1 Introduction: Rule of law decay in Europe in a historical context
The current autocratising trend in Central and Eastern Europe and signs of rule of law decay elsewhere in Europe raise existential concerns for law and society in the contemporary European legal space. At its most severe form, observed in Hungary and Poland, the rapid deteriorations in rule of law quality go against the fundamental values and obligations expressed in European Treaties and in national constitutions. Meanwhile, these declines in rule of law quality have been further aggravated in this region by the COVID-19 pandemic, creating novel opportunities for the abuse of public power and potentially resulting in potential lasting shifts of power between key rule of law institutions. How can we explain differences in rule of law backsliding in different jurisdictions and in the threat it poses to democracy and the rule of law?
Rule of law backsliding has been defined as ‘the process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party’ (Pech and Scheppele, Reference Pech and Scheppele2017). The notion of backsliding presupposes that there is a starting point from a situation where the rule of law forms an important part of the system of government from which the development regresses. This means that (increased) authoritarian development in countries with only weak notions of the rule of law in the first place, like China and Turkey, fall outside the scope of the topic of this introduction.
Backsliding is an aggravated form of rule of law decay, where functioning of key rule of law institutions comes under direct threat and it is currently mostly observable in the contemporary Central and Eastern European context. This differs from historical instances of authoritarian turn referring to the complete breakdown of judicial independence and human rights, characterised by the politicisation of courts as a mainly historical phenomenon (Graver, Reference Graver2015) The differentiation and their socio-legal implications is crucial for developing a roadmap to identify different forms of autocratisation and their different contexts (actors, institutional and political context) that need to be considered when addressing rule of law decay in Europe, both at the national and supranational levels. Ultimately, this general overview also offers the possibility to identify and address latent discontinuities in rule of law development at both the supranational and national levels. Identification of such latent discontinuities is of importance when assessing the risks involved in the introduction of emergency measures to combat perceived threats to the state and the society.
While the phenomenon of rule of law decay has received dedicated legal and conceptual scholarly attention (E.g. Adams and Janse, Reference Adams and Janse2019; Pech and Scheppele, Reference Pech and Scheppele2017), the historical legacies of these ongoing changes remain understudied. In particular, law and recent historical research on authoritarian systems (Graver and Curos, Reference Graver and Curos2021; Skinner, Reference Skinner2019; Graver, Reference Graver2015; Skinner, Reference Skinner2015; Fraser, Reference Fraser2009) has not been systematically connected with the research concerning rule of law decay. Fostering such a connection could reveal hidden discontinuities – referred to as fault lines in this collection – contributing to rule of law backsliding and which were not considered so far in the scholarly debate. In this introduction we will make a contribution to this by placing the phenomenon of rule of law backsliding in the context of institutional theory with emphasis on the historical background of the rule of law and its embeddedness into the doxa of the legal field.
This special issue aims at examining more closely the historical and institutional predetermining factors of the current rule of law crisis in Europe. Its point of departure is that the rule of law is a more imperfect and fragile phenomenon than what the contemporary European legal construct developed after the Second World War shows. Second, a closer socio-legal observation of the national foundations of the rule of law in Central Europe reveals a more tenuous rule of law construct than previously observed. The Hungarian case can be illustrative in this sense. Third, the joint effect of these historical-institutional legacies has direct implications in the contemporary multi-level legal system of rule of law enforcement in Europe. Drawing on a set of case studies this special issue provides a novel theoretical and empirical assessment of instances and forms rule of law decay and authoritarian turn.
All of the papers in this collection address hidden discontinuities in rule of law conceptualisation that can be connected to backsliding. In so doing, this collection brings together a range of critical perspectives on the nature and operation of backsliding, as well as the function of courts, as key rule of law institutions, under these conditions. The main topic is therefore approached from a historical, institutional-theoretical and comparative European public law perspective. The special issue aims to address authoritarian backsliding in its historical and multi-level dimension, incorporating both the transnational EU level, as well as the granular, comparative law context level. Thus, this collection offers a comprehensive overview with a good degree of internal complementarity, incorporating several highly relevant dimensions of the ongoing authoritarian turn in Europe. All contributions address the constitutional and comparative public law implications of rule of law backsliding, guaranteeing coherence throughout the articles of the special issue. A particular objective of this collection is to include established authors bringing systemic perspectives from Central and North-Western Europe and from their various disciplinary specialisms. Collectively, the contributions illustrate the potential and value added by the historical contextual approach.
This thematic and methodological focus of the special issue further explores and systematically develops socio-legal insights concerning the role of judges in society and the functioning of rule of law in fragile contexts, as topics addressed in other contributions to the International Journal of Law in Context.Footnote 1 The strength of this collection is its theoretical focus on the history and evolution of rule of law backsliding and its connection to some of the most recent changes in European constitutional law and society. Overall, this special issue assures continuity with previous scholarly work and fosters the dedicated attention to such a timely topic while bringing this distinct critical historical-theoretical perspective. It is our hope that this collection will generate further scholarly research and conversation. To this end, we discuss in this Introduction a number of preliminary conceptual concerns and questions.
Before we can discuss rule of law backsliding it is necessary to establish what the rule of law is and how to measure it. Without this, it is impossible to have a meaningful discussion on the development of the rule of law. We therefore first go into a brief conceptual discussion and a discussion on what social phenomena constitute or indicate the rule of law. Developments in the rule of law must be seen in a broader social context. Norms, networks and structure, and also what people take for granted (doxa) is as important to the rule of law as legal rules.
