In some member countries, governments are busy undermining the European Union’s values. Justice Susanne Baer of the German Constitutional Court in Karlsruhe and Zsuzsanna Szelényi, independent Member of the Hungarian National Assembly, discuss the consequences.
According to Walter Hallstein, one of the founders of the European Union, the EU is a community of law, and thus a community of the rule of law. Is that still the case today?
Susanne Baer: Yes, it is—but we need to explain and we need to defend it. In fact, there is immense pressure on the rule of law in Europe today. It has to be distinguished from a rule by law, where the law is abused to achieve political goals irrespective of the rights and freedoms of individuals. But if fundamental rights are crushed in an EU member state, this is unacceptable. Properly understood, in a constitutional legal order, the law is in fact the instrument to stop that, and not to facilitate anything some people in power want. The rule of law is still in place in Europe, but we need to take a strong stance against those who undermine it.
Would you agree from a Hungarian point of view, Zsuzsanna?
Zsuzsanna Szelényi: Well, this is obviously a very important question in the case of Hungary. Over the last eight years, we have experienced a European Union that, as an institution and a community of law, was not able to acknowledge in detail what has been going on in one of its member states, namely Hungary. The EU was not capable of addressing the anti-liberal developments and holding back the Hungarian government from overriding its supermajority and abusing the law. After seven years of power, a small circle now dominates the Hungarian political and business arena which was created by law and is fully served by the law.
I believe the law is never a complete tool by itself. The written law always represents a philosophy and a concept, and if a political circle doesn’t keep to this philosophy itself, it can easily abuse the law and rule by law.
In my understanding, the European Union was the result of a strong political will; it is created as a legal structure and is itself a set of institutions and legal agreements. But if the party elite in a member state can systematically disregard the collective values behind these instruments, then the EU is far from perfect. This is a deep concern in Europe today: So far the legal instruments of the EU were not capable of countering the emerging illiberal and authoritarian tendencies. Illiberalism is a political trend which law cannot sufficiently handle.
Baer: These observations on the developments in Hungary are indeed worrying, which would also apply to some other member states where we see very problematic developments, as in Poland, for example. This is why it is so important to reconsider the constitutional dimension of Europe. Of course, Europe is not a state and it does not have a written constitution like a national state. Yet we also know that the Treaties are a legal frame with a similar function, namely to limit power and prevent abuse. Right now, we also see reactions to the erosion of democratic commitments in some member states, including the European Court of Justice that is gradually transforming itself into more of a constitutional court, protecting fundamental rights and the separation of power. For a long time, the ECJ has been an important source of integration, since the means of integration was law. Today, the ECJ also needs to step in as a constitutional court.
Overall, the constitutional dimension of Europe is one tool to disarm those who want to crush democracy, and to eventually take the law out of their hands. It may not be sufficient because the law is never all that is needed—but a tool it is. Legal acts need to be declared invalid if they do not deserve to be called democratic and if they do not respect fundamental rights.
Right now, Europe is on a learning curve. I agree that is has to learn very quickly how to address these issues, and it has to develop more of a constitutional dimension. The Article 7 procedures the Commission has started against Poland are a mechanism of last resort. It may be wise to have more in our basket to address diverging developments in different countries. The challenges are not limited to Hungary or Poland, since populism and calls for illiberalism are more and more common in many societies. So it is on all of us to develop stronger constitutional mechanisms to safeguard and support a deep political commitment to the values, to the mechanisms, to eventually master the challenging moments in a transnational democracy. We need a political climate and a lasting commitment. However, and as a member of a constitutional court, I tend to believe that it is always good to have a constitutional mechanism as a back-up.
Szelényi: I agree, but the problem is: Europe does not have a constitution as such. The member states are ruled by their own constitutions, which obviously have certain requirements. These are protected in the Treaty of the European Union, which is thus not a full constitution on its own. And there are constitutional courts in the countries we are discussing which are important institutions for maintaining checks and balances—they are the first institutions that come under attack by the illiberal governments.
This happened in Hungary and in Poland, and we will probably encounter this problem again. It is so easy to make an institution like a constitutional court dysfunctional. The institution is there, but it does not fulfill its roles to safeguard the constitution because it is filled with people who are too loyal to the illiberal elite. In Hungary we have reached the stage where many analysts believe that it has become impossible to change the government through normal elections. Because of dozens of legal changes—including the amendment of the election law, the media law, the advertisement law, the party finance law and many more, all which curtailed the opportunities of the opposition—the democratic space has been seriously shrunken. No fair elections can be held in Hungary. The Constitution Court had nothing to say to these legal changes. We will have elections in three months, so we will see, but I can tell you as an opposition politician that we face incredible difficulties, and many of them are of a legal nature. The European Union could not respond to this significant challenge, because it would have required a systemic approach that the EU institutions do not apply.
