Rule of Law, Common Values, and Illiberal Constitutionalism

Poland and Hungary within the European Union

Tímea Drinóczi, Agnieszka Bień-Kacała, Tímea Drinóczi, Agnieszka Bień-Kacała

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000172430
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book challenges the idea that the Rule of Law is still a universal European value given its relatively rapid deterioration in Hungary and Poland, and the apparent inability of the European institutions to adequately address the illiberalization of these Member States. The book begins from the general presumption that the Rule of Law, since its emergence, has been a universal European value, a political ideal and legal conception. It also acknowledges that the EU has been struggling in the area of value enforcement, even if the necessary mechanisms are available and, given an innovative outlook and more political commitment, could be successfully used. The authors appreciate the different approaches toward the Rule of Law, both as a concept and as a measurable indicator, and while addressing the core question of the volume, widely rely on them. Ultimately, the book provides a snapshot of how the Rule of Law ideal has been dismantled and offers a theory of the Rule of Law in illiberal constitutionalism. It discusses why voters keep illiberal populist leaders in power when they are undeniably acting contrary to the Rule of Law ideal. The book will be of interest to academics and researchers engaged with the foundational questions of constitutionalism. The structure and nature of the subject matter covered ensure that the book will be a useful addition for comparative and national constitutional law classes. It will also appeal to legal practitioners wondering about the boundaries of the Rule of Law.

Part I

Rule of Law

In context

1 Illiberal constitutionalism and the European Rule of Law

Tímea Drinóczi and Agnieszka Bień-Kacała

1.1. Framework and problem statement: Contested concepts

There are many theories and opinions in the literature concerning the Rule of Law. It is viewed as a national, supranational, transnational or international concept¹ or ideal, or an applicable, and thus enforceable, legal principle or value.² There is disagreement on its definition and constituent elements, ranging from a ‘thin’ to a ‘thick’ version in a continuum,³ or from short positive descriptions to negative definitions that list what the Rule of Law does not mean, and on its measurability and suitable methods.⁴ One can recall its recognition throughout history as a rule against the arbitrary use of power as summarised by, e.g., Martin Krygier and Wojciech Włoch in Chapter 3.⁵ Another conceptualisation of the term is that ‘government officials and citizens are bound by and abide by the law’ as defined by Brian Z Tamanaha.⁶ According to Dimitry Kochenov and Petra Bárd, the concept of the Rule of Law certainly does not extend to human rights and democracy, nor does it mean a mere adherence to law.⁷ Scholars interrogate the Rule of Law from the perspective of international law and examine the role of international law in a changing global order,⁸ while others study it from the perspective of axiology, as Andrzej Madeja in Chapter 2,⁹ or in the light of the history of the Western political philosophy on the Rule of Law, as Wojciech Włoch.¹⁰

1 M Adams et al., eds, Constitutionalism and the Rule of Law (Cambridge University Press 2017); H Krieger, G Nolte, and A Zimmermann, eds, The International Rule of Law: Rise or Decline? (Oxford University Press 2019).

2 J Waldron, ‘The concept of the rule of law’, 1 Georgia Law Review (2008) 59–60; D Kochenov and A Jakab, eds, The Enforcement of EU law and values (Oxford University Press 2017); C Closa and D Kochenov, eds, Reinforcing the Rule of Law oversight in the European Union (Cambridge University Press 2016).

3 C May and A Winchester, eds, Handbook of the Rule of Law (Edward Elgar 2018).

4 See e.g., M Versteeg and T Ginsburg, ‘Measuring the rule of law: a comparison of indicators’, 1 Law and Social Inquiry (2017) 100.

5 M Krygier, ‘The Rule of Law: Pasts, Presents, and Two Possible Futures,’ 12 Annual Review of Law and Social Science (2016); W Włoch, ‘”Where the Laws Do Not Govern, There is No Constitution”: On the Relationship between the Rule of Law and Constitutionalism’, Chapter 3 of this book, 77–101.

6 BZ Tamanaha, The History and Elements of the Rule of Law, Singapore Journal of Legal Studies (2012) 233.

7 D Kochenov and P Bárd, ‘Rule of Law Crisis in the New Member States of the EU. The Pitfalls of Overemphasizing Enforcement’, Working Paper No. 1 (July 2018) 20.

8 H Krieger, G Nolte, and A Zimmermann, eds., n 1.

9 A Madeja, ‘The European Values and the Rule of Law’, Chapter 2 of this book …

10 Włoch, n 5.

Notions such as constitutionalism,¹¹ to which many adjectives can be added, similarly attract various approaches.¹² The generally accepted view on the term ‘constitutionalism’ is that it cannot be anything else but liberal, which is why the expression of illiberal constitutionalism is opposed. Another reason is that constitutionalism entails constraints on public power, which is seen in neither Hungary nor Poland.¹³ Consequently, when states like Hungary or Poland fail to show the attributes of their former ‘liberal’-selves and weaken their former constitutionalism along with their constraints on the public power, they are called (modern) authoritarian¹⁴ or anti-democratic regimes.¹⁵ Others look at the concept differently: they either use other adjectives for constitutionalism (authoritarian) or, while studying the possibility of illiberal constitutionalism, claim that constitutionalism is feasible in the absence of liberal entitlements and democratic processes.¹⁶ For us, illiberal constitutionalism is not only a ‘possibility’ but a reality, i.e., illiberal constitutionalism has an ever-weakening but still-existing constraint on public power, visible in the Hungarian and Polish constitutional states over this last decade.

