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.

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

What is to be done? What can we, each and every one of us, do to save the rule of law, to bring it back to its former, vibrant self?

The first step towards solving a problem is to admit that we have one. Therefore, let us first wrap our minds around the rule of law, what it is and why we need it. And then, let’s see where we have failed so far and how we could do better. That’s the goal of this book, a citizen’s guide to the rule of law.

Our aim is to speak directly to our readers wherever they may live, with the hope that what we say about Europe is also relevant beyond. We know that we are dealing with complex issues here and we will do our readers the courtesy of not simplifying the matters outrageously. For sure, it’s complicated to live together peacefully!

But by appealing to our shared intuitions, our experiences, and our common understanding of how the world works or, at least, ought to work, we hope to provide a practical guide and make these complex topics understandable. Yes, we do use political and legal theory, political science and philosophy in our arguments. But we hope to present a handy guide that speaks to practitioners, but also well beyond, to all concerned citizens.

Sometimes we use thought experiments to make our arguments clear, and when we can, we offer real-world examples from across the continent. Forgive us for often avoiding specific country names for the sake of generalisation, if not anonymity. As should be clear by now, we are less concerned about where any concrete attack on the rule of law has happened, and more about the patient we seek to nurture, the combined consequences of continuous attacks for every day citizens. This wondrous creature of ours must be strengthened once again by our collective life force. By taking a position of levity and introducing a good portion of humour, our ambition is to suggest how we can save the rule of law.

But more than that, we want this book to offer a call for action and for engagement.

Coming up next

This book seeks to be an accessible but nevertheless sophisticated handbook for rule of law and its promotion by EU citizens. We wish to learn from the mistakes of the past and to suggest new pathways. We will deal not only with the question of how the rule of law should be promoted, but also with what it actually means in practice—in EU member states and in those countries wishing to join the Union. From Bucharest to Rome, from Madrid to Zagreb and from Priština to Sarajevo and Ankara, we wish to speak to all citizens, so that together, we can save the rule of law from its attackers.

In Chapter 2 (When rule of law meets EU accession) we properly introduce the concept of rule of law and discuss its position within what we have increasingly come to call “liberal democracy”. In this book, we have chosen to look at the rule of law through the prism of accession to the EU because we think that this is where most questions of the rule of law become virulent. As we shall explain further in the chapter, we see the EU’s accession process as a “proof of concept” for our new understanding of the rule of law, with the latter’s principles being far more widely applicable than to EU enlargement.

Chapter 3 (Rule of law promotion, EU-style) reviews the shortcomings of the rule of law approach currently promoted by the European Union. We will explain how the current approach does not really fit with what a deeper concept of rule of law should be. We will look at what the EU has done so far to promote the rule of law, and discuss why it did not work. Consider this chapter an introduction to the EU’s rule of law efforts, even if we don’t like to call it that because introductions are rarely read with the carefulness they should be read.

Chapter 4 (The Fundamental Dilemma of EU Rule of Law Promotion) presents what we call EU’s rule of law “promotion dilemma”, a kind of catch-22-situation in which the EU finds itself. On the one hand, the EU has to be rather intrusive so as to enable a sustainable rule of law framework in future member states; on the other, it has to show restraint due to developments within the EU that may negatively impact its credibility. It also has to pay attention to the larger context in which it intervenes. We show that the inconsistencies this creates could be avoided if the EU adapted its understanding of the rule of law. We also show what the consequences of the current approach are and where a new approach should start.

Chapter 5 (Taking on the rule of law dilemma by being more ambitious) presents some of the building blocks of this new approach. Our solution consists of reframing the debate under the seemingly contradictory headline of being “humbler and more ambitious” in order to make the rule of law stick. We need to prevent digressions and make reforms permanent or “sustainable”, as we shall call it. Sustainable rule of law involves the entire society, not just lawyers, bureaucrats, and judges. As chapter 5 will explain, the EU’s rule of law promotion therefore needs to be more ambitious. It needs to engage with citizens, non-governmental organisations, interest groups and many more. It needs to become part of the social fabric.

