A Citizen’s Guide to the Rule of Law

ibidem-Press, Stuttgart

Table of Contents

Foreword: It’s the Rule of Law, Stupid!

Chapter 1. Saving the Rule of Law

What is the Rule of Law then?

A simple magic trick

Ask not (only) what it can do for you…

…also ask what you can do for the Rule of Law!

Coming up next

Chapter 2. When rule of law meets EU accession

The Twin Imperatives for the Western Balkans

Negotiating accession

Establishing legitimacy

What the Rule of Law is and why it matters

Going deep: Love and everyday gestures

Rule by Law and Rule of Law

“Liberal democracy”—beyond the buzzword

Fighting emperor Palpatine

What the people cannot decide

Chapter 3. Rule of Law Promotion, EU-style

Enlargement postponed or when Jean-Claude killed the mood

Reviving the relationship: the EU enlargement strategy

On the importance of being lawful

Recognise the problem and commit to solving it

Why elites don’t like the rule of law

“Do as I say, not as I do”—Intra-EU problems with the rule of law

A gospel with no sinners

Between nukes and lawyers

The Importance of Being ROLF

Chapter 4. The Fundamental Dilemma of EU Rule of Law Promotion

Achieving Sustainability or Why Inconsistency Ruins Progress

Why consistency matters—and why it’s hard to achieve sometimes

Educating the Student

Promoting rule of law in the accession process

When the EU assesses the rule of law

Why rule of law promotion is more than the sum of its parts

Problem 1: Too much focus on institutions

Problem 2: Too much focus on political elites and state structures

Problem 3: Too much focus on means rather than ends

Reframing the issue: The rule of law promotion dilemma

The “second generation” of rule of law reform

Towards a better approach for rule of law promotion: the dilemma

Chapter 5. Taking on the rule of law dilemma by being more ambitious

Why?

Qui Bono

Don’t be shy!

Outsiders can be right

How?

From the laws on the books….

…to the institutions of justice….

…to politics and power structures…

… to, ultimately, socio-cultural realities

From the laws on the books to law in action

Chapter 6. Taking on the rule of law dilemma by being humbler

Why?

Contestability of interpretations

Diversity of national traditions

National autonomy

How?

Towards an ends-based approach

Two logics

Chapter 7. Promoting the Rule of Law in practice: the “Living List”

Conditionality revisited

Success cases? The Priebe Reports on North Macedonia and Bosnia-Herzegovina

The citizens’ “living list”

Five citizen-based principles to monitor the rule of law

The “living list” in practice

Towards a new strategy

Chapter 8. Conclusion

Foreword: It’s the Rule of Law, Stupid!

The rule of law really matters. But like oxygen, we only know it when it is missing. In fact, we hope to convince our readers in these pages that it is the most precious human invention of all time, pervading our daily lives. When we buy something in the shop, when we pay our rent, when we meet each other for a chat in a pub, or when we march in protest, we trust in the rule of law to protect us from governmental overreach, mafia godfathers, or the will of the majority in our society. As we take the rule of law for granted, we fail to see when it’s under attack. And under attack it is around the world.

Indeed, the rule of law may be blatantly mocked and trampled in places far from Europe, from Hong Kong to Venezuela, or in its neighbourhood, from Ankara to Algiers. But, rule-of-lawlessness has also become a European disease.

This book is written in Europe, by two Europeans, with a focus on what is going on in Europe, both in the European Union and in countries aspiring to become members. But we hope that the book is relevant beyond Europe and beyond the challenges of EU enlargement. We will discuss developments in some specific countries in this book, but neither in detail not in the necessary depth these cases would deserve. Our goal is to explore the rule of law and its contemporary challenges, not to discuss the intricacies of any particular circumstances of its breach.

Why is this ‘a citizen’s guide’? Because we explore this state of affairs from the point of view of citizens; citizens who want to understand what it is, why it is under attack, why this matters to them and what they can do about it.

If you care about freedom in our age but do not care for abstract jargon, this book is for you. While taking the issues seriously, we try to treat them with some levity so as to make concepts accessible and practicable. Throughout the book, we have added explanations of some important concepts in side boxes, which are meant as much to amuse as to explain.

We speak to rule of law newcomers as well professionals, bureaucrats, and NGO activists and NGO activists, who are already engaged in this field and have done so much to defend the rule of law. Above all, we offer this book to any citizen curious about the meaning of this seemingly technical term and perhaps, hopefully, wishing to spread the word.

