Tautological Rule of Law in the Service of Populism

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Pisa, Italy: Scuola Superiore Sant’AnnaPopulism, Constitutional Democracy, and the Rule of Law workshop

Professor Dimitry Kochenov, Chair in EU Constitutional Law, Faculty of Law, University of Groningen, the Netherlands has continued the second workshop session by addressing analysis of the European Court of Justice case-law and cutting-edge Rule of Law scholarship.

His presentation used this to demonstrate that the principle of Rule of Law (in the sense of the value included in Article 2 TEU) has, largely, been tautological in nature throughout the evolution of the European integration exercise: its only purpose seems to be to proclaim and entrench the supremacy claim of the Court in question.   

Kochenov contends that recent case-law, although striding in the substantive direction of ensuring judicial independence, fails to depart from the familiar use of the concept, and thus that EU Rule of Law as it stands appears to be ripe for misuse. His presentation went on to suggest the need for some serious rethinking, by a more consistent look at the missed opportunities to take the EU Rule of Law seriously, from the Opinion 2/13 to Tjebbes.