Ruling by Cheating? In Conversation with András Sajó

Our assistant editor Teodora Miljojković (CEU) talks with András Sajó, Professor in the Law Department of Central European University and former judge of the European Court of Human Rights about his new book, the tactics of illiberal regimes, their relationship to the rule of law, and shortfalls in the EU’s reaction.

Teodora Miljojković: Today we will be speaking about András Sajó’s latest book “Ruling by Cheating. Governance in Illiberal Democracy” (Cambridge University Press). This has been a very hot topic in the last 10 years. To start this interview let’s talk about the terminology of the problem we are facing. As we have seen in the last years, many labels and different distinctions in the names for these regimes have come up. You claim in your book that the term “illiberal democracy” is an appropriate one. Why do you think that that one is the most appropriate? How does it differ from other terms? And how do you connect plebiscitarian regimes with the nature of illiberal democracy?

András Sajó: It is certainly perfectly legitimate to engage in debates regarding the proper naming of various regimes that depart from models of constitutional democracies. This follows a certain logic of the academic enterprise. For my purposes, I thought it better to deal with the phenomenon and less with how you categorize it – although it is very clear that categories do determine perception. I am not saying that the naïve approach I try to follow is without dangers. But I took these dangers because I think entering into academic debates is sometimes quite misleading, for example, by trying to force that straitjacket of authoritarianism onto populist-induced regimes. I thought the simplest way to deal with this is to use the term that is used by Viktor Orbán, the grandmaster of these regimes. He has called Hungary, at one point, illiberal democracy. The term contains two very important elements: the regime intends to be democratic. It wants to behave like a democracy, for a number of external and internal legitimacy reasons. And it is deliberately illiberal. The question will be to what extent illiberalism enables the sustaining of democracy. 

Your second question was how this pertains to plebiscitarianism. Within the frame developed by Max Weber, it pertains to plebiscitarian leader democracy. It is not just plebiscitarian, but it is centered around a specific leader who may have charismatic characteristics, although charisma today is very cheap. 

This frame refers to the serious commitment to “a kind of democracy” – but a “kind of democracy” where the emphasis is on “a kind of.” Because it is plebiscitarian, it seeks popular endorsement. But it is ready to make all sorts of immoral compromises in order to cater to a certain manipulated desire of the population. 

Formally, it is democratic, and it relies on the people which is crucial for a democracy. But it relies on a selective part of the people and that is how it relates to democracy and plebiscitarians.

That leads perfectly to my next question: as you explain in the book, one of the main tools used by these regimes is the creation of certain dependencies. These do not only allow the regime to benefit from political domination, but also to perpetuate itself and generate popular support. What do you mean by these dependencies and what does the mechanism of creating them actually entail?

I have to admit that the book that was intended to be strictly a book on legal theory and legal scholarship with a strong emphasis on constitutional developments, but at a certain point it had to turn into something broader. I think that the legal part of governance, the way political power operates through legal institutions, cannot be described or understood without looking at the sphere that is surrounding it that is basically feeding into this political institutional mechanism. 

Having laws that are being played around with, and cheating with these laws in court, will not work unless people accept it as legitimate. So, why are people, not only those in power, ready to participate in this game? The reason to my mind lies in a broader domination which is sustained, interestingly, by law. 

The two are interwoven. Domination here means the state plays a crucial role in making a good living or a sustenance living – these are the two dependent groups, for whom this is a matter of economic, political, and cultural dependence. Through material means, through redistribution determined in laws, both the poorest and the very rich will depend on the central power in the hands of the leader. That is the mechanism.

When the illiberal regimes first started flourishing, the reasonable assumptions would have been that the courts would be able to provide some kind of limitation to those illiberal tendencies. But as we have seen, courts are pretty easily captured. Even if the courts weren’t captured, and even if it wasn’t that easy to capture them by their own design, do you think that courts actually have the means to identify the problems in illiberal regimes? Do you think they should do so?

Courts do not exist in a vacuum, and they are fully integrated in illiberal systems. Of course, in the first few years until there are changes in the personnel, and until the laws to be applied are rewritten, there can be resistance – this is very common. The President of the Venezuelan Supreme Court resigned when Chavez was introducing his reforms. Perón had to make fundamental changes to the composition of the Supreme Court in Argentina. And of course, the stories of Hungary and Poland, as is well known, required personnel changes. But once this occurs, and once the proper cadre is in place, it becomes a different matter. 

