The Rule of Law and the EU: Necessity’s Mixed Virtue

The maintenance of the Rule of Law is a concern for all established polities. For a still emerging polity such as the EU, it has a more fluid and more dynamic significance. If we examine the various functions that the Rule of Law is capable of performing – regulatory, authorizing, instrumental, community-identifying and promotional – all of these hold significant potential in the EU context. At the same time, however, the EU’s effective capacity to exploit that potential is highly precarious. This paper argues that the promise and the vulnerability of the Rule of Law in the supranational context are two side of the same coin. They spring from the same background political circumstances of limited and uncertain ‘polity legitimacy.’ The paper concludes nevertheless that, provided investment in the Rule of Law embraces an awareness of these difficulties and is suitably modest, it still has a vital role to play in the development of a legitimate supranational order.