Record Detail

In recent years, diverse threats across multiple countries to the Rule of
law have been brought to the attention of the European Commission. Focus has
mainly centred on the Article 7 TEU procedure. This paper argues that EU oversight
should be considered as having regard to its internal premises and credibility; the
question can be posed whether EU censorship is affected by a ever-encroaching
weakness that currently characterises the present relationships between States and
regional or supranational orders, whose authority is met at times with resistance.
Zooming out from the daily threats to the Rule of law in so-called illiberal or
populist governments, this paper scrutinises some usual theoretical tools and conceptual
frameworks, namely the connection between arbitrariness and the Rule of
law on one hand, and the Rule of law and the overall idea of public law on the other.
It suggests that the present crisis is part of a seismic shift of the main components of
the idea of public law that underpin the modern and contemporary state. After
examining further case law and evidence of arbitrariness and non-arbitrariness that
exceeds the features of the Rule of law, this paper challenges the conviction that a
generic notion of arbitrariness can capture the problem of illiberal governmental
actions, or justify the European Union attitude in responding to a ‘Rule of law
crisis’.