110 Handbook on (he rule of law

almost as many conceptions of the rule of law as there arc people defending it'. 9 In today’s globalised
context of inter-national relations 10 11 there is considerable variation regarding what the role of the rule
of law is and ought to be. And with regards the norm’s elusiveness. Tamanaha notes, ‘(Notwithstanding
its quick and remarkable ascendance as a global ideal, (. .) the rule of law is an exceedingly elusive
notion.’ Out of the multitude of global stakeholders" few 'who believe in it, ever articulate precisely
what it means’ 12 What makes the rule of law special to students of international relations is that, like
any other global norm that travels across national boundaries the rule of law is contested, however,
unlike most fundamental norms, it enjoys wide recognition on a global scale. This chapter elaborates on
the puzzle and what it implies for the diffusion of the norm.
Given that diversity has been enhanced rather than reduced by globalisation, this status is unlikely
to change.13 Universal validity claims never fit seamlessly into the societal environments where they
stand to be implemented; they are continuously challenged when particularistic validity claims are
mobilised in the social environment where a norm stands to be implemented. 14 15 It follows that the
question, how contested meanings of fundamental norms play out when a norm stands to be
implemented in a specific context, remains a central issue for global governance. A helpful
differentiation has been offered by international lawyers who distinguish the norm’s meaning based on
the categorisation of ‘thinner’ and ‘thicker’ conceptions of the rule of law, as well as recognising
differences in constitutional ‘culture’ as the backdrop against which the rule of law is implemented. 13
Accordingly, the ‘thicker’ conceptions include the substantive quality of the rule of law, given its
reflection in constitutional principles such as human rights, democracy, equality before the law and so
on; the ‘thinner’ conceptions refer to the procedural instruments in order to warrant the rule of law in a
specific organisational context; and the ‘cultural’ dimension refers to larger historical processes as
contingent contexts that enable or undermine implementation and respect of the rule of law. While the
former two conceptions offer guidance for implementation the third remains theoretically more elusive.
For example, in a Report on the Rule of Law the Venice Commission notes;
generally speaking (here is a rtvaJry between more formal f thinner'i conception* and more sub-
stantive (‘thicker’) ones Simply put, this distinction concerns '.be question of whether the rule of
law principle consists only of process and form-related requirement* or ssbether. m addition, it
contains requirements regarding the content of the laws tha; rule Human rights are the key example
of value requirements inherent in a substantive concept ■*

The Venice Commission also stresses the importance of a ’common feature of European

9Institutional Dynamics of International Political Orders’. International Organization 52(4) pp. 943-69.
’ Taiwo, Olufemi 1999. ‘The Rule of Law: The New Leviathan?’ Canadian Journal of Law &
Jurisprudence, 12( 1) pp. 151 -68.
10 Note that the term ‘inter-national relations' is used to describe relations between nationally
distinct agents in the global realm. In turn, ‘international relations theory’ is used when referring to the
discipline of IR Theory.
1
' In the following the term ‘stakeholder’ is used to indicate a legitimate interest in a norm of global
governance because an agent in inter-national relations is affected by it.
11 Tamanaha. 2004.
12Sassen S. 2014. Expulsions: Brutality and Complexity in the Global Economy. Belknap Press.
13See: Brown, Chris 1997. ‘Universal Human Rights: A Critique’. International Journal of
14Human Rights 1(2) pp.41-65; Dunne, Tim and Nicholas J. Wheeler 1999. Human Rights in Global
Politics, Cambridge Cambridge University Press; Finnemore, Martha, and Stephen J. Toope 2001.
‘Alternatives to ‘Legalization’: Richer Views of Law and Politics’. International Organization 55(3)
pp.743-58.
15 Venice Commission, Opinion on Poland 2016, CDL-AD(2016)00I Opinion no, 833/2015 at: h t
tp-y/www. Venice, coc. in 1/webforms/documen ts/?pd f.
 The rule of law in inter-national relations 111

constitutional culture’, when examining Poland’s implementation of the rule of law. 16 17 18 However, as
comparative constitutional lawyers have pointed out. cultural diversity makes for the ‘odd details’ which
often fall victim to processes of norm implementation when the thinner concept of the rule of law is
prioritised !?
In turn, recognition theorists, especially those in the Canadian ‘chic freedoms' tradition, 19 have been
grappling with the accommodation of diversity, while maintaining universal validity claims. 20 21
Recognition theorists have pointed out that while regulatory practices have converged due to the impact
of international organisations, agreements and treaty regimes, cultural practices have often led to
resistance to norm convergence2: By contrast, sociological constructivists in IR have been mostly
interested in the question of why and whether states comply with such norms. 22 This was indeed the
leading question for IR theorists who turned to norms as part of the social constructivist research
programme in the late 1990s. The programme prioritised the impact of norms on state behaviour;
however, it left their legitimating role in inter-national relations largely to one side. 23 While there is now
a growing IR literature that addresses ‘practices’ and ‘rdation- ality’, taking into account cultural
background experience, this literature does remain notably silent on norms. 24 Some of it goes as far as
proposing to do away with norms to focus on ‘layered meanings’ and ‘cultural knowledge’ instead. 25
This has left IR theory

16 Venice Commission, Report on the Rule of Law20I0: 3; details at:

httpj7www.vemce.coe.int/ webforms/documents/default.aspx?pdiTile=CDL-
UDT(2010)022-e.
17 Venice Commission, Opinion on Poland, 2016:8.
18'* Compare: Frankenberg, Gunter 2010. Constitutional transfer The IKEA theory revisited.
International Journal of Constitutional La*’, 8 (3): 563-79 and Uitz, Renata 2015. Can you tell when an
illiberal democracy is in the making? An appeal to comparative constitutional scholarship from
Hungary, International Journal of Constitutional Law, 13(1): 279-300.
19- 19 Tully James 2014. On Global Citizenship. Bloomsbury Academic
20 See: Taylor, Charles 1993. ‘To Follow a Rule . . . ’ In Bourdietc Critical Perspectives, edited by Craig
Calhoun, Edward LiPuma and Moishe Postone, 45-60, Cambridge: Polity Press; Tully, James 1995,
‘Strange multiplicity: constitutionalism in an age of diversity’, John Robert Seeley lectures, Cambridge:
Cambridge University Press; Coulthard, Glen Sean 2004. ‘Culture, Consent, and the State in the
Struggles of Indigenous Peoples for Recognition and Self-Determination: Social Constructivism and the
Politics of Critique’. Consortium on Democratic Constitutionalism (DEMCON) Conference ‘Consent as
the Foundation for Political Community’, University of Victoria, BC, 1-3 October 2004.
21 Tully, 1995. ibid.
22 Chcckel J. 1998. ‘The Constructivist Turn in International Relations Theory'. World Politics 50(2)
pp.324-48.
23 Niemann H and Schillinger H. 2016. ‘Contestation all the Way Down?’ International Politics
43(1) pp.29-49
24 Frost M and Lechner S. 2015. Understanding Practices from the Internal Point of View. Journal
of Political Theory. Cambridge University Press.
25 Buegcr C and Gadinger F. 2014. International Practice Theory. Palgravc Macmillan.