Rule of law and fundamental rights.

1. What are we talking about?

The concept of the rule of law, which is fundamental for liberal democracies, is also the keystone of the legal architecture of the European Union as set out in the Maastricht Treaty (TEU, 1992) and the Lisbon Treaty (TFEU, 2007), as well as in the EU Charter of Fundamental Rights (Nice, 2000).

Article 2 of the TEU states that :

“the Union is based on values : respect for human dignity, freedom, democracy, equality, the rule of lawas well asrespect for human respect for human rightsincluding the rights of persons belonging to minorities. These values are common to the Member States in a society characterised by pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men.“.

2. A concept under threat.

The idea of the rule of law, which is supposed to protect the fundamental freedoms enjoyed by European citizens, is now being challenged and is the subject of three major criticisms.

• The rule of law is said to be at the service of neo-liberalism, which is seen as a deviation from original liberalism and a justification for unbridled capitalism.
• The rule of law, because it protects increasingly extensive individual rights, is said to be responsible for the development of a society made up of narcissistic individuals, who give precedence to their personal desires over the need to live together in solidarity.
• The rule of law, by encouraging the 'government by judges'would mark the end of politics. This last criticism is levelled primarily at the EU, which is guilty of using the rule of law to dilute, if not destroy, the legitimacy of national decisions.

These three main categories of criticism are levelled by various groups with sometimes divergent interests, but who agree in trying to undermine the operation of European or national institutions based on the values set out above.

This coalition of enemies of the rule of law includes :

• Critics of political liberalism. They belong to the oldest tradition, since they began to express themselves as early as the French Revolution. Their ranks include religious fundamentalists who view with suspicion the human rights that have helped to secularise Western societies. They often implicitly contrast the rights of God with the rights of man.
• Orthodox Marxists, for whom human rights are a bourgeois invention to mask the economic power struggles that are the real social issues.
• Populists and sovereignists. The former promote what is improperly called the illiberal democracy. This misleading term is used to disguise the desire to put an end to one of the central elements of democracy, the separation of powers. The first target is the independence of the judiciary. The second targets the interference - illegitimate in their eyes - of unelected supranational institutions in the decisions of EU member states. Populists and sovereigntists agree that the CJEU or the ECHR flout national parliaments when they criticise or reform national decisions on the basis of legal instruments ratified by those states.