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The backsliding of the rule of law in Europe: diving into a paradox

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Eurac Research Blogs cooperating with Lo Spiegone - © Lo Spiegone Matilde Contessi

The concept of rule of law frequently makes its appearance in the EU political scene: in many institutional documents, Treaties, political discourse and even in newspapers. Nonetheless, most of the time it remains obscure and undefined, which makes it difficult for people to understand. Thus, the rule of law tends to only be associated with the EU’s political jargon and not to something relatable to European citizens’ everyday lives.

Why should we care about the rule of law, and why is it a paradox?

Contrary to popular belief, the rule of law has a major impact on our life and it is something we should all be interested in. The reason is rather simple: for better or for worse, the rule of law is highly pervasive in European politics and in the foundations of the EU itself. Expressions such as “promotion of the rule of law, “respect of the rule of law”, or “violation of the rule of law” are often recurrent in the news or in papers and articles related to the EU. In a more technical form, these expressions are present in the Treaties and official documents.

Aside from the legal perspective, we need only ponder what is happening beyond our borders to understand why the rule of law is so important to be aware of. In fact, without such awareness, it is impossible to fully understand what is happening in Hungary or Poland, and the reason why certain measures adopted by their governments are so dangerous. The same applies to the current situation in Belarus in the aftermath of the last presidential elections. In all three cases, the violation of the rule of law has been solemnly condemned, resulting in warnings by European leaders.

Nonetheless, a paradox is hidden behind Brussels’ defense of the rule of law. In fact, the enlargement procedure requires the respect of the values enumerated in article 2 of the Treaty on the European Union:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

The legal bases of EU enlargement make explicit reference to a series of fundamental values, the rule of law among them. This means that any candidate country unable to meet these conditions, as well as the so-called Copenhagen Criteria, cannot successfully complete the accession procedure. Nonetheless, some Member States are already violating the rule of law (e.g. Hungary and Poland), without this leading to consequences comparable to the impossibility of joining the EU.

How to define the rule of law

Defining the constituting principles of the rule of law is not an easy task. Historically, comparative constitutional law has identified three similar (yet slightly different) concepts: rule of law, État de droit, Rechtsstaat.

The modern conception of the rule of law can be traced back to Albert Dicey, who in 1885 defined two fundamental principles of the unwritten British constitutions, namely the sovereignty and supremacy of the Parliament, and the rule of law. Having the British system in mind, Dicey identified the rule of law as a limit to the theoretically unlimited power of the state over the individual.

In contrast, the concept of Rechtsstaat focused on the nature of the state, emerging from written constitutions. The Rechtsstaat, mainly theorised by Robert von Mohl in 1831, was defined in opposition to the absolute state, which conferred unlimited powers on the executive. The rejection of absolutism was to be guaranteed by the legislator, as well as by the courts.

Finally, the État de droit originated in the Declaration de droits de l’homme et du citoyen (1789), and it was widely theorised by Carré de Malberg at the beginning of the XX century. The French variation of the concept put less emphasis on the nature of the state, this being the guarantor of the fundamental rights protection.

Aside from the historical definitions, it is important not to twist the concept of “rule of law” in a purely formalistic conception of “rule by law”, as it frequently happens in illiberal or authoritarian regimes. In fact, the mere existence of the law does not guarantee the respect of the rule of law.

A well-known definition was formulated by Tom Bingham, who identified the rule of law as the condition according to which every person and every authority within the state, public or private, is bound by and entitled to the benefit of laws, publicly administered in the courts. In other words, Bingham identified eight elements to define the rule of law:

  1. laws should be accessible to all;
  2. questions of legal right should normally be decided by law and not discretion;
  3. equality before the law;
  4. power must be exercised lawfully, fairly, and reasonably;
  5. human rights must be protected;
  6. means must be provided to resolve disputes without undue cost or delay;
  7. trials must be fair;
  8. compliance by the state with its obligation in international law as well as in national law.

In general terms, the Venice Commission of the Council of Europe identified six principles to define the rule of law, on which the legal doctrine found a wide consensus:

  1. legality;
  2. legal certainty;
  3. prohibition of arbitrariness;
  4. access to justice before independent and impartial courts, including judicial review of administrative acts;
  5. respect for human rights;
  6. non-discrimination and equality before the law.