At the same time, however, we argue in chapter 6 (Taking on the rule of law dilemma by being humbler) that to make rule of law promotion sustainable, the EU has to be humbler in what it presents as the “EU model” of the rule of law. Such a model simply does not exist. Different EU member states have different rule of law frameworks, all of which are supposed to be compatible with the EU’s rule of law norms. Acknowledging that would open up new spaces for manoeuvre and reform in the candidate countries. So, humility from the EU is a good start.

While these discussions are rather theoretical, chapter 7 (Promoting the rule of law in practice: the “living list”) offers a more practically oriented guide of how to deal with rule of law and its promotion on the ground. We examine the EU’s strategy in resolving the constitutional and political crisis in North Macedonia in 2015 focussing on concrete challenges to the rule of law in the country. Broadening our perspective, the chapter then presents our new approach for the EU’s rule of law promotion, which centres on a citizen-based perspective of what the rule of law actually is. We discuss the actors that should be involved in monitoring the rule of law in a country and present a “living list” of indicators and questions that should guide rule of law assessments in a country. The beauty of this list is that it can be employed in member states as much as in EU candidate countries.

Chapter 8 concludes the book by putting the rule of law and its promotion into a larger context and arguing for an engagement of each and every individual as guardian of the rule of law. It brings us back to the beginning of this chapter and our call for action.

***

As you see, our goal is to provide our readers with all the information and tools they need to understand the challenges of the rule of law and its promotion.

But we freely confess, we have an ulterior motive. It is our deep belief that the rule of law is not something that lives on paper or in some procedure, but as a principle of living together that should be nurtured within each of us. We hope that you, dear reader, will do so, not primarily because you believe it’s necessary for the development of your country or for joining the European Union one day, but because you too believe in the rule of law, as humankind’s most precious invention. Because you realise how important it is for it to be kept alive and how dangerous it is to let it die. We are missionaries in the truest sense of the word.

But we ask even more. Let us become an even more active community. Let us approach our politicians and demand sustainable rule of law in a language both we and they understand. Let us fight small rule of law breaches as vigorously as we would fight larger ones. And let us speak up when the rights of our neighbours, our journalists, or our judges are being infringed upon.

And together, for everyone’s sake, we can save the rule of law.

Chapter 2.

When rule of law meets EU accession

For years, if not decades now, there has existed a fundamental misunderstanding in what we think the rule of law means in practice. It’s easy to see this misunderstanding when we look at an area in which the rule of law is supposedly at the centre of everyone’s attention: the EU’s accession policy.

In this book, we mostly focus on EU accession because it can teach us a lot about how the rule of law is established and what challenges it may face. The accession process is where the ideals of the rule of law, the practical challenges to it, and resistance to its implementation all coalesce into one. And the EU’s rule of law promotion efforts in this context can serve as our “proof of concept”. Everything we wish to say, can be said with the accession process as an example. But the ideas we put forward are applicable to all other contexts dealing with the rule of law, especially in EU member states. What we say matters, whether one lives in an EU member state or not.

The Twin Imperatives for the Western Balkans
Negotiating accession

Yugoslavia’s violent disintegration began in the early 1990s, when a number of wars among the former republics of the socialist confederation broke out. They would last for more than a decade and be fought with a brutality few had thought possible on the European continent after the experiences of the Second World War. The EU and its institutional predecessor, the EC, proved unable to prevent the outbreak of hostilities, and the self-proclaimed “hour of Europe” as an international actor turned out to be an empty phrase.1

When the Yugoslav wars eventually subsided, the EU offered a “membership perspective” to the successor states of the former Yugoslavia as well as Albania, which had not been part of Yugoslavia, as it had done with Central and Eastern Europe states (CEE) after the fall of the Iron Curtain in 1989. Today, Croatia and Slovenia are full-fledged EU member states, while the remaining countries—Bosnia-Herzegovina (BiH), Serbia, Montenegro, North Macedonia, Kosovo, and Albania—are still engaged in the so-called accession process. These countries are usually referred to as the “Western Balkans” or the “Western Balkans six”. It’s somewhat of a cumbersome, political term that desperately avoids any kind of connection with the Yugoslav past, but it has become the norm, so we shall use it as well. Why complicate matters more than necessary, right? But we shall also throw Turkey in the mix occasionally, for what we are saying matters there as well.

