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Ways to Frame the European Rule of Law: Rechtsgemeinschaft, Trust, Revolution, and Kantian Peace

Published online by Cambridge University Press:  23 November 2018

Armin von Bogdandy
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Abstract

Conceptualising the European rule of law-value – A critique of the concept of European legal community – A conceptualisation of trust for a fresh understanding of the rule of law-value – Trust research in the social sciences – The trustworthiness of the European rule of law in light of calls for breaking up the current order

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Articles
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European Constitutional Law Review , Volume 14 , Issue 4 , December 2018 , pp. 675 - 699
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© 2018 The Authors 

From Sunday talks to debating chambers

The European community of law, once standard fare during self-congratulatory and rather sleepy Sunday talks, has become a truly critical topic. Its core, the European rule of law, is deeply controversial when it comes to hugely important, indeed transformative policies, be it the European Central Bank’s Quantitative Easing programme, Germany’s voluntary acceptance of asylum seekers or the Polish reconstruction of its judiciary. To meet such momentous challenges, more is needed than ‘interpretation’ of the words rule of law in Article 2 TEU. It takes conceptual work.

This contribution explores two different, but interconnected ways to conceptualise the European rule of law-value as enshrined in Article 2 TEU. It starts by showing the need for fresh thinking through a critique of the concept of European legal community, and in particular its German version, the Rechtsgemeinschaft. This concept, which initially was a stroke of genius, has dated in light of the transformations of Europe. Reflecting on these transformations is, however, also relevant for the English-speaking world. There, the continuity of the rule of law terminology obfuscates a hugely important decision. The framers of the Treaties, when laying down the Treaty on European Union in 1992, decided to commit not to communauté, but to État de droit (Rechtsstaatlichkeit, stato di diritto). Why?

Perhaps, to prepare for the mutual trust required by the union that was set in motion by the Maastricht Treaty. Anyway, trust has become crucial to both contemporary European public opinion as well the case law of the Court of Justice of the European Union. Both address the current crises of the rule of law as crises of trust. Accordingly, a conceptualisation of trust might contribute to a fresh understanding of the rule of law-value in Article 2 TEU. To this end, the article presents pertinent insights from scholarship on trust to sketch basic elements of the European rule of law. The trustworthiness of the European rule of law is then assessed in light of calls for breaking up the current order, calls for revolutionary steps towards a better future. Reviewing such proposals frames the European rule of law as a unique and unlikely achievement, as an instance of Kantian peace.

The dated community of law

Initially an ingenious concept

Conceptual work represents a core task of legal scholarship. It is not an academic pastime, but of deep social relevance: ‘it is not the hangman, but the professor who forms the basis of the modern social order’.Footnote 1 Legal concepts make it possible to systematically arrange legal phenomena, which is crucial for a modern society to operate well. They create a context of meaning, generate insight, and provide orientation. They also inform jurists’ relationships to the wider world. Some legal concepts even diffuse into broader discourses. They shape public opinions, identities, and, not least, crises: it is not incidents that shake the world, but words about incidents.Footnote 2 The European community of law is one of these, and particularly so its German version, die Rechtsgemeinschaft.Footnote 3

The European community of law is a concept as far-reaching as it is successful. It originates in the early 1960s. As Antoine Vauchez shows in his seminal study L’Union par le droit, the communauté de droit is a pathbreaking conceptual innovation of immense social and political consequence.Footnote 4 Its creation responded to an early crisis of integration which a group of spirited European jurists sought to overcome by introducing doctrinal innovations that turned the largely amorphous law of the three founding treatiesFootnote 5 into an instrument of integration, which the treaty makers had hardly envisaged.

The European community of law combines inventions such as the unity of community law; its sui generis nature; its direct and overriding effect; the role of the Commission and the European Court of Justice as guardians of the treaties; the development of market freedoms, fundamental rights and EU secondary law into a uniquely powerful transnational legal regime which indeed transformed Europe.Footnote 6 Conventional wisdom tells: ‘L’Europe n’est nulle part plus réelle que dans le domaine du droit’.Footnote 7

What’s special about the Rechtsgemeinschaft?

If that celebratory understanding is shared throughout Europe, the German concept of a Rechtsgemeinschaft gained a particularly foundational role in the German speaking discourse that is hardly encountered elsewhere.Footnote 8 One reason for that might be the specific German proclivity for coining and trusting legal concepts. The Court of Justice, in its seminal Les Verts decision, speaks, in English, of a community based on the rule of law, seven words, in French of a communauté de droit, three words, and in German of a Rechtsgemeinschaft, one word.Footnote 9 Such composed words easily take on a life of their own. What also contributed to the word’s success was that it was Walter Hallstein who coined the concept,Footnote 10 with assistance from the young Claus-Dieter Ehlermann. Hallstein, an influential German politician, was at the time the first president of the EEC Commission, with a clear sense of a historic mission.Footnote 11 Being also an accomplished German law professor, he knew about the social power of legal concepts.

Hallstein’s famous term Rechtsgemeinschaft elaborates on the common ground of communauté de droit. He presents the European Economic Community as a creation of law, a source of law, and a materialisation of the idea of law; he later replaces the latter point with legal order.Footnote 12 This might appear bland today, but it was not so back then. Indeed, as one of the editors of the European Constitutional Law Review recalls, for most other Europeans, European integration was greatly about containing Germany. Therefore, Hallstein’s concept fended off the accusation that Paris and Rome were, for Germany, another Versailles and therefore deeply illegitimate.Footnote 13

Hallstein’s concept proved very successful. Ever since, the Rechtsgemeinschaft, more than any other concept, articulates the common ground of German scholarship on European law. Lectures on European law often begin with the axiom that Europe is a Rechtsgemeinschaft, and then appraise Union law in this light. Rechtsgemeinschaft in that respect, continues to be ahead even of the similarly fundamental concept of Verbund.Footnote 14 It is not by chance that Michael Stolleis, a leading legal intellectual, mounted his defence of Europe in the daily Frankfurter Allgemeine Zeitung under the title ‘Our Rechtsgemeinschaft’.Footnote 15

Given this centrality, any crisis of the Rechtsgemeinschaft easily appears more dangerous, even more existential to Germans than to other Europeans. At this point, an important insight lies in understanding that this specific German perception of crisis depends on how the German concept of the legal community is construed. In Europe today, the rule of law-crisis has therefore a specific ring and dimension in Germany.

