Metamorfoze și avataruri conceptuale: „Statul de drept” între birocrație, ideologie și drept
Conceptual Metamorphoses: the “rule of law” between bureaucracy, ideology, and law

Summary/Abstract: The rule of law has traditionally been understood in both constitutional law and constitutional theory as a complex “meta-concept”, as an “architectonic” or “optimization” ideal. In EU law, Art. 2 TEU includes the rule of law in the list of Union values, as an aspiration to be mediated through emphatically political procedures (Arts. 7, 8, and 49 TEU). The need to combat derailments in the backsliding jurisdictions of Hungary and Poland, in conjunction with the evolution of conditionalities and a procedural innovation (the protracted application of the CVM) have converged and resulted in a shift of paradigm. More recently, the rule of law started to be used, as such, tale quale, not as a meta-concept (a value), but as a positive law instrumentality, from which practical corollaries can be deduced directly and immediately. The paper argues that the increased “positivisation” of this concept (in CJEU case law and in soft and hard EU law instruments) is inversely correlated with the conceptual clarity of the notion and with the rationality and consistency of its practical usage.

• Details
• Contents