The book draws in part on a 2012 publication prepared for the EU at the behest of the OECD and we are grateful to its co-author, Rachel Kleinfeld, for her contribution at the time.1 Here, we have both substantially updated and broadened the initial perspective by exploring the current context which has heightened its demise, namely the rise of illiberalism and the decline of democracy in the Western Balkans and beyond. The book also assesses some positive steps taken by the EU in recent years, offers further recommendations and in doing so, hopes to empower citizens who seek to resist regression and entrench progress.

We wish to thank all our friends and colleagues with whom we have discussed these ideas in the past few years. In particular, we thank Dorian Singh for her assistance in finalising the manuscript. Adis Merdzanovic wishes to thank the Swiss National Science Foundation for supporting this research. And we wish to wholeheartedly thank the team at ibidem, in particular Valerie Lange, for their patience with us, their commitment to the subject, and their support throughout the publication process.

This book is dedicated to all the fighters for the rule of law, wherever they may be.

The authors

Oxford and Zurich

January 2021

1 Foreword

Kalypso Nicolaidis and Rachel Kleinfeld, “Rethinking Europe’s “rule of law” and Enlargement Agenda: The Fundamental Dilemma”, published as part of the SIGMA Papers, No. 49, OECD Publishing, 2012, republished as Jean Monnet Working Paper 12/12. NYU School of Law.

Chapter 2

Chapter 1.

Saving the Rule of Law

From Bucharest, Rome and Budapest all the way to Sarajevo, Belgrade and Priština: the rule of law is under serious attack in Europe. That’s nothing new. The rule of law is a weapon against arbitrary power, the power to confiscate our goods, our dignity, or our freedom. For centuries, although the powerful have tried to resist its entrenchment, the rule of law prevailed against the odds, because once people start to appreciate all its benefits, it is hard to take these away without some resistance.

But at the beginning of our Millennium, the rule of law appears increasingly unable to hold its ground against its countless attackers. If its defenders eventually lose this fight, the rule of law will not expire as a supernova, visible throughout the galaxy. Rather, much like the proverbial frog that keeps sitting in a constantly heating pot without realising the imminent danger, its agony will have been so gradual and unremarkable that its eventual demise would come as a surprise to most of us.

In recent years, a number of governments have imposed limits on the freedom of media and expression. They have actively sought to undermine the independence of the judiciary. They have decriminalised certain acts of corruption. They have changed statutes of limitations to suit particular individuals. They have given themselves the rights to freely appoint or dismiss judges to the highest courts in the land, or to dictate court proceedings. They have ordered police forces to investigate certain crimes while ignoring others. And they have used their privileged positions to ensure legal immunity for friends and allies. Clearly, in this ongoing fight, the rule of law is the underdog.

Each of these examples comes from a European country, ranging from European Union (EU) Member States such as Italy, Poland, Romania, and Hungary, to countries aspiring to join the EU such as Serbia, Bosnia and Herzegovina, North Macedonia, and Turkey. Each of them reflects a sad state of affairs, but what do they have in common?

What is the Rule of Law then?

The rule of law, the umbrella term which covers all these instances, deals with social relationships of power. It serves to mitigate unequal relations—between you and me, her and him, us and them. It does so by spelling out the way governments, the state machinery that they command, and any actor powerful enough to exercise power arbitrarily over citizens, ought to behave. And, crucially, it prescribes how conflicts between all of us, citizens, ought to be adjudicated fairly.

Its core aim is to limit as much as possible the arbitrary exercise of power, wherever and by whomever such power may be exercised. Of course, people in charge need to have some discretion to be able to act at all. But with the rule of law, we citizens are able to say when such discretion is legitimate and when it ceases to be.

Needless to say, if you open a legal textbook you will find a list of more formal criteria comprising a definition, most probably presenting the rule of law as the sum of a set of principles: equal treatment before the law, legal standards and certainty, accessible and effective justice, and judicial competence and independence. All true. But we will argue that the rule of law is deeper than this, and that together with its close siblings, democracy and human rights, it is the key to living a dignified life.

In short, the rule of law regulates how power is constrained, in all its forms, to ensure that citizens are truly free from its arbitrary use and abuse.

Isn’t this the most precious human invention of all time?

A simple magic trick

If that is so, how did we end up where we are today, with the rule of law being threatened in so many ways? Well, it might have had something to do with the fact that we, as citizens, often didn’t care for the rule of law. We generally don’t really understand what this cumbersome term actually means and rarely are we able to express why we truly need it. Granted, it seems like a difficult subject that does not really concern most of us directly. A bit like astrophysics. As long as there’s no asteroid heading towards earth, we are quite happy to leave the whole “space business” to scientists and let them figure it out.

