Rule of Law and Institutional Legitimacy: Challenges of Transition, Challenges of Europe

Abstract

Recent European events have revealed that some EU Member States, including some South Eastern European (SEE) States, still struggle with the rule of law. While certain rule of law challenges may be due to past legacies and insufficient (or insufficiently successful) transitions, others may be the result of the transition itself and of contemporary socio--economic problems that are experienced across Europe. This article will address the state of the rule of law in SEE, reflecting first on some pre--, mid--, and post--transition problems relevant for the rule of law in these countries. Next, it will address the legal and socio--psychological impact of the challenges posed by the mentioned problems, connecting the (mis)trust that can be observed on several levels (internally and externally) with the rule of law, thus demonstrating that mistrust as such has social as well as legal consequences. If trust (e.g. in the effectiveness of the rule of law safeguards or in those who are entrusted with safeguarding it) is lacking, this represents a problem not only for the Member State (e.g. for the functioning and perceived legitimacy of its judicial system) in question, but also for the EU (e.g. for the judicial cooperation in criminal matters). Lastly, the article will examine the EU's perspective on rule of law, drawing on the recent EU Framework to Strengthen the Rule of Law, which aims to ensure an effective and coherent protection of the rule of law in all Member States, as well as on some other EU documents that may, in our view, help address the current challenges in European rule of law.