Kitabı oku: «A Citizen’s Guide to the Rule of Law», sayfa 3
Rule by Law and Rule of Law
When we deal with the law, we usually find two prevailing schools of thought. There are those who say that the law is what is written in the law books. We call these scholars “legal positivists”. Their credo is simple: just follow the rules in the book.
But what if the rules contradict our deep sense of morality? What, for example, if the law in a country allows the government to imprison journalists for their critical reporting? Or what if the law allows a king to take a subject’s first-born so that it may become part of the ruler’s court? Legal positivists would have no problem with that, as long as proper procedures were followed.
This is where intuition helps after all. We intuitively know that this cannot be right. We know that, in such situations, the rule of law should be about protecting the journalist from governmental overreach and leaving the child in the caring hands of its family? Surely, the rule of law must be more than the positivist “rule by law”!
Come to think of it, our readers living in one of the future EU Member States might know the distinction we seek to explain better than us. In fact, many languages have recognised it, even if, unfortunately, English is not one of them. Maybe that’s something Shakespeare, after adding so many words to the English language, just didn’t have time to get around to do. It’s a pity, really.
In German or the languages of Slavic origin there is a semantic difference between the law in the books (in German Gesetz, or a variation of zakon in the Slavic languages) and the law as a principle of justice (Recht, or pravo). In the languages of the former Yugoslav space, for example, the translation of “rule of law” is usually given not as “vladavina zakona” (as in “rule by law”), but as “vladavina prava”, with “pravo” being semantically linked to the concept of justice (“pravda”) and literally meaning “right”.
To capture what the rule of law is, then, we need to move beyond the mere notion of a positivist, rule-by-law description and look at the norms at its very core. But what norms could that be? As so often in life, we need to find the love, in traditional and less traditional forms.
Examining with critical eyes the EU’s accession process can be helpful here, given that the rule of law does not figure alone in this picture. Ever since the spelling out of the criteria for membership in 1993, the EU has treated the rule of law as part of a triptych alongside democracy and human rights. Even if these dimensions can be treated separately in theory, we generally agree that it’s best to see the rule of law, democracy, and human rights as siblings when it comes to how they live in the real world. Different, but somehow of the same ilk. Treating them as distinct appears odd, even if, like any sibling, each one of them has of course a particular character.
Apart from being in line with many intellectual traditions, acknowledging that these three concepts are connected has a further benefit: it allows for assessing countries on a spectrum on which they don’t have to progress in lock-step. A country can advance on one, stay stagnant on another, and even deteriorate on the third.
Figure 1 How the Rule of Law, Human Rights, and Democracy intersect
This has in fact really happened. In the past decade, the countries of the Western Balkans have made significant progress on their path towards EU accession, yet they have also become more authoritarian and less democratic.9 And in all the accession countries, the human rights situation is far from perfect.10
We think that the best way of thinking of the rule of law, democracy, and human rights is to see them as separate, but interwoven elements of a family picture that we tend to recognise as “liberal democracy” (see Figure 1).
“Liberal democracy”—beyond the buzzword
This brings us to another contemporary buzzword: what exactly is “liberal democracy”? And where does it come into our rule of law story?
Fighting emperor Palpatine
Liberalism is a big term, but actually a quite simple idea: it states that the legitimacy of any social or political order rests with the individual. It all starts with each and every one of us. By virtue of being human, each one of us is endowed with a set of rights starting with the right to live and take our own fate into our own hands.
Of course, this creates problems. If we have a disagreement and I decide to take matters into my own hands, you might not like it. So, all of us together, therefore decide to delegate certain of our rights to a political authority, and so the state is formed.
We task the state with regulating certain areas of our daily lives, mostly guaranteeing our security. Yet there are certain rights we cannot cede—the US Declaration of Independence calls them “unalienable rights” and specifically mentions “life, liberty, and the pursuit of happiness”. Others might want to add “property” in this mix, but the larger point stands: there are guaranteed rights and liberties that cannot be delegated to a state and no one has the authority infringe upon them.
