The Rule of Law in the Global Legal Context

This is a master course I teach at the ESL in November.

Course description

This course engages students in a reflection on two developments that have led to a fundamental tension in the functioning of today’s rule of law institutions. The first development consists of the increase in numbers of legal actors in the national, European and inter- and transnational legal context. They are involved in forming and upholding the rule of law, and they produce law on the different legal levels they work at. They have constructed and contribute to what is called a multilevel legal order of increased complexity, complicated hierarchies, and maybe – depending on the point of view – diminished efficacy when it comes to securing constraints on powerful institutions. The second development is the increase in numbers of non-legal actors who are involved in producing official law, but also ‘soft law’ or ‘informal norms’. These non-legal actors most of the time may only aim to secure their private and organisational interests. However, their involvement in the rule making process is indispensable, even if they lack democratic legitimacy. We may think of NGO’s with ideological interests, lobbyists and large companies with economic interests, and local groups and clans in developing countries. These two developments of ‘more law’ on the one hand and ‘more societal involvement’ on the other hand, should ideally strengthen the rule of law. However, this seems not to be the case, to the contrary. What can and should be done about the ‘watering down’ of the rule of law in the global context?

In this course we will analyse and critically reflect on these developments with the help of theoretical concepts and insights from legal scholarship, legal and political theory, and legal sociology. We will illustrate concepts and developments with several cases and social problems debated in today’s legal world, for example the problem of climate change, the pros and cons of the Transatlantic Trade and Investment Partnership, and rule of law promotion in developing countries.

General information

Course objectives

– You have knowledge of the history and development of (the concept of) the rule of law

– You are able to distinguish formal from substantial concepts of the rule of law, and their theoretical, political and empirical implications

– You have insight into theoretical and empirical problems of the rule of law in a situation of multilevel legal orders and global legal pluralism

– You have insight in how the ideals of the rule of law may not be fulfilled because of fundamental value differences and private power holders

– You are able to apply your knowledge and insights creatively to contemporary social and legal problems

Contact

Coordinator and lecturer: Wibo van Rossum, vanrossum@law.eur.nl. Van der Goot (M) building, 5th floor, section Sociology, Theory and Methodology of Law.

Participation requirements

Ba-level 3 in Law or Social Sciences.

Mandatory and suggested literature

See under Course activities.

Schedule

The course consists of five lectures and one seminar. The five lectures will pose the problem sketched above, and will provide the theoretical concepts and insights used during the course, based on legal cases and contemporary social problems. Students will organize the seminar (the last class), which consists of (group) presentations, and a round table discussion on those presentations.

Exam and resit

The exam has three parts:

1. Written assignments that need to be handed in before each class (30%)

2. Organisation of the seminar during the last class (presentation, discussion, participation) (20%)

3. Written exam on the literature of the course (50%)

Details on the exam will be given during the first class.

 

Course activities

(Guest) lectures

Lectures are on Tuesdays from 13.00-14.45 hrs in weeks 45-50, starting on 8 November.

Wibo van Rossum will give lectures 1, 4, and 5. Guest lectures are by Lukas van den Berge in week 2,?and by Thomas Riesthuis in week 3.

Mandatory literature per week & assignments

Session 1 on 8 November 2016 – Introduction

– Brian Tamanaha, Chapter 5, 6, 7, and 8 of the book On the Rule of Law. History, Politics, Theory.

– M.A. Loth, ‘Climate Change After All: A Dutch Landmark Case’, Tilburg Law Review 2016, p. 5-30, download from https://pure.uvt.nl/portal/files/11177767/climate_change_liability_after_all.pdf

Assignment: Read the above literature. Argue in ± 400 words whether the Dutch Urgenda case as described by Loth is problematic from a rule of law-perspective. Back up your opinion with valid arguments. Upload your written assignment to LawWeb ultimately on Sunday 6 November.

 

Session 2 on 15 November 2016 – Historical and Philosophical Foundations of the Rule of Law – Guest lecture by Lucas van den Berge

– Brian Tamanaha, Chapter 1, 2, 3, and 4 of the book On the Rule of Law. History, Politics, Theory.

