A Citizen’s Guide to the Rule of Law
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What is to be done? What can we, each and every one of us, do to save the rule of law, to bring it back to its former, vibrant self?
The first step towards solving a problem is to admit that we have one. Therefore, let us first wrap our minds around the rule of law, what it is and why we need it. And then, let’s see where we have failed so far and how we could do better. That’s the goal of this book, a citizen’s guide to the rule of law.
Our aim is to speak directly to our readers wherever they may live, with the hope that what we say about Europe is also relevant beyond. We know that we are dealing with complex issues here and we will do our readers the courtesy of not simplifying the matters outrageously. For sure, it’s complicated to live together peacefully!
But by appealing to our shared intuitions, our experiences, and our common understanding of how the world works or, at least, ought to work, we hope to provide a practical guide and make these complex topics understandable. Yes, we do use political and legal theory, political science and philosophy in our arguments. But we hope to present a handy guide that speaks to practitioners, but also well beyond, to all concerned citizens.
Sometimes we use thought experiments to make our arguments clear, and when we can, we offer real-world examples from across the continent. Forgive us for often avoiding specific country names for the sake of generalisation, if not anonymity. As should be clear by now, we are less concerned about where any concrete attack on the rule of law has happened, and more about the patient we seek to nurture, the combined consequences of continuous attacks for every day citizens. This wondrous creature of ours must be strengthened once again by our collective life force. By taking a position of levity and introducing a good portion of humour, our ambition is to suggest how we can save the rule of law.
But more than that, we want this book to offer a call for action and for engagement.
Coming up next
This book seeks to be an accessible but nevertheless sophisticated handbook for rule of law and its promotion by EU citizens. We wish to learn from the mistakes of the past and to suggest new pathways. We will deal not only with the question of how the rule of law should be promoted, but also with what it actually means in practice—in EU member states and in those countries wishing to join the Union. From Bucharest to Rome, from Madrid to Zagreb and from Priština to Sarajevo and Ankara, we wish to speak to all citizens, so that together, we can save the rule of law from its attackers.
In Chapter 2 (When rule of law meets EU accession) we properly introduce the concept of rule of law and discuss its position within what we have increasingly come to call “liberal democracy”. In this book, we have chosen to look at the rule of law through the prism of accession to the EU because we think that this is where most questions of the rule of law become virulent. As we shall explain further in the chapter, we see the EU’s accession process as a “proof of concept” for our new understanding of the rule of law, with the latter’s principles being far more widely applicable than to EU enlargement.
Chapter 3 (Rule of law promotion, EU-style) reviews the shortcomings of the rule of law approach currently promoted by the European Union. We will explain how the current approach does not really fit with what a deeper concept of rule of law should be. We will look at what the EU has done so far to promote the rule of law, and discuss why it did not work. Consider this chapter an introduction to the EU’s rule of law efforts, even if we don’t like to call it that because introductions are rarely read with the carefulness they should be read.
Chapter 4 (The Fundamental Dilemma of EU Rule of Law Promotion) presents what we call EU’s rule of law “promotion dilemma”, a kind of catch-22-situation in which the EU finds itself. On the one hand, the EU has to be rather intrusive so as to enable a sustainable rule of law framework in future member states; on the other, it has to show restraint due to developments within the EU that may negatively impact its credibility. It also has to pay attention to the larger context in which it intervenes. We show that the inconsistencies this creates could be avoided if the EU adapted its understanding of the rule of law. We also show what the consequences of the current approach are and where a new approach should start.
Chapter 5 (Taking on the rule of law dilemma by being more ambitious) presents some of the building blocks of this new approach. Our solution consists of reframing the debate under the seemingly contradictory headline of being “humbler and more ambitious” in order to make the rule of law stick. We need to prevent digressions and make reforms permanent or “sustainable”, as we shall call it. Sustainable rule of law involves the entire society, not just lawyers, bureaucrats, and judges. As chapter 5 will explain, the EU’s rule of law promotion therefore needs to be more ambitious. It needs to engage with citizens, non-governmental organisations, interest groups and many more. It needs to become part of the social fabric.