2 Rule of law in a social context
2.1 The rule of law in the history of Western law
The rule of law is both a concept and a set of social phenomena, both as an ideology and as a way of ordering the relationship between different forms of power. As a concept it has no established consensual meaning. For some it is merely about having a set of formal institutions. In legal and political theory, it is more about achieving certain ends in the way the relationship between state and society is organised. Rule of law may refer to such diverse ends as rule by laws, law and order, respect for property, equality before the law, the ruler being bound by law, legal certainty and fundamental rights (Tamanaha, Reference Tamanaha2004). The literature on the rule of law is vast and the use of the expression varies to such a degree that some say it is without any meaningful content. Nevertheless, there is agreement among influential scholars both within the fields of history of the European political orders and legal theory that the concept of the rule of law captures something essential in Western law and its tradition (Berman, Reference Berman1983, pp. 292–294; Costa, Reference Costa2007, pp. 75–77).
2.1.1 The rule of law language
The expression ‘rule of law’ is historically a part of the common law tradition. In the English tradition, the term ‘rule of law’ was introduced by AV Dicey in his Introduction to the Study of The Law of The Constitution in 1885. Ideologically, the coining of the term ‘rule of law’ and emphasising its importance as an overriding political value, is closely related to the rise of liberalist political thought (Tamanaha, Reference Tamanaha2004).
The rule of law as an expression is thus part of the English common-law tradition. As a concept, it has a wider spread and corresponds closely to what in the German tradition is referred to as ‘Rechtsstat’ (state constituted by law, law-state) or in the Scandinavian tradition as ‘rettssikkerhet’ (legal certainty) (Aubert, Reference Aubert1989). In Germany the theory of the Rechtsstaat was advanced at the very end of the eighteenth century (Costa, Reference Costa2007, p. 87). Although the emphasis traditionally differs, the English putting more emphasis on the prohibition against punishment except as prescribed by law and equality before the law, the Germans on the prohibition against the arbitrary exercise of power and the Scandinavians on due process, the traditions have the same origin and similar social implications (Aubert, Reference Aubert1989, pp. 65–67).
The introduction of the language of the rule of law and the Rechtsstaat of the enlightenment emphasised the rights of the individual and aimed at protecting the individuals’ legal sphere (Costa, Reference Costa2007, p. 108). To Dicey, the rule of law was linked to the rights of individuals (Dicey, 1915/Reference Dicey1982, p, 107). Dicey included the principles of law as a restriction on arbitrary power by the state, that no man, including officials, are above the law and that the constitution is a result of judge-made law protecting individual rights (Dicey, 1915/Reference Dicey1982, pp. 110–122).
This notion of the rule of law prevailed until it was challenged by the legal positivism of the beginning of the last half of the twentieth century. Joseph Raz made the distinction between the rule of law and the rule of good laws and included only the former in the concept of the rule of law (Raz, Reference Raz2009, p. 211). Rule of law, according to Raz, entails that people should be ruled by law and obey it and the law should be such that people can be guided by it. It does not include virtues such as democracy, justice, equality or fundamental rights. From the idea of the rule of law, Raz derives certain principles that require the law to conform to certain standards designed to enable it to effectively guide action and to ensure effective legal institutions to supervise conformity to the rule of law (Raz, Reference Raz2009, p. 218). It is also central to Raz’s concept that the rule of law is a matter of degree. A legal order may conform to it to a larger or lesser extent. It is nevertheless a virtue to which a legal order should conform.
In the civil law tradition there has been more emphasis on the concept of legal certainty (Index of Legal Certainty, 2015, p. 8). Legal certainty entails that the laws are ‘accessible, intelligible and stable and have predicable effects’ (Index of Legal Certainty, 2015, p. 9). The condition that they have predictable effects is directed towards the interpretation and application of the laws in courts and public administration. For this reason, the existence of a neutral, impartial third party to apply the laws, with fair and equitable proceedings and address to justice, forms part of the concept of legal certainty (Index of Legal Certainty, 2015, pp. 10–11). Legal certainty is a formal concept and consists of what has been described as formal rationality. As such it stands in a tension to the social need for substantive rationality, which may entail both social justice and the adaptability of law to economic efficiency.
Contemporary writers on legal and political theory understand the rule of law today in either a formal or a more substantive sense (Craig, 1997; Tamanaha, Reference Tamanaha2004; Waldron, Reference Waldron2012, p. 45). In the formal sense, law must be defined independent of an evaluation of the content of the laws. The substantive, or broader, understanding includes various conceptions of individual rights subject to judicial protection. In its broadest sense, the rule of law is often referred to as inseparable from democracy and human rights.
2.2 Rule of law as social phenomena
The history of the term ‘rule of law’ is one thing. The history of the elements that constitute the concept is another. This is a question of tracing the notions of a state being bound by law and the possibility to challenge acts of the state in a court of law or before persons deciding the issue according to legal reasons, more or less autonomous from political fiat or religious doctrine. Such a notion of separation of powers and autonomous law has been traced back to medieval Europe and the schism between the king and later emperor Henry V and pope Gregory VII over the investiture of bishops (North, Reference North2005, p. 133). This suggests that the rule of law, despite its general recognition as a universal concept, as a social phenomenon is tied to the Western legal tradition and its history (Graver, Reference Graver2018).
Before we can start talking about causal relations between the rule of law and economic development we must find ways to determine the extent to which rule of law is actually realised. This is not a straight-forward matter. For the idea of the rule of law to have impact it must be realised in the positive laws of a society and the necessary institutions must be in place. With a ‘thick’ institutional concept such as the one North operates with, this is not only a question of formal rules, but also of the informal norms and people’s knowledge, beliefs and attitudes. Furthermore, these institutions must in fact be significant and the laws must be respected.