The German concept facilitates transplants from the domestic, German plane to the European one. Indeed, the German Federal Constitutional Court uses the concept, and not only with reference to the European legal space, but also in a purely national context.Footnote 16 This adds to a tendency in Germany to understand, using the concept Rechtsgemeinschaft, the required normativity of Union law, i.e. its effectiveness and autonomy from the politics of the other branches of power, similar to that of the German Basic Law.Footnote 17 This understanding has led to major disappointments, especially in the financial and sovereign debt crisis, and has thus deepened the perception of crisis.Footnote 18 Nonchalant statements such as by the former French Minister of Finance, Christine Lagarde, on the illegality of EU rescue measuresFootnote 19 have a particularly important echo.Footnote 20

Of course, the idea of constitutionalising primary law is not a purely German idea, but an interpretive scheme found across Europe,Footnote 21 and the limitation of national debt is unanimously adopted treaty law. Nonetheless, different understandings exist of how treaty law can be interpreted flexibly in times of crisis and of what role the courts play in this regard.Footnote 22 The concept of Rechtsgemeinschaft all too easily generalises expectations from the German to the European setting without due reflection of the fact that the European context is different from the German one.

By international comparisons, the normativity of the German Basic Law is fairly unique, thanks to the extraordinary authority of the German Federal Constitutional Court, which, however, can hardly be replicated in other contexts.Footnote 23 Constitutional courts that followed the German Federal Constitutional Court in this respect, for example in Hungary or Spain, have often encountered deep crises.Footnote 24 This suggests that an understanding guided by German constitutional practice generates expectations of Union law that are probably too high and too prone to cause disappointment, thus contributing to the crisis. Legal thought that breeds disappointments undermines the law itself. Moreover, such expectations are easily misunderstood by European partners as veiled egoism, which makes it more difficult to master crisis situations jointly. This understanding lures politics onto the path of increasing juridification, where the crisis tends to be further exacerbated.Footnote 25 More conflicts are unable to be solved through juridification than the German perspective might assume.Footnote 26

Also, the Gemeinschaft, the ‘community’, has a specific and deep meaning in German. Whereas the word communauté/comunità in Romance languages suggested itself because of its theoretical innocence, in Germany it is part of the theoretically strong dichotomy between Gesellschaft – Gemeinschaft (society – community), which is foundational for German sociological thought.Footnote 27 Indeed, bonds within a Gemeinschaft warrant more trust than those within a mere Gesellschaft. This arouses expectations that have little equivalent in other traditions.Footnote 28

Now, it may be assumed that the term integration through law, coined at the European University Institute in the late 1970s, Europeanised the Rechtsgemeinschaft under a different name.Footnote 29 However, this is not the case. Indeed, the Florentine team developed the concept integration through law without referring to either Hallstein’s creation or many of the earlier debates on the communauté. Moreover, the term integration through law mostly thematises the phenomenon of how the European Court of Justice can promote integration through ‘activist’ case law concerning individual rights.Footnote 30 Hallstein hardly mentioned such judicial activism. Integration through law is a different, narrower project. However, it is dated for many of the same reasons as the German Rechtsgemeinschaft or the communauté de droit, as I will now show.

Why the concept became dated

Hallstein’s inspired term, as well as the general concept of the communauté de droit, has become dated, as it does not provide appropriate orientation in our times. One shortcoming results from its focus on the EEC, i.e., a supranational organisation; the Member States, in this regard, are largely ignored.Footnote 31 This understanding prevails to this day, meaning that Rechtsgemeinschaft falls short as a concept that is able to capture important current problem areas, such as the rule of law crises in Greece, Poland, and Hungary.Footnote 32 Of course, it is essential for the legal community that Member States’ implementation of supranational law is overseen by supranational institutions, in particular through the infringement or preliminary ruling proceedings. However, this changes nothing regarding the supranational focusFootnote 33 and the problematic narrowness of the concept, which is evident today. Systemic problems, for example in the judiciaries of some Member States, require far greater attention for Europe to succeed.

This missing national dimension can be easily appended to the concept, but the coercive turn of the Union and its politicisation presents a more structural problem. A very distinct feature of the European edifice is its intuitively plausible sui generis nature, highlighting its position somewhere between statehood and an international organisation. Herein lies the genius of legal community: on the one hand, due to the authority of EEC law in Member States, the EEC is indeed a community of law, in contrast to most, if not all other transnational regimes,Footnote 34 where the normativity of the law is far lower. On the other, the EEC, now the EU, is unlike a state as it is not a community of coercion, but only a community of law.Footnote 35

This is not a purely ivory-tower idea by any means, but is of the highest constitutional relevance as it lessens the need for legitimation. The concept is an ingenious one, as it mobilises the legitimation resources of the idea of law without, however, creating the need for legitimation arising from possible coercion. Who would want to oppose a community that shapes social coexistence in Europe through common, legally defined institutions and that does not resort to harsh, one-sided coercion, to brute force, but at most to declaratory judgments of a court?

The Union of today, however, can no longer be defined in this way. Since the early 1990s, there has been an expansion of instruments of sanction going beyond declaratory rulings of the European Court of Justice.Footnote 36 Above all, the reactions in EU law to the financial and debt crisis have resulted in tough coercive instruments against Member States.Footnote 37

Moreover, the EU can exercise massive political coercion today: just recall how the European Central Bank forced Greece to back down through a ‘near death experience’. Perhaps the Union has already made the step towards a transfer union whose core is not legislative acts of a free legal community, but instead legally obscure instruments of international law (memoranda of understanding, compliance reports, macroeconomic imbalance procedures, etc.) whose coercive effect is due to a straitjacket woven from the economic logic of a monetary union.

