Divergent Conceptions of the Rule of Law To Combat Multiple Threats

Ronan McCrea (University College London)

The author is a speaker at the upcoming 8th BRIDGE Network Conference on The Rule of Law Crisis and the Future of EU Governance, on January 27-28. It is hosted by Central European University’s Democracy Institute and will be live online via Zoom. Please register here


We have now had a decade of increasingly high-profile clashes between the EU and a minority of Member States, most notably Hungary and Poland. These disputes have covered institutional matters like judicial independence, democratic principles like media pluralism as well as values conflicts triggered by illiberal approaches to sensitive social issues such as gay rights, trans rights, abortion, migration and multiculturalism. 

These different areas of concern reflect differing theoretical approaches to the rule of law. Matters like judicial independence fall squarely within the narrower view of the rule of law associated with scholars such as Joseph Raz which sees the rule of law as being mainly about a system of accessible and predictably applied rules and relates primarily to the question of judicial independence. 

Matters such as media pluralism, gay and trans rights and issues around migration and multiculturalism fall in the wider view of the rule of law associated with figures such as Lord Bingham which see it as also encompassing adherence to basic liberal democratic values.

I think this theoretical distinction is relevant to how the Union can best deal with its rule of law crisis. My contention is that we should avoid treating these threats as raising the same issues. As a union of liberal democracies the EU does have a legitimate interest in relation to threats to both the narrow and broad forms of the rule of law. 

But, the Union has a much more intense interest in combatting certain forms of rule of law violation and the institutional means through which violations are best contested also varies considerably depending on the form of violation in question.

One useful way may be to divide the threats faced by the EU in relation to the rule of law into three distinct kinds of threat each of which raises different issues and calls out for different kinds of reaction from the Union.

The first kind of threat (corresponding to the narrower view of the rule of law) relates primarily to the question of judicial independence. 

The second and third threats relate to the broader view of the rule of law. The second threat relates to attacks on the pluralist principles necessary for the functioning of the democratic system seen in measures that, for example, undermine media pluralism or expel a university.  

The third relates to clashes in relation to substantive liberal values seen most prominently in relation to moves that associate national identity with a tradition of conservative Christianity and which therefore reject both gay and trans rights and the idea of a multicultural society. 

My contention in that all of these threats can pose threats to the EU. However, effectively countering these threats needs us to differentiate between the kinds of threat posed by each as well as considering carefully what the limits of judicial rather than political enforcement might be.

In relation to the first kind of threat, judicial independence, litigation has a large role to play. In addition, given the direct nature of the threat to the operation of the EU legal order, compromise is undesirable.

In relation to the second and third threats (threats to democratic pluralism and illiberal/anti-multicultural values) there is some role for judicial enforcement, but this role is necessarily limited. 

Finally, in relation to the third kind of threat, while there is some role for judicial action in discrete areas, this is limited and we must be careful to seek to impose only those values that are indispensable to the sustaining of meaningful Union. Seeking to protect a wider set of desirable values is likely to place the EU system under unsustainable strain and to compromise the defence of the genuinely indispensable values.

Threat I: Judicial Independence

It was the ability of individuals to enforce EU law in their local courts that transformed the EU from a mere international organization into a legal order. This system relies on judges having sufficient independence to give effect to EU legal norms rather than national law in cases before them.

The fact that the EU can pass binding law that national judges will apply, also underpins the systemic political co-operation between Member States as it ensures that the Union can take binding decisions in a wide range of areas. This incentivizes the making of deals on a wide range of issues as each Member State is aware that there will often be occasions where the Council passes legislation on a matter of vital importance to that state. States therefore cooperate on less important matters so that they can get their way when their vital interests are at stake.

Therefore, in addition to the general importance of judicial independence for liberal democratic systems, a failure to respect judicial independence also represents a direct threat to the operation of the EU legal and political orders.

