An elephant stands in a great, dark room. Five “wise men” – who have never encountered such a creature – are granted entrance by the king and asked to describe it. The first goes in, touches the elephant’s leg and, as he comes out, firmly declares: ‘the elephant is like a pillar’. The second goes in after him, but feels the elephant’s tail, thus stating that he disagrees with his colleague; the elephant is like a rope. ‘You are both wrong’, the third one says, having touched the elephant’s ear; ‘the elephant is clearly like a fan’. The fourth touches the elephant’s belly and describes the beast as a wall, while the fifth is awestruck by touching the tusk, which leads him to conclude without a doubt that the elephant is like a tree’s branch. On hearing their conclusion and heated argument, the king scolds them for not having discussed their findings with each other, or not doing as simple a thing as taking the initiative to light a candle before entering the dark room. If they had, they would know the elephant’s actual form and nature.

When will the ‘candle be lit’ in the EU, and who will finally see the form and substance of the ‘elephant’—the EU Rule of Law principle?

One might ask how this anecdote relates to the EU Rule of Law, and what the author seeks to convey through it. Its relevance to the current state of affairs within the European Union is more than apparent when one considers the prevailing cacophony within the Union regarding the systemic and substantive interpretation of this principle—both within the EU itself and among its Member States. Despite the existence of various definitions, checklists, judicial decisions, and interpretative guidance from constitutional courts and CJEU, the EU still lacks a clear internal consensus on the legal genesis and tradition upon which its conception of the Rule of Law rests.

Is it grounded in the Anglo-American legal tradition, or in the continental European legal heritage?

What are the common elements of the most important legal traditions in the EU and whether they apply (un)synchronized at the national and at the EU level? How did the principle of Anglo-American legal tradition become dominant in the EU, where most of the Member States apply a continental European legal tradition?

The Anglo-American conception of ‘the rule of law’ is not identified with what has been “enacted,” “made,” or “issued” by the legislature; instead, law is what the court considers to be the law. The court’s judgements declare the meaning of what “the law” is and has ever been in a given case. Thinkers of “common law” consider their “law” to be a kind of tree accumulated out of individual judicial decisions that has been ramifying for many centuries. Each judicial decision may serve as a precedent, enriching the legal culture over time. Owing to this chain of differentiation, the law becomes endlessly ramified; it can never reach a stage of completion because there is a never-ending repetition, with new situations generating new conceptual differentiations.

A master of liberal reasoning in law, Ronald M. Dworkin, used the phrase “chain-writing” to describe the Anglo-American conception of legal development. He likened this process to a literary game, that is, as a community generational game in the historical process. The structure of judicial reasoning characteristic of the cultures of continental European legal tradition which rests on conceptual dichotomy and polarization is ultimately detached from the very structure of judicial reasoning characteristic of the common law. In this sense, continental European concepts of Rechtsstaat, l’Etat de droit, Stato di diritto, Estado de derecho, etc. has a different orientation to that of the Anglo-American expression, for the basic reason that the concept of the state has been placed at its core. These formulations highlight a specific explanation – although the state, as the source of law, has a right to define its own competences, the concept of ‘the state of law’ carries with it the meaning that the state acts only by means of law and should therefore also be conceived as being subject to law. That is, the state that is presumed to be the source of law is also the subject of law.

This general conceptual puzzle is not the only difficulty presented by continental European formulations. Although these formulations raise a common conceptual paradox, expressions such as Rechtsstaat and État de droit have emerged from different constitutional traditions, and they possess different political histories. Consequently, notwithstanding the similarity of the continental, European formulations, such expressions cannot be assumed to be direct equivalents. Even if one sticks with the original German notion, it will appear that the Rechtsstaat presents itself as no less an ambiguous expression than that of the rule of law.

The way the ‘rule of law’ presents itself as meta-legal principle various according to the different histories, cultures, and practices of European governing regimes. In this regard, a critical question arises: how could Dicey’s concept of the rule of law—so deeply rooted in the partnership between Parliament and the judiciary, and regarded as the true source of law within the British unwritten constitutional framework—be meaningfully applied within the EU, or in a Member State that shares no historical or constitutional lineage with the British tradition?

Why does the EU—and indeed the Council of Europe—through its promotion of the rule of law principle, both de facto and de jure, advance the common law constitutional and legal tradition of the United Kingdom and the United States as a normative model to be adopted by all Member States? How did the principle rooted in the Anglo-American legal tradition become dominant within an EU where the majority of Member States adhere to a continental legal system?

Does this imply that Germany and France now place greater trust in Anglo-American legal values than in their own? How did the EU come to uncritically embrace the Anglo-American legal tradition despite the richness of continental European legal thought, represented by figures such as, Radbruch, Kant, Léon Duguit, and other prominent legal theorists and philosophers?

On the other hand, there is a certain irony in initiating discourse on the rule of law from a common law perspective—particularly given that the concept purports to emphasize legal clarity and predictability. The common law tradition, however, has historically been characterized by a multiplicity of legal sources, including custom, judicial precedent, abstract principles, and statutes, many of which are ambiguous, or inaccessible. In numerous cases, such sources may prove legally non-binding or inapplicable, undermining the very clarity that the rule of law is supposed to promote. The common law doctrine of ‘government by law’ (principle of governmental limitation) grounds the rule of law on the superiority of the law as proclaimed by the courts, but that is not the case with the doctrine of Rechtsstaat which precludes the possibility of the primacy of law over the state. In the German case the primacy of the state is settled as the most significant feature of the doctrine of the German Rechtsstaat. Similarly, the French concept État de droit as a safeguard of citizens’ rights, is not limited to subjecting administrative authorities to administrative regulations and to laws but aimed to subject legislation to constitutional rules. Both Rechtsstaat and État de droit holds a deep commitment to human rights which is understood to be inherent and inseparable from State rule of law.

