Rule of Law is not like IKEA furniture

What is the societal dimension of the rule of law? How can we improve democracy on the European Union level? Is there a place for citizens engagement in design of the Conference on the Future of Europe? Paul Blokker, an associate professor at the University of Bologna, in a conversation with Kasia Krzyżanowska, unpacked all these issues.

Democracy in the European Union

Kasia Krzyżanowska: We are having this conversation just at the beginning of the Conference on the Future of Europe. Many things we will discuss will reflect some of the fears and hope this event raises. In your recent paper in the Reconnect series, you argue that we have a crisis both of the rule of law and democracy within the member states and on the European Union level. You also suggest that the way to fight these crises lies not in the legalistic enforcement of the rule of law principles as envisioned by the EU, most notably by the Commission, but rather in enhancing social and societal embeddedness of the rule of law. In this conversation we will try to unpack all the claims that you made in the paper, starting from your bleak diagnosis of democracy in the EU. I remember your old paper from a decade ago in which you developed a concept of constitutional anomie. Basically, it describes a situation of a mismatch between a constitutional imaginary of institutions and the political and social context in which it actually operates. Can we say, based on your observations, that in the EU we are now experiencing a democratic anomie? Or perhaps something else that we should call a “fugitive democracy,” or something totally different?

Paul Blokker: It is interesting that you bring up this concept of constitutional anomie which I coined ten years ago. The idea was to indicate a gap, tension, or disconnect between the type of constitutional liberal parliamentary democracy that had been implemented and institutionalized in the former communist countries, and the actual sort of societal, democratic, participatory developments within wider society. In some ways, I think it makes sense also to link this idea to the European Union immediately, also in relation to the launch of the Conference on the Future of Europe. There is a great risk that within the current European constellation the idea prevails that the solution to lack of democratic legitimacy can be purely resolved by means of— let’s call it — representative democracy “light”: some modest injections of representative democracy into the European Union’s system. 

In that sense, anomie might be an important element, because particularly in recent years there is an increased societal interest in the European Union and in political integration. 

There is a very interesting research paper by Mary Kaldor and others on what they call the rise of insurgent Europeanism, which indicates a politicization of European politics. We also see a whole range of different surveys recently with regard to the Conference on the Future of Europe. One of them is for instance by “Citizens Take Over Europe”, suggesting that citizens would want to be more directly involved in elements of decision making. The anomie consists then in the idea of the institutions and the elites going in a direction of modest reform around representative ideas, whereas society seems to be pointing to a much more participatory, bottom-up type of idea of democracy and democratic participation. Anomie is relevant there. It teases out certain dimensions of the democratic deficit. 

The concept of fugitive democracy I find also intriguing — it makes me think of Sheldon Wolin’s work on this concept. He identifies how spontaneous democratic politics becomes sort of institutionalized, a part of a process of bureaucratization, professionalization, and technocratization. Democracy in those processes tends to suffer. Again, that is clearly a great problem for the European Union which engages in a kind of pragmatic technocratic approach to politics. Just think of the vaccine policy or the recovery fund: these are issues that are extremely political, of direct interest to citizens. It’s hard to see how the EU could go on with its technocratic, expert based policy-making without actually allowing for a more comprehensive, systematic way of democratizing.

That matches perfectly with my second question. Why is this democratic deficit visible in the EU now? As you note in your paper, the European Community was envisioned by its founding fathers as an elitist and precise technocratic project. What has changed so that we are now experiencing a democratic deficit so manifestly?

Maybe it should be formulated the other way around. What has not changed? Of course, the birth of the European project was ultimately a functionalist, utilitarian market-making project. In that sense, certain things have not changed but the contexts have. Some scholars and experts, like Richard Youngs, talk about the poly-crisis of the European Union. You could say that perhaps we should start with the Convention of the early 2000s, and the failure of constitutionalization of the European Union. But then we witnessed a whole series of other crises: the financial and economic crisis, the migrant crisis, then obviously the crisis around terrorism, Brexit as a major rupture in the whole evolution of the European Union, and then of course, currently the health crisis — the pandemic situation. These have all added to amplifying

the lack of capacity of the European Union to really respond to such crises.

