This submission has been posted as part of a blog series that seeks to profile the newly created NNHRR Working Group on Economic, Social, and Cultural Rights blog series, its vision and plans, and to highlight the expertise of its members, showcasing their research and/or contributions to ESCR.
By: Nathalie Schnabl
The meaning of access to the rule of law
In my dissertation, which I successfully defended on 25 October 2024, I argued that individuals must have access to the rule of law to ensure a proper functioning of the rule of law. In short, access to the rule of law means that individuals must be able to invoke the guarantees offered by the rule of law: that individuals know their rights and obligations and can go to court or an alternative dispute resolution body if they think their rights are being violated. However, while accessing the rule of law, individuals may experience challenges, such as complicated laws and procedures, financial expenses, and an impenetrable bureaucratic system.
The importance, meaning, and criteria of the rule of law have been widely discussed in the academic literature. However, rule of law scholars have only recently paid attention to the factors necessary for individuals to invoke the guarantees the rule of law offers. In particular, Nicholas Barber and Jeff King have addressed this issue. They argue that the functioning of the rule of law is influenced by the social context in which the rule of law operates. In other words, social factors can affect the extent to which the rule of law is realised. Therefore, the rule of law has a legal and a social dimension. Especially the Childcare Benefit Affair, in which thousands of parents were unfairly accused of fraud and faced high fines and out-of-home placement of their children, has led to greater focus on the protection afforded by the rule of law. More and more is realised that individuals may experience challenges when trying to invoke the guarantees of the rule of law.
Nevertheless, it is unclear from these first analyses what individuals need before they can access the rule of law. Barber and King only refer to the threat of poverty and the increasing power of civil actors, and the Staatscommissie Rechtsstaat identifies many different thresholds without analysing what individuals require to access the rule of law. However, an analytical framework is necessary to provide specific solutions to specific problems. Solutions can be proposed only when it is clear what individuals need to access the rule of law.
Economic, social, and cultural rights required for access to the rule of law?
In my dissertation, I analysed what resources individuals need to access the rule of law. I took Pierre Bourdieu's work on social, cultural and economic capital as a starting point in my dissertation. Bourdieu wrote eloquently about access to education in France in the 1970s. He concluded that social capital (social network), economic capital (money and assets) and cultural capital (knowledge and skills) are essential for access to education. However, these three capitals are also necessary to access the rule of law. Firstly, individuals require knowledge and skills concerning the law, language and digitalisation. Individuals should understand the law to understand rights and obligations laid out in statutes, human rights documents or jurisprudence. Legal proceedings may be required to enforce these rights. These may be proceedings before or outside of the court. These proceedings require providing evidence or formulating positions and arguments. Therefore, they should understand letters, procedural documents and procedures. They should also have digital skills for online communication with, for example, the government or digital procedures. Secondly, they require financial means to pay court fees or legal aid costs. Thirdly, they need a social network to know to who to turn for help when they lack specific knowledge, skills or financial means.
In short, individuals need various resources before they can invoke the guarantees of the rule of law. These specific resources already have a legal framework in legally binding human rights treaties, such as in the context of the right to work (Article 6 of the International Covenant on Economic, Social and Cultural Rights), in the context of the right to social security and social insurance (Article 9 of the International Covenant on Economic, Social and Cultural Rights), the right to education (Article 13 of the International Covenant on Economic, Social and Cultural Rights), and in the context of the right to a fair trial (Article 14 of the International Covenant on Civil and Political Rights).
Access to the rule of law required to protect and enforce economic, social, and cultural rights?
A critical conception of the rule of law is the formal conception, as set out, for example, by Jeremy Waldron and Joseph Raz. The formal conception of the rule of law emphasises how the law was promulgated, the ensuing norm's clarity, and the enacted norm's temporal dimension. Formal conceptions of the rule of law are not concerned with whether the law was a good or bad law, provided that the formal precepts of the rule of law were themselves met. However, I argue that additional measures may be needed to realise the rule of law by introducing measures that reduce barriers for individuals with limited social, cultural or economic capital. These measures may include references to social, economic, or cultural rights but may also consist of 'merely' legislation or policies. The latter may have less symbolic value, but in contrast, given that reservations can be raised about the enforceability of fundamental social rights, they tend to have more practical values.
However, it cannot be denied that many states, including the Netherlands, are bound by different treaties guaranteeing economic, social and cultural rights even when the enforceability of these rights can be improved. Nonetheless, individuals must have access to the rule of law before they can raise concerns regarding malpractices before the courts or human rights institutions, such as the Netherlands Institute for Human Rights (currently only in the context of discrimination). They require, for example, knowledge of these rights, legal possibilities, and financial means. Important to note is that also civil and political rights may have social, economic, and cultural rights implications. For example, many states guarantee the right to a fair trial, which often introduces the right to subsidised legal aid for individuals with insufficient financial resources. For example, the European Convention on Human Rights introduces the right to subsidised legal aid in Article 6 (3)(c), the International Covenant on Civil and Political Rights in Article 14 (3)(d), and the Charter of Fundamental Rights of the European Union in Article 47. In other words, the right to a fair trial is placed at the intersection of political and social rights. However, this notion does not only apply to individuals. Increasingly, attention is being paid to litigious interest groups. However, they, too, will need to have resources. Perhaps even the same resources that individuals need.
Economic, Social & Cultural Rights working group
The new Economic, Social & Cultural Rights working group within the Netherlands Network for Human Rights Research aims to foster an inclusive environment where members can present their research, engage in meaningful discussions, and explore new ideas surrounding ESC rights. The working group will provide a platform for members to share their ongoing research and receive valuable feedback from peers, creating a collaborative space for academic growth and critical thinking. In addition, we will invite prominent speakers who specialise in ESC rights to give insightful talks and lead conversations on pressing topics within the field. These discussions will aim to spark new perspectives and encourage a deeper understanding of ESC rights in various contexts. One of our primary goals is to facilitate networking and partnerships within the group. By encouraging collaboration, we hope to create opportunities for joint research projects, shared resources, and continued dialogue across disciplines.
Within the new working group, I personally want to continue to focus on the importance of access to the rule of law for both the functioning of the rule of law and the interests of legal subjects (i.e. individuals, [Small and medium] enterprises), which can be expressed in various forms: litigating interest groups, access to the rule of law in countries other than the Netherlands, access to the rule of law over the years.
Bio:
Nathalie Schnabl is assistant professor at the Open Universiteit. Her research focuses on (access to) the rule of law. She is also one of the coordinators of the Working Group on ESCR within the NNHRR.