– Stephen Riley, ‘Human Dignity and the Rule of Law’. Utrecht Law Review, Http://www.utrechtlawreview.org, Volume 11, Issue 2 (June) 2015, URN:NBN:NL:UI:10-1-116734

Assignment: Read the above literature. Argue in ± 400 words whether ‘human dignity’ a. has always already been and b. should be included in the concept of the rule of law. Back up your opinion with valid arguments. Upload your written assignment to LawWeb ultimately on Sunday 13 November.

 

Session 3 on 22 November 2016 – Theorizing multi-level legal orders: The case of the European Union – Guest lecture by Thomas Riesthuis

– N. MacCormick, Chapter 7 ‘Juridical Pluralism and the Risk of Constitutional Conflict’, and?chapter 8 ‘On Sovereignty and Post-Sovereignty’, in Questioning Sovereignty, Oxford: Oxford University Press, 1999 pp. 97-136. Available online via the EUR library network: http://dx.doi.org/10.1093/acprof:oso/9780198268765.001.0001

– Paul Schiff Berman, ‘The New Legal Pluralism’. The Annual Review of Law and Social Science, 2009, nr 5, pp. 225–242. Available at http://www.annualreviews.org/doi/full/10.1146/annurev.lawsocsci.093008.131539

– Brian Tamanaha, Chapter 10 of the book On the Rule of Law; History, Politics, Theory.

– Case law: German Federal Constitutional Court, BVerfG, Order of the Second Senate of 07 June 2000 – 2 BvL 1/97 – paras. (1-46),

http://www.bverfg.de/e/ls20000607_2bvl000197en.html

– Case law: Supreme Court of the United Kingdom, [2015] UKSC 19, 25 March 2015. Available online at: https://www.supremecourt.uk/cases/uksc-2013-0150.html

 

 

Session 4 on 29 November 2016 – Use and misuse of the rule of law

– Martin Krygier, The Rule of Law: An Abuser’s Guide. 2006. Available at www.ssrn.com under SSRN-id952576

– Ugo Mattei and Laura Nader, ‘Introduction’, Chapter 1 ‘Plunder and the Rule of Law’, and Chapter 7 ‘Hegemony and Plunder: Dismantling Legality in?the United States’. In Plunder, When the Rule of Law is Illegal. (2008) Blackwell publishing. UB-link. Van Rossum will contact you about this literature.

Assignment: Read the above literature. Describe in ± 400 words two situations from your home country that you think fits the perspective of (one of the) the authors of this week. Back up your opinion with valid arguments. Upload your written assignment to LawWeb ultimately on Sunday 27 November.

 

Session 5 on 6 December 2016 – Export of the rule of law

– Brian Tamanaha, ‘The Rule of Law and Legal Pluralism in Development’. Hague Journal on the Rule of Law, nr. 3, pp. 1–17, 2011. http://dx.doi.org/10.1017/S1876404511100019

– David Pimentel, ‘Rule of Law Reform Without Cultural Imperialism? Reinforcing Customary Justice Through Collateral Review in Southern Sudan’. Hague Journal on the Rule of Law, nr. 2, pp. 1–28. http://dx.doi.org/10.1017/S1876404510100013

– Olev Hammerslev, ‘The European Union and the United States in Eastern Europe, Two ways of exporting law, expertise and state power’, in Dezalay and Garth, Lawyers and the rule of law in an era of globalization (2011). Van Rossum will contact you about this literature.

Assignment: Read the above literature. Argue in ± 400 words a. whether you think promoting the rule of law is a good thing, and b. what according to you is the best way to promote the rule of law. Back up your opinion with valid arguments. Upload your written assignment to LawWeb ultimately on Sunday 4 December.

 

Session 6 on 13 December 2016 – Student seminar

– Brian Tamanaha, Chapter 9, and 11 of the book On the Rule of Law; History, Politics, Theory.

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