You actually see it with the economic crisis, which we never really got out of (particularly not in Southern Europe and in certain parts of Central-Eastern Europe). This is an ongoing structural problem. 

That accumulation of crises probably explains how the democratic deficit has become more upfront. Because the EU is largely a functional project which derives the largest part of its legitimacy from output-oriented legitimacy (delivering the goods), but it hasn’t been very effective in delivering the goods. Even in the pandemic — that’s clear! The great confusion and delays around vaccines where the EU was supposed to be taking a pioneering role but did not do its job properly. This all adds to a more visible democratic deficit but also an increased bottom-up politicization. There is an increased awareness within the society that the way the EU is functioning currently contains a lot of problematic dimensions. 

Would it not be enough to pursue further the logic of parliamentarization, so to endow the EP with the right  of initiative, which was one actually of the proposals of the then candidate of the Commission, President Ursula von der Leyen? Or to put it differently, why parliamentarization is not enough and the citizens themselves should be empowered with the right of initiative or to participate directly in the EU politics.  

Maybe we should add a further dimension to it. Even parliamentarization in the EU is highly contested. There is clearly enormous resistance to any kind of change. For some political forces, member states, and even institutions, a modest extension of democratization through the parliament is already considered to be radical. But to return to your question: going back to that notion of anomie, what I’m trying to indicate with anomie is that in current times,  

building democratic structures within an imaginary of democracy actually doesn’t work anymore. 

The classical liberal representative parliamentary-based democracy doesn’t seem to work anymore on the level of the member states, it shows great problems in terms of including citizens and of making citizens enthusiastic about the democratic political project. We see great problems with the traditional role of political parties as intermediaries, and we see great problems in terms of distrust of all kinds of institutions (including parliaments, like is the case in the country I live in, Italy). These are all indications of a representative parliamentary system that has great problems in its own right. So, if you take that model to the European level, I at least have great difficulty of understanding how such a model would systematically enhance the democratic legitimacy of the EU.

I’m not saying that the right of initiative for the European Parliament wouldn’t be a good idea, and as I indicated, for many it’s already too radical. In my future work, I might publish a couple of maps and visualizations of this. It seems to me that the route of parliamentarization is one direction but it needs to be paralleled by other channels that put citizens in a much more central position. There are a lot of civil society organizations around the Conference on the Future of Europe that make calls for a permanent citizen assembly. That’s just one example of what Wolin calls spontaneous politics — from where more radical and interesting and creative ideas come — and try to channel it into the institutions. However, it seems highly unlikely that the EU and its institutions are ready to open up for democratic, more structural type of reform. 

The European “Rule of Law” Discourses

We already had a conversation with Markus Patberg who is advocating for a  permanent constitutional assembly — we will come back to these ideas of how to reinvigorate the democratic dimension of the EU later on. Now we move on to the rule of law part of your paper. What kind of narratives have you identified with regard to the rule of law understanding in the European Union legal discourse?

The argument is really about the complex relationship between democracy and the rule of law. With regard to the rule of law, there is no consensus about what the rule of law is supposed to be: inherently it is a concept that includes tensions between its different dimensions. Whereas some colleagues and experts, and particularly legal scholars, tend to insist on a kind of monistic, universalistic view, we actually identified three perceptions. The most diffused conception is indeed this monistic, universalistic view that sees the rule of law as a kind of overlapping consensus on the European level, including a couple of core dimensions like legality or access to justice. The whole idea is that it’s largely an expert concept. It is guarded by expert institutions, the courts, and experts in the more individual sense. In this perception of the rule of law, 

the main problem is the non-compliance with EU standards regarding the rule of law by member states.

Hence the solution is to impose compliance. In the background there is a kind of federalist and monist perception of the European Union. The emphasis is on the core principles — let’s call it the Bible of integration through law — as is visible in what the Court of Justice of the European Union endorses and protects, focusing on the core principles of supremacy of EU law, direct effect, etc. This is, in reality a partial understanding of the rule of law. It’s an internalistic, judicial understanding, a very legalistic view. What we tried to say in the paper is that there are other ways of looking at the rule of law that are important. These different perspectives point to other dimensions that might be the core of the rule of law itself — so the way it actually operates in society. 

