Skip to main content

Advertisement

SpringerLink
Log in

Illiberal, Democratic and Non-Arbitrary?

Epicentre and Circumstances of a Rule of Law Crisis

  • Article
  • Published:
Hague Journal on the Rule of Law Aims and scope Submit manuscript

Abstract

In recent years, diverse threats across multiple countries to the Rule of law have been brought to the attention of the European Commission. Focus has mainly centred on the Article 7 TEU procedure. This paper argues that EU oversight should be considered as having regard to its internal premises and credibility; the question can be posed whether EU censorship is affected by a ever-encroaching weakness that currently characterises the present relationships between States and regional or supranational orders, whose authority is met at times with resistance. Zooming out from the daily threats to the Rule of law in so-called illiberal or populist governments, this paper scrutinises some usual theoretical tools and conceptual frameworks, namely the connection between arbitrariness and the Rule of law on one hand, and the Rule of law and the overall idea of public law on the other. It suggests that the present crisis is part of a seismic shift of the main components of the idea of public law that underpin the modern and contemporary state. After examining further case law and evidence of arbitrariness and non-arbitrariness that exceeds the features of the Rule of law, this paper challenges the conviction that a generic notion of arbitrariness can capture the problem of illiberal governmental actions, or justify the European Union attitude in responding to a ‘Rule of law crisis’.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. Communication from the Commission of 11 March 2014, A new EU Framework to strengthen the Rule of law, available at http://ec.europa.eu/justice/effective-justice/files/com_2014_158_en.pdf.

  2. For example, see as early as 2012, The 11th European Commission Report on progress in Romania under the Cooperation and Verification Mechanism—July 2012: European Commission, Report from the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism, Brussels, 18.7.2012, COM (2012) 410 final. See Carp (2014).

  3. Closa and Kochenov (2016).

  4. White Paper on the Future of Europe. Reflections and Scenarios for the EU27 bz 2025. European Commission COM(2017)2025 of 1 March 2017. https://ec.europa.eu/commission/sites/beta-political/files/white_paper_on_the_future_of_europe_en.pdf.

  5. In the Italian newspaper Corriere della sera: http://www.corriere.it/esteri/17_aprile_07/ungheria-agnes-heller-orban-legge-contro-ateneo-george-soros-universita-budapest-57de37b0-1b01-11e7-953e-ab8f663f73c7.shtml.

  6. See for ex. Ireneusz Pawel Karolewski and Roland Benedikter, ‘Poland is not Hungary’, in Foreign Affairs, September 21, 2016, available at https://www.foreignaffairs.com/articles/central-europe/2016-09-21/poland-not-hungary.

  7. More at length at this regard in Palombella (2016a, b).

  8. In relation to it a number of interventionist hypotheses have been studied be they invoking the Parliament, the Commission, the Council, the Fundamental Rights Agency and so forth: for a discussion see Closa 2016.

  9. Weiler 2016.

  10. Cf. Palombella (2016a, b).

  11. Habermas (2015, p. 554).

  12. Habermas (2015, p. 554).

  13. Habermas (2015, p. 554).

  14. For critical discussion on the forms of European legitimacy, Schmidt (2013) and Weiler (2012).

  15. Joerges (2007).

  16. Kilpatrick (2015, p. 325). The point of a new permanent emergency is made by Joerges (2016).

  17. In the interpretation of populism, there is a leftist view that connects it to the re-appropriation of the possibility of democracy, wasted in times of crisis and crisis of representation. The leading thinkers relevant here are Ernesto Laclau and Chantal Mouffe. For their more recent works see Laclau (2013), and Mouffe (2013). On the works of these authors, Martin 2013; and Howarth 2015.

  18. Damian Chalmers analyses some national constitutional responses to the pressure, intensified during the crisis, of EU law onto traditional spheres concerning sovereignty, citizenship, the relation between parliament and the executive: Chalmers (2016).

  19. Palombella (2010).

  20. Krygier (2016).

  21. Gábor Halmai, ‘The decline of liberal democracy in Europe's midst,’ in Eurozine, sept. 2016, available at http://www.eurozine.com/the-decline-of-liberal-democracy-in-europes-midst/.

  22. Halmai, supra n. 22.

  23. Habermas (1996, 1998).

  24. Krygier (2016).

  25. As he wrote: ‘whoever has the legislative or supreme power of any commonwealth, is bound to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws; and to employ the force of the community at home, only in the execution of such laws, or abroad to prevent or redress foreign injuries, and secure the community from inroads and invasion. And all this to be directed to no other end, but the peace, safety, and public good of the people’ (Locke 1946, para 131).

  26. Krygier (2016).

  27. Fuller (1969, ch. 2). It is noteworthy that Fuller calls his eight requirements, ‘principles of legality’ (not expressly principles of the Rule of law).

  28. Waldron (2011).

  29. I have explained my disagreement on the centrality of some procedural aspects in Palombella (2016a, b). See also West (2011, pp. 32–51).

