#IAmPetra; Prologue: The paradoxes of the rule of law in EU context—with special emphasis on the Polish RRP and EAW sagas; In this issue

• Published date: 01 January 2021
• Author: Karine Caunes
• Date: 01 January 2021
• DOI: http://doi.org/10.1111/eulj.12438

EDITORIAL

#IAmPetra; Prologue: The paradoxes of the rule of

law in EU context—with special emphasis on the

Polish RRP and EAW sagas; In this issue

Karine Caunes

*

1|#IAmPetra

As a result of the ELJ receiving a significant number of contributions tackling rule-of-law issues, the decision was

taken to publish them together in a special issue in order to provide a fuller picture of current challenges from differ-

ent perspectives, foster further debate and research, and identify possible solutions to some of those challenges.

The hope is that the combination of conceptual depth and topicality make the articles both stimulating and lasting

contributions to the field.

Due to the war in Ukraine and its expected impact on the debate on the rule of law within the EU, two of the

authors in the special issue, Petra Bárd and Dimitry Kochenov, both affiliated to Central European University—an

academic institution which has been the target of severe attacks to the point that it partially relocated from

Budapest to Vienna—kindly agreed to also write a billet.Billets are a new ELJ feature, where authors are given a carte

blanche to write an opinion piece to reflect upon contemporary issues. They are submitted to the same peer-review

system as any other article, thus ensuring academic excellence.

As the editorial was going intothe final stage of production, it appeared that this billet,entitled‘Waras a pretext

to wave the rule of law goodbye? The case for an EU constitutional awakening’,

1

had been used as a pretext for a

Hungarian outlet to attack one of its co-authors—who happensto be Hungarian—Professor Petra Bárd. This has trig-

gered a slew of hatefulcomments online, with an additional misogynist flavour, death threats, as well asthe knock-on

effect of self-censorship among researchers. This is an unfortunate illustration that rule-of-law backsliding knows no

boundaries and here touches upon freedom of expression and academic independence in the framework of the

European research and higher education area. It also reveals that rule-of-law backsliding ought to be understood and

tackled in context.Rules and their violation have directand concrete impacts on citizens' lives.Rule-of-law backsliding

has a systemicand generalised impact on societyand the way we conceive it,as well as on democracy and fundamental

rights. It is indeed time for a constitutional awakening as called for by Petra and Dimitry to define who we are as

Europeans and the meaningof European integration. It is time for scholarsto stand united in solidarity with those who

bravely speakup to uphold our common values as enshrined in Article 2 ofthe Treaty on European Union (TEU).

So today, on behalf of the ELJ, #IAmPetra.

*Editor-in-Chief, European Law Journal. Thank you very much to Ruairi O'Neill, ELJ's new Editorial Assistant, for assisting with proofreading this special

issue. It is always a great source of joy to collaborate with smart and passionate promising academics.

1

P. Bárd and D. Kochenov, ‘War as a Pretext to Wave the Rule of Law Goodbye? The Case for an EU Constitutional Awakening’, 27(1–3) European Law

Journal,https://doi.org/10.1111/eulj.12435.

DOI: 10.1111/eulj.12438

2© 2022 John Wiley & Sons, Ltd. Eur Law J. 2021;27:2–38.wileyonlinelibrary.com/journal/eulj

2|THE PARADOXES OF THE RULE OF LAW IN EU CONTEXT—WITH

SPECIAL EMPHASIS ON THE POLISH RRP AND EAW SAGAS

Your reason and your passion are the rudder and the sails of your seafaring soul.

If either your sails or your rudder be broken, you can but toss and drift, or else be held at a standstill

in mid-seas.

For reason, ruling alone, is a force confining and passion, unattended, is a flame that burns to its own

destruction.

Kahlil Gibran, The Prophet,‘On Reason and Passion’

This could be a metaphor for the relationship between law and power. Law, ruling alone, is a force confining and

power, unattended, is a flame that burns to its own destruction. The rule of law thus constitutes an anchoring nexus

or connecting bond between law and power. It is both channelling and ordering their interrelations. It represents the

legal mantle of power in a democratic society. As such, the rule of law is shaped out of several paradoxes. To define

these paradoxes and their concrete embodiment in EU law might be a key to better understand, assess and solve

some crucial contemporary challenges the EU is facing, and reflect upon the meaning of ‘European integration

through the rule of law’.