To measure such things, it is necessary to find significant proxies. Measuring is complicated by the fact that the rule of law traditions differs in different societies (Voigt, Reference Voigt2012, p. 263). Where the US tradition emphasises judicial review, the English emphasise parliamentary sovereignty and the Germans proportionality. To this comes the different understandings of the rule of law among legal and political scholars. The results of measuring will therefore, to a substantial extent, depend on the choices made when determining what to measure.
Many try to measure the rule of law and to compare different societies according to their performance on different measures of the rule of law. A theoretical proposal as to how to approach the problem has been put forward by Stefan Voigt (Voigt, Reference Voigt2012). Voigt proposes to distinguish between measuring the quality of the rules of a country as seen in the light of the rule of law and the extent to which such rules are enforced. As a proxy for the quality he suggests the subjective indicator of people’s perception of the predictability of government action. His argument for this is that if the criteria of the rule of law are met, people should perceive the government as predictable. To measure the enforcement of the requirements of the rule of law, he suggests taking the categories of separation of powers, judicial review, judicial independence, judicial accountability, prosecutorial independence, fair trails and basic human rights. Based on the data that he analyses, Voigt finds no significant correlation between predictability and the other variables and low correlations between the other variables (Voigt, Reference Voigt2012, p. 276). This may indicate that there is a need for better indicators and better data. It may also indicate that perceptions of predictability are not a good indicator of the degree to which the rule of law is realised in a society. But it may also indicate that there are no necessary connections between predictability and the rule of law. A tyranny may be highly predictable without conforming with the rule of law and its arbitrariness may be highly foreseeable in that everyone knows what situations may unleash the arbitrary action of the ruler.
2.3 Rule of law indexes
Despite the difficulties in measuring, a study conducted in 2015 showed more than twenty reports on legal indicators published regularly, although only a few of these measure the rule of law more specifically (Index of Legal Certainty, 2015). One that does this is the Rule of Law Index developed and presented by the World Justice Project. The Index measures how the rule of law is experienced and perceived by the public worldwide based on more than 110,000 households and 3,000 expert surveys. It is the only survey that combines data from questionnaires to the public and to experts (Index of Legal Certainty, 2015. p. 64). It claims to be the world’s leading source for original, independent data on the rule of law.
The approach taken by this study is to use subjective perceptions as indicators of the rule of law. In contrast to the method proposed by Voigt, the survey askes a full range of questions on several aspects understood by the project to be important as indicators of the rule of law. The World Justice Project’s definition of the rule of law is comprised of the following four universal principles:
1. Accountability. The government as well as private actors are accountable under the law;
2. Just Laws. The laws are clear, publicised, stable and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights;
3. Open Government. The processes by which the laws are enacted, administered and enforced are accessible, fair and efficient;
4. Accessible and Impartial Dispute Resolution. Justice is delivered timely by competent, ethical and independent representatives and neutrals who are accessible, have adequate resources and reflect the makeup of the communities they serve (World Justice Project).
This is an operationalisation of a concept that goes beyond the bare minimum and formal understanding of the rule of law and includes substantive fundamental rights.
The top ten countries according to this index are Denmark, Norway, Finland, Sweden, the Netherlands, Germany, New Zealand, Austria, Canada and Australia. The United Kingdom is number 11, France number 18 and the United States number 19. China is number 75. The results of this index supports the thesis that the rule of law as a social phenomenon is tied to Western law.
This index has been criticised for disfavouring civil law countries of continental Europe. The French Civil Law Initiative (Fondation pour le droit continental) has developed an alternative Index of Legal Certainty. In this index, which preliminarily only includes thirteen countries, Norway, Germany, France, the United Kingdom and China occupy the first five places. The United States is ranked as number 12 (Index of Legal Certainty, 2015, p. 103). This survey is based on questions of how issues in different fields are governed by law and disputes are resolved. This means that issues of legal substance are included in the measurement. The areas of substantive law that are included are contracts, employment law, real estates, settlement of disputes, civil liability and company law. The protection of fundamental rights is not included in the survey. Judicial independence and the quality of the courts are indirectly addressed as a question of how the impartiality of the court seised is guaranteed under the general heading of the settlement of disputes (Index of Legal Certainty, 2015, p. 222).
The United States scores quite low on both indexes. In the Rule of Law Index, the United States scores lower than its general rank on the factors Civil Justice, Fundamental Rights, Order and Security and Criminal Justice. It scores better than its general rank on Open Government and Constraints on Government Powers. The main differences between the two indexes are the positions of China and France. The factors where China scores lower than its general score in the Rule of Law index are on Fundamental Rights, Constraints on Governments Powers and Open Government. It scores much higher on Order and Security and higher on Absence of Corruption, Criminal and Civil Justice and Regulatory Enforcement. France scores lower than its general score on order and security, fundamental rights, civil and criminal justice and absence of corruption.
The two different indexes illustrate that how one characterises a country’s fulfilment of the requirements of the rule of law depends on what one includes in the definition of the rule of law. France and the United States are both successful Western countries with highly developed legal institutions. When we look more closely at why they do not score higher in the Rule of Law Index, we see for France that the score is reduced because of a degree of corruption in the executive and legislative branches and because of a low protection of the right to privacy and freedom from discrimination. Also, the civil justice system is perceived as slow and costly. Delay and affordability are perceived as problems also in the US, along with discrimination and due process and lack of labour rights. Both countries have judiciaries that are relatively well protected from undue influence by the government and with judges that are incorrupt.
