The EU and the rule of law - Naïveté or a grand design?

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Abstract (may include machine translation)

The European Union probably comes closest among a huge array of other legal-political systems to being a nearly ideal example of a cleavage between the ideals as proclaimed and the reality as practiced, and particularly so in the area of the rule of law – the key subject matter of this book. To start with, the EU is quite special in a number of crucial respects. This special character is in essence quite different from any particularities observed among states sensu stricto. Indeed, it goes to the core of the EU's self-image and the account of it in the eyes of others. While the majority of law faculties in Europe teach EU law as constitutional law nowadays, the constitutional nature of the Union, although assumed, is regularly questioned – something one does not observe in the case of the majority of states. Moreover, the actual account of the nature of this contested constitution differs sharply from system to system, as every constitutional system of each of the member states will have its own explanation of the EU and the role it plays, not necessarily submitting to the narrative of constitutionalism as retold from Brussels and Luxembourg. The differences of perspective in question are far from merely rhetorical, going to the essence of the crucial theoretical foundations instead. Reconciliatory strategies, even the most fashionable ones, like all what was written on ‘constitutional pluralism’ in the EU in the recent years, are equally contested – often for very good reasons. The same applies to the key particular elements of the law and principles of the EU. It is a democracy – yet not quite, as the objectives of integration are pre-set and uncontestable, turning it into a democracy of means, not the democracy of ends. It offers citizenship, but not quite: the majority of citizens’ rights do not depend on this legal status, but rather on other considerations, particularly personal history of the bearer and her personal wealth or an ability to earn. It has the aspiration for justice among its foundations – yet it is not infrequently prone to generate injustice instead. It is based on the rule of law, yet crucial elements of what the rule of law is essentially about are simply not part of the system.

Original languageEnglish
Title of host publicationConstitutionalism and the Rule of Law
Subtitle of host publicationBridging Idealism and Realism
PublisherCambridge University Press
Pages419-445
Number of pages27
ISBN (Electronic)9781316585221
ISBN (Print)9781107151857
DOIs
StatePublished - 1 Jan 2017
Externally publishedYes

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