Illiberal, Democratic and Non-Arbitrary?

Abstract

In recent years, diverse threats across multiple countries to the Rule of law have been brought to the attention of the European Commission. Focus has mainly centred on the Article 7 TEU procedure. This paper argues that EU oversight should be considered as having regard to its internal premises and credibility; the question can be posed whether EU censorship is affected by a ever-encroaching weakness that currently characterises the present relationships between States and regional or supranational orders, whose authority is met at times with resistance. Zooming out from the daily threats to the Rule of law in so-called illiberal or populist governments, this paper scrutinises some usual theoretical tools and conceptual frameworks, namely the connection between arbitrariness and the Rule of law on one hand, and the Rule of law and the overall idea of public law on the other. It suggests that the present crisis is part of a seismic shift of the main components of the idea of public law that underpin the modern and contemporary state. After examining further case law and evidence of arbitrariness and non-arbitrariness that exceeds the features of the Rule of law, this paper challenges the conviction that a generic notion of arbitrariness can capture the problem of illiberal governmental actions, or justify the European Union attitude in responding to a ‘Rule of law crisis’.