To become full members, these six states (and Turkey) have to fulfil a set of conditions—known as “membership criteria” or the “Copenhagen criteria”. They have to align their legal, political, and economic systems to the bulk of EU legislation that already exists, the so-called acquis communautaire. Basically, the EU’s rulebook. If a country wants to join, none of its laws and rules may contradict what’s in the rulebook, the acquis. Accession is thus basically an exercise in reforming existing rules and laws to fit the EU’s standards. This is actually quite a one-sided process, as the EU sets the rules and the candidate countries have to follow. Some would say that’s unfair, and it indeed is; but we shall come to that in a moment.2

As part of the accession process, EU negotiators have also sought to establish what they have called the “rule of law” in the accession countries. Yet, it has not really worked, despite their best efforts. Rule of law “reforms”—if one may so call the at times rather small legal changes to which the domestic political elites agree—are moving slowly, and at times hardly at all. Young people are leaving the region by the tens of thousands; economic prosperity is nowhere to be seen, while the political and legal systems seem inadequate to cater to what citizens deem important. That’s not just a feeling propagated by opposition politicians and civil society actors critical of Western Balkans governments. It’s a fact.3 Many of the former or current accession countries still struggle with serious rule of law challenges. The judiciaries are not independent and don’t deliver swift and fair justice. The policemen are corrupt, not to speak of the politicians who exploit state resources for their own benefit.4 In general, more than two decades after the EU’s rule of law engagement in the region began, these countries are quite far away from the ideal the EU has been promoting in the guise of “liberal democratic regimes”, the ultimate goal of accession.

In other words: the EU’s rule of law promotion has a serious problem. It lacks efficacy and sustainability, due in part to flawed understandings among at least some of those who are expected to promote it.

Yet, without sounding too grand, it is fair to say that the rule of law is especially crucial in this region whose stability depends on it. But why?

Establishing legitimacy

With the exception of Turkey, the accession process deals with post-communist and post-war countries, which have a particular legacy to confront. In previous systems, authority came from above, from either the party or the warlord, and it was allegedly dispensed for the good of some imagined community, such as the “nation” or the “working class.” In a democracy, however, political authority comes from below, from the people, or rather all the individuals constituting that society. It’s the individuals that provide the democratic system with what we call legitimacy.

Legitimacy is a big word, we know, and philosophers can discuss it forever—and they have. But it actually means something quite simple: a political system is described as “legitimate” when we, the citizens, think that there is an authority that has the right to set the rules that we have the obligation to obey. That’s basically it. For a system to be truly legitimate, it is important that citizens are convinced that they have to follow the rules regardless of the latter’s actual content, just because they respect the authority that made that rule.5

But even when legitimate, authority requires checks and balances and this is what the rule of law is all about. It constrains the exercise of power over each and every one of us and by doing so, it

When do you say ‘yes’ to authority?

Maybe you had a say in how it was established—you elected your representatives in parliament who voted on the rule, for example the law to wear seatbelts. Or you respect the process by which the rule was adopted—everyone had a say, experts were consulted, the vote was free and fair, and so on. Or you agree with the outcomes the rule produces—for example, fewer deaths in car accidents, less crimes in the streets, or food that is safe to eat, and so on. Or all three of these reasons. So, if these conditions are fulfilled, we can say a state or political system is legitimate. If not, things can get ugly.

contributes to the legitimacy of a system. So, ultimately, it’s one of the corner stones for peace and stability in any society.

Breaches of the rule of law seem much more dramatic in states that are in the process of becoming democracies. It is something quite different if one’s rights are disregarded in a liberal society that increasingly becomes illiberal, or whether this happens in a transitioning society that so far never enjoyed the full range of liberal rights. It is in the latter case that the rule of law develops its full meaning and it is here that the “deep concept” of the rule of law we wish to promote must stand its ground. Don’t worry, we shall come back to the “deep concept” in due course.

