By Maria Skóra
Dr. Maria Skóra is a Research Associate / RESILIO Lead Researcher at the Institut für Europäische Politik, Berlin
For more than a decade, the European Union (EU) has witnessed a decay of the rule of law in some of its Member States, especially Hungary and Poland. The deliberate and systematic deconstruction of the rule of law and other pillars of democracy was particularly severe in Hungary and Poland. This backsliding quickly became a European matter as the EU is not only an economic alliance with free movement of goods, services and people, but also a legal union of values. Therefore, for safeguarding the rule of law, the behavioral aspects are as important as the systemic ones.
Research suggests that press freedom, robust civic space, public support for democracy, and the compliance with the law of elected officials and decision-makers are as significant as pillars of rule of law resilience as a comprehensive constitutional design, independent judiciary, and a public administration that is free from political influence and corruption.
Rule of law backsliding in the EU
Fidesz has been in power in Hungary since 2010. Since then they have managed to win parliamentary majorities big enough to gain practically total control over the legislative process in Hungary and amend the constitution, swiftly implementing the authoritarian playbook. A similar experiment in Poland was also quite successful. The election victories of the Law and Justice (PiS) coalition in 2015 and 2019, were followed by the deliberate dismantling of judicial independence, the transformation of the public media into a partisan news outlet, and the capture of state owned-companies.
Observing the developments in both countries offers unique, first-hand evidence for autocratization and re-democratization processes. But it is crucial not to lose sight of the European dimension.
Undermining democratic principles and overriding the rule of law with politically motivated actions are direct threats to European integration.
Hence, not only is a decisive and immediate answer from Brussels needed whenever rule of law breaches happen, but also stepping up the preventive approach is necessary to equip EU Member States with democratic resilience in case local versions of Orbán and Kaczyński emerge elsewhere. Looking at the at the past experiences of Slovenia and Austria, recent developments in Slovakia, Greece or Italy, and the overall rise of illiberal, populist, and autocratic parties in Europe, this is not a completely surreal scenario.
Rule of law and democracy nexus
In common understanding, the rule of law is a legal term. It means that the state powers act within the law as controlled by independent courts and follow the principles of democracy, respecting fundamental rights. Yet, alongside the quality of legislation and the institutional framework, the rule of law is also a political and cultural phenomenon.
The complex relationship between law and social norms and the sources of legal compliance in societies should not be ignored.
On the one hand, the rule of law is a fundament of any democratic system, laying the systemic grounds for its functioning. Therefore, the authoritarian playbook sees the dismantling of the rule of law as a gateway to assaulting democratic freedoms. But, on the other hand, an eroded democracy can expose the rule of law to attacks and make it more vulnerable to political assaults. Democracy and the rule of law are therefore guardians of one another.
The project implemented at the Institut für Europäische Politik in Berlin called “RESILIO: resilience observatory on rule of law in Europe” looked exactly at the dimensions that have the potential to strengthen the resilience of the rule of law. It did not look at the performance of the rule of law but instead at possible mechanisms to defend it against hazardous events and incremental threats. In other words, it looked at the rule of law from the perspective of democracy, trying to identify what are the factors supporting rule of law resilience and which of them are particularly vulnerable today in the whole EU27 beyond the usual suspects in the rule of law debate. Research was based on data collected from the existing open-source databases for the EU27, capturing the situation in 2022. This multi-country, multidimensional analysis rendered the following conclusions.
The legal framework of the constitution, political system, or the institutional setup of the judiciary and public administration all set standards for the organization of the state and lay out the guidelines for its functioning. Functioning public institutions that follow the principles of good governance and integrity and an independent judiciary are the cornerstone of a functioning state and the rule of law.
But the cultural framework is as important as the legal one.
The key to rule of law resilience is how politicians, public officials, and elected officials act: whether they respect the rules, obey the laws, perform with good will, and follow the principles of civility and mutual toleration.
In other words, the cultural framework seems at least as important for rule of law resilience as the legal framework. Institutional structures are secondary to the performance of institutions and their staff. For rule of law resilience, individual attitudes and behaviors as well as internalized values and norms are indispensable and essential ingredients, and these corresponding factors score higher than those merely reflecting the institutional or legal setup.
Defense through resilience
Regarding the defense potential, civic space – understood both as an active citizenry as well as guaranteed freedoms of assembly and association – is a fundamental element for the protection of the rule of law. Independent and pluralistic media is another important pillar, coupled with the quality of public discourse. Watchdog organizations, access to information, securing the accountability of public figures, and the freedom of assembly come to the aid of the rule of law when the first defense wall falls.
Unsurprisingly, the overall rule of law resilience achieved is higher in countries with strong economies, high living standards, and a long track-record of democratic development.
Yet, economic welfare and prosperity can neither prevent active attacks on the rule of law, nor help to defend it, as shown by the example of relatively prosperous countries that suffered an illiberal populist backlash: Poland, Hungary, and Slovenia.
Parliamentary representative democracies tend to be more resilient towards autocratic tendencies too, but active attempts to manipulate elections and the rise of populist parties, the spread of anti-pluralist agenda, and the erosion of sound public debate are a direct threat to democracy.
It is important to mention that rule of law resilience does not describe the status of the rule of law in a particular country, but the defense potential thereof. The rule of law can still be in place even if it is not particularly resilient in the sense of democratic accountability and the integrity of governments. Here Romania and Bulgaria, and to a lesser extent Slovakia, Greece, and Italy present cases of ‘five minutes to twelve’ on the doomsday clock, with the Rubicon not yet being crossed of launching an open conflict with the EU over the status of the rule of law. This speaks in favor of investing in the democratic pillars of the rule of law to increase robustness and readiness in case a direct assault on the rule of law comes with the next power transfer or through a government that is already in office.
Lessons learnt for the next legislative term
The European elections is a good moment to think about not only the rule of law but also its resilience in the next legislative period in the European Union. These topics should not only be high on the agenda of the new European Commission, but also the European Parliament, the Council of the European Union, and finally could be the topic of the European Citizens’ Initiative. It is the more important as the illiberal parties with autocratic inclinations are sprawling across more and more Member States.
Increasing the EU’s preparedness by focusing more on its democratic resilience should be a priority.
Alongside improving the effectiveness of the existing and ever-growing rule of law toolbox, with its most promising budget conditionality mechanism now in its test phase, the democratic environment of the rule of law must be strengthened too. Investing in independent media; protecting the quality of public discourse from domestic and foreign malign influence; strengthening the capacity and efficiency of public institutions (especially the judiciary); and finally tackling the problem of shrinking civil society spaces – due to political pressures and limited financial resources –demand particular attention in the coming five years not only in the backsliding countries, but holistically for the EU as a whole, especially if we are anticipating another round of enlargement in the next decade.
