The modern history of the idea of Rechtsstaat has been marked with various distinctions. Historically, it originated from a distinction drawn between Polizeistaat and Rechtsstaat in order to secure the limits of state intervention into the private sphere. As the concept evolved some scholars suggested to differentiate between formal, as coined by Paul Laband, and material Rechtsstaat, for example Robert von Mohl, depending on whether rule of law means more, in substantial terms, than a simple compliance with the rule of existing state laws. Later, mostly during the Interwar Period, scholars, such as Herman Heller, argued for contrasting Rechtsstaat against dictatorship from the aspect of both taming political and state power and guaranteeing individual liberty. Following the end of World War II the growing governmental intervention under the aegis of European welfare state model gave rise to the question to what extent Rechtsstaat can and should counterweigh the realization of governmental policies. That is, the idea of Rechtsstaat has always been challenged by the historical, political, and social reality of a given era in European history and these challenges led to the continuous refinement and evolution of the concept.
Michiel Scheltema, a prominent Dutch administrative law scholar as well as veteran state officer and politician, set forth another possible distinction with regard the concept of Rechtsstaat from the mid-2010s. In some recent papers he argued for the introduction of the concept of responsive Rechtsstaat in contrast to the conventional approach which he labelled as bureaucratic Rechtsstaat. This blog post is to raise the attention of the scholarly audience to this novel concept of rule of law originating from Dutch legal thinking. The author of the blogpost is convinced that the idea responsive Rechtsstaat – later: responsive rule of law – has relevance beyond the Dutch context strictly understood, as it has a more general message for our rule of law culture in Europe. That is, a broader discussion of Scheltema’s idea may contribute to a better understanding of rule of law issues all over in Europe. Needless to say, this seems to be even more relevant when the European Union as such faces an on-going rule of law crisis.
Scheltema’s main points can be summarized as follows. The conventional approach to rule of law, what he encountered in his initial professional years, has an excessive bureaucratic character. This implies, first of all, that the legislation and its products, the laws, are justified from a legalistic perspective prominently, with special regard to legal consistency, dogmatic coherence and technical rule of law guarantees. Thus, its functioning is pervaded by an internal, juristic perspective. Moreover, this bureaucratic understanding of rule of law also means that this approach applies an unrealistic image of the citizen and therefore it sets unreal expectations. For example, it is supposed that the citizen knows all the relevant laws and if she or he breaches them it is done intentionally. The issue of not knowing what to do and why is simply neglected.
That is, it is argued by Scheltema, the concept of bureaucratic rule of law completely lacks the citizens’ perspective when assessing human actions having a legal relevance. However, parallel to the growing empirical knowledge about the everyday working of legal orders, these presumptions are hard to uphold. For example, empirical evidence suggests that from knowing something about the law the intention or ability to act do not come directly. In addition, the bureaucratic functioning of rule of law does not seem to be able to take into account the citizens’ problems if they are outside of a strictly legal understanding. So, from a citizen perspective this conventional and juristic approach to rule of law can easily be criticised and contested and this can lead to a higher level of mistrust or cynicism, too. In sum, Scheltema is rather sceptical that if the rule of law disregards its social context it can still be considered as rule of law in a substantial sense.
To solve this problem, the growing distance between rule of law as a legalistic concept and social reality, Scheltema proposes to approach rule of law from a different angle. He suggests that the conventional understanding has to be left behind and the idea of the so-called responsive rule of law has to come forth. This interpretation of the idea of rule of law is noticeably different from the dominant one. It is based on the insight that the legal system is not an end in itself. It has to serve citizens and the interests of citizens are more important than legal consistency or dogmatic purity. As a first step, in a responsive rule of law, the previous image of the citizen ‘as a bureaucratically well-trained rational person’ should be set aside. It has to be replaced with a more realistic understanding, taking into account our ordinary qualities including the psychological complexity of human actions or our limited knowledge about laws. So, the law has to regard us as ordinary and many times uncertain human beings who may be unfamiliar with many legal issues (the on-going discussion on the position of a “vulnerable citizen” in administrative law relations seems to resonate to this point).
