by Petr Agha
The European project is contested on a daily basis and its ideological foundations, born out of the 1990s, grow ever more fragile. Already for a decade, the European Union has dealt with its internal crisis by presenting us with the figure of the populist who operates in contradiction to the rule of law doctrine.
I would like to argue for a different analysis of the current trouble with Europe, one which starts from the recognition of the irregularity of the rule of law policies and highlights how the clashes between the populist movements and the rule of law doctrine reflect the structural inequalities of the European project.
This important aspect is often neglected because of the way we currently frame the discussions – as “the rule of law crisis”. As a result of this, our debates focus on juridical arrangements, whereas the distributional consequences of the EU and the role the legal structure plays in its maintenance remain (almost) invisible.
Transitology once again
Why is the canonical literature on the rule of law crisis mostly impervious to the structural inequalities of the European Union? One obvious answer is that it is mostly lawyers who write about the rule of law (crisis) and given the discursive possibilities of the legal universe their attention steers towards a specific direction, which in turn produces a specific understanding of not only the EU but also of its crisis, the causes, as well as the remedies. This observation, which is very banal in phenomenological terms, has practical consequences for our discussions about the present and the future of the EU. Namely, it re-directs our attention to what Paul Ricœur tells us about narratives. Narratives, he warns the readers, not only construct series of events into a comprehensible story, but they also create consequential configurations out of dispersed incidents. They suggest what reality should be.
In this text I propose that the story we tell today rests on the recent history of post-communist transition and that the persisting influence of the discourse of transitology obfuscates our ability to recognize the structural deficiencies of the EU.
The story of transitology builds upon a number of tropes which together form a coherent discourse against which the current internal tensions in the EU are analyzed.
The first cornerstone of this discourse is the figure of the dissident as developed by the post-89 narrative. This figure became part of the official representation of the communist period, and as such it served as one of the founding stories of the political culture of post-communist transformation, mainly because it creates a sense of deep-seated division between the communist regime and the populations of Central and Eastern Europe. This mechanism is perhaps best illustrated by the “end of ideology” slogan, which signaled the desire to overcome the ideological arguments of the past. For the West, this figure also confirmed its own superiority, and the supposedly post-ideological nature of the European project, by presenting the West as a representative of a “universal” blueprint.
To complete the picture,
it is important to recognize another group whose language and ideology was anti-ideological / anti-political and pro-Western in orientation: the economic technocrats from within the communist apparatuses of the 1980s. They used terminology such as “performance”, “efficiency” or “economic balance”, which were seen as providing an antidote to the economic policies of the Party.
Based on the collusion of the dissident and communist technocrat narratives which formed the bedrock of the post-89 ideological consensus, the modernizing, post-communist society would not be based on ideology, but rather on technocratic forms of government for the sake of economic reforms, which were seen as necessary in order to “return to Europe.” These two groups formed the new knowledge class, whose goal it was to “catch up” with the West and to become modern, European and, ultimately, Western. They have helped to institute a belief in the West and the perceived need to cast aside the retrograde (cultural) habits, norms, and values of members of their own societies – everything that was considered “communist.”
Secondly, while the CEE nations were ready and willing to introduce into their legal and economic systems, as well as their cultures, new concepts and projects, they also introduced something else. They introduced the notion of Europe as a source of civilization. Along with that came all sorts of embarrassing metaphors – such as “rectifying revolutions” or “backward periphery”.
The image of a lack (of Europeanness) became an integral part of the public imagination of the new EU members and solidified their subservient position within the European project to this day.
The third pillar of the new ideology was the rejection of (mass) politics. The new elites, which often implicitly and sometimes explicitly rejected mass politics and majoritarian democracy as “incompetent” and “ideological,” and understood their native political culture as immature, placed a lot of symbolic emphasis on institutional designs. For the new elite, technocracy was the preferred solution to the problems of transforming societies and the ultimate modernizing gesture. From this followed the crucial position of constitutional courts and its judges. It is worth recalling that the post-communist judiciary was characterized by excessive formalism and a preference for literalist interpretations, which were seen as ways to get rid of the perceived ideological nature of the laws of the communist era.
As a final point, ticking the boxes of accession protocols and reports was conceived as a unidirectional process whereby all roads were meant to lead to Brussels. In combination with the above-mentioned issues, such practices arguably made CEE more of an object of the process of EU integration than an actively participating subject.
Returning to Europe?
The legacy of transitology therefore channels the myriad daily political, social, and economic interactions taking place in Europe into specific corridors governed by specific forms of rationality – in our case the rule of law, whereby the complexity of the situation tends to be translated into technocratic legalese.
One could say that there is nothing really wrong with the language of the law, which for good reasons is the language of European institutions. But when it comes to our ability to deal with the crisis of the European project, it clouds the path dependencies created in the process of “returning to Europe”.
There are two such corridors which are pertinent to my argument.
One is the fact that the process of post-89 socio-economic and cultural transformation gave birth to a fantasy of “Western normality”. It did not only govern the epistemic landscape of the CEE countries in the first decade of “the transition,” but was also instituted into the institutional and ideological fabric of the EU through a game of inversion. The West was placed into the position of an inverted East. Once this inversion had succeeded, it became our taken-for-granted social reality, an omnipresent but unnoticed hierarchical structure.
Secondly, the everyday politics of the rule of law effectively shroud the many ways through which colonial power is institutionalized within the very structure of the EU. The enlargement of the EU is not normally associated with colonial expansion because it embodied a quite different narrative of peace, democracy, economic progress, human rights, and the rule of law. These values and their realization were in high demand during the years of transition and subsequent enlargement and form the pillars of the project to this day. However, the actual process of transformation and of enlargement raise some serious questions about the complex nature of the process of enlargement.
