Promoting the Rule of Law: A Benchmarks Approach

Hachez, Nicolas; Wouters, Jan

doi:10.2139/ssrn.2258331

“…138 However, not all these problems are insurmountable 139 and in any case they should not be used as excuses to disregard the public's entitlement to democratic governance. 140 Turning to accountability, at its core it is a particular type of relationship between different actors in which one gives account and another has the power or authority to impose the resulting consequences. 141 In the regulatory context, it is a fundamental idea of democratic legitimacy that the affected stakeholders should be able to hold the governing institution accountable to its decisions through various control and sanction mechanisms, including removing decision-makers from office if they perform poorly.…”

Section: The Normative Dimension Of Private Standards In the Wtomentioning

confidence: 99%

“…In respect of participation, research shows that, whereas certain categories of internal stakeholders such as producers and retailers are awarded direct participation in the decisionmaking process, other stakeholders such as consumers, small producers from developing countries, and environmental and labour organizations, are confined to participate through informal and non-binding consultation procedures. 144 The disparity with respect to participation is more apparent considering that the geographical distribution of members is quite unequal. The result is overwhelming domination of European producers in the decision-making process.…”

Section: The Normative Dimension Of Private Standards In the Wtomentioning

confidence: 99%

Wto Regulation of Transnational Private Authority in Global Governance

Du¹

2018

ICLQ

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Following the proliferation of private standards in the global supply chain trade, it has become clear that these can have adverse effects on international commerce and world welfare in the same way that government-imposed mandatory regulations do. However, the scope of the obligation of WTO Members in relation to the regulation of private standards remains vague and open to divergent interpretations under WTO law. This article starts from the premise that the debate should move beyond the search for a reasonable interpretation of relevant WTO disciplines and instead begin to consider normative questions concerning the legitimacy and accountability of transnational private regulation in global governance and the potential role of the WTO in regulating such private authority. The article explores what justifies the role of the WTO, a multilateral intergovernmental organization, in regulating transnational private standards and how a regulatory mechanism might be designed and implemented in practice.

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“…Rule of law theories are usually divided into two types: "thin" (procedural) or "thick" (substantive) theories (see, e.g., Tamanaha 2004;Zürn et al 2012;Hachez and Wouters 2013). In addition, Krygier has argued that most authors follow what he refers to as an "anatomical approach" to the rule of law (2007,3).…”

Section: From An Anatomical To An Empirical Approachmentioning

confidence: 99%

Your Rule of Law is Not Mine: Rethinking Empirical Approaches to EU Rule of Law Promotion

Hertogh

¹

2014

SSRN Journal

0

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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.

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“…From an anatomical to an empirical approach Most discussions in the literature start with a definition of the rule of law. Rule of law theories are usually divided into two types: "thin" (procedural) or "thick" (substantive) theories (see, e.g., Tamanaha 2004;Zürn et al 2012;Hachez and Wouters 2013). In addition, Krygier has argued that most authors follow what he refers to as an "anatomical approach" to the rule of law (2007,3).…”

Section: Introductionmentioning

confidence: 99%

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

Hertogh

¹

2015

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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.

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Promoting the Rule of Law: A Benchmarks Approach

Cited by 4 publications

References 2 publications

Wto Regulation of Transnational Private Authority in Global Governance

Wto Regulation of Transnational Private Authority in Global Governance

Your Rule of Law is Not Mine: Rethinking Empirical Approaches to EU Rule of Law Promotion

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

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