Abstract
The seriousness of the rule of law (RoL) crisis in the European Union (EU) is increasingly attracting the attention of practitioners and academics. Ramona Coman (Institut d’études européennes – Université Libre de Bruxelles) contributes to the existing debate by offering a comprehensive analysis of the main features of the politics of the RoL. These are examined through the lens of what, according to the author, has centrally driven its origins and development: the concept of dissensus. Understood as ‘the expression of polarised views which are not deliberated but rather irreconcilables and pitted against one another’, dissensus fundamentally influences and determines the meanings, tools and politics of the RoL. The book provides a masterful compendium of the political problems posed by the RoL crisis and the responses of the EU institutions and civil society.
As for the meanings of the RoL, the author retraces how the concept ‘has been forged over time from purely theoretical debates’ to its constitutionalisation (at national and international levels). She identifies dynamics of consensus and dissensus in the main debates of seminal authors on the notion of RoL in relation to legality, control, consent and substance. Regarding control, the existent consensus among different legal traditions on the RoL as ‘the protection against the arbitrariness of the state’ is highlighted. The politics of dissensus challenge in particular the source of consent: The RoL is portrayed by illiberal actors as ‘an imperial ideology’, and its enforcement frontally rejected. The conceptualisation of the RoL has already been widely discussed in the literature, but Coman manages to move beyond a mere description of the main contributions to offer an analytical summary that introduces the book.
RoL enforcement tools are assiduously examined. The book innovates by presenting the tools in the institutional settings in which they operate, that is, the chapters are organised by institutions rather than by the tools themselves. This permits to better observe how EU institutions have differently shaped the RoL policy by designing new instruments when possible and enforcing the existent ones at their disposal. The analysis comprehensively addresses most of the instruments, including some of the most recent ones such as the conditionality regulation. As an innovative point, Coman covers the commission’s consultations and the European Citizens’ Initiative, a field little explored in the literature on the RoL.
Finally, the book examines the politics of the RoL, which have been marked by disagreement among the EU institutions themselves and EU institutions and national governments. In the book, the Commission is not presented strictly as an enforcer, but rather as a monitoring institution, a role derived from its expertise and agenda-setting power. It has normally directed its activity ‘to overcome dissensus and to reach consensus through dialogue and avoid confrontation’ with the national governments. As for the European Parliament (EP), the book’s diagnosis is in line with what most of the literature has pointed out: ideology and partisanship explain the EP’s different attitudes depending on the offending member state. The Council of the EU and the European Council are examined as the institutions in which the tension between the politics of consensus, which usually guide negotiations, and dissensus on the RoL issue is most visible. They are also the institutions that have most attempted to accommodate governments with irreconcilable positions. An important contribution is the classification offered by the book of the member states in three categories attending to their attitudes: ‘dissenters’, ‘contesters’ and ‘consensers’.
Nevertheless, the analysis of the tools and politics presents two limitations. First, the analysis offered on the Rule of Law Report is not very profound despite its relevance as the first tool monitoring several dimensions of the RoL in the 27 member states. The study of the Commission’s action would have been finished had this instrument been evaluated more thoroughly. Second, the role played by the Court of Justice of the EU and the infringement proceedings, which have been key to RoL protection in the Union, are largely absent. The inclusion of an in-depth examination of these two aspects would have completed the analysis of the RoL enforcement ‘toolbox’.
The author coherently develops the main argument throughout the book. The tensions between the politics of consensus (on which the Union normally works) and dissensus (particular of the RoL debate) fundamentally shape the development of the RoL enforcement instruments. They are also decisive for the power relations between EU institutions and with national governments. Dissensus is central to explain the RoL crisis and the problems the Union faces in tackling it. The book is highly recommended for the non-specialised public interested in delving into the subject due to its comprehensive overview of the main features of the RoL crisis. It is also a must-read for experts thanks to its conceptual and analytical contribution from the optics of dissensus.