A second one is much more critical in many ways, comparative and contextually sensitive. This viewpoint says: well, there might be a kind of minimal understanding of the rule of law. All countries want fair and equal systems of justice, but the contexts are highly different. For example, and very relevant for the debate on the crisis of the rule of law, is an East-West difference. There is obviously a complex difference which means that 

the diffusion of the rule of law in Central Eastern Europe since the 90s has faced great problems that have not been recognized. 

You could say that the approach of the EU has been, as the scholar Günter Frankenberg calls it, a kind of IKEA approach to the rule of law. You have a ‘one-size fits all’ type of the rule of law, let us say, a box full of particles which are send to and then reconstructed in Central and Eastern Europe. In all states it works very nicely, even if with the small problems we all have with constructing IKEA furniture. But that idea of the diffusion and the transfer of the rule of law is problematic because it doesn’t have those antennas, those forms of engagement with the local realities that would allow it to reform the rule of law around local problems. Of course, there are still problems, for instance, around hyper-positivism within judicial systems, related in many ways to legacies of socialist legality or legal education.

The third one is really the dark version. It is the vision that much of the right-wing conservative populists tend to articulate pretty aggressively: a kind of sovereigntist understanding which, by the way, cannot be entirely dismissed. Basically, it says the rule of law and the understanding of the rule of law is always a bottom-up issue. It is part of the political community in which it operates. You see that in claims of Kaczyński and the Law and Justice party [PiS] in Poland or Orbán in Hungary. But this was also an argument around Brexit among some of its proponents. That third vision of the rule of law has some important dimensions. The identification of the problem may be shared-. There is a kind of tension between top-down interference from international institutions and local understanding of the rule of law. The problem is that the solution offered is the kind of Europe of the peoples, as many of these right-wing conservatives now call it, which closes the door because it basically confines the rule of law to national business. In this reading, the EU has no business there. That evidently does not work in a rule of law-based EU. 

I would like you to assess the third dimension that you have already explained. The illiberal critique of the rule of law means that the rule of law cannot possess a valid and commonly accepted definition in the pluralistic legal sphere of the EU, as the first dimension you mentioned insists. The illiberal critics are saying the rule of law is an ideological instrument to discipline the other member states — precisely the Eastern European EU member states. Is it a valid critique, according to you?

As I tried to indicate before and as I generally in my work tend to argue, I believe that the critique to some extent needs to be taken seriously, particularly from the side of the East-Central European countries. It can be argued that those societies — basically, the last additions to the European family —have not had a lot of influence or a constituent role in the various institutions where the norms and standards have been developed around the rule of law. It needs to be taken very much into consideration from a perspective that argues that the rule of law has fundamentally important societal and sociological dimensions. I have to admit you need to put some effort into it, but you could re-read some of this critique from the populist side as an indication of the need for taking the context seriously. You could then look closely at lingering problems of transitional justice, of what is ultimately a process of democratic transformation that never really finalized into consolidated democracy.  

If we take that seriously, 

it teases out a number of the very problematic dimensions of a top-down, one-size fits all EU rule of law policy. 

That is not unrelated to a philosophy of science type of dimension, but the key point is that it involves  the problematic idea that you can simplify the rule of law by creating simple standards, and simple criteria to measure the rule of law. Martin Krygier calls it an anotomical, check-list type of approach which is not sensitive to contextual differences. That is perhaps its biggest problem. To reformulate: it’s important to take that critique seriously, but then to reformulate it into something that can actually help us to rethink rule of law policies that wouldn’t take the IKEA approach but would actually take local dimensions seriously. 

Too Much Authoritarian Behavoir

Let us refer to a tension between the democratic deficit and the authoritarian crisis, as you did in your paper. How do you precisely understand the relation between the democratic deficit on the EU level and the populist or even authoritarian tendencies in some of the member states?

