Mutual Trust: The Virtue of Reciprocity. Strengthening the Acceptance of the Rule of Law through Peer Review

To be published in C. Closa and D. Kochenov (eds.), Reinforcement of the Rule of Law Oversight in the European Union (Cambridge University Press), Forthcoming

Tilburg Law School Research Paper No. 14/2015

16 Pages Posted: 27 Aug 2015

See all articles by Ernst Hirsch Ballin

Ernst Hirsch Ballin

Tilburg Law School; T.M.C. Asser Instituut; University of Amsterdam

Date Written: August 2015

Abstract

All relations between persons require their reciprocal acceptance as legal subjects, which is only possible if they trust that the law will bind them together. One cannot have a democratic and legitimate EU if the Rule of Law is absent or fading. The Rule of Law is more than a rule or even a principle (which can be balanced against other principles). Article 2 TEU rightly calls it a founding value. National and international political credibility and social cohesion depend on the acceptance of this principle. The Rule of Law in the EU is however continuously challenged by tensions between the realisation of the values enshrined in Article 2, as well as the human rights norms and principles confirmed in Article 6, and ‘contemporary understandings of “law as a means to an end”’.

In view of its relationship with reciprocal respect among institutions and citizens for human dignity, the close relationship between the Rule of Law and human rights should also become a part of our understanding of the Rule of Law. In other words: what counts is not the rule of any ‘law’, irrespective of its content, but law in a democratic constitutional framework which contributes to the realisation of human rights. The Rule of Law is not only a condition for trust among citizens, but also for trust in economic life.

Strengthening and upholding the trust of the citizens requires much more than the enforcement of European law in the courts, and breaching their trust cannot wait to be cured until the conditions for application of Article 7 TEU are met. It is, as Article 2 TEU rightly says, a question of values: ‘the values of respect for human dignity, freedom, democracy, equality, the Rule of Law and respect for human rights, including the rights of persons belonging to minorities’. The question of how a public authority can promote its values – such as the Rule of Law – has been discussed in different contexts.

This paper discusses a number of initiatives and proposals that the EU has put forward for the promotion of the Rule of Law, including the ‘Justice Scoreboard’, a peer review procedure, a ‘pre-Article 7 procedure’ and the Council Conclusions on the Rule of Law of December 2014 proposing a ‘political dialogue’ on the matter. The Rule of Law initiative is meant to prevent situations of serious shortcomings or disregard for the foundational values of the EU by Member States, but is no alternative to political or legal sanctions. Once a political system has drifted away from the Rule of Law, it is too late to rely on dialogue between justice systems representatives. However, if we wish to prevent such situations and reverse negative developments, it remains worthwhile to strive for the enculturalisation of Rule of Law principles in the attitudes and practices of professionals and officials. Ultimately, these professionals and officials are those who can make a difference, for the citizens of their own state but also for other European citizens who – as a result of the mutual recognition of judicial decisions and arrest warrants, or when they avail themselves of the economic freedoms of the Union – have to rely on the Rule of Law in other Member States. Bringing a value to life is first a matter of developing attitudes and virtues. The Rule of Law depends on reciprocal respect and mutual trust, which could very well start with how we promote it.

Keywords: Rule of Law, Reciprocity, Peer Review, European Union

Suggested Citation

Hirsch Ballin, Ernst M.H., Mutual Trust: The Virtue of Reciprocity. Strengthening the Acceptance of the Rule of Law through Peer Review (August 2015). To be published in C. Closa and D. Kochenov (eds.), Reinforcement of the Rule of Law Oversight in the European Union (Cambridge University Press), Forthcoming, Tilburg Law School Research Paper No. 14/2015, Available at SSRN: https://ssrn.com/abstract=2649856

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HOME PAGE: http://www.uva.nl/profiel/h/i/e.m.h.hirschballin/e.m.h.hirschballin.html

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