The rule of law in Europe

The EU has been dealing with a slow-motion crisis in relation to democratic backsliding for over a decade in which arguments over the rule of law have been a central feature.  

But what are the contours of the role played by the rule of law in this area? And how does the rule of law relate to democracy—a value to which Art. 2 TEU also refers? Criticism of the Polish and Hungarian governments has not been restricted to matters of judicial independence but has also covered media pluralism, conservative approaches to gay and trans rights and rejection of multiculturalism and migration from outside the EU. Academic debates on the principle of rule of law are divided between protagonists of a more formal “rules-based” conception, according to which the principle covers the idea of government power being exercised via an identifiable and predicable set of rules that (allegedly) are independently interpreted and a more substantive constitutional conception requiring adherence to the rule of law as requiring adherence to a broader set of political values such as non-discrimination and protection of fundamental rights. Invariably at issue in these debates is the question of how the rule of law can be both simultaneously—a constraint on politics and a constraint on courts serving as the rule of law’s exponents and guardians in a modern, morally diverse democracy.  

Within the EU context, due to the central role played by judges and courts in the integration process judicial independence has been a vital element of the Union’s legal order and the Court of Justice has issued a number of rulings that seek to counter undermining of the independence of judges in Hungary and Poland. On the other hand, the Commission has also taken action in relation to attacks on gay and trans rights, media pluralism and the status of civil society institutions. The Polish and Hungarian governments, for their part, have regularly characterised criticism of their policies on judicial independence and on media freedom as being motivated by disagreement with their social conservative and migration-sceptical world views. Does the EU—does the CJEU—have authority to substitute “modern” values of social liberalism—when it comes to, say, gender, sexuality, multiculturalism, religious diversity, refugees—for “traditional” values which reluctant Member States may embrace as part of their proclaimed national identities?  

This conference aims to advance understanding of the role of the rule of law within the broader set of challenges faced by the European Union in relation to democratic backsliding. It will focus on the following questions:  

• Can the rule of law crisis in the EU be discussed separately from the broader issue of democratic backsliding?  

• Ought efforts to uphold the rule of law distinguish between the question of judicial independence and wider notions of the rule of law? What is the importance of the nature of the EU legal order and the role of judges within it in this regard?  

• To what extent does a morally and institutionally diverse European Union—whose multiple demoi are often themselves morally divided—need “ideological homogeneity”? Does the EU—does EU law—have an “identity”? Are these terms very useful at all? (How) can the EU accommodate migration-sceptic or socially-conservative member states? To what degree would defence of a narrower view of the rule of law be compromised by an approach that seeks to require adherence to a wider definition of the rule of law as a requirement of EU membership?  

• What are the respective roles of and limits of the roles of judicial and political bodies in the protection of the rule of law—and what is the role of civil society?