11 See e.g., BP Frohnen, ‘Is constitutionalism liberal?’, 33 Campbell Law Review (2011); JM Farinucci-Fernós, ‘Post-liberal constitutionalism’, 1 Tulsa Law Review (2018); A von Bogdandy et al., eds, Transformative constitutionalism in Latin America. The emergence of a new ius commune (Oxford University Press 2017); H Alviar Garcia and G Frankenberg, eds, Authoritarian constitutionalism (Edward Elgar 2019); M Tushnet, ‘The possibility of illiberal constitutionalism’, 69 Florida Law Review (2017).

12 See e.g., M Loughlin, ‘The contemporary crisis of constitutional democracy’, 2 Oxford Journal of Legal Studies (2019) 446.

13 For a collection of terms used to describe democratic decay and backsliding, see www.democratic-decay.org/.

14 G Halmai, ‘Populism, authoritarianism, and constitutionalism’, 20 German Law Journal (2019); GA Tóth, ‘Illiberal rule of law? Changing features of Hungarian constitutionalism’, in M Adams et al., eds, Constitutionalism and the Rule of Law (Cambridge University Press 2017); KL Scheppele, ‘Autocratic legalism’, 85 The University of Chicago Law Review (2018).

15 W Sadurski, Poland’s constitutional breakdown (Oxford University Press 2019) 243.

16 See M Tushnet, ‘Authoritarian constitutionalism’, 100 Cornell Law Review (2015); H Alviar Garcia and G Frankenberg, n 11; Tushnet, n 11; T Ginsburg and AZ Huq, How to save constitutional democracy? (The University of Chicago Press 2018), respectively. Other alternative views can be found in Frohnen, n 11 and Farinucci-Fernós, n 11.

This diverse background makes it particularly challenging to conceptualise the deterioration of the Rule of Law in Poland and Hungary. Nevertheless, in the literature, there seems to be agreement on two issues: firstly, that most of these terms are contested in nature,¹⁷ and secondly, that we have to define first what we want to talk about or, as a matter of fact, measure if we are interested in how a country or the EU is faring in the Rule of Law field.¹⁸ Therefore, in the following sections, we clarify these two contested concepts: the Rule of Law and illiberal constitutionalism.

17 Besides the already mentioned sources e.g., in n 1–5, see, e.g., J Waldron, ‘Is the Rule of Law an essentially contested concept (in Florida)?’ 21 Law & Philosophy (2002) 137.

18 J Moller, ‘The advantages of a thin version’, in C May and A Winchester, eds, Handbook of the Rule of Law (Edward Elgar 2018) 32–33.

1.2. Contested concepts: The Rule of Law

1.2.1. The Rule of Law: What is commonly accepted and shared and what is not

Christopher May argues that the Rule of Law has reached a status of a global common sense,¹⁹ which seems to be in line with the view of Fallon, who opines that a general theory of the Rule of Law needs to be thin and abstract.²⁰ Without discarding this interpretation and its use in theory and practice, especially in the Rule of Law measurements and development projects, we, in line with the views of, e.g., Mortimer Sellers and Dimitry Kochenov, argue that there is also a value in viewing the Rule of Law in a thick(er) sense, especially when it is connected to the European constitutional development.²¹ Zimmermann observes that the Rule of Law is traditionally connected to classical liberalism, i.e., the power is limited by the individual rights of the citizens. This perspective is embedded in the concepts of État de Droit and Rechtsstaat,²² and its Hungarian version of jogállam and Polish version of państwo prawa. The values that are demanded to supplement the formal or thin understanding of the Rule of Law are usually viewed as liberal values, such as the effective protection and realisation of human rights and governing in a way that promotes a social coexistence in which the state acts for the individual and not vice versa.

19 C May and A Winchester, ‘Introduction to the Handbook of the Rule of Law’, in C May and A Winchester, eds, Handbook of the Rule of Law (Edward Elgar 2018) 1.

20 RM Fallon, Jr, ‘“The Rule of Law” as a concept in constitutional discourse,’ 1 Columbia Law Review (1997) 7.

21 See also M Sellers, ‘What is the rule of law and why it is important?’, in JR Silkenat, JRE Hickey Jr, and PD Barenboim, eds, The legal doctrines of the rule of law and the legal state (Rechtsstaat) (Springer 2014) 3–6 (the Rule of Law has Western European origin). D Kochenov, ‘The EU and the Rule of Law – Naïveté or a grand design?’, 5 University of Groningen Faculty of Law Research Paper Series 2018, 10 (the EU emerged as a particular type of constitutionalism based on the rule of law through national democracies).

22 A Zimmermann, ‘Understanding the rule of law: conceptions and perspective’, http://alrf.msk.ru/understanding_the_rule_of_law_conceptions_and_perspectives

In the context of a general theory v. a regional (Western European) concept, and having regard to different political philosophies, scholars differentiate between thin and thick conceptions of the Rule of Law. They also use various terms to express their different views on the Rule of Law, such as formal, procedural, and substantive.

Apparently, the thin and abstract concept of the Rule of Law has been enriched, and there now exists a ‘thinnest’ and a ‘thin’ understanding. Earlier, Fuller and Raz (1969 and ...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Contents
• List of Figures and tables
• List of Contributors
• Foreword
• Preface
• Acknowledgements
• PART I Rule of LawIn context
• PART II Rule of LawA common value
• PART III Rule of Law in national practiceIs it a common value?
• PART IV Rule of Law and supranational strugglesIs it a common value?
• PART V Illiberal legality vs. European Rule of Law
• Index