part vi • european legal integration • martin sunnqvist 290 Martin Loughlin has argued that concepts such as the rule of law and Rechtsstaat are impossible to realize in practice, even if they are deployed with precision, because they have a value only as ‘aspirational qualities’ and cannot be used as foundational concepts in public law. They are ‘susceptible for being used for ideological purposes’ and have been ‘used to justify a wide variety of governing regimes’.8 Both Nazi Germany and the Soviet Union tried to reformulate the concept of the Rechtsstaat to fit their legal orders.9 How can such a concept be a criterion? The answer lies in the concepts of the rule of law and Rechtsstaat belonging to the realm of legal cultures, and can be used as tools for analysis of legal orders. The fact that various regimes have tried to use for example the concept Rechtsstaat does not necessarily mean these attempts must be accepted; on the contrary, in the way Letto-Vanamo has defined it, the concept Rechtsstaat provides an overview over certain aspects of the constitutional state, and it has also been materialized in constitutions and case law. The ‘aspirational qualities’ provide further guidance for the development of law. One aspect important for Letto-Vanamo – and for Europe – when the article was written was the use of the concept Rechtsstaat as a Kriterium, a criterion for membership of theEU. To become a member state, a state had to be a Rechtsstaat. This was in the context of the 2004 enlargement of the European Union with the new member states Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia; Bulgaria and Romania joined in 2007. The basis for cooperation within the EUis the principle of mutual recognition, which is enshrined in the Treaty on the Functioning of the European Union art. 82(1), and is predicated on trust between member states and their institutions.10 Letto-Vanamo wrote that the question was about ‘trust be8 Loughlin 2010, 313–314, 337. 9 Caenegem 1995, 260, 283; Mohnhaupt 1997, 42–3. 10 See, for example, Christine Janssens, The Principle of Mutual Recognition in EULaw(Oxford: OUP, 2013). Kriterium, the rule of law as a criterion
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