But how can we ensure far-reaching rights for everybody in a society with more than one individual? Some compromise is needed. Liberals believe that the best form of government ensures that you have to give up as few liberties as necessary to secure social order and security. John Stuart Mill, the famous British philosopher, once argued that “the only purpose for which power can be rightfully exercised over any member of a civilized community against his will, is to prevent harm to others”.11
We may think of it this way: My neighbour’s right to swing his fist ends where my face begins. Here, the state can intervene and limit my neighbour’s rights. But as John Locke—another of those British philosophers that have spent a lot of time thinking about such questions—reminds us, should the state exert its power too far and breach Mill’s “no harm principle”, resistance against the state becomes legitimate.12 So, we, the citizen, always retain the final authority over the system.
Seems like a sweet deal, doesn’t it? Something one could easily rally around, no?
Today, certainly. But this was actually quite a revolutionary thought when Locke first made it. Kings were still ruling much of the world—and they weren’t just monarchs without any real powers, like Queen Elizabeth II is today. They were true autocratic rulers of their dominions, like Emperor Palpatine from Star Wars. Their supreme rights, status, and privileges were beyond questioning, as their authority came directly from God. Or at least that’s what they wanted everybody to believe.
So, here came the Liberals who said: “Well, actually, God (or nature) gave us some rights, too. You are only king if we agree to your authority. And even then, we still have some rights you are not to touch. Otherwise, we can get rid of you!” This must have seemed a preposterous suggestion to kings, queens and emperors alike. While they could not stem the tide of liberalism entirely, they certainly sought to minimise the damage to their absolute authority. Even in England where the Magna Carta—one of the first codifications of a proto-system for the rule of law—was drafted in the 12th century to protect individual liberty, this concerned the rights of the barons rather than ordinary people.
Unsurprisingly, the simple idea of protecting individual rights and freedoms formed the cornerstone not only of the French and American Revolutions, but also of all contemporary fundamental human rights treatises and constitutional orders in Western polities, including the EU. Except that by then, such rights were not to be limited to the barons of the day.
So, that’s the “liberal” part of “liberal democracy”. But what about “democracy”? Doesn’t democracy mean “the rule of the people”? Yes, indeed it does. So, how does that square with the rights of individuals we have been talking about so far?
What the people cannot decide
The connection between liberalism and democracy is not as straightforward as some might want to make us believe. A democracy rules by majoritarian means, 50%+1 vote decides. But the very idea of liberal government is that even what we call “the will of the majority” cannot override the basic rights of the individual. A form of compromise was necessary.
Historically, liberals understood that the very noble idea of self-government through democratic means could only be brought in line with their thinking when combined with a strong set of guarantees for individual rights and freedoms.13 These guarantees could not be given in special situations in which the problems arose, but had to be set beforehand, in principle and in perpetuity.
On the value of compromise
If you have ever been in a relationship you know that living together necessitates compromise, at times a lot of it. Be honest, do you really like all the things you have in your apartment? If you are reading this booklet at home, take a look around. How many of the things surrounding you do you actually like, and how many did your partner put there and you didn’t deem it worth having a fight over? By the way, we know such rather trivial realisations may be the one drop too many for a strained relationship. As we don’t really want to be responsible for your partnership breaking up, please, think about the larger happiness you get from the relationship to counter the subversive thoughts we may have just implanted.
It is out of this other—again very simple—idea, the notion of the rule of law was born. As a set of general, individual, human rights as well as certain rights and freedoms pertaining to the domain of governing and social order. The rule of law does not only formally limit government action in a particular way. When meaningfully employed, it also serves as a guarantee for human and individual rights against particular democratic and state decisions.
When the rule of law is absent, liberal democracy loses its “protective”14 aspect. We become dependent on the benevolence of others, in many cases of the undefined majority. Political rule becomes arbitrary.
If you are one of these people that likes to say what she thinks and take action to change things you deem unfair—as we pretty much hope you are—then you might find yourself in a tricky situation when the rule of law is absent. That is why we must act, to prevent any of us ever being put into such a situation!
1 For a detailed analysis of the EU’s reaction to the Yugoslav conflicts, see Josip Glaurdic, The Hour of Europe: Western Powers and the Breakup of Yugoslavia (Yale University Press, 2011).
