Abstract :
In the last two decades, post-communist states experienced a fascinating political
journey, from using the rule of law concept in the most general way as an early
signal of the coming constitutional and political transformation, to specifically (as
EU Member States) addressing the problem of the supremacy of EU law and its
effect on emerging national democracy and constitutional sovereignty. In other
words, they moved from asking the question ‘which rule of law?’ to the question
‘the rule of which law?’
This move itself indicates the capacity of the rule of law, which is discussed in
this article, to operate as a political ideal and a power technique at the same time.
This duality of the rule of law operations will be outlined against the background
of the process of European integration and its challenges to the traditional constitutional
notions of sovereignty and legal unity. I shall argue that post-communist
states initially had to embrace the substantive concept of the rule of law drawing
on liberal and democratic values, which became a valid ticket for ‘The Return to
Europe’ journey. However, the very process of European integration involved
technical uses of law often challenging the substantive notion of the democratic
rule of law and constitutionalism. The accession of post-communist states to the
EU thus highlights the Union’s more general problem and intrinsic tension between
instrumental legitimacy by outcomes and substantive legitimacy by democratic
procedures and values.
