Flaws and Contradictions in the Mutual Trust and Recognition Discourse: Casting a Shadow on the Legitimacy of EU Criminal Policy Making and Judicial Cooperation in Criminal Matters?

Legitimacy is a much-used notion in political theory and social science; however ‘concealing widely different [and often inconsistent] accounts of the reasons why human beings obey political authority or accept social norms’ (Marquez 2012). Most probably, the concept needs to be abandoned for ‘more precise accounts’ thereof ‘in particular contexts’ (Marquez 2012). In the very context of the EU’s criminal policy making and judicial cooperation in criminal matters – in which the mutual trust and mutual recognition nexus is key – the position taken is that, philosophically speaking, legitimacy will depend of whether the EU through its mutual trust and mutual recognition discourse puts forward ‘putative good reasons’ (Knowles 2010) for its criminal policy and cooperation in criminal matters to be acceptable. Its discourse on mutual trust and mutual recognition must then at least display the quality of ‘a priori credibility’. Even if the validity of the putative reasons is not ‘a matter of strict logical or conceptual necessity’ (Knowles 2010), it will be clearly prohibited for any account ‘to be based on lies, myths … or falsehoods generally’. To phrase it positively, trustworthiness requires ‘a moral commitment to honesty’ (Rose-Ackerman 2001).