These coercive instruments contributed, with their distributive effects, to a massive politicisation of the Union, also going beyond the scope of the received concept of the legal community. Franz Mayer explains Hallstein’s Rechtsgemeinschaft in the tradition of David Mitrany, the creator of technocratic functionalism.Footnote 38 This functionalism had wide appeal across Europe.Footnote 39 Hans Peter Ipsen further elaborated on this aspect in the early 1970s with the concept of the Zweckverband funktionaler Integration (special purpose association for functional integration), an idea later presented and popularised by Giandomenico Majone.Footnote 40 It is true that Hallstein’s Rechtsgemeinschaft is more political than Ipsen’s Zweckverband and therefore obviously less outdated. Indeed, even the original thinking of the legal community is by no means anti-political in the sense of anti-parliamentarian: Hallstein argued in favour of strengthening the European Parliament. Indeed, the European Court of Justice has used his concept to this effect.Footnote 41 But Hallstein sees the political character above all in the authoritative guidance of societal and especially economic processes.Footnote 42 Hallstein’s EEC is political because it regulates by means of policies (today Article 26 ff TFEU), not, however, because it is a disputed object or forum of public debate. In other words: the community of law was set up for regulatory politics, not for politics that deal with crises that might tear apart the body politic.Footnote 43 But that is how the Union is mostly seen by its citizens today.

Today’s conflict-laden politicisation of European law clearly lies beyond the original rather technocratic idea of the European community of law.Footnote 44 Questions of how to shape EU law are often at the centre of public discourse. They can even decide elections in Member States, and thus affect key interests of the political elites. By now they are producing a genuine cleavage in the European party system that, so far, has not strengthened the European political system.Footnote 45 To the contrary, many see it weakened.Footnote 46

Today, one crucial question is whether EU law will succeed in managing this conflict-laden politicisation, even turning it into something constructive. The idea of the legal community suggests countering politicisation with ever more juridification. Since the expediency of precisely this legalistic approach lies at the heart of the debate, however,Footnote 47 the received concept of a legal community appears hardly suitable for generating a common horizon of understanding with respect to successful politicisation. It might provide a partisan concept for a legalistic, expertocratic handling of the crisis, which would profoundly change its existing function of providing common ground.

To conclude this section, the community of law distinguishes itself through the normative pull of its law, which unifies Europe and its citizens.Footnote 48 But today there is no doubt that EU law is also driving people apart. It is sufficient to recall the provisions for budgetary policy, the question of migration and refugees, or the exit of the United Kingdom, repudiating the European Court of Justice’s case law. This tectonic shift must be reflected upon conceptually. The received concept of the EU as a community of law suggests that, in principle, every legislative act of the Union, every judgment of the Court should be celebrated as a civilising and progressive step. This no longer convinces anyone today.

What remains and where to go

If the received concept of a European community of law no longer conveys an adequate understanding of the entire European edifice, it continues to be useful in one crucial aspect. Since 1986, the European Court of Justice has been using the concept of the Community based on the rule of law (today the union based on the rule of law) to expand its powers to review all instances in which the Union exercises its authority.Footnote 49 This comprehensive judicial review is indeed an important feature of the EU, rightly considered as deeply civilising.Footnote 50

For this reason, I propose not doing away with, but recalibrating the concept along the lines of the principle of comprehensive judicial review, as does the CJEU, and to articulate this as a ‘Union based on the rule of law’: as an expression of what is at the heart of Article 19 TEU, Article 47 CFR, and Articles 6 and 13 ECHR. However, as a concept that stands for the entirety of the Union, and Union law, it should be historicised. This does not belittle the community of law, but rather assigns it new relevance for understanding the path of Europe.

What then? For Hallstein, as for many of his cohort, there was no doubt: the European community of law was to lead to a European federal state. As we know today, there was little appetite among the framers of the Treaties to cross that bridge. At the same time, they travelled a long way in that direction. First, the framers have given the Union competences of almost state-like breadth. Second, they decided to pin it to the fundamental principle of the État de droit (Rechtsstaatlichkeit, stato di diritto), leaving aside the sui generis communauté de droit. Third, they committed the exercise of any public authority in the European legal space to this principle. Fourth, they conceived of the principle as a value, turning the Union from one of (only) law to a more demanding one, one also of values.Footnote 51 These tectonic shifts in the positive law suggest a qualitative change that requires fresh understanding. And public opinion shows a way in which to build it.

Trust and the European rule of law

Trust as a reference point

Public opinion often addresses the current crises of Europe as a crisis of trust.Footnote 52 Legal scholarship has taken this up: in 2013 Iris Canor published her seminal essay ‘An ever closer distrust among the peoples of Europe’.Footnote 53 Shortly thereafter the European Court of Jusitce postulated, at a fundamental point in a plenary and landmark decision, a principle of mutual trust of a scope never seen before: all Member States must trust that all Member States will observe Union law, and in particular its fundamental rights.Footnote 54 The principle also appears in other important decisions: it seems to be becoming a key concept of the Court of Justice under the presidency of Koen Lenaerts.Footnote 55 It is an expression of judicial wisdom all the same to add a caveat of great importance: ‘except in exceptional circumstances’.

Apparently, the want of trust in Europe leads the European Court of Justice to treat it like a fundamental principle. It seems indeed bold to postulate trust as a principle of Union law in times like these, even with such a caveat. Trust in Europe has been subjected to a severe test. ‘Exceptional circumstances’ are to be observed in important policy fields, and the impression is widespread that they amount to a crisis of the European rule of law. Yet they are very different phenomena: the European Central Bank’s Outright Monetary Transactions and Public Sector Purchase Programmes,Footnote 56 systematic non-application of European refugee law,Footnote 57 national caveats on the basis of ordre public in cases of cooperation required under Union law,Footnote 58 widespread corruption in some Member States,Footnote 59 the actions taken by the Polish government against that country’s constitutional courtFootnote 60 and the non-implementation of judgments of the European Court of Justice,Footnote 61 but also, according to an editorial in the Common Market Law Review, recent rulings of the German Federal Constitutional Court on European issues.Footnote 62 Some perceptions are almost contradictory: a crisis of the rule of law might be seen in the fact that the European Central Bank supports ultra vires economically weaker Member States, but also in the violation of the European promise of full employment, social progress, social justice, and social protection (Article 3, paragraph 3 TEU). It is a promise and a challenge that the perspective of trust reduces these disparate phenomena to a common denominator which is examined in the following.