It’s a crucial question: to think about the democratic deficit in relation to this form of backsliding. I will try to explain it a little bit better. I think you can think about it in at least two ways, in a bottom-up way and in a top-down way. Bottom-up, as argued by Dan Kelemen for instance, is that the authoritarian tendencies that are generally called backsliding in Central-Eastern Europe, are undermining democracy in Europe. It’s a kind of bottom-up democratic deficit, importantly, 

it reduces the possibility of democratic interaction between member states and institutions. 

To give you one example, it’s particularly clear within the context of the Conference on the Future of Europe. For instance: EP’s European Conservatives and Reformists [ECR] hosts a lot of our conservative populist friends, like Zdzisław Krasnodębski — a major figure in that party family. He is also an observer in the executive board of the Conference on the Future of Europe. The ECR has made a lot of explicit statements on how necessary it is to object to notions of European federalism, all these political activists with their federalist pro-EU ideas have to be stopped, and so on and so forth.  That also renders extremely clear the unwillingness to allow plurality, democratic interactions between various actors in the European context. 

By the way, I should also mention here that this is not only a type of behavior that we see from the Hungarian or from the Polish governments. There was a recent open letter by 12 countries, among which were the Nordic (austerity-loving) states, that equally indicated that the Conference on the Future of Europe should not be engaging in any kind of legislative action. That’s in a kind of way related to the bottom-up dimension linking democratic problems and issues in member states to the larger European construct. 

But there is also the top-down dimension where one could argue the EU itself, 


due to its democratic deficit, is not able to deal with problems on the ground in member states.

In many respects, it faces huge problems of democratic legitimacy and accountability. There again you get this critique of a kind of colonialization of Central and Eastern European. Various studies have brought this out: for instance, colleagues from the RECONNECT project indicated in a recent article that the more the European Union wants to actively intervene, the more likely it is going to produce perverse effects — higher rates of resistance, and perhaps even citizens in the societies concerned feel a greater distance from the European institutions. There is also another problem — particularly Dimitry Kochenov has pointed it out — that the “practice what you preach” part of the European Union isn’t always working very well. The EU itself has great problems with the holding up its own stance of the European rule of law. We see that even with the Court of Justice of the European Union.

In this context the PSPP judgment from 2020 issued by the German Constitutional Court  is also interesting because it displays how the European institutions are reluctant to respond to democratic claims from the member states. You read this PSPP judgment as an instance of a domestic institution rejecting the decision taken by the EU institution that encroaches on solid democratic process. You mentioned the paper from the RECONNECT series on the EU institutions’ effects — recently a similar paper was published. It indicated that the more interventionist the ECJ is, the more sceptical toward the EU and democracy the national polity becomes. Indeed, there is the tension of EU institutions being too interventionist and then society being too rejectionist towards the institutions. In this context what is the role of the EU institutions in social embedding? Shall they only be a passive observer checking the conformity with some rules or should it be more active in that process? It reminds me of the Copenhagen criteria process that perhaps we should also take into account now. Has the Copenhagen Process been insufficient to socially embed an EU understanding of the rule of law in the candidate member states?

These are excellent questions.I would immediately make a distinction, I would see the Bundesverfassungsgericht [Federal Constitutional Court] as clearly an institutional actor. I have a bit of difficulty in reading its resistance to EU law as a form of democratic resistance. You could also read it as a kind of expression of national sovereignty. The distinction I would like to make is the relationship between national institutions and international European institutions is surely at stake. But what I am increasingly thinking about is that the only way of creating a virtuous type of relationship is by adding a third dimension — a societal dimension — that is neither fully part of the member states’ political and judicial architecture, nor of the European institutions itself, but plays a third actor type of role. There are, of course, great tensions and claims that need to find institutional platforms or channels to be able to openly debate differences and perceptions. There is a lot that is lacking and as you said before, there is still too much of a picture of the European Union as an actor imposing its position, for instance, for instance in terms of the Court of Justice claiming its supreme position. There is a great recent paper by Richard Bellamy and Sandra Kröger. They come back to the question of constitutional pluralism  and it indicates that there is a need for unity in diversity — as 20 years ago we tended to call it around the Convention of the Future of Europe — but that diversity needs to find ways to be expressed. 