This is why compromise is not really possible on the question of judicial independence. Furthermore, compromise is less necessary than in other areas due to the availability of enforceable legal standards. The independence and impartiality of judges is a topic that judicial systems are well used to addressing. Therefore, it is not surprising that the Court of Justice has been able to play a significant role in relation to threats to judicial independence.

The Court of Justice has issued important rulings in a series of cases in relation to the Polish judiciary. It is notable how rulings in these cases have focused on the narrower more technical issue of the duties under Articles 19 and 47 of the Treaty to provide adequate remedies to vindicate EU law rights rather than broader arguments about the importance of judicial independence for liberal democracy and the rule of law. 

In some cases, the Polish authorities have come into line. In others, they have not yet done so and Poland is currently paying a recurring fine impose by the CJEU.

But judicial fines may be inadequate so political action is also necessary. Article 7 is not really useful for reasons that are well known. The recently enacted Conditionality Mechanism may be somewhat useful but has been hobbled by the insertion of language requiring that an individual risk to the EU budget be shown from a lack of judicial independence in a particular case rather than being able to point to a generalized problem. Perhaps the most effective tool has been the Commission’s current tactic of sitting on EU funds destined for Poland and Hungary showing how the EU system can, with sufficient political will, impose a large cost on problem-causing states in the long run. 

While there may be a political cost to this, undermining judicial independence thus poses such a direct threat to the functioning of the EU system that compromise is not desirable. Failing to tackle this issue head on, while it may buy short term calm, will ultimately fundamentally destabilise the EU legal order and the political cooperation that sustains the EU system. The Eurozone crisis and Brexit have both shown that when the Union is faced with an existential crisis Member States will take significant steps to save it so strong political action on this front is not out of the question.

Threat II: Democratic Values

I am less hopeful about strong political and legal mobilization in relation to threats two and three, that is threats to the rule of law which undermine the minimum of shared values necessary to underpin the EU.

That is not so say that such threats are not important. As scholars such as Joseph Weiler have pointed out, being an EU member involves, at times, being bound by decisions of your fellow member states with which you do not agree. Such intense sovereignty pooling requires an ability to trust that your fellow members will not force your state to do things that violate its most cherished values.

The Union has always been a club for democracies and that commitment to liberal democracy became increasingly explicit with every revision of the Treaty. If a member state retains elections but undermines the broader democratic system by attacking the independent institutions on which democratic life depends such as a pluralist media and free universities, the democratic nature of the Union is also undermined, as is the mutual trust between Member States needed to underpin sharing sovereignty.

But how to respond? The more indirect nature of the threat to the Union makes legal responses more difficult. There is certainly some role for legal challenges. Freedom to provide services can challenge individual instances of applications of restrictive media laws or the expulsion of a university but there is a sense in which these challenges miss the point by portraying an attack on pluralism as an economic matter. 

The Court of Justice has found that because the loss of national citizenship can result in the loss of EU citizenship, EU law limits how states can exercise their powers in this area. The Court could, if it were being ambitious, use similar reasoning to find that because national elections result in the election to the EU Council of Ministers, the organization of elections to national parliaments and maintenance of a fair democratic system, are also subject to EU legal constraints. However, an assertion of EU authority in such a sensitive area step would likely produce a major pushback from Member States which could undermine efforts to mobilise states to uphold the rule of law in other areas. 

Moreover, there are limits to what courts can do in these areas. As the holistic approach to assessing the legal and political systems of applicant states that was adopted in the accession process showed, a pluralist, open democratic society is as much a mindset as a set of rules. Being vague, a mindset is hard to enforce judicially. Therefore, while the law and the courts can play some role in this area, I think that courts can only take us so far and political measures, which, unfortunately are not likely to provide the kind of satisfying concrete outcomes that a court ruling can provide, are likely to be more important. 

Threat III: Illiberal Social Conservatism and the Authority of the EU

I would like to finish by focusing on what may be my most controversial point. The issues thrown up by the embrace of illiberal values by some Member States in relation to values issues such as gay and trans rights, migration and multiculturalism.