3. Backsliding and historical breakdown of the rule of law
Attacks on liberal institutions may be the first step of the road to dictatorships. However, as both history and the indexes show, the starting point in different countries is very different. Also, the situation of the twenty-first century is not the same as in the twentieth century. Many industrial countries at that time were marred by the growth of a large working class with demands of universal suffrage that the privileged classes perceived as threatening. Development of revolutionary communist parties led to counterreactions and the development of fascism, threatening democracy and the rule of law from both ends.
Therefore, an authoritarian state is not a necessary consequence of backsliding of the rule of law. With notable exceptions such as Russia and China, many non-democratic governments today are far from the totalitarian systems that dominated many countries during the last century. Some argue that the democratic decline that can be witnessed in many countries, is not the same as a breakdown of democracy (García Holgado and Mainwaring, Reference García Holgado and Mainwaring2023). Few countries where democracy has declined have tuned into the totalitarian oppression of twentieth century fascism or Soviet-style communism. Democracy and autocracy should not be seen as a dichotomy and many countries that experience democratic backsliding may revert to a democratic state (Brownlee and Miao, Reference Brownlee and Miao2022). This emphasises the need for a careful approach when addressing and evaluating different measures that holders of power take against the courts. Defenders of liberal democracy should not revert to the sweeping generalisations and slogans that characterise populist movements.
Developments in the rule of law, whether strengthening it or backsliding, must be analysed in a broader social context. The lessons from Germany in the 1930s is a case in point. The rapid decay of the Weimar constitutional order, although dramatic, and to an extent revolutionary, did not happen as a total break with the past. Antisemitism was already an inherent element in the political discussions before the Nazi take-over and antisemitic sentiments widespread beyond the Nazis. The German judges of the first half of the twentieth century held the same resentments against homosexuals, persons alien to the German community, anti-socials and members of inferior races as the rest of the population (Graver, Reference Graver2015). In Germany, there were elements of anti-Semitic sentiments in the courts even before the Nazi accession to power and the courts had no difficulty in rapidly accepting and implementing this part of Nazi ideology.
Institutional factors obviously also contributed to the readiness of German judges to accept the demands of the Nazi regime (Graver, Reference Graver2015). Already at the time of the Nazi takeover of power, there was almost universal agreement on the necessity for total legal reform within the legal profession. Most judges were critical of the Weimar Republic and were estranged by its policies. The reasons for this were social, political and economic. Members of the legal profession belonged to the conservative classes. To approach a judicial career entailed long years on meagre salaries. For this reason, it was, in practice, reserved for people with private means, exactly those parts of society who were hardest hit by the hyperinflation of the 1920s. At the same time, unemployment among legal candidates was high. ‘The rude shock of the 1918 defeat, the political rise of the working class, and especially of the middle classes’ impoverishment through rapid inflation in the beginning of the twenties, had alienated the judiciary from the political establishment’, writes the German-American jurist and political scientist Otto Kirchheimer (Kirchheimer, Reference Kirchheimer1961, p. 211).
The judges and the legal doctrine were at odds with the social democratic rulers in power in the Weimar state. Gustav Radbruch, as Minister of Justice, commanded the judges to adhere to a strict legal positivism and to uphold the legislation that was passed by the political majority. The judges, though, maintained the necessity of correcting the ‘mistakes’ of the parliamentary legislator through judicial review and judicial independent interpretation of the laws. On the other hand, no review was exercised over the emergency legislation enacted by the President of the Reich against the Weimar Parliament. ‘The judiciary went overboard in supporting the government against its enemies on the left, but established a consistent pattern of refusal to tackle political law breakers on the right’ (Kircheimer, Reference Kirchheimer1961, p. 213).
After the takeover of power, the Nazis appeared to the judges to be willing to re-establish social order albeit under an authoritarian signature. In all accounts, the Nazi rulers were seen as capable of restoring the ‘law state’ (Rechtstaat). The emergency measures were seen as temporary revolutionary measures, which did not fundamentally influence the role of the judges. Even the purge of the judiciary under the law on the Restoration of the Civil Service did not result in any major change in the composition of the judiciary. The ideological pressure and enforced membership in the union of National Socialist lawyers was probably perceived as unwelcome to most, but even so the judiciary experienced their social status and importance being increased after the Nazi takeover of power. The history of Germany of the first half of the twentieth century illustrates well how seemingly revolutionary changes presuppose and reinforce pre-revolutionary social and cultural factors. A break is seldom a clean break.
3.1 Changing institutions and adapting people’s minds
The struggle over institutions is about communication but it is also about power and interests and the formal and informal relationships between people. Values, knowledge, assumptions and disposition play a role to all of these, because they determine what people perceive as problems and challenges and what they see as responses and solutions.
The formal rules of an institution can be changed more easily than people’s minds. If institutions are sought changed in a way that challenges what people take for granted, what is taken for granted may be made explicit. People’s minds can also be changed, but to understand and do this one needs an understanding of rhetoric and how people are persuaded and influenced. As pointed out by Hannah Arendt in her grand study of totalitarianism, the true goal of propaganda in a totalitarian society is not persuasion but organisation (Arendt, Reference Arendt1968, p. 361). This underlines the importance of rhetoric not only to communication but also to norms, networks and structure.
Legal norms and legal actors (that constitute the legal order) vary in their dependence on power relations, social networks and institutions, as well as values, cultural norms, gender relations, science and bodies of knowledge. It is therefore difficult to determine dependence or independence of a judge or a court by looking at the existence or lack of certain formal rules. In fact, there are findings that suggest a negative correlation between high degrees of formal independence and judicial independence as measured, for example, by the rule of law index (Gutman and Voigt, Reference Gutmann and Voigt2020). Institutional design and change are therefore not only about interests and power to change but also about persuasion and influence, even in such supposedly rational fields as the law.