Returning then to not so much the constitutional dimension but more the societal dimension. The societal dimension could be a third dimension — so, the EU, the nation states and then societies in Europe —so that you could have an interesting factor in European politics that renders the deadlock of a kind of blame game between member states in the EU much less effective, it would neutralize it in  a way. Civil societies in Europe would be able to mobilize and have a force on the supernational level, then it would be much harder for national politicians to say: “well yes, but Brussels is imposing this on us.” Actually, if there have been whole parts of their own societies who have been collaborating or co-deciding on these matters, you cannot really make that argument anymore. There is little imaginative thinking around such societal dimensions, which is really unfortunate. 

Taking the People into Account

The core of your paper is the rule of law from the societal perspective. You argue that its understanding is better than a purely legalistic approach in the context of the EU. How can we imagine this societal embeddedness of the rule of law in countries such as the Central-Eastern European member states where the civic constitutionalism is still weak and not well-developed? How can we envision that the rule of law from the societal perspective will be more entrenched in society? 

You used the term civic constitutionalism — you could say it is weak across Europe (except for Switzerland where there is a continuous active interaction between society and institutions). The argument in the paper it is not that societal understanding is better or needs to replace a legalistic one. It is much more complementary. As Martin Krygier has said a number of times, 

the rule of law is too important to be left to lawyers because ultimately it is also a societal instrument. 

It is not sufficient to think that the rule of law needs robust judicial institutions which have their own internalistic professionalized language. Martin Krygier’s point is that we really need to focus on the end users, the actual objectives that lie outside of the rule of law. The rule of law is a social fact, it’s not just a technocratic legalistic edifice, and it needs to produce tangible societal benefits. 

As we say it in the more codified language of the rule of law: access to justice, fair and equal treatment, fair trial, but we know so little about how that actually operates in society itself. It’s one thing to have your constitution and other norms stating that you have the right to a fair trial, it’s a completely different thing whether that really works in practice. This is not just an East-Central European problem. In my country of residence, Italy, a lot of people would agree that access to justice is a huge problem, even if it is guaranteed in the institutional, normative context. The rule of law is a social fact rather than a technique. 

There is another extremely important dimension that needs to be highlighted. It provides the first type of framework that allows society to operate. It’s not just a static issue, but a dynamic one, because 

it allows civil society, media, journalists, to be active and to actively uphold the rule of law. 

This sociological approach is interested in the end users, but, unfortunately, we know so little about the end usage. There is very little in terms of systematic comparative analysis. For instance, only recently,  in the Netherlands, a research project by Marc Hertogh of the University of Groningen, called CITIZENS-LAW. Towards a New Approach to Strengthen the Rule of Law in Europe: Incorporating EU Citizens’ Perceptions of Law, has been financed. He has taken up these issues directly and researches Hungary and Poland, looking into: what do people actually think when you ask them about the rule of law. Earlier research in the 90s indicated that in some countries, large parts of society understand the rule of law as something for other groups, as facilitating and privileging other groups’ positions, understanding the rule of law and perhaps even human rights as something negative with regard to their own position, something that they cannot afford, or actually discriminate against them. These visions and perceptions are extremely useful because an effective rule of law would need as few people thinking in that way as possible. They apparently understand the rule of law not as a benefit but as something that is obstructing their social trajectories. The sociological perspective puts strong emphasis on the really existing different perceptions of the rule of law.

Indeed, there is much new research about how the citizens perceive some of the concepts that we lawyers take for granted. For example, recently a book was published by Zizi Papacharissi, a political scientist, who asked people around the world what does democracy mean for them. It’s such an obvious step but was not undertaken before.  Now I wanted to ask you in the context of what you already mentioned about the reluctance of the institutions about the transformation, by what means we can actually reinvigorate democracy in the EU? Is it hard to imagine but let’s take the opportunity for blue-sky thinking. 

There are various ways of course but they are not equally effective. They are extremely relevant in the light of the launch of the Conference on the Future of Europe. You could broadly identify two approaches. The first one would be a kind of tinkering, a recalibration, a kind of reengineering the European institutions, also with citizens — a kind of incremental modest process. The other way would be a radical leap forward, a really structural reimagining of the European Union as a democratic system. And that would need much more forceful steps with probably a new constitution. I think the first option is not to be completely ignored, although it’s very unlikely to address the great problems the European Union is facing in terms of a lack of democracy within its institutions. 

