„Back and forth” – The Rule of Law from its Origins to its Application in the Adjudication of the CJEU

Keywords: The rule of law (RoL), common law, jurisdictio and gubernaculum, Rechtsstaat (RS), Court of Justice of the European Union (CJEU).

English abstract: In this paper, we set forth three research theses. In order to justify them, we summarily recall and discuss the theses regarding the origins of the emergence of the concept of the Rule of Law (hereafter RoL) in the 12th century in common law, as formulated by the American historian of constitutionalism Charles Howard McIlwain. Since his thesis on the medieval distinction between jurisdictio and gubernaculum has been taken up in the works of Gianluigi Palombelli, so we recall the main elements and points of the argumentation of this contemporary Italian philosopher and legal theorist regarding RoL as different from Rechtsstaat (hereafter RS). Taking into account the features of the historically shaped concept of RoL, we analyze the process of operationalisation of RoL by the CJEU, followed by the legal definition of RoL in the European Parliament’s Regulation (EU, Euratom) 202/2092 of December 16, 2020.

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