With the rule of law, it’s not the scientists, but the “experts”, legal professionals or bureaucrats to whom we usually defer to act as “guardians.” By no means are these experts stupid—after all, they’re experts! And while some may doubt the need for experts in this new populist age of ours, experts tend to know their stuff. But they also tend to follow a particular way of thinking and speaking. They use certain “professional standards” and “benchmarks” to talk about and assess the state of the rule of law in a particular context. For the most part, they see the rule of law as a set of rules, regulations, and procedures. Accordingly, they design safeguards to uphold these different sets.

This view is not wrong, of course. But those who attack the rule of law know how the experts operate, so they have learned to circumvent these usual safeguards with sneaky techniques. They perform somewhat of a magic trick, a simple misdirection: while you look at the deck of cards in one hand, the magician sneaks your card into her pocket with the other. The instruments used by legal professionals to assess the rule of law are designed to look at certain aspects, not at others, and certainly not at the interplay between all the tiny elements that, in their totality, make the rule of law what it is. By looking at the different items in their sets of rules, regulations, and procedures, experts often fail to really capture what is at stake in societies that are at risk of losing the rule of law in a gradual and composite manner. Because they are unable to see the forest for the trees, they tend to lull us into thinking that all’s fine—just like the magician convinces us that our card is still in the deck up until the last moment, when it is revealed from her pocket.

By following their sometimes narrow standards and using their regular benchmarks to assess legal situations in particular contexts, the experts as guardians have certainly contributed, even if unwittingly, to putting the very same ideal they wished to promote in danger. In this unwitting erosion of the rule of law, they have been helped by bureaucrats who have never been known for looking outside their professional box and coming up with innovative solutions for addressing emerging problems. Granted, this is a gross simplification and probably a mischaracterisation of many eager and engaged bureaucrats. But if we are honest, they do tend to follow Plato’s example of being obsessed with forms, you know these forms that exist beyond our perceived everyday reality as abstract unchanging concepts.

But those professional lawyers, judges, and bureaucrats are not the only, or even the main, protagonists to be blamed for the erosion of the rule of law.

And neither are the politicians. Yes, they are the true magicians and know a thing or two about misdirection; at times, “inadvertently” misleading claims are the reasons they are in their jobs in the first place.

Politicians certainly share part of the blame in our tragic story. They tend to subvert the rule of law by taking advantage of opportunities that open up, especially if those allow them to consolidate, or even increase their power. They are goal-oriented human beings, so they naturally seek to exploit all the opportunities that present themselves. Modern-day sagas such as Game of Thrones or House of Cards vividly remind us that any kind of rules and norms are really hard to maintain once pure power is at stake—or when the other side has dragons.

Don’t get us wrong: professionals, bureaucrats, and politicians are not innocent in this story, by no means! We in no way want to defend their action, or even sometimes inaction, or absolve them of responsibility—something we are not in a position to do anyway. Quite to the contrary: legal professionals, politicians and bureaucrats are also guilty for the erosion of the rule of law and we shall vigorously criticise them.

But there is also somebody else we blame: Time Magazine’s Person of the Year 2006! In other words, us. “Us”, the citizens as a collective, and therefore each one of us as individuals.

To be sure, Time Magazine awarded its prestigious prize in recognition of our contribution to the digital age. But while we shaped the early years of the digital revolution, and continue to share and provide content throughout social media platforms, most of us have so far failed to step up for the rule of law. Except for a few courageous and stubborn individuals and groups around the world, we, the great silent majority of citizens and voters, share in the responsibility.

And we do so for a simple reason: The rule of law is best understood as a common goal, an ideal, the glue that holds us together, and thus something we, as members of a society should protect with passion. All of us, as citizens and human beings have a duty to be the guardians of the rule of law and to pull our weight. Each and every one of us is needed in this fight.

Alas, for far too long have we neglected our duty and let others take care of the rule of law. We let the professionals reign supreme; and they, quite simply, failed to see the asteroid because it did not come as a giant space rock, but in the form of many little meteorites that didn’t burn up in the atmosphere, but made it to the ground. The consequences slowly become visible to us, like the many craters that permanently changed the surface of the moon. But what the moon lacks, the earth possesses: tectonic shifts that reinvigorated the surface. For us, the course of action is clear: we—you and us—need to step up and take responsibility. It is our time! And it is our duty to start the tectonic shifts needed to save the rule of law.

