In Hungary, the present government is undermining the rule of law and dismantling checks and balances (see my recent piece ‘Europe’s Other Crisis’). Observers have talked about ‘Putinization’ (even as Russia itself might be de-Putinizing) or ‘Lukashenko lite’.
Do we here have a case where Brussels should intervene in the internal anti-democratic system that is being put in place? And what are the general principles which should guide the EU in making this sort of decision?
First, the straight argument against meddling: can European intervention ever be legitimate, when it comes to national understandings of democracy? Is this not Brussels usurping a right that belongs to the peoples of Europe alone: determining their own political way of life? Not necessarily – and the Lisbon Treaty already provides some guidelines on where to draw the line, as far as Member State political self-determination is concerned. But we need a more systematic way for thinking about the legitimacy of such interventions, quite apart from existing European law. And just as much as intervention needs a firm political and moral basis, we also ought to have clear reasons why exactly the EU should not become a continental policeman – other than ultimately relying on some idealized image of national democracy.
Of course EU intervention in economic affairs happens all the time; and individual countries have been taken time and again to supranational courts by the Commission (and by their own citizens). Few worry about the legitimacy of this situation, because the underlying justification seems clear enough: ultimately national parliaments have consented to treaties which not only allow, but in fact compel supranational intervention. And that commitment on the part of national legislatures is often based on the desire to ‘lock’ oneself into supranational institutions, and thereby become insulated from national pressure groups. It’s the choice of Ulysses to bind himself to the mast.
But – one might object – isn't the purity of beer a categorically different matter from the shape and form of national political institutions? Is European integration not predicated on the fact that Member States remain both ‘masters of the treaties’ and masters of their own political fate? Is there not a clear danger here that calls for intervention become the stuff of symbolic, ultimately nationalistic politics, and where only small Member States are ever picked on? This, at any rate, is a common interpretation of what happened more than a decade ago, when Jörg Haider’s party came to power in Austria. As a reaction, the rest of the EU applied symbolic (and arguably childish) sanctions such as refusing the shake the hands of Austrian colleagues – only to have a wise men’s group certify officially, some time later, that there was nothing wrong with Austrian democracy. Leaders like Jacques Chirac, who was unable to do anything about the National Front at home, could moralize about small countries at no cost – or so it seemed. Meanwhile, nobody ever dared to touch Berlusconi’s Italy, or any other powerful Member State.
So what then should be the basis for intervention – and what criteria should be used to trigger it? First of all, it has to be remembered that the EU is a club, and that its members have committed to the rules of this particular political club and not just made an abstract gesture towards democracy or freedom in general. Nobody questions this basic logic before accession – after all, the Copenhagen criteria were all about making sure that new members would be democratic, committed to the rule of law and, not least, have adequate state capacity (and not, for instance, be rife with corruption). It would be an odd club which ceased to care about its members’ behaviour once they are in.
Second, many newer members of course wanted to be like Ulysses – and tie their own hands. A commitment to democracy is all the more credible, if a country locks itself into supranational institutions. This is true not just for the EU, but also for the European Convention on Human Rights, for instance – though the idea is also easily challenged in the name of parliamentary sovereignty as traditionally understood in the UK.
This is where a more historical argument comes in: the whole direction of political development in post-war Europe has been towards delegating power to unelected institutions, most importantly, constitutional courts. And that development was based on specific lessons that Europeans, rightly or wrongly, drew from the political catastrophes of the mid-century: in particular, never again should a parliament abdicate in favour of a Hitler or a Marshal Pétain, the leader of Vichy France, without any checks and balances standing in the way. Put another way: distrust of unrestrained popular sovereignty, or even unconstrained parliamentary sovereignty (what a German constitutional lawyer once called ‘parliamentary absolutism’) are, so to speak, in the very DNA of post-war European politics.
Of course, history is not destiny and its supposed lessons do not automatically generate legitimacy. But it seems a reasonable presumption that radical, sudden departures from this essentially Madisonian model of politics require special justifications. This thought applies to Hungary, for instance, where the constitutional court and independent institutions in general to which Hungary committed after 1989 are being systematically weakened. But it does not apply to Britain.
What ought to be the specific criteria for some form of EU intervention? First of all, there should be a track record of a government actually departing from shared European standards. Part of the problem with the ill-fated actions against Austria was that nothing had actually happened. To be sure, it was alarming that Haider’s party joined the government, and it might well be that European ‘shaming’ in the end did serve as a deterrent – but prima facie, it seems illiberal to sanction political actors simply on the basis of rhetoric which might in fact simply be that: rhetoric.
Second, as long as there is some reasonable hope that national politics will be self-correcting, outside intervention would be illegitimate: it could look like Brussels picking a winner in a domestic power struggle. This is an old point, familiar from John Stuart Mill: ideally peoples struggle for democracies (and preserve their democracies) in their own particular way. Arguably, this criterion makes it legitimate that Berlusconi’s Italy was left alone: The Cavaliere for sure tried to remove checks and balances and would have wanted to cement his persona power with a presidential regime – but the opposition, despite its generally sorry state, remained strong enough, Berlusconi kept losing popular referenda, and, most importantly, the judiciary kept putting up a fight. There is some hope that the situation in Hungary might also ultimately be self-correcting: civil society has recently woken up, with very large demonstrations against the new ‘system of national cooperation’ in Budapest. And it is likely that many citizens will decisively turn away from a government whose stewardship of the economy has been nothing less than disastrous.
This also points to the importance of nuances in political language and tone: criticism from the outside should never be suspect just because it comes from the outside – after all, EU citizens share one political space and ought to make it their business what others in that space do. But neither politicians nor intellectuals should generalize about, for instance, ‘the Hungarians’, as opposed to a particular government. And Brussels should never treat Member States as if they were like children who are a bit slow in getting liberal democracy: the EU as lived experience can be very different from the textbook account of ‘transitions to democracy’, where peace, prosperity and political happiness reign ever after. In Hungary, for instance, accession in 2004 was already the moment of bust after the boom, when companies were moving still further east in search of tax breaks and cheap labour.
Finally, if a country does indeed insist that its own understanding of democracy – one amounting, for instance, to a deeply illiberal or ‘managed’ democracy – is right and ought to be above criticism from Brussels, then so be it; as long as there is a proper procedure for ejecting a country from the EU, or a Member State leaving voluntarily. What in the UK is now sometimes called ‘the democratic override’ of supranational institutions might ultimately have to take the form of a democratic exit – though it’s of course a legitimate question whether a managed democracy could actually manage a truly democratic exit.