2

In an ever more polarised world and an EU often described as being in a state of constant poly-Krisis,

3

the figure

of the paradox seems to be an appropriate methodological tool. It allows for meaning to emerge from the interrela-

tions between what seems to be contradictory terms which nonetheless form a unitas multiplex.

4

As William Stern

explained in the field of psychology: ‘While “explanation”is concerned with the lawfulness of relationships,

“understanding”is concerned with their meaningfulness.’

5

A paradox embodies that which seems unexplainable due

to a difficulty in ascribing meaning to it. It pushes us to go beyond explanation to restore meaningfulness. Making

sense of paradoxes thus requires one to take a deep-dive into context

6

conceived as a world of significations.

7

We

will thus go on a post-critical or reconstructive journey exploring the rule of law in the EU context, uncoveringsome

of its paradoxes and suggesting ways to transcend them to reach meaningful solutions to concrete issues. In this

regard, we will particularly focus on the Polish Recovery and Resilience Plan (RRP) and the European Arrest Warrant

(EAW) sagas.

2.1 |Paradox no. 1: Through thick and thin

As famouslydefined by Martin Krygier, the rule of lawis about tempering power. This definition, widely used acrossthe

special issue,

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crystallises the terms of the first and main paradox at the heart of the rule of law, the relationship

between law and power,the antithesis rule of law versus nakedpower of men resolved through men's commitment to

respect the law based on the assumption in a democracy that the law has been elaborated by them, with an equal

2

K. Lenaerts, ‘New Horizons for the Rule of Law Within the EU’, (2020) German Law Journal, 29.

3

In the EU context, Krisis ambiguously hangs between its original meaning of ‘decision [referring to] a decisive moment, in the evolution of an uncertain

process, which allows for a diagnosis’and its contemporary meaning of ‘indecision [referring to] a moment in which uncertainties arise alongside a

disturbance’roughly signifying that ‘something is going wrong’—Translated from French, E. Morin, Pour une crisologie, (1976) 25 Communications, 149.

4

That is, unity in diversity through the creation of meaning. This is paraphrasing and somewhat adapting W. Stern's concept of unitas multiplex, which refers

to unity in diversity through purposiveness. See W. Stern, Person und Sache. System des kritischen Personalismus: Bd. 2: Die menschliche Personlichkeit (Barth,

1923); see also, W. Stern, General Psychology—From the Personalistic Standpoint (Macmillan, 1938), 12 et seq.

5

Stern, General psychology, above, n. 4, 17.

6

See also H. Arendt, The Origins of Totalitarianism (Penguin Classics, 1951), viii: ‘Comprehension, in short, means the unpremeditated, attentive facing up to

and resisting of reality—whatever it may be.’

7

See C. Castoriadis, The Imaginary Institution of Society (Polity Press, 1997).

8

See R. Spano, ‘The Rule of Law as the Lodestar of the European Convention on Human Rights: The Strasbourg Court and the Independence of the

Judiciary’, 27(1–3) European Law Journal,https://doi.org/10.1111/eulj.12377; M. Bernatt, ‘The Double Helix of Rule of Law and EU Competition Law: An

Appraisal’, 27(1–3) European Law Journal,https://doi.org/10.1111/eulj.12422; D.V. Kochenov and G. Butler, ‘Independence of the Court of Justice of the

European Union: Unchecked Member States Power after the Sharpston Affair’, 27(1–3) European Law Journal,https://doi.org/10.1111/eulj.12434.

EDITORIAL 3

chance to participate in its formation,according to rules they agreed upon. It thusboils down to the foundational pact:

the originalagreement which then translates into a wholesystem ensuring that thelaw is observed. The rule of lawulti-

mately relieson an ever-renewed pact passedon through generations likea magic spell. How to ensure thatthis magic

spell survivesthrough thick and thin so that democracyitself endures, and vice versa, is thekey question that has been

addressedby legal and political philosophersand practitionersalike, conscious that the strengthof law, its grasp on power,

is also its weakness,for law is just a tool, whichcan be used for good or bad and whichultimately can break.

On the one hand, some have argued in favour of a “thick”definition of legal systems and thus of the rule of law,

resting on fundamental values such as those enshrined in Article 2 TEU, which ought to run through the veins of the

entire legal system. But the Chinese tale of its superiority in efficiently tackling COVID-19, the Russian “Lebensraum

war”waged in Ukraine or the rise of oxymoronically self-proclaimed illiberal “democracies”at the heart of the

European Union remind us that the perversion of democracy through dis- and mis-information, i.e. propaganda, relies

on the substantive perversion of concepts and narratives. It twists our representation of reality, including through

law, for again law is just a tool.

