Illiberal, Democratic, Non Arbitrary. Epicentre and Circumstances of a Rule of Law Crisis

Abstract

The diverse threats to the Rule of law (RoL), in more than one country, have been under the attention of the European Commission in the last years and have been focussed in relation to art 7 TEU procedure. The paper argues that EU oversight should be considered having regard to its internal premises and credibility; the question of a EU censorship partakes in a creeping weakness characterising the present relations between States and regional or supranational orders, whose authority is met at times with resisting arguments. Zooming out from the daily threats to the Rule of law in so called illiberal or populist governments, the article puts under scrutiny some usual theoretical tools and conceptual frames, namely, the connection between arbitrariness and the RoL on one side, and on the other the RoL and the overall idea of public law. It suggests that the present crisis is part of a seismic shifting of the main components of the idea of public law that underpins the modern and contemporary state. After disclosing a further case and evidence of (non-)arbitrariness - that exceeds the rule of law features -, the article 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’.