At the same time, however, we argue in chapter 6 (Taking on the rule of law dilemma by being humbler) that to make rule of law promotion sustainable, the EU has to be humbler in what it presents as the “EU model” of the rule of law. Such a model simply does not exist. Different EU member states have different rule of law frameworks, all of which are supposed to be compatible with the EU’s rule of law norms. Acknowledging that would open up new spaces for manoeuvre and reform in the candidate countries. So, humility from the EU is a good start.
While these discussions are rather theoretical, chapter 7 (Promoting the rule of law in practice: the “living list”) offers a more practically oriented guide of how to deal with rule of law and its promotion on the ground. We examine the EU’s strategy in resolving the constitutional and political crisis in North Macedonia in 2015 focussing on concrete challenges to the rule of law in the country. Broadening our perspective, the chapter then presents our new approach for the EU’s rule of law promotion, which centres on a citizen-based perspective of what the rule of law actually is. We discuss the actors that should be involved in monitoring the rule of law in a country and present a “living list” of indicators and questions that should guide rule of law assessments in a country. The beauty of this list is that it can be employed in member states as much as in EU candidate countries.
Chapter 8 concludes the book by putting the rule of law and its promotion into a larger context and arguing for an engagement of each and every individual as guardian of the rule of law. It brings us back to the beginning of this chapter and our call for action.
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As you see, our goal is to provide our readers with all the information and tools they need to understand the challenges of the rule of law and its promotion.
But we freely confess, we have an ulterior motive. It is our deep belief that the rule of law is not something that lives on paper or in some procedure, but as a principle of living together that should be nurtured within each of us. We hope that you, dear reader, will do so, not primarily because you believe it’s necessary for the development of your country or for joining the European Union one day, but because you too believe in the rule of law, as humankind’s most precious invention. Because you realise how important it is for it to be kept alive and how dangerous it is to let it die. We are missionaries in the truest sense of the word.
But we ask even more. Let us become an even more active community. Let us approach our politicians and demand sustainable rule of law in a language both we and they understand. Let us fight small rule of law breaches as vigorously as we would fight larger ones. And let us speak up when the rights of our neighbours, our journalists, or our judges are being infringed upon.
And together, for everyone’s sake, we can save the rule of law.
Chapter 2.
When rule of law meets EU accession
For years, if not decades now, there has existed a fundamental misunderstanding in what we think the rule of law means in practice. It’s easy to see this misunderstanding when we look at an area in which the rule of law is supposedly at the centre of everyone’s attention: the EU’s accession policy.
In this book, we mostly focus on EU accession because it can teach us a lot about how the rule of law is established and what challenges it may face. The accession process is where the ideals of the rule of law, the practical challenges to it, and resistance to its implementation all coalesce into one. And the EU’s rule of law promotion efforts in this context can serve as our “proof of concept”. Everything we wish to say, can be said with the accession process as an example. But the ideas we put forward are applicable to all other contexts dealing with the rule of law, especially in EU member states. What we say matters, whether one lives in an EU member state or not.
The Twin Imperatives for the Western Balkans
Negotiating accession
Yugoslavia’s violent disintegration began in the early 1990s, when a number of wars among the former republics of the socialist confederation broke out. They would last for more than a decade and be fought with a brutality few had thought possible on the European continent after the experiences of the Second World War. The EU and its institutional predecessor, the EC, proved unable to prevent the outbreak of hostilities, and the self-proclaimed “hour of Europe” as an international actor turned out to be an empty phrase.1
When the Yugoslav wars eventually subsided, the EU offered a “membership perspective” to the successor states of the former Yugoslavia as well as Albania, which had not been part of Yugoslavia, as it had done with Central and Eastern Europe states (CEE) after the fall of the Iron Curtain in 1989. Today, Croatia and Slovenia are full-fledged EU member states, while the remaining countries—Bosnia-Herzegovina (BiH), Serbia, Montenegro, North Macedonia, Kosovo, and Albania—are still engaged in the so-called accession process. These countries are usually referred to as the “Western Balkans” or the “Western Balkans six”. It’s somewhat of a cumbersome, political term that desperately avoids any kind of connection with the Yugoslav past, but it has become the norm, so we shall use it as well. Why complicate matters more than necessary, right? But we shall also throw Turkey in the mix occasionally, for what we are saying matters there as well.