  30. Krygier (2016).

  31. Bentham (1970, p. 192).

  32. Kant (1996), para 42 ff., pp. 86 ff.

  33. Loughlin (2010).

  34. Rousseau (1997, p. 81).

  35. Being founded on the consent of the People: see Loughlin (2010, pp. 10 ff).

  36. Taken alone might pave the way to the ‘ethics of the soil’, the ‘tyranny of values’, and related bitter experiences which they have generated in the past century.

  37. I have made these points in Palombella (2013).

  38. De Secondat Baron de Montesquieu (2012, p. 460).

  39. As Rawls noted, the Rule of law ‘is obviously closely related to liberty’. Rawls (1999, p. 207).

  40. Cassese (2010).

  41. De Felice (2005).

  42. The instrumental use of legality was emptying the very idea of the Rule of law, but in many ways Fascism could fare well under some formal indicators, and it was most times supported by a perceived non-arbitrariness. The perception of non-arbitrariness of course includes some factor of deception, but legitimacy obviously has nothing to do with truth.

  43. Reid (2004, p. 16). See also Palombella (2010).

  44. This is what I have called the domination problem in the absence of the Rule of law, adapting the concept from Pettit to a legal problem for which Pettit did not intend the notion: Palombella (2010). Furthermore, the general reference to Pettit (1997).

  45. Elaborating on the distinction by de Bracton, McIlwain (1940, p. 85).

  46. This illiberal movement can bring a self-defeating promise, against which the contemporary legal civilisation has constantly worked: the inner danger of authoritarianism, the exclusion of pluralism, the undermining of individual liberty, the privatization of the public and the imposition of a public authoritative idea of the good. It makes the law only the instrumental expression of power instead of (also) a preservation of liberty in the sense to which the Rule of law ideal was originally put.

  47. It is, for example, by using formal and fullerian requisites that Claire Killpatrick shows the non-compliance of the EU with the Rule of law. However, Kilpatrick endorses the distinction between managerialism (of the EU) and the potential of ‘new governance’, that would be capable of promising, in the EU, participation and the reflexive character that is cherished in its experimentalist paradigm (supra note 17).

  48. See Kingsbury and Krisch (2006). For a comprehensive and advanced understanding, Walker (2014). See also Cassese (2009).

  49. The external colonization of the life-worlds was discussed famously vis-à-vis the interventionist Welfare State (submitting core areas of social and personal life to economic or administrative logics) in the 1980s: Habermas (1981).

References

  • Bentham J (1970) Of laws in general. In: Burns JH, Hart HLA (eds) The collected works of Jeremy Bentham. The Athlone, London

    Google Scholar 

  • Carp R (2014) The struggle for the rule of law in Romania as an EU member state: the role of the cooperation and verification mechanism. Utrecht Law Rev 10(1). http://www.utrechtlawreview.org. URN:NBN:NL:UI:10-1-115809. Accessed June 2017

  • Cassese S (2009) Il diritto globale. Einaudi, Torino

    Google Scholar 

  • Cassese S (2010) Lo Stato fascista. Il Mulino, Bologna

    Google Scholar 

  • Chalmers D (2016) Crisis reconfiguration of the European constitutional state. In: Chalmers D, Jachtenfuchs M, Joerges C (eds) The end of eurocrats’ dream. Adjusting to European diversity. CUP, Cambridge, pp 266–298

    Google Scholar 

  • Closa C (2016) Reinforcing EU monitoring of the rule of law. Normative arguments, institutional proposals and the procedural limitations. In: Closa C, Kochenov D (eds) Reinforcing rule of law oversight in the European Union. CUP, Cambridge, pp 15–35

    Chapter  Google Scholar 

  • Closa C, Kochenov D (eds) (2016) Reinforcing rule of law oversight in the European Union. CUP, Cambridge

    Google Scholar 

  • De Felice R (2005) Le interpretazioni del fascismo. Laterza, Bari

    Google Scholar 

  • De Secondat Baron de Montesquieu Ch (2012) Pensée. In: Clark R (trans) My thoughts. Liberty Fund, Indianapolis. http://oll.libertyfund.org/titles/montesquieu-my-thoughts-mes-pensees-1720-2012. Accessed June 2017

  • Fuller LL (1969) The morality of law, rev edn. Yale University Press, New Haven

    Google Scholar 

  • Habermas J (1996) Between facts and norms. Contributions to a discourse theory of law and democracy, translated by William Rehg. MIT, Cambridge

    Google Scholar 

  • Habermas J (1998) Remarks on legitimation through human rights. Philos Soc Crit 24(2–3):157–171

    Article  Google Scholar 

  • Habermas J (2015) Democracy in Europe: why the development of the EU into a Transnational democracy is necessary and how it is possible. Eur Law J 21(4):546–557

    Article  Google Scholar 

  • Habermas J ([1981] 1986)) Law as medium and law as institution [trans Theorie des kommunicativen Handelns] bd. II, Frankfurt, Suhrkamp, pp 522–547. In: Teubner G (ed) Dilemmas of law in the welfare State (reprint 2011). de Gruyter, Berlin, pp 203–220