2 See also Adis Merdzanovic, ‘A Sustainable European Integration Policy for the Western Balkans? Testing Five Common Assumptions’, in Western Balkans Back in Focus. How to Shape Europe’s Reengagement with a Region in Crisis, ed. Tobias Flessenkemper and Thomas Müller-Färber (Rehburg-Loccum: Loccumer Protokolle Vol. 28/2018, 2018), 9–26.
3 Deutsche Welle, ‘Youth Are Deserting Balkan Countries’, Dw.Com, 23 December 2016, https://www.dw.com/en/youth-are-deserting-balkan-countries/a-36891266.
4 See, for example, Florian Bieber (2020): The Rise of Authoritarianism in the Western Balkans. Cham: Palgrave MacMillan Pivot; or Jasmin Mujanovic (2018): Hunger and Fury. The Crisis of Democracy in the Balkans. London: Hurst & Company.
5 This is the classical definition of legitimacy provided by H.L.A. Harts. See Herbert L.A. Hart, The Concept of Law: With a Postscript Edited by Penelope A. Bulloch and Joseph Raz, ed. Herbert L.A. Hart and Penelope A. Bulloch (Oxford: Clarendon Press, 1994). For a discussion in the EU context see Vivien Schmidt, V. A. (2020). Europe’s crisis of legitimacy: Governing by rules and ruling by numbers in the eurozone. Oxford University Press. See also Teitel, R. G. (2001). Humanity’s law: rule of law for the new global politics. Cornell Int'l LJ, 35, 355.
6 Rainer Grote, ‘rule of law, Rechtsstaat and Etat de Droit’, in Constitutionalism, Universalism and Democracy: A Comparative Analysis, ed. Christian Starck (Baden-Baden: Nomos, 1999), 271; Friedrich August von Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1978).
7 As exemplified for instance in Relocating the rule of law, whose various authors not only reinterpret the rule of law in the history of ideas, but as an ideal and a praxis in the here and now. See Gianluigi Palombella and Neil Walker, eds., Relocating the rule of law (Oxford: Bloomsbury Publishing, 2009).
8 Neil Walker, ‘The rule of law and the EU: Nexessity’s Mixed Virtue’, in Relocating the rule of law, ed. Gianluigi Palombella and Neil Walker (Oxford: Bloomsbury Publishing, 2009), 120.
9 Florian Bieber, ‘Patterns of Competitive Authoritarianism in the Western Balkans’, East European Politics 34, no. 3 (2018): 337–54.
10 Maja Zivanovic, ‘Poor Progress for Human Rights in the Balkans, HRW Report’, Balkan Insight, 18 January 2018, http://www.balkaninsight.com/en/article/balkan-countries-still-facing-old-human-rights-issues-01-18-2018.
11 John Stuart Mill, ‘On Liberty’, in On Liberty and Other Essays, Oxford World’s Classics (Oxford: Oxford University Press, 1869), 14.
12 John Locke, Locke: Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988).
13 Michael Freeden, Liberalism. A Very Short Introduction (Oxford: Oxford University Press, 2015), 26.
14 David Held, Models of Democracy, Third Edition (Stanford: Stanford University Press, 2006), 78.
Chapter 3
Chapter 3.
Rule of Law Promotion, EU-style
The EU could not exist without the rule of law. It’s an integral part of its DNA. The EU without the rule of law would be like, say, the Beatles without John Lennon—unimaginable!
The EU has a twofold relationship with the rule of law. Every state in the Union should follow the basic principles of the rule of law as spelled out in article 2 of its Treaty. But the EU also wants to spread the gospel of the rule of law “in the wider world”, as stated in article 21 of the same Treaty. Granted, that’s a bit further down the priority list, but it’s still an important aspect of the EU’s foreign and security policy.
