Rule of Law Put to the Test: The Case of Judicial Rule-Making by Agreement

Abstract

In this article, the predominant approach to legal research on the rule of law is analysed, and three alternative approaches which enable empirical research are presented. All four approaches are then assessed by applying them to the Dutch practice of judicial rule-making by agreement. The current evaluation approach is shown to be limited in its analytical scope with regard to the actual workings of the rule of law through its lack of empirical grounding. It is unable to critically examine its own assumptions regarding this matter. The first alternative approach focuses on how legal arrangements affect the prevalence of some interests over others in society. This enables an analysis to be made of how social groups are favoured or disfavoured by different rule of law arrangements. The second alternative approach examines how law influences citizens' acceptance of their government and thus focuses on the legitimacy that the rule of law is often assumed to generate. The third alternative approach analyses the rule of law as a discourse. It asks the questions how power relations in society influence the content of the debate on the rule of law and how the content of the rule of law in turn influences power relations in society. The author claims that adopting a combination of these approaches and analysing the interrelations of the findings of these approaches leads to more fruitful rule of law research than continuing on the narrow path of the evaluation approach.