Rule of Law Problems as Problems of Democracy

This short essay starts from the premise that the rule of law as a frame of reference is too limited. European lawyers, no less than other lawyers, tend to have a strong affinity with the legal approach that is implicit in the notion of the rule of law. The strong legal drive of European integration may explain why the rule of law has been picked out from the various founding principles of the Union (Article 2 TEU). Democracy is easily considered a thing for political scientists. However, in my view, staying in the comfort zone of the rule of law only fails to grasp the kind of problem we are facing. Law is not going to stop the facts. Law is not going to prevent revolutions, nor are constitutions going to prevent ‘constitutional backsliding’ or ‘constitutional capture’. What we must fear these days in Europe is that law is no longer democratically legitimate in the way it was sought for in those days in November in Berlin, 30 years ago. It is not only developments in Poland and Hungary, nor only in the Central and East European Member States, that cause concern, but also those in the older Member States that have not yet gone as far down the road to authoritarianism as others. There is a need to focus on what such developments mean for democracy in states under the rule of law. Democracy may be more difficult to grasp for us lawyers, but avoiding it risks remaining irrelevant.