The EU greatly values the “rule of law.” Article 2 of the Treaty on European Union—essentially the EU constitution—commits the Union to backing it (together with dignity, freedom, democracy, equality, and a whole lot of other things). In light of this, Brussels has produced a well-publicised annual report on the state of the rule of law in each member state since 2020.
The 2024 edition was released in the last week of July. No member emerged unscathed, but Italy and Slovakia came in for particular criticism. The former was slated for its defamation laws, its rules on lobbying and political donations, and its lack of a national institution to bang the drum for human rights. Slovakia, in its turn, was singled out for a lack of lobbying laws, failure to ensure the independence of its public service media, and insufficient public consultation on lawmaking. Perhaps predictably, Hungary also suffered the rough side of the Brussels tongue: it had, it was said, failed to pay its judges enough, dragged its feet on setting up a powerful independent media regulator, not passed sufficient lobbying laws, and instituted rules making it difficult for international NGOs to operate within Hungary to influence its policies.
These aside, there were repeated calls for other countries to provide civil society organisations with certain legal advantages, to fund independent public service media, to instate rules about the distribution of government advertising, and so on.
The value of any given criticism can be debated, but there is one thing that cannot: most of these have little or nothing to do with the rule of law, or at least with the rule of law as traditionally understood. This is not some kind of pedantic question of terminology; it matters. What we have here is an extension of an uncontroversial idea into places it was never meant to go, and its weaponisation for other, more controversial, purposes of political interference.
The modern origins of the idea of the rule of law lie in an 1885 book by the English jurist Albert Venn Dicey, An Introduction to the Study of the Law of the Constitution. In it he put forward a clear but limited conception of the rule of law. In his view, citizens should not be subject to the arbitrary power of officials and others to tell them what to do or interfere with their persons or property. Instead, public powers should be limited by clear and precise legal rules, with no extra latitude allowed because of their position. He saw in this the superiority of the English constitutional settlement over the despotisms rampant on the European continent, and on this basis famously enounced that “Englishmen are ruled by the law, and by the law alone.”
This is an attractive conception, and indeed one that today is difficult to argue with. Unfortunately, it is also a formalistic one, as one suspects Dicey would have freely admitted. It says nothing about the content of the laws to which everyone should be subject; from which it follows that at best it is a necessary, not a sufficient, condition for an effective constitutional protection for rights.
It was this that ultimately caused its subversion.
In England, the Bingham Centre, the leading body promoting the rule of law today, has not been able to resist the temptation to turn the conception from the formalistic one with which everyone can agree, to a more substantive ideal that, however apparently attractive, is a great deal more politically controversial. Its vision is that it exists “in the interests of good government and peace at home and in the world at large.” In accordance with this, it has expanded the idea to cover things like the aggressive protection of human rights, the duty of government to act fairly and reasonably, and the duty of state bodies to observe international law meticulously. This has been taken up elsewhere, so much so that, for example, any efforts today to restrict the power of the English courts to have the last word in dictating the reasons for which a governmental power can be exercised, or whether a reasonable person could have exercised it in that way, are now regularly (and wrongly) called out as direct attacks on the rule of law, even if their real aim is to preserve the integrity of the democratic political process.
This brings us to the EU, where something very similar has happened. The rule of law as enunciated in Article 2 of the Treaty on European Union has slowly begun to annex numerous other political values; it is now interpreted expansively as encompassing a fairly progressive liberal agenda, including not only democracy, but fundamental rights, media pluralism, the promotion of a nebulously-defined ‘equality’ by national bodies set up for that purpose, a fairly free rein for NGOs to influence policies in individual states, and so on. These may or may not be good things, but one thing is clear: unlike Dicey’s original relatively uncontroversial conception, they are often politically tendentious, and most certainly are not matters beyond political argument.
But there is more to it than that. We have to remember that the EU is a body whose instincts are nearly all in favour of the discreet centralisation of power in Brussels. The incorporation of the rule of law into the Treaty on European Union was carefully orchestrated—at least in part—in order to make it clear that the rule of law was very much the EU’s business as well as the member states’, a point reinforced by the insertion of Article 7 of the same treaty providing for central sanctions on member states seen not to be observing it. Furthermore, viewed in this way it is not hard to see why it is in the interest of those in the Berlaymont building for the rule of law to be defined as widely as possible. The more there is to it, the more scope there is for the central bodies in Brussels to scrutinise the laws of individual member States.
This has not been lost on the EU. In the last few years, think of the proceedings taken against Hungary and Poland on such matters as the appointment of national judges. Or, even more pertinently, there was the adoption in 2020 of a regulation explicitly making EU payments to member states dependent on their observance of Brussels’ view of the rule of law.
Which brings us back to the 2024 Report. The rule of law may sound uncontroversial; to the casual reader of the left-wing press, a statement that Italy, or Slovakia, or some other country is backsliding on it looks sufficiently damning. But we should not be fooled. The honeyed words of this report, like those before it, represent a hidden power grab: a creeping effort by the central bodies of the EU to impose throughout the bloc their own progressive, liberal views on matters that are far from being politically controversial. If you are a citizen of a European country who values your own democratic institutions, you need to be on your guard. Don’t say we didn’t warn you.
