Along the Edges of the (Rule of Law) State
Annual Conference of the Dutch-Flemish Socio-Legal Studies Association, 16-17 January 2014
Despite the economic crisis, increasing societal unrest and increasingly sharp criticisms of public intellectuals, neo-liberalism has remained the dominant ideology in organising state, economy and society. Within the Western welfare state we see a national government that reduces its role and seems less able and less willing to perform societal tasks and regulate societal processes. These processes are transferred to international or transnational organisations, and also to sub-national governments. Thus, the contents and limits of environmental policy are defined in Brussels and social security ends up in municipalities, without the national government seeming to be willing to accompany these with sufficient funds. Likewise, the state calls on civil society and individual citizens to ‘take their responsibility’, not only for areas such as care, public health and public housing, but even for traditional core tasks of the state such as security. This raises fundamental questions about the state’s monopoly on violence as the basis for the criminal law system.
These developments have important consequences for law, and the legal system, as has been discussed in various ways at several DFSLSA conferences during the past years. Law has become increasingly complex, transnational and fragmented. It has become more and more difficult for jurists to consider law still as a unitary system and for national states to keep a grip on legal development. Paradoxically, the ‘reductionist’ national state still seems to keep such control, in particular because citizens hold them accountable for problems in task performance and don’t allow the national government to hide behind a failing EU, a faltering municipality or a speculating public housing corporation. The transfer of tasks discussed above has therefore been followed by complex structures of government regulation that should allow the national government to control precisely what it wanted or was forced to get rid of. The availability of new technologies promotes this process. At the same time, national governments increasingly reject being controlled themselves, as is clear from the purposive policy of some European governments to violate the ECHR, safe in the assumption that enforcement by Strasbourg will only happen many years into the future. All of this undermines the professional autonomy of the law, promotes the integration of state and society and puts pressure on the separation of powers.
An interesting phenomenon is that while neo-liberalism in developing countries has had a similar influence, the points of departure are quite different. Here we are not talking about welfare states, but states in the process of state-building, which often have great difficulty in fulfilling the basic function of providing safety to their citizens and which have always had fragmented legal systems. This has led to a situation that societal organisations of all kinds, often of an ethnic or religious nature, perform government tasks. ‘Governance’ instead of ‘government’ has thus long been common in these countries and the dividing line between state and civil society is thin. This has led certain scholars to the introduction of the concept of ‘stateness’: organisations that formally speaking do not belong to the state but perform statal functions and are moreover considered and treated as if they do belong to the state (Lund 2006). Nonetheless, many – if not most – citizens still think that the state should play the most important role in providing services. In countries with a degree of democracy and a rising middle class they moreover have the means to exercise influence. It thus seems as if a convergence is taking place, not in the sense that developing countries increasingly resemble modern western states, but that the two are getting closer from each side.
These developments raise all kinds of questions. To what extent is the distinction between developing countries and ‘developed’ countries indeed disappearing ? What do these changes mean for the role of jurists, both for those working in legal practice as for legal scholars? Do we see that the nature of control by the judiciary and other organs is changing, for instance, do we see an increasing role for Ombudsman-like institutions? Do we see a worldwide trend of governments that are increasingly less ‘steering’, but rather acting as mediators between different interests in case of concrete disputes? And what do these new practices mean for the legitimacy of street level bureaucrats?
We invite you to organise workshops relating to this theme and such questions, but clearly other workshops are welcome as well. (etc.) Please contact Adriaan Bedner as one of the organisers.
(Reference) Lund, Christian. “Twilight institutions: public authority and local politics in Africa.” Development and Change 37.4 (2006): 685-705.