September 13, 2015

Network on SSRN: Dimitry Kochenov, "EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?"

We are pleased to welcome to the network Dimitry Kochenov (Groningen), who this year will be a fellow and visiting research scholar in the Law and Public Affairs Program at Princeton.  Dimitry has alerted us to a new piece he has posted on SSRN, entitled "EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?"  This article is forthcoming in the Yearbook of European Law and is also directly relevant to our ongoing discussions on the accession of the EU to the ECHR.  The abstract is below and the full paper can downloaded here.

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This is a critical analysis of the Rule of Law in the EU, concluding that the Union is not driven by the Rule of Law as an institutional ideal. Instead, the Union deploys the “Rule of Law”, viewed to a large extent through the lens of the autonomy of the EU legal order, to shield itself from potential internal and external contestation. This is precisely the contrary to what the classical understanding of the Rule of Law would imply. The Union thus suffers, it is argued, as a result of misrepresenting legality at the EU level, selling it to friendly observers under the label of the “Rule of Law”, while compelling reasons exist to distinguish the two. To do so, Gianluigi Palombella’s vision of the Rule of Law as an institutional ideal is employed, implying that the law – gubernaculum – should always be controlled by other law – jurisdictio – lying outwith the sovereign’s reach. Unable to boast any jurisdictio expressly intended as the legal aspect of positive law beyond the internal market logic programmed into the Treaties, the EU emerges as a somewhat rudimentary legal system, with no strong guarantees of legal non-domination extending beyond the Treaty text. The paper demonstrates the clear negative consequences of the prevalent deficient understanding of the Rule of Law for both constitutional levels: the EU and the Member States. One of the curious outcomes of the current reading of the Rule of Law in the EU is that this principle can be presented as demanding to trump the values of the Treaties as well as of the national constitutions in the name of upholding formal organisational considerations seemingly underpinning the EU legal system, resulting in anarchical confusion.

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