The Rule of Law, Comprehensive Doctrines, Overlapping Consensus, and the Future of Europe

• Published date: 01 September 2023
• Author: Matej Avbelj
• Date: 01 September 2023
• DOI: http://doi.org/10.1111/raju.12391

© 2023 University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 36 No. 3 September (242–258)

The Rule of Law, Comprehensive

Doctrines, Overlapping Consensus,

and the Future of Europe

MATEJ AVBELJ*

Abstract. For more than a decade now a profound rule- of- law crisis has gripped the European

Union, and while the fight for the rule of law has topped not only the academic but also the

judicial and political agenda, the results have been disappointingly meagre. This article ar-

gues that the main reason for that should be sought in a political strategic move of justifying

the assaults on the rule of law by resorting to an “illiberal democracy.” This premeditated

political narrative shift has unleashed onto the political sphere and onto public discourse at

large comprehensive doctrines which had hitherto been left dormant thanks to an overlap-

ping consensus on the rule of law as a central building block of the political conception of

justice à la Rawls. Once this overlapping consensus was broken, the rule of law itself lost its

neutral character as a referee on the right among the many conceptions of the good, itself be-

coming part of the highly politicized power play for dominance among irreconcilable— liberal

and illiberal— comprehensive doctrines. The overlapping consensus in the EU is thus broken,

but there are no conceptual reasons inherent to the rule of law itself for which it could not be

rebuilt in the future.

1. Introduction

Over the last decade the theory and practice of EU law have been consumed by the

rule- of- law crisis (Pech and Kochenov 2019). Occasional and sporadic violations of

the law, which are not unusual even in the most well- ordered societies, have in certain

EU member states grown into a systemic violation of the basic tenets of the rule of

law. Following free and fair elections, governments have come into power and have

used their newly acquired political majority not only for a political reconfiguration of

the functioning of the state, as is democratically both appropriate and expected, but

also to change the very rules of the political democratic game governed by the rule

of law. The scope of the formal and informal change of the basic tenets of the rule of

law, however, has varied among the member states, depending on the actual strength

of a given political majority and the already existing informal and economic power

* Research for this article has been financially supported by the Slovenian Research Agency,

Grant No. J5-1791 (A), and the Jean Monnet Chair (JMC) on Pluralism in the European Union

(PluralEU), cofinanced by the European Commission. It has also received support from the

European University Institute (EUI), where the author was a visiting Fernand Braudel fellow in

2022. The author would like to thank the two anonymous reviewers for their comments, in light

of which the article has been substantially improved. Any remaining mistakes remain my own.

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Ratio Juris, Vol. 36, No. 3© 2023 University of Bologna and John Wiley & Sons Ltd.

The Rule of Law and the Future of Europe

constellation in a particular country (Avbelj and Letnar Černič2020; Magyar2016;

Sadurski2019). But irrespective of the exact social distribution of powers in different

EU member states, the pattern for a systematic overhaul of the rule of law has been,

more or less, the same. It was first necessary to take over the constitutional and ordi-

nary courts by a combination of constitutional, legislative, institutional, supervisory,

and personnel- related measures. After taking over the judiciary, the majoritarian and

the executive institutions were effectively relieved of judicial oversight and were rel-

atively free to proceed to a political, power- based overhaul of the system of checks

and balances, at times driving it to the point of inexistence. The formal institutional

changes were followed by further economic and societal changes taking the form of

political control over the economy and the public media, constraining or courting the

private media, and restraining the functioning of nonloyal NGOs and civil society at

large, including the universities. In short, in the absence of effective and independent

judicial control, the political majority seized not only the institutions of the state but

also other vital centres of society, clamping down on the pluralist character of a pol-

ity, which is essential for balanced and fair democratic electoral cycles— in short, for

a functional democracy.

Under the described pressure of the rule- of- law crisis in the European Union,

attempts at identifying and implementing remedies for the crisis have, of course, not

been absent. To the contrary. For almost a decade now, the fight for the rule of law

has topped not only the academic (Pech and Kochenov2019), but also the judicial

(Pech and Kochenov2021) and the political agenda. Disappointingly, though, the

results have been meagre. The political parties, which were blamed for the assault

on the rule of law, have continued to enjoy their domestic democratic support and

have even managed to export their subversive political potential on the European

Parliament, undercutting the traditional political alliances and undermining the tra-

ditionally most powerful EU political party. In short, the attempts to restore the rule

of law in the European Union have so far not come to fruition. In fact, the opposite

might be true. The member states that have gotten away with the violations offer a

role model for others to follow. At the same time, political cleavages in the Union,

especially between the west and the east, have deepened to a degree yet unseen and

are infrequently indistinguishable from the Kulturkampf of the worst kind. Its depth

and breadth have led to a significant relativizing of the most fundamental values,

including the rule of law itself. In this war for the rule of law, in which the gloves

have long been off, neither the rule of law nor the integrity of the European Union

seems able to prevail.

Against this backdrop, it is important to first understand why exactly the

European Union has wound up in this unenviable situation. It is only in light

of such an understanding that workable strategies for ensuring a better-

functioning rule of law in the future can be devised. In response to this chal-

lenge, this article is going to proceed based on a hypothesis, shortly to be

introduced, informed by the political philosophy of John Rawls. On this hy-

pothesis, the lack of success in responding to the rule- of- law crisis is also at-

tributable to a political strategic move of justifying the assaults on the rule of

law by resorting to “illiberal democracy.” This premeditated political narra-

tive shift has unleashed onto the political sphere and onto public discourse at

large comprehensive doctrines which had hitherto been left dormant thanks to

the existence of an overlapping consensus on the rule of law as a central