To become full members, these six states (and Turkey) have to fulfil a set of conditions—known as “membership criteria” or the “Copenhagen criteria”. They have to align their legal, political, and economic systems to the bulk of EU legislation that already exists, the so-called acquis communautaire. Basically, the EU’s rulebook. If a country wants to join, none of its laws and rules may contradict what’s in the rulebook, the acquis. Accession is thus basically an exercise in reforming existing rules and laws to fit the EU’s standards. This is actually quite a one-sided process, as the EU sets the rules and the candidate countries have to follow. Some would say that’s unfair, and it indeed is; but we shall come to that in a moment.2
As part of the accession process, EU negotiators have also sought to establish what they have called the “rule of law” in the accession countries. Yet, it has not really worked, despite their best efforts. Rule of law “reforms”—if one may so call the at times rather small legal changes to which the domestic political elites agree—are moving slowly, and at times hardly at all. Young people are leaving the region by the tens of thousands; economic prosperity is nowhere to be seen, while the political and legal systems seem inadequate to cater to what citizens deem important. That’s not just a feeling propagated by opposition politicians and civil society actors critical of Western Balkans governments. It’s a fact.3 Many of the former or current accession countries still struggle with serious rule of law challenges. The judiciaries are not independent and don’t deliver swift and fair justice. The policemen are corrupt, not to speak of the politicians who exploit state resources for their own benefit.4 In general, more than two decades after the EU’s rule of law engagement in the region began, these countries are quite far away from the ideal the EU has been promoting in the guise of “liberal democratic regimes”, the ultimate goal of accession.
In other words: the EU’s rule of law promotion has a serious problem. It lacks efficacy and sustainability, due in part to flawed understandings among at least some of those who are expected to promote it.
Yet, without sounding too grand, it is fair to say that the rule of law is especially crucial in this region whose stability depends on it. But why?
Establishing legitimacy
With the exception of Turkey, the accession process deals with post-communist and post-war countries, which have a particular legacy to confront. In previous systems, authority came from above, from either the party or the warlord, and it was allegedly dispensed for the good of some imagined community, such as the “nation” or the “working class.” In a democracy, however, political authority comes from below, from the people, or rather all the individuals constituting that society. It’s the individuals that provide the democratic system with what we call legitimacy.
Legitimacy is a big word, we know, and philosophers can discuss it forever—and they have. But it actually means something quite simple: a political system is described as “legitimate” when we, the citizens, think that there is an authority that has the right to set the rules that we have the obligation to obey. That’s basically it. For a system to be truly legitimate, it is important that citizens are convinced that they have to follow the rules regardless of the latter’s actual content, just because they respect the authority that made that rule.5
But even when legitimate, authority requires checks and balances and this is what the rule of law is all about. It constrains the exercise of power over each and every one of us and by doing so, it
When do you say ‘yes’ to authority?
Maybe you had a say in how it was established—you elected your representatives in parliament who voted on the rule, for example the law to wear seatbelts. Or you respect the process by which the rule was adopted—everyone had a say, experts were consulted, the vote was free and fair, and so on. Or you agree with the outcomes the rule produces—for example, fewer deaths in car accidents, less crimes in the streets, or food that is safe to eat, and so on. Or all three of these reasons. So, if these conditions are fulfilled, we can say a state or political system is legitimate. If not, things can get ugly.
contributes to the legitimacy of a system. So, ultimately, it’s one of the corner stones for peace and stability in any society.
Breaches of the rule of law seem much more dramatic in states that are in the process of becoming democracies. It is something quite different if one’s rights are disregarded in a liberal society that increasingly becomes illiberal, or whether this happens in a transitioning society that so far never enjoyed the full range of liberal rights. It is in the latter case that the rule of law develops its full meaning and it is here that the “deep concept” of the rule of law we wish to promote must stand its ground. Don’t worry, we shall come back to the “deep concept” in due course.
However much you are convinced that the rule of law matters, it won’t have escaped your attention that we have performed a magic trick: we never said what precisely the rule of law is. Instead, we just offered some hints and fragments of a larger concept. We’ve created somewhat of an illusion for us all to believe in. It’s now time to give the trick away, even if this means we can never become members of London’s Magic Circle.
