Dialogical Rule of Law and the Breakdown of Dialogue in the EU

25 Pages Posted: 24 Jan 2018

See all articles by Dimitry Kochenov

Dimitry Kochenov

CEU Democracy Institute, Budapest; CEU Department of Legal Studies, Vienna

Matthijs van Wolferen

University of Groningen, Faculty of Law

Date Written: January 17, 2018

Abstract

Dialogue between different jurisdictional levels within complex constitutional systems is constantly on-going. Within the EU, this dialogue is an indispensable condition for the functioning of the Rule of Law, described as the tension between gubernaculum (the body of positive law) and jurisdictio (the principles of law beyond the sovereign’s reach). Unlike other constitutional systems where the dialogue between the legislature and the judiciary plays the crucial role, the interaction between national courts and the Court of Justice of the EU is the only way through which the EU can be precluded from becoming a self-defining, tyrannical, constitutional order. As national courts seek to protect their constitutional values, they supply an important source of jurisdictio. Although the EU system offers a wider understanding of dialogical frameworks, it is under threat of dissolution. Where the Court of Justice feigns to cherish this inter-judicial dialogue, in reality it relies on its own supremacy to construct the EU.

Keywords: Rule of Law, judicial dialogue, EU federalism, supremacy, constitutionalism

Suggested Citation

Kochenov, Dimitry and van Wolferen, Matthijs, Dialogical Rule of Law and the Breakdown of Dialogue in the EU (January 17, 2018). EUI Department of Law Research Paper No. 2018/01, University of Groningen Faculty of Law Research Paper 6/2018, Available at SSRN: https://ssrn.com/abstract=3104282

Dimitry Kochenov (Contact Author)

CEU Democracy Institute, Budapest ( email )

Nador utca 9
Budapest, H-1051
Hungary

CEU Department of Legal Studies, Vienna ( email )

Quellenstraße 51
Vienna, 1100
Austria

Matthijs Van Wolferen

University of Groningen, Faculty of Law ( email )

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

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