In this chapter, we take a closer look at both aspects of the EU’s rule of law efforts, internal “rule of law adherence” and external “rule of law promotion.” A handy document that allows us to discuss both aspects quite neatly is the EU’s 2018 Enlargement Strategy. For all future EU Member states, this is an extremely important document. It’s a guide on what the EU expects them to do before they can join the Union. But at the same time, the authors also recognised some internal EU shortcomings which need to be addressed before the EU can act as a credible promoter of the rule of law “in the wider world”. After all, you should lead by example, right? That is also why the EU, for the first time in its history, conducted a proper rule of law assessment of the member states in autumn 2020. We shall have a look at this, too. But let us begin with the enlargement, our “proof of concept” in this book.
Enlargement postponed or when Jean-Claude killed the mood
The story of the EU’s 2018 Enlargement Strategy starts with an ill-advised statement four years earlier. When Jean-Claude Juncker, the former prime minister of Luxembourg, became President of the European Commission in 2014, he stated that there will be no new members admitted to the European Union during his five-year term. To be fair, this statement contained no significant news. Everybody knew that none of the aspiring member states would be ready to join the Union in the next five years.
Yet as history tells us, sometimes, making an obvious fact explicit can have far-reaching consequences. Suspecting that one’s partner is having an affair is quite different than her actually admitting it. Similarly, Juncker’s statement was quite a bummer for all Western Balkan countries. In the years prior, many of these countries had been engaged in reforms with the purpose of one day joining the European Union. At times, this path involved hard choices. Quite frankly, more often than not, the Western Balkan leaders were rather reluctant to initiate the necessary reforms because they stood to loose most in a system in which particularly the rule of law threatens established networks of patronage and party loyalties. Of course, there were then, and there are now in these countries, citizens like you who valued the reforms for their own sake. But sadly, precisely because the rule of law was not entrenched, it was hard to make their voices heard. A catch 22!
So as a result, when it came to political and legislative action, EU accession acted both as a driver of reforms and the ultimate justification for accepting reforms that threatened long-term privileges in societies. For years, “We need to do this, because this is necessary for EU membership” became one of the most cited reasons for political change in the Western Balkans.
But how could the politicians continue this argument if membership was shown to be an illusion? Why would they risk engaging in true reforms if actual membership, the ultimate goal of all the rhetoric and all the sacrifices, was further away than they thought? How could the momentum for reforms continue, if the gains were a many election cycle away?
Of course, Juncker’s statement was not the only thing halting the reform process. Elite reluctance to the reforms themselves played an important role, as we shall see. But the statement epitomised the feeling that what would be needed to join the Union was nothing short of a miracle. And it made clear that no Western Balkan leader, despite the pro-European rhetoric and the regular photo opportunities with Brussels diplomats, was in fact capable of fulfilling his or her promise of eventual EU membership.
On stale marriages
Lady Nancy Astor was the first female Member of the British parliament, elected in 1919. She has since entered the history books of collective memory for another reason: her insulting exchanges with Winston Churchill in which both of them exhibited a superb mastery of language. In one of these exchanges, Lady Astor said to Churchill: “If you were my husband, I’d poison your tea”, to which he responded: “Madam, if you were my wife, I’d drink it!” Even if this remark is sometimes attributed to Lord Birkenhead, we like to think of it as coming from Churchill himself. No one on the EU side or in Southeast Europe wanted to poison the other, right?
In the following years, Western Balkans politicians paid mere lip-service to EU accession, while EU politicians let Brussels bureaucrats take the lead in the enlargement portfolio. Like in a stale marriage, both partners just went through the motions while the love and passion of earlier days had withered away.
As it happens in such situations, Western Balkans leaders started looking elsewhere for inspiration.1 Instead of pursuing EU-style liberal democracy, many of them toyed with the idea of emulating some of the EU’s neighbours. Their governing styles became increasingly authoritarian and a new wave of illiberalism threatened to undo much of the progress democratic transition had delivered so far.
By 2018, the EU had realised that Juncker’s mood-killer statement and the EU’s nonchalant policy since had done real damage in the Western Balkans. Some makeup exercise was necessary. So, it presented what it called a “credible enlargement strategy” for the Western Balkans—a document outlining the EU’s concrete plans for the accession region and the reforms it wishes to see. It’s a guide on how to save the relationship before anybody is forced to poison the other’s tea—or drink it.
