Oliver Garner: Could you outline for our listeners exactly how your concept of ‘Not-So-Bad’ (NSB) law can be distinguished from the ‘evil law’ that was the subject of academic debate after the fall of the Third Reich? And is NSB law specific to illiberal regimes or can it also arise in liberal democratic orders?
András Sajó: ‘Evil law’ was a concept developed by Gustav Radbruch, in particular after World War Two, because he could not figure out how to deal with the leftovers of the Nazi legal regime and the consequences given the positivist legal framework whereby law is law, and it has to be obeyed. He had to create a category which is still law in a sense, but is so evil that it can be disregarded. This was related to a very specific historical situation that was not unique, but it was special. Legal theory was not particularly interested after this post-war situation in imperfect legal and political regimes. It moved into a much more theoretical discussion, that basically disregarded the quality of the law. It was perhaps enacted more democratically, although that was not decisive, but it was a system that was taken for granted, and its validity was taken for granted. So everything outside of evil law from the legal perspective was accepted as law.
H.L.A. Hart was the genius of legal positivism at that time, and I think that it is true even today. It is true that because of the Soviet Union, or perhaps some other regimes, Hart was very much concerned about systems which are not OK. But he considered this to be a problem that was outside of the legal system. It concerned the moral system. So he said, yes, you can resist this. Hart has certain lines where he considers such resistance to be a moral duty, but it was not a problem for the lawyer and for those who apply the law. Ronald Dworkin was even less interested because he assumed that whatever we have is just made for heroic judges and they can handle the situation. So, for very different reasons, imperfect systems were more or less left out. There were exceptions. David Dyzenhaus, for example, came from South Africa. I think he even served or ran away from military service during the apartheid. So he had a first-hand experience of what can go wrong with a legal system even if it is formally more or less created in an appropriate way.
I call this ‘Not-So-Bad’ law. It is not as bad as if it were evil. Imperfection is a normal phenomenon of all, even decent, legal systems. The question is how imperfect the system is – NSB law can still be rather inconvenient and very imperfect. That is probably the problem with the liberal democracies, or their legal systems, where the law is actually used in a formally valid way in many instances to promote the undermining of the Rule of Law and, by undermining or destroying the Rule of Law, creating abuse. These are the categories that are used in this article.
It seems that what you are looking to confront is a phenomenon that is really quite prevalent in the world and so there are lots of practical applications…
Yes, that is true, and what is really problematic is that lawyers, politicians, and society are not ready to acknowledge the level of imperfection they have. There is some kind of self-confidence here – believing that the institutions and legal mechanisms in force are capable of correction and that, anyway, there is not much to correct.
That brings us on to your idea of militant Rule of Law as an antidote. The concept of militant democracy may be more familiar to our listeners. You distinguish militant Rule of Law as concerning merely the “vigorous application of extant Rule of Law precepts and standards” whereas militant democracy entails limiting certain fundamental rights. Does this mean that militant Rule of Law is the exclusive preserve of the judiciary, or do you think that executives and legislatures also have a role to play, such as through the promulgation of Rule of Law restoration bills after the end of illiberal regimes?
I’m convinced that this is not something that is limited to the judiciary. In a way the courts have undertaken this role as a last resort. But, for example, you can look at what has been going on in Germany in the last two or three months when it became afraid of the alternative of the very right-wing [Alternative für Deutschland] party. They started to look into legal mechanisms, such as what to do with the majority, and what are the powers of the majority in parliament to limit the party. This is bordering on militant democracy because it allegedly enters into some rights restrictions. But primarily it is just trying to look into a more vigorous, systematic application of existing rules and also the introduction of new rules which do not necessarily mean rights restriction, but a much more aggressive use of existing legal possibilities. That requires legislation or executive action.
Exactly. So, we see that this can engage political action as well.
It requires political action, or the action of the political branches and the judiciary can encourage them.
We may have seen an example on 7 February of this kind of executive action when the European Commission issued an infringement action against Hungary for its ‘Sovereignty Protection Act’. Do you think that your argument also applies to international and supranational courts, and have the Court of Justice of the EU and the European Court of Human Rights been engaging in militant Rule of Law by finding infringements by Poland of its obligations under the EU Treaties and the European Convention on Human Rights?
Well, I think that both courts have with enormous reluctance moved in this direction of the militant Rule of Law. Everybody recalls the line from Molière in which Monsieur Jourdain is told that he is talking in prose, which is a great surprise to this less educated member of the bourgeoise. But, in fact, he was – Molière used prose for all of his expressions. I think that this is what happens to the court.
One day, the European Court of Justice found, in a completely banal Portuguese case, that judicial independence is enforceable on the basis of a certain sentence, which until that moment had never triggered such interpretation or at least never triggered direct applicability. As I said the attitude is that it is there, you can read it, there is nothing new here, just move on. Of course, it was clear to everyone that this was just a fig-leaf for a very radical interpretation of the text. Then, of course, there are scholars who claim that this was always the original intent of the treaty etc. etc. because that is what they have to do because it increases legitimacy. But the reality is that the Court of Justice shifted to a radical re-interpretation. This was not in violation of the Rule of Law. Such an interpretation was on the horizon, but they did not use it for a long time. There were many other cases following that approach and likewise with the European Court of Human Rights in these cases of the judiciary.
Now, the interesting thing is (interesting is always an expression to say that it is troubling) is that this idea of militancy is not extended to other areas.
