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Declaratory Rule of Law: Self-Constitution Through Unenforceable Promises

Jiří Přibáň (ed.) Self-Constitution of European Society (Routledge, 2016), pp. 159-179

21 Pages Posted: 15 Sep 2015 Last revised: 14 Mar 2016

Dimitry Kochenov

University of Groningen - Faculty of Law

Date Written: September 10, 2015

Abstract

There is a triple difference between the law and values of European integration: scope; substance; and enforceability. In the light of this triad it is particularly clear that Europe’s structural constitutional vulnerability stretches far beyond the Rule of Law enforcement issues per se: the other two aspects outlined are as important at least. The EU is thus facing, it is argued, a structural deficiency in the Rule of Law field, which concerns both the supranational and the national legal orders to an equal degree. Worse still, enforcement becomes particularly difficult if it is about the values, i.e. not-quite-acquis and if it happens in the face of an ideological choice taken by a Member State not to comply. The latter, which is not a hypothetical invention, but a day-to-day reality in the Union, exacerbates the trio of law/values differences outlined. Arguments taking the plasticity of the law as a starting point could theoretically help to solve the puzzle. All in all, however, it is the time for the EU to be simultaneously extremely creative and extremely cautious in order to prevail in dealing with the outstanding problems related to the numerous deficiencies in the Rule of Law filed – at the heart of the legal system.

Keywords: Rule of Law, EU law, values, article 2 TEU, Hungary, enforcement

Suggested Citation

Kochenov, Dimitry, Declaratory Rule of Law: Self-Constitution Through Unenforceable Promises (September 10, 2015). Jiří Přibáň (ed.) Self-Constitution of European Society (Routledge, 2016), pp. 159-179. Available at SSRN: https://ssrn.com/abstract=2658512

Dimitry Kochenov (Contact Author)

University of Groningen - Faculty of Law ( email )

Oude Kijk in 't Jatstraat 26
Groningen, 9712 EK
Netherlands

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