Many EU researchers combine the study of rules and practices, in an attempt to grapple with, and do justice to the complexity of European integration. Indeed, whether in legal studies or the social sciences, it is deemed good practice to make this distinction. But what does it mean? And are we using it in a suitable manner?

By Maarten Hillebrandt

These were the central questions of a workshop that was organized by Maarten Hillebrandt (ACELG) in Amsterdam on 8 March 2013. EU researchers from different disciplinary backgrounds convened to discuss the usefulness of research approaches that distinguish between rules and practices in European integration. This blog discusses some of the workshop’s central insights.

The context of EU research

The first session was introduced by Gijs Jan Brandsma of the Utrecht School of Governance (USG), who sought parallels between the research of political scientists and legal scholars. He positioned rules and practices in the context of agency and structure. While agency is primarily directed by personal preferences, structure includes institutionalization and rules. Together, agency and structure enable/constrain actors, leading to what Brandsma described as bounded intentionality.

As might be expected, the attending legal scholars indicated that the field of law is primarily concerned with rules, and it studies practices to shed further light on them. Political scientists, in turn, are primarily preoccupied with behaviour, which they seek to explain, in part, by the (in)formal rules in place.

A phenomenon therefore cannot always be unambiguously categorised as a rule or a practice. It can be either, depending on the specific question that a researcher poses. An example can be found in case law. For legal scholars, case law is one of the sources of law, which means that it cannot be understood as a practice. However, the status of case law may alter depending on the context within we study it. Thus, when studying responses of other actors to the Court, it makes sense to consider a judgement as a rule, whereas the study of Court activism may be best served by viewing case law as a Court practice, or at least a rule strongly influenced by practice.

Concepts and theory: transcending disciplines?

In the second session, Bettina Leufgen (USG) provided an introduction to some of the conceptual and theoretical concerns that surround rules and practices. She did so on the basis of her own research into transparency, which she characterised as multidisciplinary.

The objective of Leufgen’s research is in the first place political scientific: mapping the rules (de jure) is done in order to qualitatively assess the practices (de facto). This throws up the question of who/what is to blame in instances of a mismatch. Vice versa, she entertained doubt whether situations are automatically satisfactory when rules are complied with.

Comparative de jure-de facto research clearly has its merits, yet other theoretical questions are also imaginable. For example, research can be concerned with the way in which policy practices feed into the newly created rules or investigate the way in which institutional environments shape the interpretation of rules. The main point of all this is that good concepts and theory should be developed in such a way that they meet the needs of the research question.

Data and data analysis

Once a (rules/practices-informed) research question is decided on, empirical research becomes a necessity. This requires the researcher to give thought to the collection and handling of data. Madalina Busuioc (LSE) introduced the use of empirical data and methods based on her own research experience. She identified her subject of study, accountability, in a number of existing legal rules that were applicable to her cases (European agencies). She takes the view that the use of rules and practices can be pragmatically approached, as long as choices are logical, reasonable and explicit.

Besides mapping the existing rules, Busuioc based her study of practices on a large number of interviews. Needless to say, formal rules and interview data are not the only sources for empirical analysis. In addition, various types of soft law, policy documents, advocates general’s opinions, speeches, and newspaper articles can be studied and analysed. For this, qualitative coding software, such as NVivo, AtlasTI, or MaxQDA, can be extremely useful.

In conclusion: holistic vision or methodological cover-up?

A lot of ground was covered in the respective sessions. In the final session, Maarten Hillebrandt sought to translate this into practical points for consideration. A central lesson of the day was to ‘make the implicit explicit’. Researchers may be pragmatic about their research design, as long as they substantiate their choices on grounds that are reasonable and logical within the context of their research question. This forces the researcher to think. After all, one needs to realise exactly what is implicit before one can explain it.

Finally, the question was asked whether the use of rules and practices is worthwhile pursuing. The answer of the workshop’s participants was a qualified ‘yes’. Recognising the dichotomy is certainly a plus when applying for external funding, as it bridges the gap between law and ‘adjacent’ disciplines that are represented in assessment committees.

Multi-disciplinarity thus requires researchers to come up with puzzles that speak to other disciplines. In the end, EU research does stand to benefit from a holistic outlook: practice-oriented and empirical research can increase the realism and relevance of legal research, while legal insights and analyses can give shape to those political science ambitions that are less than specific. For this, however, scholars will have to go beyond a fashionable label to allow space for critical (re)consideration.

Maarten Hillebrandt MSc is a doctoral researcher at the Amsterdam Centre for European Law and Governance. His personal page can be accessed here.

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