Given these changes, courts are not expected to be different from the rest of the system. This is where the cheating aspect comes up – they quite often, with some honesty, try to behave like judges. It is not just pretending. They try to continue to reason along the lines that are established in any rule of law country. 

Judges in illiberal regimes use argumentation that is in line with what you see in so called “model countries.” The difference is that, when there is a particularly sensitive issue politically or economically, then there is enough room even in any normal rule of law system to twist the matter.

And they twist it according to the necessities of the regime so that it looks lawful. There is this saying: “it walks like a duck, it quacks like a duck, why don’t we call it a duck?” Yeah, call it a duck. But it remains a chicken. Or actually a fox, because there is no egg being laid. That’s how it works. The semblance is there, the technique is there. It is very hard to say that these judges are not lawyerly, or that they are not judicial.

That’s exactly my next question. You mentioned now how the courts perform this legal cheating, which I think is the crucial concept in your recent book. Can you explain to our readers how this legal cheating, this ruling by cheating, happens in practice? How is it different from other concepts which are already elaborated on in theory, for example the rule by law?

First of all, as a repentant judge, I have to be fair to my former profession. This problem is absolutely not limited to courts. Each and every component of the state structure – even the private sphere – is involved in this complicity. There is nothing special about courts. And by the way, you will find one or two judgments which are pretty OK whenever there is a possibility that the judges will take the opportunity to look judicial. That is a matter of professional prestige or just self-respect. But how is it done? There is a version of a saying I would like to quote: “The law to my enemies, interpretation to my friends.” I think that tells you a lot about how cheating is done: by interpretation. When it comes to enemies or competitors, the specific laws are written for those people. That is not a judicial activity, it starts from legislation, and it starts from public administration. Lawyers and judges enter only at the end of this story. But interpretation is crucial. The courts use the same techniques of interpretation that you will find in so called idealized constitutional democracies. Yet, they are applied differently – they are applied to circumstances where, in a liberal democracy, you wouldn’t dare to apply them in the same way. But, again, that is not something unheard of. Even in judgments of very respected courts you will find that, when there is a hot potato, judges will try to avoid the judgment. They are deferential. There will be all the praise you can imagine for deferentialism. You will see that they will go to original intent. Or they abandon original intent. They are always working in the proper frame, just the frame does not apply, and the outcome is just unfair. 

This is not something that is invented by these judges or regimes of legal regulation. Law even in the rule of law systems is partial, biased, etc. That is undeniable. It is a matter of degree and a matter of systemic interrelation. That makes the difference.

If that happens in other democracies, then why are illiberal democracies different? But perhaps you have just answered that question. Still, considering that rule of law is biased even in these mature liberal democracies, I would like to discuss the uneasy relationship between the principle of the rule of law and illiberal governments. As you state, the leaders of illiberal democracies would “prefer to use the advantages of a compromised and unprincipled rule of law which is in itself an oxymoron for theories of the rule of law.” Could you explain to us why it is an oxymoron?

I think it is an oxymoron because it is unprincipled. Rule of law is a principled human endeavor. And in illiberal regimes it is unprincipled because the leaders are only interested in an outcome that favors aggrandizement and perpetuation of power. This is the opposite of what the rule of law, as an ideal, is about. It is about constraining power and making it less arbitrary. Even under ideal conditions power is somewhat arbitrary, but there are enormous differences. One thing these regimes, their leaders, or participants do not know is the meaning of the word shame. You cannot embarrass them with moral arguments. Pardon me the word, but for them, morality is bullshit. Again, you have seen very successful politicians of that hue even in mature democracies, but in these modern liberal democracies you cannot turn that into a system.

Speaking of the rule of law as applied by illiberal regimes, you also mention in the book a definition of the rule of law as “a conceptual tool in search of its own concept which bears an inherent readiness to endorse its own abuse.” What is the problem here? Is it the concept itself, or can we say that any concept in constitutional law can be misused in practice? Is it a problem of the rule of law in itself, or just of its perverted application in illiberal regimes?

