Rechtsstaatliche Voraussetzungen für ein modernes Verfassungsrecht in Europa

Abstract

The “rule of law” is a fundamental principle in modern European constitutional law and, despite some irritations in Member States like Hungary and Poland, a generally recognized basic feature of European integration. Among its basic elements that can all be found in the primary law of the European Union, are the general idea that public power is bound by law, the separation of powers, various aspects of legal security, the proportionality of governmental actions, basic rights of the individual and effective legal remedies before independent courts. Some of those elements were already mentioned in the writings of Stanislaw Dniestrzański in 1920. Like other elements of liberal constitutions, the “rule of law” can fall prey to the abuse of power, even one that has been won through democratic elections, and to benevolent disdain. The principle is in our times, for example, challenged by populistic attitudes, the encroaching influence of political parties and the impulse of elected governments to roll back the independence of the judiciary. It is very appropriate, therefore, to underline that to accept the own power to be fenced by the “rule of law” is the very essence of European democracy.