In the communicative field of law, actors operate within a structure of formal and informal rules and norms. The rules and norms empower and constrain them but are also changed by the actors. In addition to rules, practices, appearance and trust, judicial independence is also a frame of mind, a mentality of judges and an element of legal culture. (Laffranque, Reference Laffranque2014, p. 148). Judges need the ability to take ethical and moral leadership and at the same time be responsive to external demands (Seibert-Fohr (ed), Reference Seibert-Fohr and Siebert-Fohr2012, p. 1300). In sociological terms: judicial independence is something that must be part of the habitus of the members of the legal profession and form part, not only of the orthodoxy of a society based on the rule of law, but also its doxa, the tacit knowledge and dispositions of the actors within the legal institutions. In this way it can form the sense of reality and become natural and inevitable to everyone. As mental structures they produce ethical dispositions as well as consensus about the sense of the world – things go without saying because they come without saying (Bordieu, Reference Bourdieu1987, p. 167).
A forceful illustration of doxa and power is the study by Inga Markowitz on the struggles and challenges of the law faculty of Humboldt University during the time of the GDR (Markovits, Reference Markovits2020). Based on studies of documents from the time, reports, protocols from meetings, questionnaires, correspondence etc., resulting in ‘almost a diary of the daily life of the Party and the Government’ (Markovits, Reference Markovits2020, p. 15), she tells the story of a faculty of legal scholars in an authoritarian society, with the ambition to transform and tailor the law into a new and different type of social instrument.
Markovits’s study can be seen as an empirical investigation of the relationship between doxa and orthodoxy. Doxa is, according to Bordieu, a product of the naturalisation of the arbitrariness that constitutes any order (Bordieu, Reference Bourdieu1977, p. 164). This forms the sense of reality, that is the correspondence between objective classes and internalised classes. The product of specific circumstances, becomes natural and inevitable to everyone.
Seen from the outside, the regime was successful in transforming the higher education of the GDR, thanks to the determination of the leadership, a large stock of motivated cadres and support of the Soviet Military Administration (Conelly, Reference Connelly2000, p. 22). The faculty struggled to unify Marxist ideology and legal thought. Initially their writing was focused more on theory than on typical legal dogmatics: the systematisation and analysis of legal texts and court decisions. The 1950 Waldheim trials, expedient proceedings with summary judgments against former Nazis, heavily criticised by the West for their lack of rule of law, went uncommented by legal scholars of the GDR. So much for their commitment to the bourgeois ideals of the rule of law. However, into the 1950’s some of the faculty became more confident and started to produce writings with a more substantive legal content and even hinting to the basic liberal concept of separation of powers.
Markovits book is not only about university politics and university professors. It is also about law and the relationship between law and authoritarian rule. The struggles of the Humboldt professors to integrate Marxist-Leninist theory with specific legal teaching shows the autonomy of law as normative system. Law must be defined and applied on its own terms, both at the level of rules and at the level of practice. Legal norms and legal actors (that constitute the legal order) vary in their dependence on power relations, social networks and institutions, as well as values, cultural norms, gender relations, science and bodies of knowledge. However, no matter how hard the grip the party has over the people who are tasked with the theoretical development of the law, the arbitrariness of political power cannot be translated into the normativity of law. Even bureaucrats in the ministry of justice realised that this was an impossible endeavour (Markovits, Reference Markovits2020, p. 165). Law can be instrumentalised. Modern law has many examples of technical norms transformed into legal form, and purposive and teleological approaches to their interpretation. Nevertheless, it is impossible to construct a legal theory that incorporates the leading role of the Party outside of the state into a legal order if the Party does not even give the pretext of following rules. Markovits study therefore gives a valuable contribution to our understanding of the autonomy of law.
3.2 Doxa and orthodoxy
A central part of Bourdieu’s theory on social field are the concepts of doxa and orthodoxy and the distinction between them. Doxa is what appears self-evident and transparently normal, whereas orthodoxy is defined as the correct, socially legitimised belief to which everyone must conform (Teridman, Reference Teridman1987, p. 812). Orthodoxy is regulated and sanctioned. This is not necessary with the doxa which appears so normal that coercion ceases to exist. Doxa sustains the normative order which is perceived as self-evident and natural. By framing the actors’ outlook on the world, it influences both what they perceive as problems and how they go about solving them. New experiences are interpreted considering doxa and knowledge accumulates in a path dependent way. This may be challenged of course, but only by challenging the institutions.
The institutions themselves create and shape the content of doxa. Institutions emphasise shared meanings in two distinct varieties. The first is about values, perspectives and worldviews. The second is as collections of interrelated practices and routines that may substitute deeper levels of agreement (March and Olsen, Reference March and Olsen1995, p. 34). There are complex relations between these two varieties of shared meanings.
When doxa is challenged, the institutions respond. People may shift to ‘the work of conscious systematization and express rationalization which marks the passage from doxa to orthodoxy’ (Bordieu, Reference Bordieu and Nice1977, p. 169). The meeting of doxa and orthordoxy and the shift in perspectives and values and strategies is excellently demonstrated in the three cases Markovits makes in her readings of the response of the faculty to the communist ideology and the political pressure put on the law and legal institutions by the Party and the state.