However much you are convinced that the rule of law matters, it won’t have escaped your attention that we have performed a magic trick: we never said what precisely the rule of law is. Instead, we just offered some hints and fragments of a larger concept. We’ve created somewhat of an illusion for us all to believe in. It’s now time to give the trick away, even if this means we can never become members of London’s Magic Circle.

What the Rule of Law is and why it matters

Everyone should want to live in a society blessed with the rule of law.

Where you stand free from the tyranny of fear: you may not be treated arbitrarily neither by the state nor the powerful.

Where you stand free of the tyranny of the few: no king, minister, nor Mafioso is above the law.

And where you stand free of the tyranny of the majority: no minority group may be persecuted with impunity.

The rule of law offers you safety, security, and may we say dignity, like a comfortable Iron Man suit protecting you at all times and against all enemies.

It seems intuitively obvious that the rule of law is a good thing to have. Or would you prefer to subject yourself to arbitrary rule by a monarch, government, or mafia godfather? If so, would you not deny yourself the very dignity that makes you human?

We know there are people who find subjugation quite exciting, sometimes even arousing. But even for them, the eventual relief is an integral part of the fascination. Few would freely submit themselves forever to somebody, and even fewer would advocate servitude as a guiding organising principle for modern societies.

It was the German philosopher Immanuel Kant who said that human beings should never be treated as means, for example for someone else’s pleasure. They have an inherent moral value that ought to be respected and protected. Of course, we don’t need Kant to tell us what we intuitively know already: that one should always treat other human beings in a way that one wants to be treated oneself in that particular situation. If there is such a thing as a universal law of humanity, a golden rule, this edict probably lies at its core.

But while generally a good guide in life, intuition has its limits. There are, after all, situations where there is no universal consensus about what the intuitively right thing to do would be. Or is there an intuitively correct answer to the riddle US comedian Stephan Colbert likes to put to his guests, namely whether they would prefer fighting a horse-sized duck over a hundred duck-sized horses?

Then there are events in nature that are true even if they defy our common intuition. A quantum particle can be at two places at once, and a group of people might choose to annihilate another out of fear. Intuition is a predictor neither of truth, nor of morality.

Therefore, saying that we intuitively know what the rule of law is, or at least ought to be, and why it matters, does not really bring us very far in our quest to distil its deeper meaning. And distil it we must, before we can move to the task of actually saving it.

Going deep: Love and everyday gestures

To know what we mean by the rule of law as a “deep concept”, we need to start by treating the rule of law as if it were a loving relationship between two people. There is the deep love that profoundly binds them together, and then there are the everyday gestures through which this love is expressed.

With the rule of law, there’s the larger principle, the core. We need to know what norms constitute this core and what functions they perform. That’s the love part. Once we have clarity on that, we need to figure out how the larger principle is to be applied in social and political orders. We need to know what the core means concretely for living together. That’s the everyday part.

So, let us start with the first task, thinking about the larger principle, the love. Here, a problem occurs that is very central to our larger argument in this book and makes this next section somewhat complicated. Bear with us, please.

We may approach the rule of law from different viewpoints. Aspects of it are philosophical, others are sociological, political, or legal. Trying precisely to define what we are talking about is thus difficult, as it varies slightly from one perspective to the other. Indeed, looking at the vast rule of law literature that has been produced so far, we find that actual definitions about the rule of law are either absent, or they depend on what the writer wanted to achieve or the era or tradition in which s/he writes.6 Debates among legal theorists abound so that one may be forgiven to think that all these smart people have actually no idea what they are talking about.7 After all, if you cannot even agree on what your subject is, how can you determine whether it’s there or not?

Of course, all these people know very well what they are talking about. They are smart and have done some serious thinking. But they sometimes lack the ability to make their thoughts clear to the rest of us. They have a problem of communication rather than one of understanding.

