05 2018


For the Rule of Law, Like Love

Current reforms to the judiciary in certain European states pose serious concerns in relation to the independence of courts. States have the right to reform and define their judicial systems. Their institutional autonomy is, however, curtailed by European law and standards. Precisely this tension was placed at the heart of the symposium ‘The EU’s Rule of Law Framework and National Court Reforms: A Legitimate Concern?’. Various distinguished speakers, including academics and past and present members of the judiciary, shared their insights on current developments regarding judicial reforms in European states, not least the latest developments in Poland. The event was organised jointly by the Netherlands Association for European Law (www.nver.nl) and the Dutch Association of Constitutional Law (www.staatsrechtkring.nl) on 13 April 2018 at Leiden University.*1

Judicial reforms immediately have a wider impact on the functioning of the rule of law at European and national level. The importance of this fundamental principle can hardly be overestimated and must never be taken for granted. It is one of the key values of the European Union (EU). The spirit of the rule of law is not an abstract notion. The rights and obligations of citizens, businesses and public authorities are dependent on this principle being upheld and respected. It is a prerequisite for the proper functioning of society. The same goes for independent and effective courts. Judges function as canaries in the coalmine. Is the rule of law short of oxygen today?

At the very least, present societal developments confront us with perennial questions. There are no easy answers. Perhaps these times call for poetry. In his poem Law, Like Love W.H. Auden beautifully captured the relationship between law and society. He stressed the importance of law, like love:*2

Others say, others say
Law is no more.
Law has gone away.

And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.

If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this.

As much as law is a matter of constant debate and keeps evolving, well-considered opinions and views on how the rule of law should be safeguarded, both at the level of European states and within the chain of European justice as a whole, are deeply relevant to society today. 

Trema Journal for the judiciary is honoured to publish a selection of revised contributions to the symposium. Whereas Trema is normally published in Dutch, the relevance of the contributions to a wider audience and the open access nature of the publication platform https://trema.nvvr.org/ justifies this exception to the rule. The editorial board is confident that publication in English will not pose any problems to modern-day 21st century magistrates in the Netherlands or elsewhere, in Europe and beyond.

As a reader, you will first find the keynote address by Stanislaw Biernat (Professor of European Law in Cracow and former Vice-President of the Polish Constitutional Tribunal) on the current state of the rule of law in Poland, followed by a thoughtful comment by Geert Corstens (Professor and former President of the Supreme Court of the Netherlands). Next Paul Bovend’Eert (Professor of Constitutional Law, Radboud University) compares the law and legal culture regarding the recruitment and appointment of judges and justices in European countries and the US. The central question in the contribution by Tamara Trotman (Chair of the ‘Judges for Judges’ foundation, www.judgesforjudges.org, and Judge at the Court of Appeal of The Hague) is the extent to which judicial independence is taken seriously enough. By publishing these contributions, the editorial board of Trema hopes to stimulate and enhance further discourse on the aforementioned topics. Sharpen your mind and insights for the (sake of the) rule of law, like love.

The full programme can be found at www.staatsrechtkring.nl/wp-con....

The full poem can be found at http://web.mit.edu/cordelia/ww....