The Economic Crisis and the Rule of Law in Europe A Hidden Face for the Rule of Law?

As a critical lens to assess the rule of law the article confronts the often used term of criticism levelled at it: that it is inherently elusive or uncertain. Taking this as a starting point the article considers whether there is something productive in this apparent uncertainty which renders this challenge both misleading and also apt to neglect key aspects of the concept in favour of adopting a version of rule of law based on predictability. The article develops an account of what can be termed 'the constitutive' dimension of the rule of law which it is argued here has been neglected due to an emphasis on predictability and also 'regulatory' dimension which concentrates on the rule of law as the control or restraint of political power. The constitutive dimension of the rule of law explores the meaning of the foundational moment of the constitutional community and the language used to express this as a basis for solidarity and as a point of orientation during points of considerable change or crisis. In this regard the article establishes that there is an important theoretical relationship between the rule of law and ideas about the constituent power which require development and further reflection. The second part of the article, in Sects. 3 and 4, takes the theoretical investigation of the constitutive dimension to the rule of law and considers how this concept can provide a basis for critical reflection regarding the economic crisis of the EU. The focus on the economic crisis in the EU is two-fold: in the first instance the economic crisis is a moment of stress on the political and legal understanding of the EU and shows up the complexity of the commitment to the rule of law in this context. Secondly, given the aspect of the EU as a 'polity' under construction the economic crisis and its response underscores the problematic aspect of the constituent power in the EU. The article primarily focuses on the contributions made by Jurgen Habermas in respect of the crisis and its response in terms of the rule of law. Habermas argues for a reciprocal understanding of political solidarity and justice to be made part of the solution and response to the EU economic crisis and a rejection of the executive federalism dominated approach which is characterised by a technocratic approach to political question. Habermas' approach is noteworthy for the manner that it focuses on a response which articulates how the crisis can become a basis not only for an appreciation of the importance of political solidarity but equally to allow Europe to confront the constitutive meanings of the EU as a legal and political project.