  • Howarth D (ed) (2015) Ernesto Laclau: post-Marxism, populism and critique. Routledge, London

    Google Scholar 

  • Hume D ([1751, 1777 ed] 1912) Enquiry concerning the principles of morals, Open Court Pub., Chicago, at https://archive.org/details/enquiryconcern00hume. Accessed June 2017

  • Joerges C (2007) How the rule of law might survive the new turn to governance. Working Paper no 9, RECON, 2

  • Joerges C (2016) Integration through law and the crisis of law in Europe’s emergency. In: Chalmers D, Jachtenfuchs M, Joerges C (eds) The end of eurocrats’ dream. Adjusting to European diversity. CUP, Cambridge, pp 299–338

    Google Scholar 

  • Kant I ([1797] 1996) Metaphysical first principles of the doctrine of right. In: Mary G (trans) The metaphysics of morals (repr. 2003). Cambridge University Press, Cambridge

  • Kilpatrick C (2015) On the rule of law and economic emergency: the degradation of basic legal values in Europe’s bailouts. Oxford J Legal Stud 35(2):325

    Article  Google Scholar 

  • Kingsbury B, Krisch N (2006) Introduction: global governance and global administrative law in the international legal order. Eur J Int’l L 17:13

    Google Scholar 

  • Krygier M (2016) The rule of law: pasts, presents, and two possible futures. Annu Rev Law Soc Sci 12:199–229

    Article  Google Scholar 

  • Laclau E (2013) The rhetorical foundations of society. Verso, London

    Google Scholar 

  • Locke J (1946) Two treatises on government. In: Gough JW (ed) Second treatise bk II. Of civil government, ch IX. Of the ends of political society and government. Basil Blackwell, Oxford

  • Loughlin M (2010) Foundations of public law. Oxford University Press, Oxford

    Book  Google Scholar 

  • Martin J (ed) (2013) Chantal Mouffe: hegemony, radical democracy, and the political. Routledge, London

    Google Scholar 

  • McIlwain CH (1940) Constitutionalism: ancient and modern. Cornell University Press, Ithaca, p 85

    Google Scholar 

  • Mouffe C (2013) Agonistics: thinking the world politically. Verso, London

    Google Scholar 

  • Palombella G (2010) The rule of law as an institutional ideal. In: Morlino L, Palombella G (eds) Rule of law and democracy. Brill, Leiden, pp 3–37

    Google Scholar 

  • Palombella G (2013) The (re)constitution of the public in a global arena. In: McAmlaigh C, Michelon C, Walker N (eds) After public Law?. OUP, Oxford, pp 286–310

    Chapter  Google Scholar 

  • Palombella G (2016a) Beyond legality—before democracy Rule of law caveats in the EU two-level system. In: Closa C, Kochenov D (eds) Reinforcing rule of law oversight in the European Union. CUP, Cambridge, pp 36–58

    Chapter  Google Scholar 

  • Palombella G (2016b) The rule of law at home and abroad. Hague J Rule Law 1:1–23

    Article  Google Scholar 

  • Pettit Ph (1997) Republicanism: a theory of freedom and government. Oxford University Press, Oxford

    Google Scholar 

  • Rawls J (1999) A theory of justice. Rev edn. Harvard University Press, Cambridge

    Google Scholar 

  • Reid Ph (2004) Rule of law. The Jurisprudence of liberty in the seventeenth and eighteenth century. North Illinois University Press, DeKalb

    Google Scholar 

  • Rousseau J-J (1997) The social contract and other later political writings, V, Gurevitch edn. Cambridge University Press, Cambridge

    Google Scholar 

  • Schmidt VA (2013) Democracy and legitimacy in the European Union revisited: input, output and ‘throughput’. Polit Stud 61(1):2–22

    Article  Google Scholar 

  • Waldron J (2011) The rule of law and the importance of procedure. In: Fleming JE (ed) Getting to the rule of law (Nomos 50). New York University Press, New York, pp 3–31

    Chapter  Google Scholar 

  • Walker N (2014) Intimations of global law. CUP, Cambridge

    Google Scholar 

  • Weiler JHH (2012) In the face of crisis: input legitimacy, output legitimacy and the political messianism of European integration. J Eur Integr 34(7):825–841

    Article  Google Scholar 

  • Weiler JHH (2016) Epilogue: living in a glass house: Europe, democracy and the rule of law. In: Closa C, Kochenov D (eds) Reinforcing rule of law oversight in the European Union. CUP, Cambridge, pp 313–326

    Chapter  Google Scholar 

  • West R (2011) The limits of process. In: Fleming (a cura di) JE (ed) Getting to the rule of law. New York University Press, New York, pp 32–51

    Chapter  Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Scuola Sant’Anna, Pisa, Italy

    Gianluigi Palombella

Authors
  1. Gianluigi Palombella
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Gianluigi Palombella.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Palombella, G. Illiberal, Democratic and Non-Arbitrary?. Hague J Rule Law 10, 5–19 (2018). https://doi.org/10.1007/s40803-017-0059-9

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s40803-017-0059-9

Keywords

Search

Navigation