In the last two decades, post-communist states experienced a fascinating
political journey, from using the rule of law concept in the most general way as
an early signal of the coming constitutional and political transformation, to
specifically (as EU Member States) addressing the problem of the supremacy of EU
law and its effect on emerging national democracy and constitutional
sovereignty. In other words, they moved from asking the question
‘which rule of law?’ to the question ‘the rule of
which law?’
This move itself indicates the capacity of the rule of law, which is discussed in
this article, to operate as a political ideal and a power technique at the same
time. This duality of the rule of law operations will be outlined against the
background of the process of European integration and its challenges to the
traditional constitutional notions of sovereignty and legal unity. I shall argue
that post-communist states initially had to embrace the substantive concept of
the rule of law drawing on liberal and democratic values, which became a valid
ticket for ‘The Return to Europe’ journey. However, the very
process of European integration involved technical uses of law often challenging
the substantive notion of the democratic rule of law and constitutionalism. The
accession of post-communist states to the EU thus highlights the Union's more
general problem and intrinsic tension between instrumental legitimacy by
outcomes and substantive legitimacy by democratic procedures and values.