In order to achieve consistency in the interpretation of the Treaties in all Member States, the Rule of Law at the EU level cannot be understood in the same way as any of the corresponding national concepts are understood within the national legal orders of the Member States. This holds, notwithstanding the fact that the same word is used in each of the EU languages to refer to the Rule of Law as understood in the national legal tradition of a given Member State and to the EU understanding of the Rule of Law to be found in the Treaties and in the case-law of the CJEU.

To make this difference clear, positive developments are required within the European legal order. More specifically, to agree with Arnull, an ‘autonomous Union concept of the Rule of Law needs to be identified’.

The Rule of Law is declared as foundational and guiding value of the European Union in Article 2 of the EU Treaty. The European Commission as well as the CJEU claims to be the ‘guardians of the rule of law’. However, the EU has not defined what exactly is meant by ‘the rule of law’. This leads to the question: how can the EU claim to be guided by the rule of law, ‘common to all Member States’, but not provide an account of what that means in practice? This leads to a deeper question: Is the rule of law truly a functional and applicable foundational principle within the operations of European institutions, or does it often function as a façade behind which numerous irregularities and breaches of principle remain concealed?

While it is undisputed that the Rule of Law is declared a foundational and guiding value of the European Union under Article 2 of the Treaty on European Union, and while the European Commission and the Court of Justice of the EU claim the role of its guardians, the Union still lacks a precise and binding definition of what the rule of law entails in practice. This definitional vagueness gives rise to a paradox: how can the EU claim to act in accordance with a principle that is purportedly “common to all Member States” without providing a detailed and operational account of what that principle requires or how it is to be measured and enforced?

Rule of Law cannot be analyzed as a universal concept. Given that the scope and the meaning of the Rule of Law varies depending on the legal system of the Member State concerned, it is clear that though it is mentioned in the EU Treaties and used by the CJEU, de facto the Rule of Law is not a purely EU law term, lying ‘at the crossroads of different constitutional traditions’ instead. This is also related to the fact that the constitutional traditions of the Member States guaranteeing the Rule of Law are among the sources of legal principles of the EU legal order.

Inter alia, Article 6(1) of the TFEU is clear – the rule of law is one of the ‘principles which are common to the Member States’. How true is it, actually, given the huge discrepancies existing between the concepts corresponding to the Anglo-American ‘Rule of Law’ in the legal traditions of other Member States?  

The continental European formulations throw up an additional layer of controversy over the meaning of such phrases – although the state, as the source of law, is competent to define its own competences, the concept of ‘the state of law’ carries with it the meaning that the state acts only by means of law and should therefore also be conceived as being subject to law. That is, the state that is presumed to be the source of law is also the subject of law.

This is the reason why the European understanding of the rule of law is only at the stage of articulation. While several of its elements are quite clear, the general scope of the European Rule of Law is yet to be outlined. Another key aspect affecting the scope of this concept in the EU is in direct relation to the dual status of the Member States within the EU legal order. Each Member State is both subject to the EU law and to a pouvoir constituant. Because of this dual position, the Treaties, being the sources of primary law of the European legal order, are at the same time not solely the products of the EU legal order as such. Instead, they are negotiated and concluded by the Member States at the Intergovernmental Conferences with subsequent ratification in accordance with the Member States’ own constitutional requirements.

This legislation–constitution divide inherent in the EU legal order affects the Union Rule of Law. For instance, partly as a consequence of this divide, the hierarchy of norms of EU law – an issue vital for establishment of the Rule of Law – although recognised by the CJEU, is far from being a settled issue, thus provoking academic debate.

The EU Rule of Law conception is also marked by an unfocused essence. While its importance is undisputed, nobody has been able to clearly summarize what it actually is and precisely how it is different in the national law of the Member States. It is possible, however, to outline certain key features of the EU legal system that allow one to regard the EU as a Rule of Law entity. Such an exercise has recently been performed by Temple Lang, who focused on fourteen EU features that safeguard the Rule of Law in the Union. Still, the very idea of the Rule of Law in European law has been characterized by an extremely high level of formalism and has suffered from a number of obvious contradictions inherent in its formulation. All this could undermine the potential of the Rule of Law principle in EU law.

Prof. Tanja Karakamisheva-Jovanovska is a Full Professor at the Faculty of Law “Iustinianus Primus”, Skopje, on the Scientific Department for Constitutional Law and Political System and Former Macedonian Member of the Venice Commission, co-author of relevant Commission’s opinions. She is an author of more than 250 papers published in domestic and international scientific journals, thematic proceedings, a collection of papers, etc. She has participated in more than fifty seminars, world congresses, and international conferences around the world with papers, policy papers, or studies. She is the author of 13 textbooks (2 written in English), four scientific-popular books, and five monographs. In 2023 she was a visiting professor at the Central European Academy in Budapest, Doctoral studies, and in 2018 she was a visiting professor at the Faculty of Law and Administration in Katowice, Poland.