What I am going to say applies both to democracy and the rule of law. There are inherent elements in democracy which may put it on a course of self-destruction. Likewise, the rule of law can turn not only into a parasitic, but also a paralyzing institution. Let me give you two examples. Take the idea that a person cannot be held indefinitely in pre-trial detention. In the Czech Republic, outgoing President Klaus granted pardon to many people who were finally being brought to justice due to their involvement in all sorts of, most likely illegal, dealings during the early days of the privatization. After a long period, because now the political situation favored rendering justice to them, there were processes against them. But these were going on forever. And then President Klaus said that speedy trials are required by the European Court of Human Rights, and that this is inherent to the principle of a fair trial. He is right, he quoted correctly. It is against the rule of law, or the principle of fairness, to let these cases go on forever. Fairness is a principal component of the rule of law. So, the accused deserved to be pardoned. The second example concerns statues of limitations. It is a legitimate, justified institution. But what are the consequences of statutes of limitations? Statutes of limitations applied to a number of incidences, including malefactors, under communism. These people went free or even without any trial because you cannot apply a law retrospectively or retroactively, or after a long period of time has passed. These are very good reasons, based in the rule of law, for not persecuting after 15 or 20 years. Every criminal procedure textbook will explain the reasons. And then this is what happens as a consequence.

It seems that the elements that are usually ascribed as pertaining to the rule of law somehow contradict themselves in specific circumstances.

I would not say that they necessarily contradict themselves, but they do so in some instances of application. 

Very often elements of the rule of law turn into their own opposites. Criminal justice is about providing justice. You have statutes of limitations, as part of the rule of law system, and that will hamper providing justice. That is somehow built-in. 

You may say that these are system imperfections, or that it is a price we must pay. But under specific circumstances, it is not just a price the system has to pay, but it is society that is going to pay a price because it has to live with injustice.

Regarding the ambiguous nature of the rule of law, how can we provide counter-arguments to the illiberal leaders’ statement that they have their own understanding, and their own application of the rule of law, and they don’t want to have some other interpretation imposed from the outside? If even academic theories cannot agree on what exactly the rule of law is, and if those elements in practice can be misused or used differently, is there a legally strong argument against these illiberal claims?

I suppose that the leaders of plebiscitarian regimes do not deny the importance of the rule of law. Quite the opposite – they claim that they are observing it, that they have proper laws, that public procurement goes by the book, and that there are no instances of conviction for corruption: “We observe the rule of law and evidentiary rules require conviction beyond reasonable doubt – so what is the problem? We do prosecute, or at least we investigate, but of course, if there is no evidence, what can we do? We will not force our prosecutors to create made-up charges in order to tell the world that we are taking action. There is no reason to take action.” That is the way it is reasoned. Sometimes the way to protect your cronies is to insist to the utmost on the rule of law.

So, in connection with the problem of identifying cheating, if illiberals adhere to the strictest form of the rule of law we can never explain that what they are doing is wrong. In that sense, what is your opinion on the EU’s efforts to identify the cheating and to properly address it in a meaningful legal way under EU law?

I am a great admirer of the EU, and I am all for the EU and integration. If it were not a bad word, I would say that I am a committed federalist. But as far as the EU is concerned, it is too little and too late, on the one hand. And on the other hand, there is a reciprocity here: “I don’t see, therefore, there is no problem.” It is not just that rule of law cheating is operating in order to decapacitate the opposition, or to create the semblance of rule of law. 

This is a game where the EU did play a role and they did not stand up. And when they are now standing up, as in Poland, because they had previous commitments and previous precedents, they have to force it a little bit. Because by the standards developed for 20 years, what happens was not considered a problem. 

But again, whatever they do is too late. I also mentioned that they do not see problems where they exist: they did not see problems in 2011 with regard to Hungary, and they continue not to see problems regarding Bulgaria. Or consider Slovakia, where journalists are murdered and it is covered up, and now half of the justice system is in detention, with many of them already confessing. But what is going on is Slovakia is never ever presented as an issue.

Any why do you think this is so? Why was Slovakia never brought up as a problematic example and instead everyone is talking about Hungary and obviously Poland currently?

I cannot answer that in a professional way. I can answer that only as someone who reads newspapers and goes to coffee houses to chat to friends. That is the level of my explanation. The Slovakian government never caused problems to the EU. They were aware of the fact that they should behave, and they did. One problem less. The attitude is “let them do what they want as long as they walk in the correct way, and investment is going well”. The rest doesn’t matter, so the EU closes its eyes. 

But I think this is nothing compared to what goes on in Romania and Bulgaria. There they really wanted to stop even the monitoring that was required at the point of admission to the European Union. That is really unbelievable. That came close to giving carte blanche to the Bulgarian justice system. And I do not want to enter the into specifics of how they approved appointments of Chief Justices, General Prosecutors, or Ministers of Justice. They are applauded and welcomed. “Now this is the moment. Now they are carrying out what we proposed.” And then two years later: “the new minister is carrying out the reform that we are proposing, because the system is unacceptable.” That is really mind boggling. 

