The Rule of Law. Conceptual Challenges

Berkes, Lilla (2026) The Rule of Law. Conceptual Challenges. In: Reversed Rule of Law in the Creation, Interpretation and Application of Law in Poland: Methods and Consequences. Studies of the Central European Professors’ Network . Central European Academic Publishing, Budapest, Miskolc, pp. 31-57. ISBN 9786157027237

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Abstract

This Chapter introduces the concept of the rule of law. It outlines the classical approaches to the rule of law, including the formal and substantive dimensions. As the topic has been widely examined, this chapter does not aim to provide a detailed theoretical account but instead offers a basic introduction. It presents a comprehensive theoretical overview, tracing the evolution of the rule of law from its historicalorigins to its contemporary interpretations within the European framework. The Chapter seeks to demonstrate that, while the formal rule of law lends itself to relatively objective definition, the substantive rule of law introduces a normative and moral element – an aspirational dimension that invites diverse interpretations and inherent ambiguity. Building on this premise, the Chapter shows how the rule of lawhas become increasingly internationalised and framed as a normative requirement, with major international organisations embedding it as a core legal and political standard. In this context, the Chapter focuses on the systems of the Council of Europe (CE) and the European Union (EU). Examining the legal frameworks and institutional practices of these organisations highlights the critical role of the rule of law in preserving democratic governance and ensuring the accountability of public institutions.In describing this process, the Chapter emphasizes how the moral imperative of the substantive rule of law – particularly the distinction between ‘just law’ and ‘just bad law’ – reflects a fundamental distrust of the state. This development has contributed to increasingly complex procedures, heightened legal requirements, and the expansion of institutional frameworks.

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