Trust: potential and risks of an interpretive scheme

Academic work mostly addresses the above-mentioned challenges with the concept of legitimacy.Footnote 63 What follows in this paper does not question the usefulness of this approach. Rather, it aims to supplement it with a new angle. Indeed, trust and legitimacy originate, as theoretical closely connected concepts, in Max Weber’s groundwork of modern sociology that addresses the malaise of the German empire of his time.Footnote 64 Together they might reinforce each other to address the malaise of contemporary Europe.

Does trust bear up as a policy perspective, an analytical framework, and also as a legal principle, and, if so, what are the implications? Trust is first a non-legal phenomenon, which suggests an interdisciplinary approach involving reviewing pertinent research in the social sciences and the humanities.

One practical insight to start with: trust research teaches us that self-perception and the perception of others differ structurally: people usually consider themselves more trustworthy than they appear to others.Footnote 65 So, when the above-mentioned editorial in the Common Market Law Review mentions the German Federal Constitutional Court’s rulings on the rescue of the euro, in a widespread German view the stopgap of last resort safeguarding the rule of law, in the same breath as the dismantling of the Polish Constitutional Court by the Polish government,Footnote 66 it is possible to respond indignantly, or instead to see it as an occasion for reflecting on one’s own standpoint. Research on trust suggests that such assessments by others should be taken seriously.

Trust research offers European law many more insights. First of all, it confirms that the perspective of trust is meaningful. Since Weber, many reputed scholars have considered trust essential for successful societies.Footnote 67 The quality of social interaction is closely connected to the level of trust between partners; some relationships are hardly possible without trust. This is true of all relationships. Whereas trust was long considered a phenomenon limited to face-to-face relationships between individuals, today it is also related to institutions, such as the European Court of Justice and the German Federal Constitutional Court, and even to systems, for example the EU, the Greek government system, and French air traffic control. Today, trust is considered a meaningful category for analysing the relationship between institutions and systems, not only between humans face-to-face.Footnote 68 Accordingly, the perspective of trust appears broad enough for developing an understanding of the diverse dimensions of European rule of law.

At the same time, it is necessary to understand that addressing a relationship with the perspective of trust entails a choice, a choice with immense implications. ‘After all’, writes Ute Frevert, ‘the concept has the effect of a drug: it clouds the senses and creates addiction. (...) Indeed, the “thing in itself” can only be vaguely grasped, is difficult to measure, hardly possible to ascertain. It is as volatile as the air, which we (...) also perceive only when it is scarce or polluted. For this reason, speaking about trust always also means invoking its scarcity’‘Footnote 69 There is no robust method for determining from which point a lack of trust starts threatening the viability of a political system.Footnote 70

One thing is certain, however: when a relationship or an institution is described using the term trust, then this has serious consequences: as a rule, it intensifies the perception of a crisis. Again: it is not incidents that shake the world, but words about those incidents.Footnote 71 Talking about trust, even if it is intended to be only analytical, has far-reaching cognitive, normative, and performative implications. Crises of trust can easily cause people to go off the rails.

This becomes even more clear when the alternatives are considered. The above-mentioned phenomena of (purported as well as actual) illegality could just as well be thematised using the traditional perspective of EU law: the effectiveness of Union law.Footnote 72 Yet, pitted against the dramatising effect of the ‘crisis in trust’ perspective, the traditional, technical approach of effectiveness has lost out. Any attempt to return to this approach is likely to be confronted with the accusation of placation, even as a refusal to acknowledge reality.

Once the perspective of trust is chosen, it should be handled consistently. This has concrete implications for statements about the crisis of the European rule of law. It is inconsistent to diagnose a crisis in trust, but to expect the relevant legal instruments to overcome it, as do some legal analyses of the Commission’s ‘rule of law framework’.Footnote 73 Once trust has been eroded, it can be regained only slowly, and carefully. As pointed out by Paul Lazarsfeld and Elihu Katz: in politics, the process of building trust must remain inconspicuous if it is to avoid serious setbacks; it must rely on potent opinion leaders who have acquired an image of truthfulness, fairness and trustworthiness.Footnote 74 A crisis in trust cannot be ‘resolved’ by legal instruments, it can only be hedged and gradually allowed to subside over time. Instead of demanding a ‘solution’ to a crisis of trust, legal instruments should be evaluated according to whether they help avoid an escalation of distrust and enable continued cooperation which implicitly nurtures trust.

The crisis of the European rule of law mostly concerns institutions and systems. Crises of trust in institutions and systems appear significantly more dangerous than crises of trust in interpersonal relationships. People have their own ‘radar’ when it comes to trusting other persons. By contrast, in the case of institutions and systems they have to rely strongly on the assessments of others, in particular the mass media and opinion leaders.Footnote 75 So, once public trust in institutions or systems has eroded to a crucial point, a downward spiral can hardly be stopped. Trust in institutions and systems often appears to be stable, and is taken for granted, but is especially vulnerable if called into question collectively. ‘Once the basis of trust comes under question, there is little to stop doubt from spreading catastrophically’.Footnote 76 Thus, it is unlikely that the population of a country will trust European institutions or those of other Member States if the domestic media and opinion leaders present them as untrustworthy over an extended period of time. Deep distrust is to be expected, which can easily bring about a sudden institutional implosion. The British debate on exiting the EU is a vivid example.

For a long time, the nation state was considered the decisive framework of societal trust.Footnote 77 Only recently have relationships of trust between statesFootnote 78 and between citizens of different nationsFootnote 79 become a broader topic. In this respect, it is important to stress that not every form of cooperative behaviour is an expression of trust. Research differentiates between confidence and trust.Footnote 80 Following this differentiation, trust isonly necessary if something of significant value is at stake: life, well-being, self-understanding, or substantial material resources. This explains the vehemence often characteristic of discourses about violated trust.Footnote 81 In this sense, trust is to be distinguished from legitimate expectations and loyal collaboration, which have been concepts of European law for a long time.