People talk about Hungary and Poland, but I think it is a broader issue. This is why I wrote this book – I really believe that this distinction between the West and these authoritarian regimes is very misleading because the West is not willing to see itself in this mirror, and to see that it is full of weaknesses.

Just take my favorite example: Austria. Not just only was there the raid on the Prime Minister’s Office on 6 October on charges of manipulation of public opinion polls, influencing elections, and related crimes. But a couple of years ago, when the Freedom Party was part of the Austrian coalition, the first thing they did was to order a raid on the Verfassungsschutz, the constitution protection agency, which kept a long register of extreme right-wingers who were supporting the Freedom Party. And they carried away in this raid all the files the Verfassungsschutz held, which resulted in Austria being practically excluded from the co-operation vis-à-vis national security agencies, especially with Germany. But this happened in Austria, a model democracy. Imagine that, for political reasons, you can just use the law to go against your own constitutional protection agency. I admit that there are enormous differences between Austria and these Eastern European countries. But whatever we say about Eastern Europe or Eastern Member States of the European Union, this happened in a very respectable democracy.

This question may be a bit naïve, but if the EU is too late now in its efforts, in your opinion what would be the way out of this situation? Should we be optimistic? Does it all come back to popular sovereignty, to elections, and to democratic will, or can the EU do something?

The situation is not hopeless, that is why these are not strictly authoritarian regimes. It is very difficult for the opposition to reverse what is going on. The forces standing for constitutional democracy have a very limited amount of time because this becomes irreversible after 15 years, with a full generation growing up in a regime. We are getting closer and closer to that. That is the short-term, very pessimistic, or rather a dry perception. But, of course, in the long run, no regime is forever. Whoever thought that the Soviet Union would collapse? Everybody in 1930 thought that it would collapse, and again in 1940, and 1960, 1970, 1980. And suddenly, after all these prophecies never materialized, it did collapse unexpectedly from 1987 to 1989. There is no eternal regime. Even ancient Egypt collapsed – it collapsed every 200 years.

But what about the consequences once the regime collapses – what do we do with the consequences that are in place? Is it possible to restore the previous state, whatever that was, and should we?

We can discuss that, but I think this is technical and not particularly interesting, except for specialists. I would take a very different perspective. What happens here and its repercussions for Western Europe are very unpleasant. Populism is eating into democracy in Western Europe, the United States, and even Canada. But these are secondary concerns compared to the geopolitical sphere where, I think, real changes may come from. This undermining of democracy becomes relevant when you look to the future of a competition between democracy and a Chinese-type model, which is certainly not democratic, but as illiberal as it can be. And yet, the Chinese model is very efficient and very attractive. One cannot deny that it lifted hundreds of millions of people out of poverty. And it is still becoming more efficient and may not just produce more GDP than other countries, but will most likely be able to create a regime based on big data manipulation or control. And that form of life is very different from what we have here even in illiberal democracies. They are coquetting with China, but they are not ready to have a fully Chinese system. That is what really matters. If the West is moving towards illiberalism, that means that they may be more ready to accept the Chinese model. So, whatever is happening here is relevant but not decisive for what is crucial for the future, which is the Chinese form of life perhaps taking over the rest of the world.

Do you think there is a real chance for that?

Absolutely. What I see, in terms of investment in technology, the obstacles to data collection in the name of privacy, the willingness to be exposed and to be dependent on Chinese development, is that the West is giving up its values all the time to have access to the Chinese market. It is a matter of who is more powerful. Think about the United States, who failed for four years under Trump and now a year under Biden to invest a penny in infrastructure development. How on earth are you going to compete if you don’t have billions of dollars for research and development? There is just no way.

If that will be the case, is there a chance to obtain the liberal values that constitutional democracies ascribe to? Whose job is it to protect them?

I think it is the duty of the ordinary citizen. Otherwise, you are not a part of a liberal democracy, you are just enjoying it. There is an oft-used term to describe modern, liberal democracy – ‘spectator democracy’. That is not sustainable, because it is not a source of commitment. We must take it seriously. 

Western societies are rich, individuals can afford to be involved in politics. It is not like people have to work 12 or 16 hours a day, kiss their family members and go to sleep because they are dead tired, and don’t have time for politics. Even in the 19th century when workers had to work 12 hours, they found a way. 

It was in their fundamental interests to be involved. And, interestingly, once they got involved, once they got the franchise, they lost their interest to some extent. I think this new phenomenon of spectator democracy is not helping the current situation.

This transcript has been edited for length and clarity.

In collaboration with Alexander Lazović and Oliver Garner. 

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