Moreover, in 2016, the Venice Commission adopted the so-called “Rule of Law Checklist007-e)”, an important study from the perspective of comparative constitutional law and of international law. The study demonstrates the extent to which the concept of the rule of law is highly pervasive in national and international legislations, without being clearly defined. In fact, the rule of law appears in the Statute of the Council of Europe, in the European Convention of Human Rights, as well as in the Universal Declaration of Human Rights, but none of these documents explicitly define what is intended with such a concept. The international organisation that went further in the definition of the rule of law was the Organisation for Security and Cooperation in Europe (OSCE), which adopted a series of documents specifying the actions to implement in order to strengthen the rule of law in the Member States.

A final point worth making is observing the combination of the rule of law with other fundamental values. For example, the guiding principles of the Council of Europe are “human rights, democracy, and the rule of law”. However, as underlined by Joseph Weiler regarding the values of the EU, it is a “trinity” of concepts not so different from one another. In fact, as mentioned before, democracy and human rights protection are two essential elements of the rule of law; if one is missing, we cannot talk about the rule of law.

Analysing the rule of law to better understand Europe

On these premises, our project aims to examine the state of the rule of law in the European Union, with a focus on Central and Southeastern Europe. Given the complexity of the concept and the many possibilities to analyse the rule of law, we decided to adopt a specific point of view, regarding two different aspects.

The first aspect we intend to discuss is freedom of information, understood as a fundamental right as well as one of the pillars of democracy. In fact, the right of citizens to be informed about their government’s actions is an essential element of every democratic regime, as well as the right of journalists to exercise their profession in a safe and independent environment, without any pressure from the government or political parties. Sadly, freedom of information is not only threatened in Central and Southeastern Europe, but also in the rest of the world. The increasing episodes of violence against journalists, such as the assassination of Daphne Caruana Galizia in 2017, are a worrying confirmation of such trend.

The second aspect on which we will focus is the independence of the judiciary. In fact, Courts are one of the main targets of the populist governments in Hungary and Poland, and their competences and powers have been substantially weakened. An impartial and independent judiciary is another pillar of every democratic regime. However, such independence is not necessarily guaranteed, in part because the transition toward democracy is still ongoing. In fact, before the dissolution of Yugoslavia, judges in the former federal republics were nominated by political parties, thus binding and influencing their actions.

The choice of these two aspects in particular was dictated by the need to translate the rule of law into practical and relatable terms. Information and justice seem two aspects of everyday life meaningful enough for everyone to recognise their importance. Our project will try to examine the extent to which the political and constitutional conditions of the countries analysed are more or less problematic in relation to these two specific aspects of the rule of law. To do so, our analysis falls within the framework of European Union law, to which the next article will be dedicated. The project will then continue with a comparative analysis of a series of case studies, either Member States or candidate/potentially candidate countries, in order to effectively highlight the paradox of the rule of law.

References

  1. Bingham, Tom. The rule of law. London: Penguin, 2011.
  2. Chesterman, Simon. “Rule of law” The Max Planck Encyclopedias of International Law (July 2007).
  3. OSCE. “OSCE commitments relating the rule of law”, 28/01/2009.
  4. OSCE Ministerial Council, Decision No. 7/08 on further strengthening the rule of law in the OSCE area”, 08/12/2008.
  5. Palombella, Gianluigi. E’ possibile una legalità globale? Il Rule of Law e la governance del mondo. Bologna: Il Mulino, 2012.
  6. Venice Commission. “Report on the Rule of Law003rev-e)”, 04/04/2011.
  7. Venice Commission. “Rule of Law Checklist007-e)”, 18/03/2016.
  8. Weiler, Joseph H. H. “Deciphering the Political and Legal DNA of European Integration”, in Philosophical foundations of European Union Law, ed. Julie Dickson and Pavlos Eleftheriadis. Oxford: Oxford University Press, 2012.
  9. Weiler, Joseph H. H. “Epilogue: Living in a Glass House”, in Reinforcing Rule of Law Oversight in the European Union, ed. Carlos Costa and Dimitry Kochenov. Cambridge: Cambridge University Press, 2016.
  10. World Justice Project – Rule of Law Index 2020

Lidia Bonifati - Lo Spiegone

Lidia Bonifati is currently a PhD researcher in Law at the University of Bologna and the University of Antwerp. Her research interests include constitutional design for divided societies, minority rights, federalism and asymmetries in comparative constitutional law. She is also Secretary of the online newspaper Lo Spiegone, and a contributor for the “Europe” section. She left her heart in Bosnia, while walking down the stone-streets of Sarajevo.

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