In this issue

DOIhttp://doi.org/10.1111/eulj.12352
Date01 November 2019
Published date01 November 2019
EDITORIAL
In this issue
Rights, their abuse and potential, justice, the rule of law and its depletion, and, finally, the use of metaphors to frame
judicial reasoning, are the topics that compose this issue.
We open with the function of law as a gatekeeper defining both who gets to belong to a political community
and the parameters of successful integration and, hence, of the good citizen. Liav Orgad guides us through the
dilemmas that lay behind the law and practice of naturalisation policies, including the various meanscitizenship
tests, integration courses, loyalty oaths, integration contractsthrough which they are put in place. He also highlights
the epistemological and ethical questions that motivation, knowledge and acceptance requirements raise. His core
argument is straightforward, and yet controversial: in the European Union such policies affect all Member States and
the Union; they should not be left wholly in the hands of each Member State. The dilemmas he discusses, so he
argues, could guide a normative EU framework that, via partial harmonisation of naturalisation policies, would
protect both the rights of non-citizens and the national interests of member states. A putative European law ruling
access to citizenship, in his view, could prevent mistreatment and abuse of power in the award of citizenship and, at
the same time, preserve the Member States' interests. It would prevent legal lacunae from being filled by courts in
ways potentially contrary to state interests. While one may doubt the willingness of the Member States to move in
this directionand, above all, their ability to agree on the content of such a law (a point that Orgad also debates)
the examples of rejection on which this article draws show the potential for mistreatment and, clearly, the vulnerabil-
ity of applicants before the decisions of naturalisation agents.
Vulnerability is at the core of Francesca Ippolito's analysis. She shows how this notion has progressively per-
vaded EU law via the Area of Freedom, Security and Justice (AFSJ) and examines the different dimensions that
vulnerability has acquired here. Vulnerability in EU law, she argues, is context-dependent. Its features vary across
the three virtual blocks(her words) of the AFSJ: criminal cooperation, civil cooperation, immigration and asylum.
Conceptually, however, it is possible to identify a common denominator. She shows that when EU law refers to par-
ticularly,most,especially vulnerableor to factors of vulnerability, it approaches vulnerability from the collective
perspective of groups exposed to given risks or harms, complemented nevertheless by elements of individualisation
and contextualisation that avoid negative stereotyping effects. At stake is much more than semantics. Vulnerability
postulates a duty of due diligence to protect the individual, and the lack of what the author calls circumstantial vul-
nerabilitycould negatively affect the state's duty to act appropriately. Ippolito argues, then, that this element could
be a vehicle to enhance the role of justice in the AFSJ, balancing the security paradigm that has prevailed hitherto.
Vulnerability can be a functional heuristic instrument, contributing to protecting the individual's basic capabilities
to exercise rights and correcting the application of norms. Hers is a plausible argument that carries the ambition of
an important normative change.
The importance of the meaning of concepts is equally present in the article by Melanie Smith. Adding to the rich
literature on the rule of law crisis, Smith shifts the perspective on the genesis of this crisis from Hungary and Poland
to the EU. Migration, austerity and far-right ideology are among the factors that, in most analyses, are pointed out as
causes for the developments that have unfolded in Hungary and Poland during this decade. Smith argues that this is
a superficial account, which misses the EU's own responsibility in the matter: it misses how the EU has debased the
rule of law as a power-constraining principle. She identifies three different meanings given to the rule of law in the
EU: a constitutional, power-limiting norm that is foundational in democratic systems; a functional policy tool of
integration; and a value that reflects a polity's identity, entails indeterminacy and contestation. The way the
DOI: 10.1111/eulj.12352
522 © 2019 John Wiley & Sons Ltd. Eur Law J. 2019;25:522523.wileyonlinelibrary.com/journal/eulj

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