Rule of Law - European Fundamental Value or Just a Pipe Dream?

The recent noticeable shift from liberal values in Europe has been not only thoroughly examined and deconstructed by constitutional theorists, but also said to amount to a breach of values of the European Union, expressed in the article 2 of the TEU, particularly the principle of the rule of law. Despite the fact that the Article 7 procedure has been launched against Poland in 2017 and Hungary in 2018, it could be argued that EU’s response to the alleged undermining of the rule of law has made little of an impact on the regressive constitutional practices in these countries. Before assessing the strength and purposefulness of the Article 7 mechanism, it is important to go one step back and explore what we exactly contend European values and principles to be, particularly the rule of law. In this paper, I will claim that the possible reason for the inadequacy of the responses to illiberalism could be traced back to the nature of the rule of law principle as an “essentially contested concept”. The insufficiency of the EU response to the constitutional backsliding in the mentioned Member States reveals the limits of the rule of law principle as a value entrenched within EU legal instruments, but also constitutional theory. I will then proceed to argue that, if taken into consideration the formal conceptions of the rule of law, it is much harder to point out its obvious and indisputable violations. On the other hand, even if we take for granted that there is a strong consensus on the acceptance of the substantive rule of law among Member States (which is already a difficult task), that would create problems in the process of harmonization of the rule of law standards within EU. The criteria for the assessment of the substantive rule of law in each Member State would significantly differ, as those would be likely to depend on the constitutional architecture of each country. The question at hand is – can the rule of law protection be an appropriate narrative under which the illiberalism is to be fought against? In order to fully comprehend the measures of undermining the rule of law in the light of today’s illiberal and populist tendencies, we need, as the leading ROL theorist Martin Krygier argued, “social science that does not quite exist yet” (Krygier, 2016, p. 222). In this paper I would try to explore what the possible directions are in which the research on the rule of law within the EU context could further go, as the question at hand has long time ago surpassed the boundaries of academic inquiry and became an obstacle to the preservation of the common European heritage.