the ‘living law’. This model of the ‘Living Rule of Law’ asks: What do people themselves consider important values with regard to the most desirable relation between the law and the state? The principal concern of this 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 the rule of law in a refugee camp on the Thailand-Burma border (see McConnachie 2014).

It will be concluded that empirical research is essential to analyze the strengths and weaknesses of the EU’s external action. Moreover, empirical studies based on the model of the ‘Living Rule of Law’ support a legal pluralist approach to EU rule of law reform, which focuses on the user perspective of citizens and which recognizes the contested notion of the rule of law across cultural borders.

Keywords: rule of law, EU foreign policy, refugee camp, Thailand-Burma border, socio-legal studies

JEL Classification: K00, K40