What the Rule of Law is and why it matters
Everyone should want to live in a society blessed with the rule of law.
Where you stand free from the tyranny of fear: you may not be treated arbitrarily neither by the state nor the powerful.
Where you stand free of the tyranny of the few: no king, minister, nor Mafioso is above the law.
And where you stand free of the tyranny of the majority: no minority group may be persecuted with impunity.
The rule of law offers you safety, security, and may we say dignity, like a comfortable Iron Man suit protecting you at all times and against all enemies.
It seems intuitively obvious that the rule of law is a good thing to have. Or would you prefer to subject yourself to arbitrary rule by a monarch, government, or mafia godfather? If so, would you not deny yourself the very dignity that makes you human?
We know there are people who find subjugation quite exciting, sometimes even arousing. But even for them, the eventual relief is an integral part of the fascination. Few would freely submit themselves forever to somebody, and even fewer would advocate servitude as a guiding organising principle for modern societies.
It was the German philosopher Immanuel Kant who said that human beings should never be treated as means, for example for someone else’s pleasure. They have an inherent moral value that ought to be respected and protected. Of course, we don’t need Kant to tell us what we intuitively know already: that one should always treat other human beings in a way that one wants to be treated oneself in that particular situation. If there is such a thing as a universal law of humanity, a golden rule, this edict probably lies at its core.
But while generally a good guide in life, intuition has its limits. There are, after all, situations where there is no universal consensus about what the intuitively right thing to do would be. Or is there an intuitively correct answer to the riddle US comedian Stephan Colbert likes to put to his guests, namely whether they would prefer fighting a horse-sized duck over a hundred duck-sized horses?
Then there are events in nature that are true even if they defy our common intuition. A quantum particle can be at two places at once, and a group of people might choose to annihilate another out of fear. Intuition is a predictor neither of truth, nor of morality.
Therefore, saying that we intuitively know what the rule of law is, or at least ought to be, and why it matters, does not really bring us very far in our quest to distil its deeper meaning. And distil it we must, before we can move to the task of actually saving it.
Going deep: Love and everyday gestures
To know what we mean by the rule of law as a “deep concept”, we need to start by treating the rule of law as if it were a loving relationship between two people. There is the deep love that profoundly binds them together, and then there are the everyday gestures through which this love is expressed.
With the rule of law, there’s the larger principle, the core. We need to know what norms constitute this core and what functions they perform. That’s the love part. Once we have clarity on that, we need to figure out how the larger principle is to be applied in social and political orders. We need to know what the core means concretely for living together. That’s the everyday part.
So, let us start with the first task, thinking about the larger principle, the love. Here, a problem occurs that is very central to our larger argument in this book and makes this next section somewhat complicated. Bear with us, please.
We may approach the rule of law from different viewpoints. Aspects of it are philosophical, others are sociological, political, or legal. Trying precisely to define what we are talking about is thus difficult, as it varies slightly from one perspective to the other. Indeed, looking at the vast rule of law literature that has been produced so far, we find that actual definitions about the rule of law are either absent, or they depend on what the writer wanted to achieve or the era or tradition in which s/he writes.6 Debates among legal theorists abound so that one may be forgiven to think that all these smart people have actually no idea what they are talking about.7 After all, if you cannot even agree on what your subject is, how can you determine whether it’s there or not?
Of course, all these people know very well what they are talking about. They are smart and have done some serious thinking. But they sometimes lack the ability to make their thoughts clear to the rest of us. They have a problem of communication rather than one of understanding.
The challenge in defining the larger principle of the rule of law is quite straight-forward; actually, there is one fundamental point upon which all these lawyers, philosophers, sociologists, and political scientist can agree:
The rule of law is a “rule about the importance and priority of legal rules” for a particular society.
Sounds relatively straightforward: The rule of law is simply the command to obey the laws.
But that can’t be all there is. The rule of law concerns itself with the law—but is at the same time something above the law? This definition indeed “carries a whiff of paradox, a circular sense of justification”.8 There seems to be no distinction between the love part, and the everyday part of the rule of law. Yet we need those two aspects of the rule of law to somehow come together in a definition, if we wish to make the concept broadly understood. But how?
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”.