This distinction identifies the threshold that the European Union has crossed in recent years due to the choices made with the Maastricht Treaty. Before Maastricht, the European edifice could operate with a permissive consensus, which is certainly something far less than a trusting relationship. Today, however, measures taken in the field of criminal law or for rescuing the Monetary Union affect financial interests, societal self-understandings, and core concerns of constitutional law in a qualitatively new way when a permissive consensus is not sufficient.Footnote 82 So, research on trust better explains why the semantics of trust have become so strong in Europe: mutual vulnerability has increased, and people doubt whether the prerequisites for accepting this vulnerability are being fulfilled.Footnote 83 The debate about the effectiveness of Community law revolved around its proper transposition into domestic law;Footnote 84 today, the problems of the crisis have a completely different magnitude.

This reveals the gamble taken in the relevant decisions of the European Court of Justice. Requiring Member States to trust each other requires accepting mutual vulnerability in a situation of distrust.Footnote 85 According to trust research, this makes sense: accepting mutual vulnerability can potentially instil trust. But at the same time, the destructive potential is just as powerful. The Court of Justice is taking a dangerous path. It would not surprising if domestic courts were to develop safeguards precisely to protect their essential interests.Footnote 86

Summing up: the change from concern about the effectiveness of Union law to mutual trust among institutions highlights the latest European transformation. Once the perspective of trust is established in a social system, it evolves considerably and its principles must be aligned. This holds particularly true for the rule of law, given the perception of its deep crisis.

The perspective of trust and the rule of law

Trust research helps understand the concept of European rule of law as laid down in Article 2 TEU.Footnote 87 The starting point is the anthropological insight that the members of a society must organise their relationships and plan their behaviour. This also holds true for the European society referred to in Article 2 TEU. Both trust and law are to be understood against this background: trust normatively adjusts a person’s behaviour to the future behaviour of others. Much like the law, it stabilises normative expectations.Footnote 88 A century ago, Georg Simmel described trust as ‘the prediction of future behaviour which is strong enough to allow for practical action’.Footnote 89

The insight that trust and law serve the same function leads to the question of what their relationship is. Research has advanced in this respect: older approaches tended to regard trust and law as alternative mechanisms for stabilising expectations. This is consistent with an older understanding of law strictly linked to the possibility of coercion.Footnote 90 It corresponds to an understanding of law that demands subjects’ obedience, but which does not solicit citizens’ trust. By contrast, today, especially in democratic and complex societies, law and trust are considered complementary: trust and law are interrelated and they support each other.Footnote 91 This is especially true in the European legal space, where institutions are not integrated within the strictly hierarchical system of a federal state. Along these lines, it is theoretically robust to construe the European rule of law with theories of trust, and to address the crisis of the European rule of law as one of distrust against and between public institutions.Footnote 92

Of course, there are and have always been instances in which the Union and Member States have accepted illegal behaviour.Footnote 93 It is also true that this leniency has contributed to integration because it avoids dangerous confrontations. Yet, this does not undermine the approach developed here. Broadly, the enforcement of any norm is subject to general rules of prudence, and its application should not damage the system.Footnote 94 Concretely, the current debate in Europe shows, impressively, that Union law has indeed succeeded in creating such expectations and trust.

Accordingly, trust within Europe and the European rule of law are closely related. It makes sense to invent new legal mechanisms to support trust in the European rule of law.Footnote 95 This is particularly true when such policies strongly impact fundamental rights or imply major financial transfers. But the principle of trust is also of decisive importance to the European legal space beyond such policies. The principle supports and justifies legal presumptions that make all legal operations much easier. It legitimises decision-making in the EU, given the central role of domestic governments. It confirms Europe’s self-understanding as a union of liberal democracies.

Moreover, this trust-based understanding of the European rule of law links up nicely with all rule of law traditions. This is a most relevant feature because the État de droit, κράτος δικαίου, Rechtsstaatlichkeit, rule of law, stato di diritto, etc., by no means represent a concept that is identical throughout the European legal space.Footnote 96 One need only consider the rich diversity in the European legal space when it comes to the judicial review of legislation.Footnote 97 Article 4, paragraph 2, TEU, which obliges the EU to respect the national identities of the Member States, strongly discourages a rigid and detailed EU concept of the rule of law for all legal orders.

This explains why it is so important that the perspective of trust identifies a common feature of all understandings: the requirement that the law actually rules.Footnote 98 The English terminology is particularly vivid: the rule of law requires that law rules. The rule of law, whatever else it may mean, requires that the law be obeyed, that it is applied and enforced by public institutions, that disputes are decided by independent and impartial courts. Officials must exercise public authority according to the constitution and laws, and the executive branch and the courts must make it their aim to ensure that private individuals also obey the law. Formulated from the perspective of individuals: the European rule of law corresponds to the right of all individuals throughout the European legal space to actually live under EU law.Footnote 99

Not every violation of Union law disturbs its function in stabilising expectations, thus imperilling trust in the legal order. Rather, the legal handling of breaches normally supports trust in the legal order because it confirms normative expectations. A crisis of the rule of law requires phenomena of illegality that call this cycle into question. Trust in the legal order is undermined only when violations become the normal state of affairs or have a high degree of symbolic value, when they are generalised or systemic.

A crisis of the rule of law looms, for example, if a significant number of actors in important social fields stop relying on public institutions to confirm their normative expectations of legality. Once this threshold has been breached, a legal system no longer exercises its core function properly and breeds distrust. Whereas in the case of an isolated breach of the law, the normative expectation, although dented, continues to exist and remains relevant for future behaviour, trust in the law itself is lost if this threshold is crossed.Footnote 100 Individuals and institutions confronted with such a deficit of the rule of law modify rather than maintain their expectations.Footnote 101 Although they are certainly disappointed and probably outraged, they stop regarding obeying the law as normal: this constitutes the archetype of a crisis of the rule of law.

Some observers see such developments in the European legal space to such an extent that they suggest a hard break. This is fair enough. Trust in public institutions should be conceived of as both demanding and conditional.Footnote 102 This differentiates it from faith, which is unconditional, and confidence, which is cognitive. If trust is demanding and conditional, this implies critique and oversight as well as a search for alternatives. Indeed, these alternatives help frame the European rule of law.