Besides this qualitative conceptual turn in the fundaments of public and administrative law Scheltema also suggests specific changes in the structure of rule of law in order to make it more receptive to citizens. First, the perspective of citizens has to be embraced by the legislator and various organs of the judiciary. This prominently means that both laws and decisions have to be comprehensible to the ordinary citizen and these have to be explained to all those who they concern. That is, the simple enactment and declaration of laws or decisions are simply “not enough”. Scheltema mentions that this ‘turn’ can contribute to better knowledge about the law, and therefore it can enhance citizens’ abilities to act if necessary. Second, all those general principles of administrative law that favour the interests of the citizens must have real force, meaning that various subordinate regulations cannot be able to set them aside in practice. Thus, principles of general legal protection should go down to the “shop floor” of social life and they must be effective there, too. Third, in cases when someone fails to comply with a given rule the authorities should customize their reactions as much as possible in order to help the citizen concerned to act, and thereby ultimately comply. So, local and other authorities, with which most of the citizens have some kind of regular contact, have to change their settled daily routines when managing citizen non-compliance and they should try reach these citizens in alternative ways – from direct calls to personal discussions – to encourage them not to deviate from the law. Lastly, legislation in general has to be much more inclusive with regard to the expectations of citizens in order to shape their perception of administrative law and public law.
Thus, in Scheltema’s eyes, the entire vision of the legal order has to be reshaped and the rule of law has to put into focus its subjects and their perspectives in place of the older juristic and technical points. If this turn is successful one can talk about a responsive rule of law that can be much more attuned to citizens’ needs than its bureaucratic counterpart. It may have dramatic consequences on the relationship between the law and citizens as this change may be able to tame the widespread legal alienation having an impact on numerous legal orders in these days.[1]
Even though Scheltema’s idea on the responsive rule of law can be criticised due to its very general and broad nature and because he tries to integrate extra-legal points – for example: the image of the citizen, the perspective of the citizen, or citizens’ expectations – into the pure legal framework of the rule law, it can easily be accepted that there is “something in it”. The rule of law has to face manifold challenges in Europe in recent years. Various rule of law anomalies have emerged in Western Europe – for example see the Dutch child benefit scandal or the Danish ghetto plan controversy. Hungary and Poland have seriously been criticised because of their governments’ actions to reshape the judiciary according to political preferences. The European Union also had to develop a new rule of law toolkit in an attempt to strengthen the rule of law commitments in the Union. These all show that the issue of rule of law is a real “hot potato” and the way out from this complex rule of law crisis is rather unclear and far away. In addition, it has to be mentioned that all these pieces of the general European rule of law crisis happened in their own national social contexts meaning that – besides their clear legal relevance – they all also have a specific social embeddedness, too. This suggests that they cannot simply be solved with the help of purely technical solutions but their social context should also be understood and taken into account when finding a solution.
Hence, Scheltema’s vision on the responsive rule of law seems to have a message that is independent from the specific Dutch legal and social context in which it emerged. If we would like to improve the rule of law situation in Europe, the social dimensions of rule of law, with special regard to citizens’ alignment to the core values of rule of law, – even if they are clearly extra-legal points and do not match dogmatic consistency and coherence – cannot be disregarded. European legislators have to turn towards their citizens, they have to listen to them, and they should try to understand what citizens expect from rule of law. As this new orientation needs to transcend the boundaries of conventional legal thinking, socio-legal studies can actively assist this process as its theoretical vocabulary, empirical research methods and findings all are able to bring social reality and citizen experiences to the lawmakers. That is, legislators and scholars have to establish a “social science of the rule of law” together and this process may help in making European Rechtsstaats more responsive and thereby more socially grounded. Although the boundaries of a “social science of the rule of law” are still blurred and debated, it can be argued that it should focus on both the manifold social preconditions of a proper functioning of the rule of law (for example: the role of citizens’ attitudes towards the law and compliance, the social knowledge of the law) and the various impacts of the rule of law on micro- and macro-social relationships (for example: empowering or discouraging effects). In addition, this new “social science of the rule of law” needs the help and support of a comparative law outlook, too, in order to interpret its findings in a more refined way, with the help of various legal and social contexts. This seems to be an inevitable turn if we want to challenge and counter the various anti-rule of law arguments – for example, that the rule of law is only to defend the interests of the elite or that the rule of law a political tool is in the hands of faceless European bureaucrats – articulated by populist European political forces.
Posted by Balázs Fekete (professor, ELTE Faculty of Law (Budapest) and member of the CITIZENS LAW team (Groningen)). The author is very grateful for the help and comments of Erin Jackson.
[1] See M Hertogh, Nobody’s Law. Legal Consciousness and Legal Alienation in Everyday Life (London: Palgrave 2018).
Suggested citation: B Fekete, ‘Responsive Rechtsstaat: Beyond the Dutch Context’, BACL blog, available at https://british-association-comparative-law.org/2023/10/20/responsive-rechtsstaat-beyond-the-dutch-context-by-balazs-fekete
British Association of Comparative Law 