One such question is the integration of CEE economies into global capitalism. Andreas Nölke and Arjan Vliegenthart called the resulting position within the economic network “dependent market economies”. These structural arrangements have important implications for the political economy of the European Economic Area. The EU’s modus operandi, which has grown out of decades of “returning to the West,” has led to an ever-growing degree of centralization of decision- and policy-making and the simultaneous transfer of competencies from localities, regions, and nations to Brussels. Wolfgang Streeck developed this argument, claiming that the European Union has transformed countries into “consolidated states”. And this system is enforced by the European Commission and policed by the Court of Justice of the European Union, the expert (technocratic) bodies of the European project.
By over-valuing the procedural and doctrinal rule of law requirements we tend to ignore the geopolitical aspects of the rule of law.
The emphasis on rule of law was not just connected to structural reforms and the safeguarding of important values, but also implied a rejection of alternatives. This is more than an intellectual blind spot. It has led to universalizing assumptions about a “natural” path of European development, which has effectively depoliticized the European project, while at the same time solidified a very particular institutional set-up.
There is a difficult relationship between the foundations of the European project – the structuring of our institutional trajectories and the sources of their legitimacy – and our actual experiences of it; the latter in many instances coexist uneasily with the received images of the European project that radiate from the pages of EU documents and mainstream academic scholarship. The negation of the colonial aspects of the eastward EU enlargement and its replacement by an ahistorical image of European Union is popular not just with European Commissioners but also with a great number of the rule of law experts.
First of all, the current crisis of the European project indicates that the sources of legitimacy which supported the process of Europeanization of the former communist countries in the early decades of the post-89 period have been significantly drained. Unfortunately, to combat this, the European institutions, in tandem with mainstream academia, have preferred to develop an elaborate antipopulist discourse, which has presented a phantasmic image of Europe whereby the rule of law emerges as a mechanism to cope with what has been perceived as an external problem of the project, rather than something immanent to it.
The problem is simple:
there is no such thing as the “European Union” that is being described in the literature and the official documents produced by European institutions. Rather, we have created a phantasmic image of Europe, which tries to convince us that there is somewhere a perfectly sublime structure of governance that is inaccessible to us in our day-to-day life, precisely because of those who did not manage to modernize enough and stand in the way of its accomplishment.
Not only is this fantasy false, but such images, removed from our reality, make our actual everyday European affairs difficult to address – and that every-day Europe is the only Europe we possess.
Secondly, since the European project is constituted around one authority figure, which we may call, for the sake of simplicity, Brussels, and is embellished by a set of restrictive practices, the possibilities to combat the populist revolt are limited by the narrow options this discourse allows for .
The rule of law policies try to “return to Europe” the dissenting peripheries who have started to pluralize the institutional and ideological underpinning of the European project and to obfuscate the internal problems of Europe by singularizing it in the form of populism.
In other words, the mechanisms of the rule of law attempt to solidify again the post-89 institutional design as a way of combatting the current difficulties of the European project.
The light that failed?
Hardly anyone these days is against the rule of law, not even the populists themselves – recall here the term “populist constitutionalism”. Very few people would argue against the concept of the rule of law – in theory, that is. It is the application that presents difficulties.
Therefore, the important question is what does the rule of law mean as a part of the East-West tensions in the EU? Despite the close ties of the rule of law to politics, the rule of law, in our debates, seems to somehow stand apart as a technical solution with no consequences other than procedural consequences in the socio-economic realities of the everyday life on the East-West axis. Yet, I would argue that this formalism is ever less convincing today.
The fact that the rule of law policies came to be defined either as a universal value or as a procedure means that the potential for substantive and political critique of its practice is significantly dulled.
If, as I wrote above, the rule of law is not only an instrument that governs disparate power relations, but is also part of a specific narrative established in the 1990s, which has implied a specific institutional, political and economic design of the EU with specific distributional consequences, then it is hardly surprising that the rule of law industry mushroomed during the era of the recent major crises of the EU, such as the economic and migration crisis.
While mainstream academia emphasizes the universal application of rules and the benefits of limiting government power, in the East-West power dynamics the rule of law also serves as a structure to guard the advantages of Brussels against the dissenting peripheries of the European Union.
To conclude, rather than piling up endless pages and books about the negative impact of populism on the European Union, those of us who want to preserve it should begin by examining not just our lexicon, but – and more importantly – the economic and political orientation of the institutions that monitor and administer the process of building the Union.
In collaboration with Oliver Garner, Kasia Krzyżanowska and Ferenc Laczo
 Ricoeur, P. (1991) From Text to Action: Essays in Hemeneutics, Vol. 2. Evanston: Northwestern University Press.
 Nölke, A., & Vliegenthart, A. (2009). Enlarging the Varieties of Capitalism: The Emergence of Dependent Market Economies in East Central Europe. World Politics,61(4), 670-702. doi:10.1017/S0043887109990098
 “How Will Capitalism End?” in New Left Review 87 June–May (2014), available on-line at http:// newleftreview.org/II/87/wolfgang-streeck-how- will-capitalism-end, “The Rise of the European Consolidation State,”
 https://verfassungsblog.de/populist-constitutionalism/ (Blokker, Paul: Populist Constitutionalism, VerfBlog, 2017/5/04, https://verfassungsblog.de/populist-constitutionalism/, DOI: 10.17176/20170504-220032.)