Baer: When we observe these circumstances, what we see is also that we are paying a high price right now for an overemphasis on the economic side of the European Union in the very beginning. The EU started with economics in the West, way before we ever dreamed that the Berlin Wall would fall. Now, we observe what Kim Scheppele calls “autocratic legalism” in new member states. There, the EU has not succeeded to convey, and local and national forces have not succeeded to establish cultural mechanisms to underpin Europe as an not just an economic structure, but also a cultural and political home.
Thus, we may have to upgrade Europe rather quickly, to counter the challenges. This may take also more than the usual mechanisms. Certainly, there will be a handful of multilateral agreements between states that feel like they are on the same side. But to save the project and protect our home as Europe, there has to be a lot of support well beyond the EU organs and institutions, including support from civil society, from academia, from the larger political allies in the world. So this is a call for all of us, not only the EU.
Certainly, I also agree that there is a structural weakness within the EU. After 1989, so many of us hoped that we had “won.” We really believed that. Constitutional lawyers in the world believed that we had made it, and that this injustice that inspired post-1945 and post-1989 constitutionalism would not happen again. Now there is the rapid development of what you just described, namely the destruction of constitutional courts, attacks on fundamental principles, very smart ways to destroy the fabric of democracy, along with the shocking resurgence of anti-Semitism, racism, and overall political brutality. It is a shock to many Europeans that it is happening so fast. One could have foreseen a lot of it, maybe, but so many are also optimists. Now there is the urgency to find proper ways to act and react.
Szelényi: I think the urgency is there. But to stay with the authoritarian topic—and I think this is the right term to use—this is what we are seeing now, and it is not only an Eastern phenomenon. We are just more vulnerable because our liberal democratic structures and mindsets are not so strong. At the regime change, when I was very young, everyone was quoting Ralf Dahrendorf, saying that you can change the rules of the economy in six months, you can change the legal system in six years, but you need sixty years—basically two generations—to change a society’s mindset. I think this very true, and it is a returning concern when we talk about the future of Europe and how decision-makers should adapt the European Union legal structures.
Democracy is fragile if civil society is weak. In Central and Eastern Europe this is the case, which means that few people participate in the political processes in general, far less than in Western Europe. Politics dominate society’s life. A weak civil society is the result of the lack of social capital, which is a typical post-communist phenomenon. From a recent comparative research we know that Eastern European societies suffer from very low social capital because organic communities were destroyed during communism. People were watching each other—you could not trust anybody, even in your family. Also you would not think that you could make any difference. Civil society development, which is based on social trust, is the most difficult to rebuild. Many of us feel some kind of responsibility for not seeing this problem earlier. I think that civil society and democracy building is of strong interest for the European Union to invest in because it is compelling to reinforce the unity of the EU.
Did we overestimate the power of law to facilitate European integration?
Baer: I don’t think so. The law is, in our societies and beyond the nation-state, a condicio sine qua non (a condition without which it could not be), to rely on each other, and a foundation of trust. But law is not sufficient by itself. We did not overestimate the law, but we underestimated other factors. We underestimated the necessity to seriously invest in the rule of law, as the machinery that gets things going, not just to hold Sunday speeches but to build democracy from the ground up and to restore it, again and again. Look at Germany today: A unification treaty does not do the job on its own. Now there is a demand for new programs of more exchange between former East and West Germany, for more investment in democracy building, and for a greater commitment to a democratic culture. We see a need for what I call a deep commitment to democracy. Many people think Germany is fine, and not as far apart internally. But there is a necessity to step up to prevent extreme disjunctions early on. And this is not a German problem ony, since we also see the necessity in the United States, or in Latin American countries.
Overall, globalization and rapid economic change accelerate the pressure on what we considered regular mechanisms of politics, and this creates possibilities for disruption in ways we have never seen before. That is where the urgency is coming from. It is not only the area of law, but a tragic combination of pull and push factors which are currently putting the whole system—economics, politics, society, culture—in a very shaky state. Therefore, we should not under-emphasize the law, but we should also not rely on law alone. We will need more.
Szelényi: Definitely. Law and civil society are two important things, but power basically lies on the political level. Because of the rapid changes in the world, every European, even the ones who never leave their villages and don’t speak any other language, feel a kind of existential insecurity. This is what the authoritarian type of politics abuses, and to me it seems like no viable alternative is being offered. The alternative so far is the status quo, which is not satisfactory any longer. So our task is to provide a new liberal democratic alternative, a politics that is more sensitive to people’s real fears and that shapes the future of the European Union. At the moment, populist-authoritarian politics is the trendsetter.
Baer: Again, we have to understand the political structures we live in and take nothing for granted. Everything is always on the move. We can’t fall back on old recipes, we need constant innovation. Even institutions in serious jeopardy, like the constitutional court in Hungary, mus strive to regain a role in democratic developments, based upon and eventually reinstituting the rule of law. Namely, the decision taken by the Hungarian Court on the attempt to regulate the behavior of judges seems to be very interesting because it may be an attempt to stop a problematic development. I have not given up hope in these institutions. But they have to live up to their function to deserve their name.