The rule of law: a simple phrase with exacting demands

If the finger is to be pointed—rightly—at Hungary and Poland, then the EU must insist on compliance by all with universal norms.

That the European Union, in its moment of public healthcare emergency and acute economic plight, should find itself paralysed over such a seemingly abstract matter as the rule of law is one of the great paradoxes of our times. And yet this is exactly the conundrum plaguing approval of the EU’s seven-year budget and recovery fund, totalling €1.81 trillion, which Poland and Hungary have been blocking over rule-of-law conditionality for the funds’ disbursement. 

Respect for the rule of law is one of those self-evident truths—the absolute minimum requirement of decent political rule—which should be unproblematic in the family of liberal democracies that is the EU. It is equally beyond doubt that the prompt approval of the pandemic recovery fund is in everyone’s interest.

How is it then that two EU governments venture to prolong the anguish of some half a billion Europeans, harming their own populations, by refusing to subject themselves to rule-of-law requirements? This cannot be dismissed as the position of two unhinged autocrats, since their veto has significant popular support in these countries, including 57 per cent approval in Poland.

Question further

Many commentators assert that the EU should stand up to the defiant governments, in the name of its fundamental values. We do too. But our hope is that we, in Europe, can use this moment as an opportunity to question ourselves further.

Most of us may believe that the arguments put forward to resist rule-of-law conditionality are disingenuous. And they are. But we must still take them seriously when they are presented in line with … the rule of law.

Hungary and Poland are claiming that, by being poorly defined, the rule-of-law principle opens the door to discretionary decisions and thus to the abuse of power. ‘Today you think this instrument is directed against us, against Hungary, maybe against Slovenia, maybe against some other country in central Europe. In a few years, in two or three years, it could be directed against someone else. This is a turning point in the history of the EU. Making decisions based on arbitrary provisions in the regulations can lead to its collapse,’ the Polish prime minister, Mateusz Morawiecki, declared.

Constraining arbitrary power

The rule of law as a political principle and legal norm was indeed born of the ambition to constrain the arbitrary power of central authority. This was why the English barons forced King John to adopt the royal charter of rights, the Magna Carta, on June 15th 1215. The specification of basic freedoms, codified not as privileges for a handful of aristocrats but as abstract and unconditional rights, was meant to ensure that no authority could place itself above these rights in pursuit of its political ends.

It is true that the EU should make no compromises with the very foundation of the liberal political order. But the EU itself has complied with these principles erratically and selectively, thus violating the spirit of the rule of law.

This has been evident in several instances—from lack of concern with the Silvio Berlusconi media monopoly in Italy to France’s semi-permanent state of emergency, Malta’s and Slovakia’s complacency with political murder and the Spanish government’s response to the 2017 independence referendum in Catalonia. Often, the EU is content with narrowly reducing the remit of the rule of law to a simple matter of legality—ignoring routine violations of core values, such as the right to peaceful assembly, freedom of speech or even the right to liberty and life itself.

Ammunition for autocrats

Has the EU not thereby set itself up for the current crisis, supplying the ammunition for autocrats to try to absolve themselves from compliance with the rule of law? In turning a blind eye, the European Commission has harmed the union’s very normative foundation, endorsing the blatant abuse of power by the leaders of several of its member states.

The commission has now for the first time issued a report on the rule-of-law situation in each of them. But if it is truly to protect European citizens from abusive power—starting with Poles and Hungarians—it will need to uphold its vigilance across the board.