Jurisprudencial Siblings? The Rule of Law and the Rechtsstaat as the Two Tracks to the Society, Public Sphere and their Normative Framework
Jurisprudencial Siblings? The Rule of Law and the Rechtsstaat as the Two Tracks to the Society, Public Sphere and their Normative Framework

Summary/Abstract: In this paper, we engage with Professor Martin Loughlin’s article The Rule of Law: A Slogan in Search of a Concept (2024). Considering the above, (1) we put forward three research theses. To substantiate them, (2) we briefly outline and discuss arguments concerning the emergence of the concept of the Rule of Law in twelfth-century English common law, as formulated by the American constitutional historian Charles Howard McIlwain. (3) Since McIlwain’s thesis on the medieval distinction between jurisdictio and gubernaculum has been addressed in the works of Gianluigi Palombella, we also present key elements and points of Palombella’s arguments regarding the Rule of Law as distinct from the Rechtsstaat. (4) Considering the historically shaped characteristics of the Rule of Law, we analyse the process through which it was operationalised by the Court of Justice of the European Union (CJEU), before focusing on the legal definition of the ‘rule of law’ provided in Regulation (EU, Euratom) 202/2092 of the European Parliament of 16 December 2020. (5) Finally, while wrapping up analyses, we briefly indicate factors that require up-to-date analysis to arrive at a comprehensive comparative characterisation of the Rule of Law and Rechtsstaat concepts (descriptive phase), and to facilitate the reconstruction of divergent normative expectations within the key elements of each concept (normative-descriptive phase).

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