Ask not (only) what it can do for you…

But how are we, the citizens, to blame for the sorry state of the rule of law? The law is the purview of lawyers, the police, judges, and politicians. As law-abiding citizens, we tend to follow the law, most of the time at least. And we vote for the politicians that make new laws when they are necessary, hopefully in accordance with our ideological preferences. What more could we have done? Where did we fail? Or, even more importantly: What more can we do in the future?

Quite a lot more, actually.

Justice and the Rule of Law:

The Law’s Bargain

A man was charged with stealing a car, and after a long trial, the jury acquitted him. Later, he came back to the judge who had presided at the hearing.

“Your honour”, he said, “I want to get a warrant out for my dirty lawyer.”

“Why?”, asked the judge. “He won your acquittal. Why do you want to arrest him?”

“Well, your honor”, replied the man, “I didn’t have the money to pay his fee, so he went and took the car I stole.”

To be sure, the rule of law has a lot to do with politicians making the laws and the judiciary upholding them in courts. And, of course, depending on what type of law it is, there is also a role for the police. It’s “law and order”, like in the American TV show reborn in so many incarnations. But that’s only one bit, by far not the whole story of the rule of law.

Beyond a sum of laws, regulations, legal proceedings, and judiciary rulings the rule of law is a more fundamental set of norms that ought to guide our social interactions wherever and whenever they occur.

This sounds important and complicated, but the idea is quite simple: think of the rule of law as a safety net, like the trapeze net for circus artists. If they miss the rope and fall, the net saves their lives. The rule of law is a similar safety net for when somebody takes your rope away mid-air and the state or the police try to do with you as they wish. When citizens, for example, engage in the healthy activity of criticising the government, the government cannot simply throw them in jail, no matter how much it wishes to do so. And it’s because of the rule of law that politicians cannot agitate the population at large against any one group, its rights and freedoms, even if they are a minority in the state. The rule of law protects us against the state in all its forms.

But the rule of law does far more. It does not only constrain the state, in fact it constrains everyone, every member of the society. It prohibits your neighbour from taking your lawnmower—and you from taking his car, no matter how much you desire it. That’s the law part. But when a member of the society refrains from stealing her neighbour’s stuff not because it would violate the law and because she fears the punishment, but because she believes it’s wrong to do so, the rule of law becomes more than a legal concept. It becomes a social norm, somewhat of an unwritten guideline for how one should behave when living with others in a society. The rule of law is thus a combination of legal and social norms that guide our existence within communities.

In life, the rule of law is not everything, of course. Love, family, compassion, or comradery are important as well, no doubt. And so are many other things that make life worth living, from chocolate cake to sex. But without the rule of law, everything else is nothing. For citizens to thrive in a democratic, free and prosperous society, it’s really the rule of law that matters most!

Yet this is precisely what we seem to have forgotten—perhaps out of convenience, if not negligence. Who among us wakes up in the morning thinking about the importance of the rule of law? Do you discuss the rule of law when you meet friends for a drink in the evening? Maybe you do, but most people don’t. Yet, we are willing to bet that you would think of the rule of law the day you become a victim of its absence.

Imagine being be a journalist jailed for your reporting. Or a grandmother denied access to the courts after your property was taken from you. Or a member of a minority discriminated against by the state. Or someone denied her rights to a pension. In each case, the value of the rule of law has only become visible “in the breach”, as it so often does.

We may think that moving outside the law has some advantages. Indeed, it sometimes has; countless successful criminals have demonstrated this unfortunate fact of life. As any tax lawyer might tell you, it’s not always the nice and law-abiding citizens that “win” in our society. And sometimes, we may even regard digressions from the law with a certain kind of fascination. It’s not by chance that there are far fewer successful movies about law-abiding citizens than about adventurous renegades. But be aware that, as Truman Capote famously said, “the problem with living outside the law is that you no longer have its protection”. And when you are caught—and let’s not forget that most criminals are eventually caught; hey, they even got Al Capone on tax evasion!—you probably would like to have a trial in which you stand a chance.

None of these hypothetical situations may apply to you or us directly. But somewhere, someone finds herself in precisely that pickle right now—be it as an offender against the law, or a victim of its absence. Whoever it is and wherever she might live—we must care! For as constraining as the rule of law may be, it is fundamentally an instrument invented and refined to protect us. If we fail to care we deprive it of its sustenance. If we don’t defend the rule of law against its contemporary attackers, it may no longer be strong enough to protect us when we most need it.

The rule of law needs tender loving care to be brought back to health in Europe and a forciori beyond—and that is a task for all of us.