An interesting recent example from a different setting is the challenge to the legal institutions of the United States represented by president Trump. This has led to a group of conservative lawyers issuing a statement in defence of the rule of law and its underlying values (New York Times, 14 November 2018). In their mission statement entitled ‘Checks and Balances’ they state:
‘We are a group of attorneys who would traditionally be considered conservative or libertarian. We believe in the rule of law, the power of truth, the independence of the criminal justice system, the imperative of individual rights, and the necessity of civil discourse. We believe these principles apply regardless of the party or the persons in power. We believe in “a government of laws, not of men”’ (New York Times, 13 November 2018).
In explaining their motivation, a member of the group told The New York Times, ‘There’s a perception out there that conservative lawyers have essentially sold their souls for judges and regulatory reform’, Mr. Conway said: ‘We just want to be a voice speaking out, and to encourage others to speak out’ (New York Times, 14 November 2018).
This illustrates the way institutions are upheld by people actively rising to protect them against change that goes against fundamental values and beliefs. It also illustrates how people who fill roles within an institution, in this case read ‘lawyers’ share in its doxa, which is not necessarily shared by people outside of the institution, in this case read ‘Donald Trump’. The controversy is not about the president acting against the law or illegally, that is against the formal rules of the legal institution. It is about Trump’s lack of reverence for basic values and assumptions of the institution.
Legal autonomy, claims and processes through which law is defined or applied on its own terms, is not self-evident, either from a factual or a normative perspective. During long periods of the twentieth century law was considered primarily as a function of the state, in terms of for example socially posited rules (legal positivism) and the role of the judiciary (legal realism), as a political instrument (critical legal theory) – or as an illusory ideology of class power (Marxist theory). In other periods, law has been seen as controlled by religious leaders or as defined by morality. Law can be autonomous in one relation and subjugated in another, to for example power, networks, or normative authority such as religion. Many of today’s important debates in different ways raise questions of legal autonomy – discussions about politics and society, such as the future of liberal society, the rise of illiberal democracies, disempowerment of political institutions through judicialisation, digitalisation and growing tensions between nationalistic policies and international legal institutions in different ways raise questions of legal autonomy.
3.3 Historical context of continuities and discontinuities in backsliding countries
A central goal of this collection is to reorient scholarly attention so that the dominant focus on the temporal dimension of rule of law decay literature is balanced by a deeper engagement with legal historical literature. As eloquently explained in detail in Skinner’s contribution to this collection, much of the rule of law literature, including rule of law backsliding or decay literature, has a strong temporal dimension. Skinner highlights the ‘regressive change signified by backsliding’ and that ‘related terms can imply a return to, or reproduction of, a past period of undemocratic government’, without ‘necessarily correspond[ing] with actual historical experiences in specific systems’. Indeed, when analysing rule of law regression in states with a communist (state totalitarian) past there have been specific warnings against automatically assuming that regression would result in the return of a legal rules of the past (authoritarian) regime. This is also not the goal of this collection. Yet, although the relationship between past and present is at the crux of the idea of the rule of law, insights from historical research have not been systematically connected. We propose that such an exercise would benefit existing understanding by adding several new avenues to our understanding of this phenomenon with deep legal and societal implications in Europe. Contributions may appear in several manners along the lines of which we can develop novel theoretical angles.
Firstly, although national legal instruments often describe a clear break with their authoritarian past and set on a path of commitment towards the rule of law values and guaranteeing fundamental rights, these understanding have been increasingly challenged. For instance, legal historical scholars have identified hidden continuities before and after the Second World War in European national legal frameworks. Research concerning Italy’s transition to liberal democracy after the fall of fascism, has shown continuities in the criminal legislation, as legal codes were not completely revised to remove all fascist traces (Skinner, Reference Skinner2011; Livingstone, Reference Livingston and Skinner2015). Similarly, hidden continuities were identified with reference to the legal orders of Central and Eastern European states, sharing an experience of state totalitarianism during the communist period. For instance, concerning Hungary, hidden legal continuities have been revealed between the constitutional concept of socialist legality, particularly as developed after 1954 and the concept of constitutional identity developed in the Fundamental Law of Hungary and, since 2011, judicial reforms (Gárdos-Orosz, Reference Gárdos-Orosz2021). This is despite the explicit distancing of the Fundamental Law in its text from communism, by stating that the current state structure based on the rule of law and as emerging since the first free elections in 1990 are incompatible with the previous communist dictatorship (Fundamental Law of Hungary, Article U).
Others have started to explore fault lines in European and international rule of law narratives. These contributions critically assess European and international human rights conventions adopted after the Second World War, where preambles of these documents reveal as the main ambition of supranational legal orders leaving the horrors of totalitarian repression behind and building on shared core values and traditions. Historical research helped reveal that although supra-national legal systems claim a clear break with the authoritarian past, these historical elements might become a significant present element in the interpretation of Human Rights Conventions. Specific analysis concerned Art. 2 of the European Convention of Human Rights (ECHR) guaranteeing the right to life and described it ‘as one of the most fundamental provisions’ of the Convention system by the European Court of Human Rights enshrining ‘one of the basic values of the democratic societies making up the Council of Europe’ (McCann and Others v. The United Kingdom, 1995). For instance, in this context narrative theory has been employed to bring light to how history is used as a negative benchmark against which values of rule of law and democracy are developed (Skinner, Reference Skinner2019).
Furthermore, this line of research also warns against selectively constructing historical supranational political-legal narratives, focusing on desired present values and leaving historical elements behind, resulting in possible mythologisation of the past. Thus, this research line also reveals a dissonance at the European level, which might account for additional complexities in the rule of law decay context. Understanding these might become relevant for addressing rule of law decay. Skinner’s contribution in this collection takes a deeper look at rule of law narratives at the European level, specifically in the context of rule of law backsliding literature.