So, we are not yet there, and the problem is that there is always a delay, and sometimes what happens is irreversible like what happened with the Hungarian judiciary 10 years ago [when the retirement age for judges was lowered]. The European Court of Justice did not intervene, or rather it did intervene but in a formalistic manner which did not stop this erosion of the independence of the judiciary.
We may have seen some examples of values enforcement going beyond the Rule of law and judiciary, for example, the infringement action against Poland for the so-called “Lex Tusk” establishing a special commission to investigate Russian influence. The value of democracy was presented as a ground in the European Commission’s press release. Do you think that the Court of Justice of the EU could be emboldened to enforce Article 2 TEU values directly in infringement actions rather than looking for hooks in the EU Treaties such as the right of effective legal protection?
What I am going to say is a repetition of what some political scientists would claim, and it is not a legal analysis. I feel a little bit uncertain, and that is why I rely on the authorities. This is a very political choice.
So, once again, because this is a political consideration, this aspect is very important and influential. I am not sure how far this goes. For example, when the Commission was a little bit fed up with the lack of improvement in Bulgaria, they were very close to closing the book and saying that the judiciary or the administration of justice in Bulgaria is now OK and we will not continue monitoring Bulgaria. Then, again, for a political reason, they were forced to change their mind. There are too many suspects, and not only the usual suspects, and that is what limits this kind of extension.
Talking of usual suspects, we have seen increasing evidence of the United Kingdom at least flirting with Rule of Law backsliding. A possible example today of Not-So-Bad law – or perhaps simply bad law from the perspective of the Rule of Law – is the UK’s Safety of Rwanda Bill. Jeff King has recently suggested that the UK courts could engage in narrow textual interpretation that seeks to exclude the legislative intention of declaring that Rwanda must be regarded as safe. This struck me as resembling your arguments for Rule of Law militancy. The Bill instructs courts conclusively to treat Rwanda as a safe country, and it limits the scope of challenges to limited situations. You state in your working paper that where brute force in the form of disciplinary action against judges pervades the judicial system, we are veering dangerously close to evil law. Do you think that the Safety of Rwanda Bill is veering this way?
I very much hope that the situation in the UK regarding Rwanda is not part of a systemic erosion of the Rule of Law. So, if you take this in isolation, I have seen the latest report prepared by the House of Lords Select Committee of the Constitution. That is very negative even after the reservations in the legislation seem to be important.
Having said that, perhaps I would like to give this as an example of how militant Rule of Law works. I emphasize in other writing that there are certain techniques of interpretation which do exist in many jurisdictions that are seriously undertaken. Reasonableness analysis is one that is extended to non-fundamental rights-related legislation. The second technique is intent analysis. This is not my invention – John Hart Ely wrote about these 50 or more years ago and so have many others.
There can also be red flags such as in parliamentary debate. In the Rwanda case it seems to me that there was an intent in the legislation to circumvent a reality of which the UK government were aware. It is a little bit like when Boris Johnson abused the prerogative [to prorogue Parliament], and the Supreme Court found that this was unconstitutional, although they did not enter in that case into intent analysis because there was no need to do so to reach the result. This is one way in which militancy makes the difference.
It will be fascinating to see if this legislation does come before the courts and whether they do indeed engage in such techniques of interpretation.
At a certain point you are forced to have no other way to come out. They could certainly rely again on the Human Rights Act 1998 [and the Convention rights] as interpreted in Strasbourg. But, at a certain point, that may not be enough. So, judicial interventions are really hard to predict.
On the topic of prediction of potential judicial interventions, how do you see militant Rule of Law techniques being used to restore the Rule of Law in Poland and Hungary? Do you think such techniques could be used to overcome legislative manoeuvres such as the new Sovereignty Protection Act in Hungary, and also any potential presidential vetoes of laws made by the new Parliament in Poland? Do you think this can avoid claims of judicial activism? And where might the limits of such interpretive creativity lie?
First of all, these categories of deferentialism and activism may have originated in scholarly analysis, but basically these became a hammer but not for a particular nail. They are used to castigate the judiciary by saying judges are too activist, so they take away power from the people. I do not think that this is very helpful. Judicial activism is not a perfect analytical tool even for scholarly purposes. It is a battle cry. I do not think that being a judicial activist or not would make a fundamental difference in Hungary.
So, the parliament started with the position that the amnesty granted by the President to the interior minister [Mariusz Kaminski] and his vice-minister [Maciej Wasik] was void because there was a judicial decision. This enabled the parliament to say that these two had never been parliamentarians. So, there was no need to waive immunity etc. It was a very radical interpretation.
It is a matter of interpretation because of the prevailing theories – which I doubt – that in Poland and in general pardons cannot be procedural and can apply only to final convictions. This is not always the case – if you take the Czech Republic, President Václav Klaus granted amnesty to many people who were under investigation for what they did under the pretext of privatization. That was a mass-scale procedural amnesty to the political elite. It was a big thing that was justified by human rights because Klaus said that it is contrary to Article 6 of the European Convention on Human Rights because the proceedings last too long, which is true.
Although the claim is that most scholars in Poland always were of this view and that it had never happened so you can use more traditional arguments. But, anyway, the choice was made for a more militant restorative measure. After that all the pieces fell together on that basis. But that really was a militant application. Now, what will happen after the Polish Constitutional Tribunal will interfere or intervene? That will really be the proof in pudding. So, what kind of taste will that pudding have? I don’t want to taste it, but someone will have to do so.
In collaboration with Aman Mehta.
This transcript has been edited for length and clarity.
