The crisis of the European rule of law
| Published date | 01 December 2018 |
| Author | Stefan Braum |
| Date | 01 December 2018 |
| DOI | 10.1177/2032284418820724 |
| Subject Matter | Editorial |
Editorial
The crisis of the European
rule of law
Europe is in a permanent mode of crisis. Global problems – economy, finance, migration,
environment, crime – are growing beyond our heads. Europe does not seem capable of action – it
does not seem to be ‘sovereign’. This awakens the call for old sovereigns – for the state, for the
nation, for powerful politics. The sovereign, driven into a corner, wants to get rid of his supposed
shackles, above all of the law. Financial crisis, migration crisis, criminal justice crisis prove that
Europe’s law is fragile and thereforesusceptible to populist politics.The way out of the crisis seems
paradoxical: we need not less but more Europe in order to save democracy and the rule of law!
System crises: The financial markets
The financial crisis also revealed a crisis in European law, as the normative shortcomings of the
complex regulatory framework that was supposed to control the excesses of the financial markets
were visible. The contents of the laws on the European Stability Mechanism were negotiated
between the private and the executive branches without any participation of democratically elected
parliaments, and the laws themselves were passed through the national parliaments so quickly that
compliance with democratic principles seemed to be ensured only in a pure formal way. By means
of monetary policy, the states of the eurozone obtain the economic policy rules they need to solve
systemic constraints. The only ‘alternative’ left for democratic legislators is their technical imple-
mentation. The consequence: the economic decoupling of many European Union (EU) citizens,
especially in South and Southeast Europe, from economic progress corresponds to the normative
decoupling of European democracy and European economic policy – the legal system itself loses
its normative power of persuasion.
System crises: Global migration
European migration policy finds its starting point in the protection of fundamental rights. It is
legitimized by a rational and proportionate reaction to the fight against the causes of flight. Both
are complex tasks. They should be dealt with in cooperation and mutual trust between the EU
Member States in accordance with humanitarian principles of international law. This is the core of
the Dublin III Regulation. The protection of fundamental rights formulated there requires differ-
entiation and fair procedures; combating the causes of flight calls for diversification in economic,
ecological and peace policy measures. What is happening is the opposite of differentiation and
fairness: it is not only since the refugee crisis of 2015 that we have witnessed an intermeshing of
empirically detached threat scenarios and executive hecticness. It is legally oppressive how
European law – Dublin III – is replaced by executive concepts of political order. Dublin III rules
New Journal of European Criminal Law
2018, Vol. 9(4) 429–431
ªThe Author(s) 2018
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DOI: 10.1177/2032284418820724
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