On the other hand, others have conceived of law as a hierarchical system interlocking power-conferring norms

together with norms regulating human behaviour in a complex pyramid relying on a Grundnorm embodying the origi-

nal magic spell.

9

The legal system so conceived, with its inherent rule of law, is often described as “thin”in opposition

to the so-called “thick”conception. It is in reality anything but thin, either substantively or axiologically. Such a

dynamic approach is on the contrary based on an acknowledgement of the inherent pluralism of what we call “real-

ity”—or the perception of it—and of values and their interpretation. In this context, the separation of law from moral-

ity becomes a categorical imperative in order to prevent the transformation of law into an instrument of a totalitarian

machine. Nonetheless, such a conceptualisation, no matter how sophisticated, cannot fight against its own implosion

if it were to fall into the hands of aspiring autocrats, for again law is just a tool.

Overcoming the impasse over where both thin and thick conceptions of the rule of law lead is precisely what

Krygier does; not by changing what the law is, but by acknowledging it: law is a mere tool and the rule of law is about

tempering power. It is a barometer of the healthiness of our democratic societies. To be aware of a danger is the first

step and the best way to fight against it. In the present case, it consists of imposing onto the infiniteness of power

the finitude of law. This is likely the reason why Krygier's definition of the rule of law has been widely adopted, from

legal practitioners such as the President of the European Court of Human Rights (ECtHR), Robert Spano, in his article

in this issue,

10

setting the fundamentals of the ECtHR's legal conceptualisation and operationalisation of the rule of

law which has paved the way to judgments in cases such as Xero Flor,

11

Grzeda

12

or Zurek,

13

to academics and “rule-

of-law fighters”such as Petra Bárd or Maciej Bernatt in their articles, also in this issue.

14

What does this tell us about the rule of law in the contemporary context of European integration? If, as affirmed

by the President of the European Court of Justice, Koen Lenaerts, ‘“integration through the rule of law”defines

what the European Union stands for’, rule-of-law backsliding could as well lead to its disintegration.

15

As demon-

strated by Aidan O'Neill QC—who played the part of a ‘Euro-lawyer’

16

in cases such as Miller I

17

and Cherry/Miller

9

See A. Merkl, Il duplice volto del diritto (Giuffrè, 1987); ‘Prolegomena einer Theorie des rechtlichen Stufenbaues’, in A. Verdross, Gesellschaft, Staat und

Recht. Untersuchungen zur Reinen Rechtslehre (Springer, 1993); H. Kelsen, Pure Theory of Law (University of California Press, 1967). For a discussion

combining Adolf Merkl's, Fritz Sander's and Hans Kelsen's theories, see K. Caunes, Le principe de primauté du droit de l'Union européenne—Contribution à

l'étude de la nature juridique de l'Union européenne et des rapports de système européens (Cadmus EUI Research Repository, open access), 95 et seq. For an

attempt to solve the Grundnorm dilemma through recourse to Kant's theory of knowledge, see ibid., 296 et seq.

10

Spano, above, n. 8.

11

ECtHR, Xero Flor w Polsce sp. z o.o. v. Poland, application no. 4907/18, 17 May 2021.

12

ECtHR, Grzęda v. Poland [GC], application no. 43572/18, 15 March 2022.

13

ECtHR, _

Zurek v. Poland, application no. 39650/18, 16 June 2022. See, in this regard, A. Bodnar, ‘A real milestone—Waldemar _

Zurek v. Poland judgment of

the European Court of Human Rights should be regarded a real milestone in relations with European institutions’,I will never give up—A. Bodnar's blog,

23 July 2022, https://adbodnar.substack.com/p/a-real-milestone.

14

P. Bárd, ‘In Courts We Trust, or Should We? Judicial Independence as the Preconditionfor the Effectiveness of EU Law’, 27(1–3) European Law Journal,

https://doi.org/10.1111/eulj.12425; Bernatt, above, n. 8.

15

Lenaerts, above, n. 2, at 29.

16

T. Pavone, The Ghostwriters: Lawyers and the Politics behind the Judicial Construction of Europe (Cambridge University Press, 2022).

17

R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5.

4EDITORIAL