We also question the clear break in terms of institutions and institutional practices from a change to a totalitarian regime to a liberal political order. In understanding the illiberal turn and challenge for European legal orders, scholars have started exploring with more scrutiny the deeper institutional heritage of judiciaries. Valuable recent research focused more specifically on legal institutions in Central and Eastern Europe. For instance, with reference to Hungary, Fleck has argued that although in the three decades following liberal-democratic transition, relative autonomy of judges has become a practice, skills and habits of professional self-defence could not fully stabilise, resulting in an institutional vulnerability (Fleck, Reference Fleck2021). Concerning Romania, research pointed out institutional vulnerabilities with reference to the unresolved problem of lustration after democratic transition. One specific concern was the hidden continuities in the practices of monitoring judges resembling monitoring practices used by the communist Securitate intelligence services. Due to the legal vacuum left by the incomplete lustration in the immediate aftermath of democratic transition processes, monitoring could only be partially applied after the fall of communism, resulting in the re-emergence of a weaponised form of lustration (Iancu, Reference Iancu2021). The re-emergence of undemocratic tendencies was also traced in Romania during the Covid-19 pandemic when, in the name of security and public health, legality and liberty were curtailed (Cercel, Reference Cercel2021).
To be sure, this is not so much a development of a new line in socio-legal research but one continuing and informed by historical institutional analysis. This collection further extends these findings to the rule of law decay context. Fleck’s contribution draws attention to the thin conceptualisation of the rule of law in the Hungarian legal order, mainly focusing on institutional guarantees and legal certainty, which created a vulnerability in the rule of law regression context.
Thirdly, we also question pathways of challenging rule of law regression. Much of the rule of law decay literature has focused on ‘usual suspect’ institutions when approaching the question of enforcing rule of law values (Grabowska-Moroz, Grogan, Kochenov and Pech, Reference Grabowska-Moroz, Grogan, Kochenov and Pech2022). This is not surprising as key legal instruments refer to main legal actors and institutions in terms of enforcement of EU rule of law. However, a key concern remains the effectiveness of the supranational enforcement mechanisms (Kelemen, Reference Kelemen2023).
Bridging this apparent challenge, when drawing on socio-legal and historical research, it is possible to identify a more complex and sometimes hidden group of actors behind contestation processes and, generally, a more varied space of contestations mechanisms. Related to our efforts, and with reference to the European rule of law backsliding context, scholars started exploring notably the role of civil society organisations in contesting rule of law regression (Bojarski, Reference Bojarski2021).
These works built on the rich vein of scholarship of legal mobilisation and the legal complex behind promotion and protection of liberal democratic values across the globe (Halliday, Karpic and Feeley, Reference Halliday, Karpik and Feeley2007). Adding to this tradition of scholarship, Gyöngyi’s contribution to this collection looks at the role of judicial associations behind mobilising against rule of law decay and explores the potentially unique role of these organisations.
4 Hidden discontinuities and rule of law backsliding: A narrational fault line, institutional hiatus, or a source of new contestation mechanisms?
Viewing rule of law backsliding through a historical lens does not provide one definite answer about how to approach analytically discontinuities. Discontinuities can be interpreted as a fault line in legal narratives, as an institutional oversight (hiatus) or a possibility for creating new contestation mechanisms. All these have different implications which might at times overlap but also remain distinct.
Following the approach of narrational fault lines, for instance, could greatly contribute to a more critical understanding of the development of rule of law values at the European level. New possibilities for historical research, such as newly available archival materials, facilitate these analyses. A crucial point here is how to offer quality scholarly analysis without fuelling populist rhetoric in Europe contesting the legitimacy of European standards (Pech, Reference Pech2022). Keeping an eye on the well-established core understanding of shared rule of law values could be key here.
Secondly, when building on the theoretical heritage of institutional analysis and combining with legal insights, a particularly useful avenue based on available research seems to be focusing on institutional hiatuses. This approach can further facilitate understanding rule of law fault lines at the granular national level. A useful source of comparison may constitute institutional approaches concerning legal orders where judiciaries appear as well-established rule-of-law institutions and looking at what contributes to their resiliency even in temporal disturbances of the rule of law. Insights can then be compared with a careful analysis of judiciaries as rule of law institutions where the autonomy of courts is not so well-established. Ultimately, the institutional dimension may contribute to key public law questions of how to build resilient rule of law institutions.
Finally, there is a particular usefulness in further developing analysis concerning rule of law backsliding from the legal mobilisation perspective. As mentioned above, research contributed to the legal-sociological literature with respect to the role of civil society organisations. The European rule of law backsliding as a case study seems especially useful for these purposes. With this collection, we propose even further contributions, uncovering new and identifiable roles of existing actors and further understanding their contributions to resistance refines our understanding of the contemporary legal complex. This would open new lines of questions. What happens when new roles are added and actors become more emphasised? What are possible new roles for rule of law mechanisms that could be used to resist or ameliorate rule of law backsliding? These seem issues worth exploring for understanding the way forward in addressing rule of law backsliding.
5 Contributions
This introduction develops a general theoretical framework for studying the patterns and forms of authoritarian backsliding against the backdrop of existing historical and European socio-legal scholarship and other papers in this issue. It introduces a number of key distinctions to better understand socio-legal variance among autocratisation. Specifically, it highlights the distinction between authoritarian backsliding, as an aggravated form of rule of law decay, where functioning of key rule of law institutions comes under direct threat and it is mostly observable in the contemporary Central and Eastern European context. This is contrasted with historical instances of authoritarian turn, referring to the complete breakdown of judicial independence and human rights, characterised by the politicisation of courts as a mainly historical phenomenon. The differentiation and their socio-legal implications is crucial for developing a roadmap to identify different forms of autocratisation and their different contexts (actors, institutional and political context) that need to be considered when addressing rule of law decay in Europe, both at the national and supranational levels. Ultimately, this general overview also offers the possibility to identify and address latent discontinuities in rule of law development at both the supranational and national levels.