We know 

the most recent real attempt in reengineering of European democracy was the Spitzenkandidaten procedure, which reverberated nicely amongst elites and in Florence at the European University Institute.

Nevertheless, ordinary citizens won’t even know what you are talking about when you mention this. Ultimately, it is a largely interinstitutional vision that relies on the idea that if you slightly change the relations between the Commission and the Parliament, in relation to European Parliamentary elections, then you have an important boost of democracy. I don’t think that is sufficient. I invite everybody to imagine a much more radical way. We probably need a third pillar — different from the pillar after 1992 — in terms of a civil society that is systematically included, as Alberto Alemano and James Organ recently put it in a wonderful book on the democratic dimension of European integration. The second option, a constituent option, that much more structurally intends to revise European citizenship, seems to be much more fruitful.

My last question  is specifically about the Conference on the Future of Europe. Only 500 people watched its online-streamed launch, so we see how elitist this project is. Do you see any democratizing potential in the agenda of the Conference?

I personally have very mixed feelings around the Conference on the Future of Europe, I noticed this is the case also particularly around civil society activists and organizations. You mentioned the launch which, not only in terms of the very low interest within European society, was very problematic, but also in the whole set up. This is sort of classical 19th century way of speaking to the people from a far-off podium, even if there were 27 Erasmus students present, it didn’t really speak to any kind of European public. You can put this in much more tangible terms, it stands for a way that the democratic problem is approached by the European institutions. There is a rhetoric which has existed already for a long time (a white paper on civil society in 2000 by the European Commission was an instance of it). There is this rhetoric but there is no willingness to put it really into political and institutional practice. 

The Conference on the Future of Europe might potentially be very dangerous. As some have said  during the recent debates on the Conference, the genie  is out of the bottle. People increasingly, as shown by various consultations and survyes with citizens,  want to have a say. But then the instruments are not being provided. On the negative side, the Conference on the Future of Europe might just not add up to anything, due to this widespread resistance by various member states, not only the usual suspects, Poland and Hungary, but many other states. Look at, for instance, how many states have broadcast events organized around the Conference on the Future of Europe, how many of the media actually reported on the event? Very few. In that sense, there is a negative potential. A more radical reading negatively would be this one: it’s actually counterproductive, people get increasingly fed up and dissatisfied with the European institutions. We didn’t mention it yet, but the digital platform has a great range of very problematic dimensions — it’s most likely to invite those who are already in the Brussels bubble or at least very knowledgeable about it. Wider society, exactly those people that are dissatisfied and tend to be Eurosceptic, is not interested or willing to participate. They don’t actually know anything about it. 

But let me end on a more positive note. We don’t know where it will end. The Conference is under a big time constraint. The citizens panels will only start functioning later this year or early next year — that would be at the very end of the trajectory. But still, there are a lot of creative ideas floating around. There is a great interest by various mobilized civil society actors like the Citizens Take Over Europe, which is an association of more than 50 NGOs Europe-wide that collaborate, propose new ideas, insist on a strengthening of the European Citizens’ Initiative, perhaps even including aspects that relate to Treaty change. The Icelandic example can be mentioned when thinking about potential long-term effects of citizens’ engagement. A lot of observers thought the Constitution process in Iceland was dead in the woods in 2013, but it keeps on haunting Iceland’s politics: there are again proposals for at least a partial change of the Icelandic constitutional dimension. These processes were difficult to grasp beforehand, and we don’t know where this will wind up. I hope that there will be some kind of lesson learned for the existing institutions that are often too much tied to status quo perceptions. If even with the very limited potential that the design has foreseen for participation, if citizens manage to engage and put propositions on the table (maybe with the help of civil society), it will be difficult to completely ignore. But it also means that media and national context need to pick up on this process. If it’s just happening behind closed doors, only involving euro-enthusiasts, it will not lead to a positive effect.

In collaboration with Isabel Lasch, Karen Culver, Robert Nemeth

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