The challenge in defining the larger principle of the rule of law is quite straight-forward; actually, there is one fundamental point upon which all these lawyers, philosophers, sociologists, and political scientist can agree:

The rule of law is a “rule about the importance and priority of legal rules” for a particular society.

Sounds relatively straightforward: The rule of law is simply the command to obey the laws.

But that can’t be all there is. The rule of law concerns itself with the law—but is at the same time something above the law? This definition indeed “carries a whiff of paradox, a circular sense of justification”.8 There seems to be no distinction between the love part, and the everyday part of the rule of law. Yet we need those two aspects of the rule of law to somehow come together in a definition, if we wish to make the concept broadly understood. But how?

Rule by Law and Rule of Law

When we deal with the law, we usually find two prevailing schools of thought. There are those who say that the law is what is written in the law books. We call these scholars “legal positivists”. Their credo is simple: just follow the rules in the book.

But what if the rules contradict our deep sense of morality? What, for example, if the law in a country allows the government to imprison journalists for their critical reporting? Or what if the law allows a king to take a subject’s first-born so that it may become part of the ruler’s court? Legal positivists would have no problem with that, as long as proper procedures were followed.

This is where intuition helps after all. We intuitively know that this cannot be right. We know that, in such situations, the rule of law should be about protecting the journalist from governmental overreach and leaving the child in the caring hands of its family? Surely, the rule of law must be more than the positivist “rule by law”!

Come to think of it, our readers living in one of the future EU Member States might know the distinction we seek to explain better than us. In fact, many languages have recognised it, even if, unfortunately, English is not one of them. Maybe that’s something Shakespeare, after adding so many words to the English language, just didn’t have time to get around to do. It’s a pity, really.

In German or the languages of Slavic origin there is a semantic difference between the law in the books (in German Gesetz, or a variation of zakon in the Slavic languages) and the law as a principle of justice (Recht, or pravo). In the languages of the former Yugoslav space, for example, the translation of “rule of law” is usually given not as “vladavina zakona” (as in “rule by law”), but as “vladavina prava”, with “pravo” being semantically linked to the concept of justice (“pravda”) and literally meaning “right”.

To capture what the rule of law is, then, we need to move beyond the mere notion of a positivist, rule-by-law description and look at the norms at its very core. But what norms could that be? As so often in life, we need to find the love, in traditional and less traditional forms.

Examining with critical eyes the EU’s accession process can be helpful here, given that the rule of law does not figure alone in this picture. Ever since the spelling out of the criteria for membership in 1993, the EU has treated the rule of law as part of a triptych alongside democracy and human rights. Even if these dimensions can be treated separately in theory, we generally agree that it’s best to see the rule of law, democracy, and human rights as siblings when it comes to how they live in the real world. Different, but somehow of the same ilk. Treating them as distinct appears odd, even if, like any sibling, each one of them has of course a particular character.

Apart from being in line with many intellectual traditions, acknowledging that these three concepts are connected has a further benefit: it allows for assessing countries on a spectrum on which they don’t have to progress in lock-step. A country can advance on one, stay stagnant on another, and even deteriorate on the third.

Figure 1 How the Rule of Law, Human Rights, and Democracy intersect

This has in fact really happened. In the past decade, the countries of the Western Balkans have made significant progress on their path towards EU accession, yet they have also become more authoritarian and less democratic.9 And in all the accession countries, the human rights situation is far from perfect.10

We think that the best way of thinking of the rule of law, democracy, and human rights is to see them as separate, but interwoven elements of a family picture that we tend to recognise as “liberal democracy” (see Figure 1).

“Liberal democracy”—beyond the buzzword

This brings us to another contemporary buzzword: what exactly is “liberal democracy”? And where does it come into our rule of law story?

Fighting emperor Palpatine

Liberalism is a big term, but actually a quite simple idea: it states that the legitimacy of any social or political order rests with the individual. It all starts with each and every one of us. By virtue of being human, each one of us is endowed with a set of rights starting with the right to live and take our own fate into our own hands.

