Ambivalence and the Rule of Law in Europe

Recent literature has commented extensively on a European Rule of Law crisis often circumventing the ambivalence of that notion. I distinguish between enchanted and disenchanted attitudes towards the rule of law in Europe. According to the enchanted view, the concept of the rule of law can reliably determine the outer limits of what is compatible with that notion. The disenchanted view counters that the notion remains too elusive to be effectively operationalised in specific contexts. The stakes of the distinction are high: the enchanted view suggests an important role for experts to deal with these questions whereas the latter suggests a more important role for political decisionmakers. The paper situates the responses of the Court of Justice of the European Union and the European Court of Human Rights, largely based on proportionality analysis, within this typology of attitudes. It concludes that the way forward out of the rule of law crisis requires a modest, pragmatic attitude.