Trust versus a European revolution

Analysing the current Union in terms of trust is unsettling, as it fortifies the impression of a deep crisis with no evident solution. Such an analysis might therefore appear to lend support to those who think that European integration has gone too far, that its current setting is no longer trustworthy. Accordingly, the established path of European rule of lawFootnote 103 is confronted today with powerful calls for discontinuance, even for a hard break-up.Footnote 104 Brexit is the most important realisation of that call, and is indeed addressed as such, as a revolution or a counterrevolution. But there are other important calls for breaking up the current order and calls for revolutionary steps to a better future.Footnote 105 Against such proposals, the European rule of law can be framed and substantiated as a unique and unlikely historical achievement, as an instance of Kantian peace.

The alternative of a rupture presents itself in three very different variants. In terms of ideal types, it is possible to distinguish nationalist retreat, nation state-centred multilateralism, and the revolutionary establishment of a European republic. These variants will now be examined for their trustworthiness with a view to the rule of law in a situation of intense regional interdependency.

The first variant is found in the new nationalism, which opposes membership in the European Union, as well as other multilateral institutions of deep transnational cooperation. The most important example is the new US bilateralism.Footnote 106 It is a crass manifestation of the age-old paradigm of particularism articulated paradigmatically by Carl Schmitt in his The Concept of the Political.Footnote 107 This variant is not based on mutual trust, but on distrust. Law beyond the nation has an instrumental function at best. It is certainly not able to generate a true order, i.e. a rule of law, or law-based trust in a transnational space. A stabilisation of expectations might occur through hegemonic structures,Footnote 108 but certainly not via transnational courts. What to think of this for Europe today? The history of French, German and Soviet attempts at hegemony do not really hint at this variant as being particularly trustworthy.

The second variant sees multilateralism, open statehood, and transnational cooperation in a positive light, but doubts that key premises of public order such as democracy, solidarity and, specifically, trust can be reproduced at the transnational level.Footnote 109 Therefore, neither a European rule of law nor trusting relationships are likely to emerge. Accordingly, it would be the order of the day to bring the Union back to a condition prior to mutual vulnerability. The strategy of the globalist British seems to be to replace it with other global governance institutions. Australia and Canada emerge as exemplary cases.

Also, in this respect it should be remembered that international law, due to its usually weak institutionalisation, is severely limited when it comes to generating trust through law. Whatever it potentially yields is at best an embryonic form of the rule of law, far from what can be found today in the current European legal space, all its problems notwithstanding. An international rule of law to which important interests can be entrusted remains to a large extent a figure of the imagination of scholars of international law.Footnote 110 For this reason, returning from supranational to international law hardly advances rule-of-law postulates, as the European answers to the financial and sovereign debt crises vividly illustrate. The normativity of law in other international institutions confirms this structural weakness of international law, as the institutional practice in the United Nations compared with that of the European Union shows.Footnote 111 Moreover, if the Union regresses to the state before mutual vulnerability, it is highly questionable whether such a process will respect and advance the rule of law. Dismantling joint policies, in particular monetary policy, is more likely to unleash dynamics like those of an empire bursting apart. In short, it appears highly probable that this variant also implies a major loss of the rule of law in Europe.

The third variant is a federal European state or republic in which EU institutions have instruments of power and legitimation similar to those of states.Footnote 112 Among all the problems that this variant entails, only one will be mentioned. Art. 48 TEU requires treaty changes to be unanimous. It is, however, highly unlikely that such a leap would be ratified by all countries.Footnote 113 Accordingly, such a step is most likely to involve a substantial breach of the law as well as massive conflicts. The existing European rule of law would probably collapse, a new polity would have to tread anew the arduous path of creating trust.

Trustworthiness for Kantian peace

Each variant of rupture would come with dire implications for the European rule of law. Is the crisis in the European legal space so serious that a rupture could nevertheless be recommended? Much speaks against this.

All available indicators show that the European legal space is the global region with the most vigorous rule of law.Footnote 114 It is the only transnational space close to Kantian peaceFootnote 115 and effective legal protection. There continues to be considerable trust in and between public institutions.Footnote 116 The problems mentioned do not contradict this basic assessment. The European legal space, founded on the rule of law and an idea of unity, appears distinctly more promising for generating trust than the alternative of disruption, in whatever variant. Trust theory confirms the importance of law, of comprehensive judicial review (union based on the rule of law), and urges patience in dealing with challenges of systemic or generalised deficiencies. But what does it suggest with respect to politicisation?

For Max Weber, the path was clear: fully fledged parliamentary democracy;Footnote 117 indeed, the project of Article 10 TEU. This was intended to bring trust as well as legitimacy to the German state. However, the Weimar Republic, notwithstanding its fine constitution, was seen as neither trustworthy nor legitimate by many of its citizens. Hermann Heller then added, at the height of the Weimar crisis, an additional criterion. To survive, political institutions, to be legitimate to the broad majority of citizens, must be trustworthy in providing a path to improve one’s lot.Footnote 118 This seems not too far from where conventional wisdom stands in Europe today.Footnote 119 The failed Constitutional Treaty got it right then when it spoke, somewhat melodramatically, of ‘a special area of human hope’.

Does the Union merit this trust? In an enlightened world, trust should be a question of judgment and comparison, particularly when public institutions are concerned. So far, the European institutions have kept serious breaches of the law within limits.Footnote 120 ‘Red lines’ have started to emerge.Footnote 121 Europe, as it stands, even provides a shining example of inclusive policy making at the transnational level. The alternative, in whichever variant, seems far less trustworthy.

This overall assessment, countering an armada of critics, was formulated succinctly by Lithuanian dramatist Marius Ivaškevičius. His completely unbureaucratic defence of the purportedly bureaucratic dream identifies the largest of Europe’s many problems as ‘the unending prattle of the critics about Europe’s problems and its unavoidable death’. He counters with: ‘you have heaped up a whole mountain of these problems, which is crushing Europe and blocking all the good that you have obtained from it. But I must disappoint you: this mountain exists only in your surly minds. Try to look through my lens. The view through it is distorted too. It is too positive and reveals unfounded enthusiasm. But if you look at Europe through it, then your eyes will relax at least a bit, for there is incomparably more light there, more colour, and more will to live’.Footnote 122

Footnotes

*

Director at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and Professor of Public Law at the University in Frankfurt/Main. Many thanks to the editors of EuConst for inspiring critique as well as to the Dienstagsrunde, in particular Kanad Bagchi, Laura Hering, Giacomo Rugge and Dimitri Spieker. Translated by Sandra H. Lustig and edited by Matthew G. Harris. An earlier German version has been published as ‘Jenseits der Rechtsgemeinschaft – Begriffsarbeit in der europäischen Sinn- und Rechtsstaatlichkeitskrise’, 52 Europarecht (2017) p. 487.

