Beyond the Rechtsgemeinschaft, with Trust - Reframing the Concept of European Rule of Law

Abstract

This article shows that the European Union finds itself in a crisis, to be precise, a crisis of meaning, because the concept European community of law has become inappropriate. This is true especially in German-speaking Europe where, more than in other places, Rechtsgemeinschaft is key to understanding the entire European edifice. A concept that was initially a stroke of genius has become obsolete in light of the transformations of Europe. Today, it should be reduced to an argument for broad powers of the courts, but nothing more. The article then seeks the basis for a robust understanding of the concept of European rule of law. It is informed by contemporary public opinion which addresses the crisis of the rule of law as a crisis of trust. The potential dangers inherent in such an approach are developed in the light of trust research. This enables a substantiation of what constitutes European rule of law as laid down in Art. 2 TEU and allows important crisis phenomena to be better identified. The article concludes with a comparison between the trustworthiness of the current European community and that of currently proposed alternatives.