Of course, this creates problems. If we have a disagreement and I decide to take matters into my own hands, you might not like it. So, all of us together, therefore decide to delegate certain of our rights to a political authority, and so the state is formed.

We task the state with regulating certain areas of our daily lives, mostly guaranteeing our security. Yet there are certain rights we cannot cede—the US Declaration of Independence calls them “unalienable rights” and specifically mentions “life, liberty, and the pursuit of happiness”. Others might want to add “property” in this mix, but the larger point stands: there are guaranteed rights and liberties that cannot be delegated to a state and no one has the authority infringe upon them.

But how can we ensure far-reaching rights for everybody in a society with more than one individual? Some compromise is needed. Liberals believe that the best form of government ensures that you have to give up as few liberties as necessary to secure social order and security. John Stuart Mill, the famous British philosopher, once argued that “the only purpose for which power can be rightfully exercised over any member of a civilized community against his will, is to prevent harm to others”.11

We may think of it this way: My neighbour’s right to swing his fist ends where my face begins. Here, the state can intervene and limit my neighbour’s rights. But as John Locke—another of those British philosophers that have spent a lot of time thinking about such questions—reminds us, should the state exert its power too far and breach Mill’s “no harm principle”, resistance against the state becomes legitimate.12 So, we, the citizen, always retain the final authority over the system.

Seems like a sweet deal, doesn’t it? Something one could easily rally around, no?

Today, certainly. But this was actually quite a revolutionary thought when Locke first made it. Kings were still ruling much of the world—and they weren’t just monarchs without any real powers, like Queen Elizabeth II is today. They were true autocratic rulers of their dominions, like Emperor Palpatine from Star Wars. Their supreme rights, status, and privileges were beyond questioning, as their authority came directly from God. Or at least that’s what they wanted everybody to believe.

So, here came the Liberals who said: “Well, actually, God (or nature) gave us some rights, too. You are only king if we agree to your authority. And even then, we still have some rights you are not to touch. Otherwise, we can get rid of you!” This must have seemed a preposterous suggestion to kings, queens and emperors alike. While they could not stem the tide of liberalism entirely, they certainly sought to minimise the damage to their absolute authority. Even in England where the Magna Carta—one of the first codifications of a proto-system for the rule of law—was drafted in the 12th century to protect individual liberty, this concerned the rights of the barons rather than ordinary people.

Unsurprisingly, the simple idea of protecting individual rights and freedoms formed the cornerstone not only of the French and American Revolutions, but also of all contemporary fundamental human rights treatises and constitutional orders in Western polities, including the EU. Except that by then, such rights were not to be limited to the barons of the day.

So, that’s the “liberal” part of “liberal democracy”. But what about “democracy”? Doesn’t democracy mean “the rule of the people”? Yes, indeed it does. So, how does that square with the rights of individuals we have been talking about so far?

What the people cannot decide

The connection between liberalism and democracy is not as straightforward as some might want to make us believe. A democracy rules by majoritarian means, 50%+1 vote decides. But the very idea of liberal government is that even what we call “the will of the majority” cannot override the basic rights of the individual. A form of compromise was necessary.

Historically, liberals understood that the very noble idea of self-government through democratic means could only be brought in line with their thinking when combined with a strong set of guarantees for individual rights and freedoms.13 These guarantees could not be given in special situations in which the problems arose, but had to be set beforehand, in principle and in perpetuity.

On the value of compromise

If you have ever been in a relationship you know that living together necessitates compromise, at times a lot of it. Be honest, do you really like all the things you have in your apartment? If you are reading this booklet at home, take a look around. How many of the things surrounding you do you actually like, and how many did your partner put there and you didn’t deem it worth having a fight over? By the way, we know such rather trivial realisations may be the one drop too many for a strained relationship. As we don’t really want to be responsible for your partnership breaking up, please, think about the larger happiness you get from the relationship to counter the subversive thoughts we may have just implanted.