On one level there is a strong case for EU action. If the Union is a community of values and freedom and non-discrimination and particular governments in rhetoric and action target minority groups, this could undermine mutual trust between Member States. However, here I have doubts about the scale of EU action that is possible.

Legally, there is some scope for action on individual issues within the scope of EU law. Attempts to permit discrimination against gays and lesbians at work, for example, will fall foul of Directive 2000/78 and reduction of legal protections for asylum seekers below a minimum level is also likely to breach EU law. 

Where there is less scope for effective EU action is in areas beyond the scope of EU law where, speaking in general terms, policies are undertaken and public officials make statements which promote a socially-conservative or ethnically-exclusive vision of the nation which have the effect of making it a cold house for sexual or ethnic/religious minorities.

It is true that the Hungarian law against the promotion of LGBT identities promoted a stronger backlash in the European Council than the Orban government had faced on almost any other issue, and that it would be perfectly possible to prevent the accession of a state whose government had a largely exclusionary or discriminatory approach on issues of sexual minorities and migration. However, I have real doubts about whether the Union can or should engage strongly on these values issues in relation to existing Member States. 

The Union has limited democratic legitimacy. It can play role in nudging societies in a liberal direction by passing laws in its area of competence and through funding decisions and soft law. But it does not have the ability to require societies to be more generally pro-gay or multicultural.

The Union has every right to act in response to member state actions that threaten its functioning by undermining judicial independence, and to require that basic democratic values are respected in order to sustain the EU’s democratic identity and mutual trust between Member States.

But what we consider to be basic democratic values must be limited unless we are to place the EU’s political authority under unsustainable burdens. While certain extreme steps such as criminalizing homosexuality might provoke a crisis, can we sustainably say that a state cannot be a Member of the EU if it wishes to maintain policies and structures that express a preference for heterosexual marriage and relationships or which seek to avoid becoming multicultural societies of immigration?

After all, heterosexist laws and structures have been predominant for centuries in Europe. 25 years ago not one EU member state had same sex marriage. Multiculturalism has enriched many EU member states but has also brought new challenges to some states and is far from universally popular. 

The US is a much more integrated polity, yet even there attempts to impose liberal outcomes in areas such as abortion and gay marriage have placed the authority of the Supreme Court under strain. 

My worry is that if we seek to achieve these worthy goals by making them prerequisites of EU membership, the Union’s authority will not survive.

In addition, by failing to distinguish between violations that strike directly at the functioning of the EU system, such as attacks on judicial independence, and violations of desirable liberal principles, we risk compromising our ability to defend those principles that truly are necessary to defend the Union from being undermined. 

It will be much more difficult to assemble the large political coalition needed to counteract attacks on the judicial independence if social conservatives see defence of the rule of law as precluding their policy preferences. We have already seen how the Polish and Hungarian governments have frequently sought to deflect criticism of their attacks on judicial independence by claiming that their critics are actually motivated by disagreement with their social conservatism and anti-migration agendas.

The Court of Justice has taken us about as far as it can in relation to judicial independence. What is needed now is political will to make sure that defiance of the Court costs, either through funding conditionality or a broader determination to make states that threaten the basis of the Union pay a political price every time an issue they care about is up for discussion. This will need a very wide coalition in the Council. Such a coalition will only be achievable if it focuses on what is vital, not what is desirable. 


Ronan McCrea is Professor of Constitutional and European Law at University College London. He is also a barrister and a former référendaire (judicial clerk) at the Court of Justice of the European Union.

The author is a speaker at the upcoming 8th BRIDGE Network Conference on The Rule of Law Crisis and the Future of EU Governance on January 27-28. It is hosted by Central European University’s Democracy Institute and will be live online via Zoom. Please register here

The views expressed in this blog reflect the position of the author and not necessarily that of the BRIDGE Network Blog.

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