Rule of law and the temptation of illiberalism: the case of eastern europe

• Pages: 347-364

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RULE OF LAW AND THE TEMPTATION OF ILLIBERALISM:

THE CASE OF EASTERN EUROPE

"ǜULEA



ARABELA BRICIU



CODRINA CSESZNEK



SUMMARY: 1. RULE OF LAW. DEFINITION AND CHARACTERISTICS. 2.

ILLIBERALISM, CONCEPT AND PARADIGM. 3. TENSIONS BETWEEN

THE RULE OF LAW AND ILLIBERALISM. 4. ILLIBERAL TRENDS IN EAS-

TERN EUROPE. 5. ILLIBERAL TRENDS IN ROMANIA. 6. CONCLUSIONS.

1. RULE OF LAW. DEFINITION AND CHARACTERISTICS.

The rule of law is one of the most important values of political modernity.

The functioning of democracy in the European Union is inconceivable without the

rule of law, which guarantees the uniform application of the law in the member

states and respect for human rights. It is only within the rule of law that citizens’

rights can be respected and institutions can operate impartially, respecting

only the law and not depending on arbitrary will. The European Commission

sees the rule of law as the common thread that binds together the states of the

European Union, states with different identities and traditions. According to the

ǜULEA / ARABELA BRICIU / CODRINA CSESZNEK

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European Commission, “the essence of the rule of law is the same in all member

states and can be defined on the basis of six principles: legality – which implies

a transparent, accountable, democratic and pluralistic law-making process; legal

certainty; the prohibition of arbitrary exercise of executive power; effective

judicial protection by independent and impartial courts, with effective judicial

review, including respect for fundamental rights; separation of powers; and

equality before the law”.1

Traditionally, the concept of the rule of law is linked to classical liberalism,

which considers that political power should be limited by the individual rights

of citizens. The values of the rule of law are the values of liberalism, “such as the

effective protection and realisation of human rights and governing in a way that

promotes a social coexistence in which the state acts for the individual and not

vice versa”.2

According to a minimalist definition, the rule of law refers to a state in which

the law reigns supreme and no one is above it. In English, ‘rule of law’ designates

the very name of the form of the state, which is signified in the same way by

the expressions in French, état de droit, and in German, Rechtsstaadt. The rule

of law is opposed to the rule of blind force or the whim of the person in power.

In a state governed by the rule of law, the law must be public, define precisely

what is prohibited, be impartial in its content and application, and must not be

applied retroactively. Respect for citizens’ rights is also a prerequisite for the rule

of law, but for laws to be effective, people are needed to enforce them. Laws do

not govern by themselves, political power governs through them. If people were

not driven by certain passions they would obey the laws by themselves, and then

we could say that the laws are the element that rules. Since this is not the case,

however, a sovereign power must be used to ensure – by force, if necessary – that

the laws are obeyed. Civil law intervenes as “a complex legal system which must

guarantee the binding nature of its own rules; it plays the role of disciplining

human actions”.3 Civil law enshrines “the fulfilment of agreements and the

giving to each his due”.4 Civil law is therefore a useful law because it regulates

relations between people. It is based on the concrete power of sovereignty, which

functions as the impersonal source of the legislative act.

1 European Commission, What is the Rule of Law, https://commission.europa.eu/

strategy-and-policy/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/what-

rule-law_ro

        

European Rule of Law”     

Illiberal Constitutionalism Poland and Hungary within the European Union, Routledge, NY, 2021, p. 5.

3 FOISNEAU, Luc,      , Kimé, Paris,

1997, p. 23.

4 HOBBES, Thomas, chap. XXI, Cambridge University Press, 1904, p. 140.