ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

ies of government to limit and guide public officials’
discretion. Hence, the emergence of a unified fiduciary
theory of judging – able to account for the responsibilities
judges possess and the nature of the judicial office
itself – was almost inevitable. This article examines the
most developed Judge-as-Fiduciary-Model presented
by Ethan J. Leib, David L. Ponet & Michael Serota, and
explores the ways by which it resolves disagreements
about the role of the judge in western democracies.
This article argues that, notwithstanding shedding light
by the fiduciary principle on some important features of
judging in western democracies (i.e., discretion, public
trust and vulnerability), the judge-as-fiduciary model
fails to provide a convincing unified theory of the judicial
role, which puts into question its attractiveness in
resolving current disagreements.
64 THE RULE OF LAW IN EUROPE II:
GUARANTEEING CONSTITUTIONAL
DEMOCRACY IN THE MEMBER STATES
Among Europe’s many crises, the “rule of law” crisis
is perhaps the most destructive of Europe’s common
values. Some Member States that met the Copenhagen
criteria to enter the EU would now not be
admitted to the EU under those same criteria. What
can European institutions do to renew commitments
on the part of the Member States to these values?
Across two panels, we will consider the alternatives.
Panel II examines the interaction of EU institutions
with the problematic Member States and assesses
whether these interactions are likely to resolve the
rule of law crisis.
Participants
Name of Chair
Room
Christoph Möllers
Dániel Hegedüs
Christian Boulanger
Kim Lane Scheppele
BE2 E42
Concurring panels 103
Christoph Möllers: Democratic Guarantees in
Heterogeneous Federations – Some Systematic
and Comparative Observations
The phenomenon of politically heterogenous federations
is more than a “problem” that can be solved by
institutional engineering. It was at the core of the foundational
civil wars that defined the political structure
of many federations, e.g. the Swiss, the US-American
and the German. These experiences shed doubt on
the assumption that institutions like the CJEU or the
Commission will be able do anything meaningful on
a macro-level against the rise of right-wing populist
governments within the EU. If such interventions are
not concrete and well defined, if they do not take care
only of particular gravamina, they will likely confirm
the impression of a EU-heteronomy. This is the more
the case at a moment in which we do not observe
singular deviators, but the rise of an anti-European
coalition within the member state governments. At this
point, only debate within the political organs and the
Europeanization of the party systems may help (and
if, only in the long run).
Dániel Hegedüs: An Arbitrary Guardian of the
Treaties? Political Discretion and the Protection
of the Rule of Law in the Praxis of the European
Commission
To respond to the rule of law crisis, the European
Commission adopted the new Rule of Law Framework.
But so far, the use of this framework has been plagued
by a high level of political discretion. Although political
discretion affords some flexibility and other benefits,
it contradicts the basic principles of normativity and
neutrality of law. This paper examines the reaction
of the European Commission in the Hungarian and