The Law against the Rule? Ambivalence, Ambiguity, and the Historical Sociology of European Legal Integration

Abstract

This paper examines the history of European legal integration through the lens of the Eliasian concept of "(de-)civilizing process" that is, a reversible process of social pacification and of extension of the sense of belonging to the same community. Today, the European union (EU) is generally regarded as the most advanced attempt at establishing a supranational "rule of law," i.e., a set of general and predictable rules enforced homogeneously across a large territory, granting rights to its inhabitants, and fostering a slow extension of the "imagined community" of citizens. The construction of this European "rule of law" is, therefore, often interpreted as a crucial element of a "European civilizing process" unfolding beyond the nation-states. Critically departing from this narrative, this paper invites to reconceptualise European legal integration as a "civilizing offensive" through law. In this light, EU law can be analysed as a more ambivalent and ambiguous project than suggested by the narrative of a necessarily unfolding "rule of law." To that aim, this paper will concentrate on an issue of particular prominence in the recent debates about EU law: The "rule of law crisis" in Hungary. Since 2010, it has brought together several important features of the many recent crises of European integration. On the basis of legal EU and Hungarian documents, I will argue that, in spite of repeated clashes with EU institutions, part of these challenges were made possible by the ambiguous historical construction of the EU and its legal order: They also emerge from within - as will be illustrated through the concept of "constitutional identity" and its uses.