Monitoring the rule of law performance of EU member states presupposes that the EU has a clear idea of what is meant by the rule of law. Theoretically, however, the conceptualization of this notion has proven difficult, leading to a wide range of differing approaches. Moreover, the application of a common rule of law concept in a multilevel legal context creates its own difficulties. As the starting point for this contribution, we identify a core meaning of the rule of law based on the work of Philip Selznick and Martin Krygier. They see the reduction of the arbitrary use of power as the central value and point to the importance of a contextual approach to realizing that value: reducing arbitrariness may require very different concrete measures from one society to another. We examine what common idea of the rule of law is projected by the European Union in its rule of law agenda, looking specifically at two important instruments, the Justice Scoreboard and the Better Regulation programme. Using the contextual approach to rule of law, we then examine whether the core meaning of this concept is recognizable here, and whether efforts are already made to allow for the inclusion of contextual elements. Our analysis clarifies that the two instruments support the core notion of the rule of law by enhancing the quality of political debates in the EU. However, underlying economic assumptions and approaches as well as political forces form a constant threat to the realization of elements of participation and separation of powers.

Justice Scoreboard, Better Regulation, legal theory, justice systems, regulatory policy, monitoring instruments,
Hague Journal on the Rule of Law
Erasmus University Rotterdam

Mak, E, & Taekema, H.S. (2016). The European Union’s Rule of Law Agenda: Identifying Its Core and Contextualizing Its Application. Hague Journal on the Rule of Law, 8(1), 25–50. doi:10.1007/s40803-016-0022-1