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81 Michel, T., ‘Time to get emotional: phronetic reflections on the concept of trust in international relations’, 19 EJIR (2013) p. 869, 870Google Scholar; Frevert, supra n. 69, p. 8.

82 Schorkopf, F., ‘Wertesicherung in der Europäischen Union. Prävention, Quarantäne und Aufsicht als Bausteine eines Rechts der Verfassungskrise?’, 51 Europarecht (2016) p. 147 at p. 156CrossRefGoogle Scholar.

83 This does not rule out working on less critical policy fields from the perspective of trust as well, cf, for example Hartmann, M., Europäisierung und Verbundvertrauen. Die Verwaltungspraxis des Emissionshandelssystems der Europäischen Union (Mohr Siebeck 2015) p. 14 ffGoogle Scholar.

84 Cf, for example, Snyder, supra n. 33.

85 On this point Baier, A., ‘Trust and Antitrust’, 96 Ethics (1986) p. 231CrossRefGoogle Scholar at p. 234; taken from Schwarz, M., ‘Let’s talk about trust, baby! Theorizing trust and mutual recognition in the EU’s area of freedom, security and justice’, 24 European Law Journal (2018) p. 124 at p. 133CrossRefGoogle Scholar.

86 Cf, for example, Bundesverfassungsgericht 15 December 2015, Case 2 BvR 2735/14, ECLI:DE:BVerfG:2015:rs20151215.2bvr273514. Tellingly, its test is called identity control (Identitätskontrolle), which conveys an idea of how essential the interests that this test is meant to protect are.

87 This section is based on von Bogdandy and Ioannidis, supra n. 59.

88 Romano, Seminal S., ‘Diritto (funzione del)’ Law (fragments of), in S. Romano (ed.), Frammenti di un dizionario giuridico Fragments of a Legal Dictionary (Giuffré 1953) p. 76 at p. 81Google Scholar; Luhmann, N., Das Recht der Gesellschaft (Suhrkamp 1993) p. 150–153Google Scholar.

89 Simmel, G., Untersuchungen über die Formen der Vergesellschaftung (Suhrkamp 1992 (1st edn., Duncker & Humblot 1908)) p. 389, 393 ffGoogle Scholar.

90 Hart, H.L.A., The Concept of Law, 2nd edn. (Oxford University Press 1994) p. 20 ffGoogle Scholar; Kelsen, H., Reine Rechtslehre, 2nd edn. (Verlag Franz Deuticke 1960) p. 34Google Scholar.

91 Volkmann, U., ‘Was ist Recht?’, 64 Jahrbuch des öffentlichen Rechts der Gegenwart (2016) p. 281Google Scholar; Frevert, supra n. 69, p. 28 ff.

92 Cf, for example, M. Ruffert, ‘All we need is Trust: Conditions are not a Means of Punishment’, Verfassungsblog, 10 March 2017, <www.verfassungsblog.de/all-we-need-is-trust-conditions-are-not-a-means-of-punishment/>, visited 23 October 2018; the coercive character of Union law is indisputable today (see above), but it is not of the quality of state law.

93 Making this point against the trust approach, see Schorkopf, supra n. 82, p. 162.

94 In Latin: Fiat iustitia et pereat mundus; on this see Liebs, D., ‘Das Rechtssprichwort Fiat iustitia et pereat mundus’, 70 Juristenzeitung (2015) p. 138CrossRefGoogle Scholar.

95 For an overview, see von Bogdandy, A. et al., ‘A potential constitutional moment for the European rule of law. The importance of red lines’, 55 CMLR (2018) p. 963Google Scholar at p. 965; Ioannidis, supra n. 37.

96 Cf, for example, Grewe, C. and Ruiz Fabri, H., Droits constitutionnels européens (Presses Univ. de France 1995) p. 22 ffGoogle Scholar; Heuschling, L., Etat de droit – Rechtsstaat – Rule of Law (Dalloz 2002)Google Scholar; Díaz García, E., Estado de derecho y sociedad democrática (Editorial Cuadernos para el Diálogo 1966)Google Scholar; Bingham, T., The Rule of Law (Allen Lane 2010) p. 8Google Scholar.

97 For a more detailed discussion, see A. von Bogdandy, C. Grabenwarter and P.M. Huber, ‘Verfassungsgerichtsbarkeit im europäischen Rechtsraum’, in von Bogdandy, Grabenwarter and Huber, supra n. 23, margin number 30 ff.

98 This will be identified as a narrow or thin concept of the rule of law. Many European institutions are pushing for a more substantive or thicker one, the value of which is not to be discussed here. For an example, see the Commission’s EU framework to strengthen the rule of law (supra n. 73) p. 4, and Annex I.

99 For an extensive discussion, see A.M. Russo, ‘La cittadinanza “sostanziale” dell’UE alla luce della proposta del gruppo di Heidelberg: verso una “reverse Solange”?’, Federalismi, 8 January 2014, p. 7 ff, <www.federalismi.it/ApplOpenFilePDF.cfm?artid=23938&dpath=document&dfile=07012014133121.pdf>, visited 23 October 2018.

100 See, further, von Bogdandy and Ioannidis, supra n. 59.

101 Luhmann, N., Ausdifferenzierung des Rechts (Suhrkamp 1981) p. 115 ffGoogle Scholar.

102 Frevert, supra n. 69, p. 24 at p. 44; see also Lenaerts, supra n. 55.

103 For five alternatives along and within this path see the relevant European Commission white paper: COM(2017) 2025 final, White paper on the future of Europe. Reflections and scenarios for the EU27 by 2025 (2017).

104 A succinct compilation of relevant reasons in D. Chalmers, M. Jachtenfuchs and C. Joerges, ‘The retransformation of Europe’, in Chalmers, Jachtenfuchs and Joerges, supra n. 26, p. 1 ff.