It is out of this other—again very simple—idea, the notion of the rule of law was born. As a set of general, individual, human rights as well as certain rights and freedoms pertaining to the domain of governing and social order. The rule of law does not only formally limit government action in a particular way. When meaningfully employed, it also serves as a guarantee for human and individual rights against particular democratic and state decisions.

When the rule of law is absent, liberal democracy loses its “protective”14 aspect. We become dependent on the benevolence of others, in many cases of the undefined majority. Political rule becomes arbitrary.

If you are one of these people that likes to say what she thinks and take action to change things you deem unfair—as we pretty much hope you are—then you might find yourself in a tricky situation when the rule of law is absent. That is why we must act, to prevent any of us ever being put into such a situation!

1 For a detailed analysis of the EU’s reaction to the Yugoslav conflicts, see Josip Glaurdic, The Hour of Europe: Western Powers and the Breakup of Yugoslavia (Yale University Press, 2011).

2 See also Adis Merdzanovic, ‘A Sustainable European Integration Policy for the Western Balkans? Testing Five Common Assumptions’, in Western Balkans Back in Focus. How to Shape Europe’s Reengagement with a Region in Crisis, ed. Tobias Flessenkemper and Thomas Müller-Färber (Rehburg-Loccum: Loccumer Protokolle Vol. 28/2018, 2018), 9–26.

3 Deutsche Welle, ‘Youth Are Deserting Balkan Countries’, Dw.Com, 23 December 2016, https://www.dw.com/en/youth-are-deserting-balkan-countries/a-36891266.

4 See, for example, Florian Bieber (2020): The Rise of Authoritarianism in the Western Balkans. Cham: Palgrave MacMillan Pivot; or Jasmin Mujanovic (2018): Hunger and Fury. The Crisis of Democracy in the Balkans. London: Hurst & Company.

5 This is the classical definition of legitimacy provided by H.L.A. Harts. See Herbert L.A. Hart, The Concept of Law: With a Postscript Edited by Penelope A. Bulloch and Joseph Raz, ed. Herbert L.A. Hart and Penelope A. Bulloch (Oxford: Clarendon Press, 1994). For a discussion in the EU context see Vivien Schmidt, V. A. (2020). Europe’s crisis of legitimacy: Governing by rules and ruling by numbers in the eurozone. Oxford University Press. See also Teitel, R. G. (2001). Humanity’s law: rule of law for the new global politics. Cornell Int'l LJ, 35, 355.

6 Rainer Grote, ‘rule of law, Rechtsstaat and Etat de Droit’, in Constitutionalism, Universalism and Democracy: A Comparative Analysis, ed. Christian Starck (Baden-Baden: Nomos, 1999), 271; Friedrich August von Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1978).

7 As exemplified for instance in Relocating the rule of law, whose various authors not only reinterpret the rule of law in the history of ideas, but as an ideal and a praxis in the here and now. See Gianluigi Palombella and Neil Walker, eds., Relocating the rule of law (Oxford: Bloomsbury Publishing, 2009).

8 Neil Walker, ‘The rule of law and the EU: Nexessity’s Mixed Virtue’, in Relocating the rule of law, ed. Gianluigi Palombella and Neil Walker (Oxford: Bloomsbury Publishing, 2009), 120.

9 Florian Bieber, ‘Patterns of Competitive Authoritarianism in the Western Balkans’, East European Politics 34, no. 3 (2018): 337–54.

10 Maja Zivanovic, ‘Poor Progress for Human Rights in the Balkans, HRW Report’, Balkan Insight, 18 January 2018, http://www.balkaninsight.com/en/article/balkan-countries-still-facing-old-human-rights-issues-01-18-2018.

11 John Stuart Mill, ‘On Liberty’, in On Liberty and Other Essays, Oxford World’s Classics (Oxford: Oxford University Press, 1869), 14.

12 John Locke, Locke: Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988).

13 Michael Freeden, Liberalism. A Very Short Introduction (Oxford: Oxford University Press, 2015), 26.

14 David Held, Models of Democracy, Third Edition (Stanford: Stanford University Press, 2006), 78.

Chapter 3

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