The Introduction sets out a framework for studying rule of law backsliding that is deployed and discussed by the other papers in this special issue. The paper by Stephen Skinner, ‘Fault Lines in the Rule of Law: Europe’s Present and the Presence of its Past’ shows how history is an intrinsic part of the conceptualisation of rule of law within European discourse and how a ‘dark side’ of this history has been excluded from predominant conceptualisations after the end of the Second World War. The contribution shows how this dark legacy has been under-studied or reinterpreted and has influenced systemic culture, identity and collective memory at both European and national levels, resulting in a fault line in the conceptualisation of the rule of law.
Providing a more in-depth view from the national perspective, the paper by Zoltán Fleck, ‘Weak conceptualization of the rule of law as a cause of democratic backsliding’, reveals the thin socio-legal conceptualisation of the rule of law in Hungary. Employing a culturalist perspective, Fleck first shows how the rule of law had a thin foundation prior to the Second World War in this country. Then, the contribution demonstrates how, contrary to previous understandings, even in the most advanced stages of rule of law building in Hungary, in the early 1990’s, the resulting concept had been thin, mainly focusing on institutional guarantees and legal certainty. The remaining part of the contribution then critically discusses whether and to what extent it is possible to use backsliding to frame the ongoing legal changes in Hungary.
In the last contribution of this collection, by Petra Gyöngyi, the emerging socio-legal insights are further explored and applied to the pressing European rule of law decay context. The paper considers the role of judicial associations in mobilising judicial resistance, specifically focusing on identifying hidden pathways of resistance. Drawing on socio-legal research and comparative longitudinal case study methodology, this paper shows that a defining characteristic in the potential, visibility and feasibility of what judges did or could do under the current threats in Hungary and Poland depends on the role judicial associations, understood as representative collegial judicial bodies. More precisely, the format, organisation and operative tools of judicial associations contribute to their influence on prior judicial reforms and their capacity to withstand ongoing efforts in curtailing their independence from political actors. Overall, the paper broadens the theoretical and empirical framework for studying the role of courts and judges with considerations regarding professional association organisation and co-ordination, as a potential layer of studying judicial resistance.
6 Roadmap: Connecting past, present and future
Looking to the past with the help of existing historical and socio-legal scholarly approaches may not only illuminate the present of our rule of law institutions but provide useful insights for understanding their future. At the time of writing, besides the authoritarian and backsliding challenge, judiciaries, as main rule of law institutions in our societies, face additional challenges.
One additional main challenge is political pressure under which courts and judges must decide key cases for the future of our societies, including environmental and data security concerns for example. Traditional liberal values are also challenged by increased citizens’ protests government policy on global warming by organizations such as Extinction Rebellion and Letzte Generation, by the polarisation of society with the growth of populist parties in many countries and by international conflicts where many governments seek to limit the expression of opinion in favour of one of the parties as seen in the recent war between Israel and Hamas.
As another main challenge, we are also experiencing the digitalisation of judicial administration at a perhaps unprecedented pace. In this context, better understanding of the history of rule of law values underpinning the functioning of courts is perhaps more important than ever. In which ways can we rely on established and shared legal rule of law approaches to better guide the digitalisation of courts? How can rule of law values and judicial independence, also informed by historical, socio-legal insights be used to critically approach the regulation of courts, new technologies and the use of artificial intelligence? What will happen if some legal actors disappear or their role changes in the digital context and how to use our socio-legal frameworks to better understand that? We hope to contribute to several of these questions through our scholarship and with this collection also hope to open possibilities to open scholarly discussions following these analytical lines.
Acknowledgements
This collection is the result of a workshop hosted by the University of Oslo in November 2020, under the broad banner of ‘Flavors of Backsliding’. Four panel members from the workshop have contributed to this special issue. The possibility to build on a prior academic event further enhanced the quality and consistency of the special issue. Our aim with the workshop was to bring together expert scholars from multiple disciplines (law, theory, history) to reflect on the urgent topic of authoritarian backsliding in Europe in the context of deteriorating rule of law and democratic quality, the COVID-19 pandemic and the ramifications of an authoritarian past in the history of the European continent. With this workshop, we hoped to open some comparative conversations and, as far as possible, explore some of the related currents in European law and society scholarship, understood in a broad, multi-disciplinary sense.
Beyond classic academic panels, the workshop also included a roundtable discussion with invited judges and European experts where the authors could reflect together with practitioners on the most pressing practical questions related to rule of law decay. During the roundtable, special emphasis was placed on the socio-cultural factors behind the variance in the responses by judges to rule of law backsliding in different countries (i.e. ranging from apparent passivity to direct resistance). This served as a further powerful context for the academic discussions.
The workshop was part of the ‘Judges under Stress – The Breaking Point of Judicial Institution’ project, funded by the Norwegian Research Council and Prof. Hans Petter Graver serving as principal investigator. This was a legal-historical project focusing on the functioning of courts in Central and Eastern Europe (CEE) in the communist period and its ramifications for the current circumstances. The workshop constituted a second event, out of three workshops organised within the ambit of the project. The first workshop took place in Oslo 2019, on the general topic of continuities and discontinuities of CEE judicial institutions, published as a German Law Journal Special Issue in 2021.