105 On this debate S. Kadelbach, ‘Krise, Umbruch und neue Ordnung’, in Kadelbach and Günther, supra n. 36, p. 9 ff.

106 Nye, J.S. Jr., ‘Will the Liberal Order Survive? The History of an Idea’, 96 Foreign Affairs (2017) p. 10Google Scholar; Rudolf, P., ‘US-Außenpolitik unter Präsident Trump’, SWP-Aktuell (March 2017)Google Scholar; Wright, T., The 2016 presidential campaign and the crisis of US foreign policy (Lowy Institute Analyses 2016)Google Scholar.

107 In more detail, A. von Bogdandy, ‘Pondering Schmitt’s Concept of the Political for International Public Authority: Also a Reflection on Methods, Standards and Disciplinary Settings for Public Law Theory’, MPIL Research Paper Series (2016), <papers.ssrn.com/sol3/papers.cfm?abstract_id=2864287>, visited 23 October 2018.

108 Hegemony is making a surprising comeback, even beyond nationalist positions; see the seminal piece by Schönberger, C., ‘Hegemon wider Willen: Zur Stellung Deutschlands in der Europäischen Union’, 66 Merkur (2012) p. 1Google Scholar; Bolaffi, A., Cuore tedesco. Il modello Germania, l’Italia e la crisi europea The German Heart. Germany as a Model, Italy and the European Crisis (Donzelli 2013)Google Scholar.

109 Influential Streeck, W., Gekaufte Zeit. Die vertagte Krise des demokratischen Kapitalismus (Suhrkamp 2015) p. 292 ffGoogle Scholar.

110 Palombella, G., ‘The rule of law beyond the state: failures, promises, and theory’, 7 International Journal of Constitutional Law (2009) p. 442CrossRefGoogle Scholar. For a comparison, see von Bogdandy, A., ‘Common principles for a plurality of orders: a study on public authority in the European legal area’, 12 International Journal of Constitutional Law (2014) p. 980 at p. 999CrossRefGoogle Scholar.

111 Schmalenbach, K., ‘International Organizations or Institutions, Legal Remedies against Acts of Organs’, in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (Oxford University Press 2012)Google Scholar margin number 25; Ruffert, M. and Walter, C., Institutionalisiertes Völkerrecht (C.H. Beck 2009) p. 75Google Scholar.

112 Cf especially Guérot, U., Warum Europa eine Republik werden muss! Eine politische Utopie (Piper 2016) p. 81 ffGoogle Scholar; Verhofstadt, G., Europe’s Last Chance (Basic Books 2017) p. 229 ffGoogle Scholar; in the same vein, now the president of the German Social Democrats Martin Schulz, cf ‘Schulz will Vereinigte Staaten von Europa bis 2025’, Welt, 7 December 2017, <www.welt.de/politik/deutschland/article171358179/Schulz-will-Vereinigte-Staaten-von-Europa-bis-2025.html>, visited 23 October 2018.

113 On this risk in detail, see Goulard, S. and Monti, M., La democrazia in Europa: guardare lontano Democracy in Europe: To See Further (Rizzoli 2012) p. 189 ffGoogle Scholar.

114 Cf, for example, World Bank data, <info.worldbank.org/governance/wgi/pdf/rl.pdf>, visited 23 October 2018, and the data compiled and presented by the World Justice Programme, <data.worldjusticeproject.org>, visited 23 October 2018.

115 In the seminal words of Robert Schuman, where war is ‘not merely unthinkable, but materially impossible’, Schuman Declaration, 9 May 1950; the original text is Kant, Immanuel, Zum ewigen Frieden (Königsberg, 1796)Google Scholar; on this text, see Vischer, B., ‘Systematicity to excess. Kant’s Conception of the International Legal Order’, in S. Kadelbach, T. Kleinlein and D. Roth-Isigkeit (eds.), System, Order, and International Law (Oxford University Press 2017) p. 303 ffGoogle Scholar.

116 Cf Eurobarometer, Public Opinion in the European Union, Standard Eurobarometer 84, Autumn 2015, <ec.europa.eu/COMMFrontOffice/publicopinion/index.cfm/ResultDoc/download/DocumentKy/70150>, visited 23 October 2018; Bertelsmann Stiftung, Mehrheit der jungen Mittel- und Osteuropäer steht fest hinter der EU, 21 March 2017, <www.bertelsmann-stiftung.de/en/topics/aktuelle-meldungen/2017/maerz/majority-of-young-people-in-central-and-eastern-europe-strongly-backs-the-eu/>, visited 23 October 2018.

117 Weber, Max, Parlament und Regierung im neugeordneten Deutschland: Zur politischen Kritik des Beamtentums und Parteiwesens (Duncker & Humblot 1918) p. 99 ffGoogle Scholar.

118 Heller, H., ‘Politische Demokratie und soziale Homogenität’, in F. Borinski et al. (eds.), Hermann Heller: Gesammelte Schriften, Band 2 (Mohr Siebeck 1971) p. 421 ffGoogle Scholar.

119 van Middelaar, supra n. 20, p. 26.

120 Sonnevend, P., ‘Preserving the Acquis of Transformative Constitutionalism in Times of Constitutional Crisis: Lessons from the Hungarian Case’, in A. von Bogdandy et al. (eds.), Transformative Constitutionalism in Latin America (Oxford University Press 2017) p. 123 at p. 144 ffGoogle Scholar: ‘The example of Hungary shows that outsourcing parts of the constitutional functions to international or supranational organizations in peaceful years may help survive the years of crisis. (…) European institutions contributed to creating a situation where self-healing through domestic processes is still possible’.

121 See, recently, ECJ (Grand Chamber) 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses; ECJ (Grand Chamber) 25 July 2018, Case C-216/18 PPU, Minister for Justice and Equality; Commission v Poland (Białowieża Forest), supra n. 61; see further, von Bogdandy, A. et al., ‘A potential constitutional moment for the European rule of law. The importance of red lines’, 55 CMLR (2018) p. 963Google Scholar.

122 M. Ivaškevičius, ‘Europa mit den Augen eines Verliebten’, Frankfurter Allgemeine Zeitung, 6 February 2017, p. 6.