A Citizen’s Guide to the Rule of Law. Kalypso Nicolaidis
of national traditions
Towards an ends-based approach
Chapter 7. Promoting the Rule of Law in practice: the “Living List”
Success cases? The Priebe Reports on North Macedonia and Bosnia-Herzegovina
Five citizen-based principles to monitor the rule of law
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