Can We Have It All? The Trilemma of the Rule of Law, Human Rights and Democracy

What else can we give up of the nation’s independence?

What else can we surrender of the rights which constitute

the essence and guarantees of the state’s constitutional life?

Cassandra Letter by Lajos Kossuth

We all know well-intended warnings that no one took seriously, even though they should have been heeded. One of the best-known prophecies of that kind in Hungary’s history was the “Cassandra Letter” by Lajos Kossuth. As a politician committed to the idea of Hungary’s freedom, Kossuth pleaded with his former friend Ferenc Deák not to sign the agreement which would become known as the Austro-Hungarian Compromise of 1867 with the House of Habsburgs. People were well aware of the fact that Kossuth did not like the Habsburgs. This may have been one reason why they did not take his letter seriously. In addition, the retributions for Hungary’s 1848–1849 freedom fight and the country’s passive resistance to Austrian reign have paralysed the Habsburg Empire and Hungary within for decades. A compromise with the Habsburgs seemed reasonable as they did not demand much in exchange – or at least it looked so at that time.¹

In his letter, Kossuth made several arguments against the Compromise, political as well as legal ones. In his view, Hungary’s adoption of the Compromise would mean giving up on certain rights without which its fate would be irretrievably linked to that of the Habsburg House and would result in the lack of de jure independence. Kossuth was convinced that the old dynasty of emperors and kings had no more than a few decades left. “Hungary will be the bonfire on which the Austrian eagle will burn”, he wrote. By the end of the First World War, the Habsburg House had been dethroned in all countries under its control and Hungary lost two thirds of its territory. The international public viewed Hungary as an aggressor because its Compromise policy had mostly been supportive of the Habsburgs’ war plans. By lack of independence, Hungary’s fate was irretrievably linked to that of a fallen dynasty. Kossuth’s warnings turned out to be well-founded.

But his warnings went unheeded. He was a contradictory politician with a track record of several questionable matters. He wrote his exhortations to his home country from abroad. How could he know what was right? The letter spurred some public debate when it was published but could no longer stop the machinery of the Compromise. The events unfolded in due course. By the dawn of the First World War, Kossuth was dead, his concerns and warnings long forgotten. Just one month before the peace treaties concluding the war, Hungary’s leaders were still blind to the country’s fate. However, the most telling lesson is not what Hungary had become, but rather the way it happened. It lost its old glory by voluntarily surrendering its rights and was defenceless against imperial automatisms.

Of course, the political circumstances are entirely different today. There are no more Habsburgs and no spectre of war is looming. Europe’s nation states are seeking mutual cooperation within the European Union or are looking for ways of accession. Still, the EU is becoming entangled in debates as its previous successful economic cooperation is replaced by increasingly heated political arguments.

These political arguments are mostly framed as legal concerns. The EU and its bodies, mainly the European Commission and the European Parliament tend more and more often to criticise the state of human rights and the rule of law in EU member states. This recent circumstance creates unprecedented practices. In the 20th century, Western nation states were the first political entities which managed to establish political systems based on the rule of law, human rights and democracy. These three elements of a modern nation state could be observed in the past, but never in the same political system. Ancient Greeks invented democracy which ideal defined the political thought of the entire Western civilisation. The Prussian state of the 18th and 19th centuries transformed the very British concept of the rule of law into an institutionalised system and doing so made the rule of law more compatible with continental legal tradition. 19th century France, due to its revolutionary heritage, created the very first system of judicial and political institutions to protect human rights. All these historical precedents contained one or two key elements (the rule of law, human rights, democracy) of the modern nation state, but not all of them.

Only the 20th-century, post-war nation states were able to create harmony among these, sometimes conflicting, principles. However, according to contemporary EU politics, the European Parliament’s and European Commission’s political agenda raises these principles to an international, more precisely to an EU level. This recent development brings up many questions. There is not any historical evidence that these sensitive and fragile principles can be applied together in an international environment. Rather it seems that the EU starts to dysfunction as a political community. It looks like we have a trigeminal dilemma (trilemma) here. Europe needs nation states to successfully apply the principles of democracy, human rights and the rule of law. But as the EU tries to apply them in an international legal and political framework, the fragile balance of these three fundamental concepts gets disrupted. It seems that we cannot have democracy, the rule of law and human rights to be realised in a supranational environment. This trilemma is the main topic of this article, which I will explain below.²

THE RULE OF LAW – FROM MUTUAL COOPERATION TO AN INSTITUTIONALISED EXPORT PRODUCT

The rule of law is a very special notion. We take the concept for granted even though it has had a number of meanings throughout history. The rule of law has been an important value in the West ever since ancient and medieval times. Both Aristotle and Saint Thomas of Aquinas had their own approaches to the rule of law. Nevertheless, current constitutional reasoning almost always originates the notion from Albert Venn Dicey in the British Empire of the 19th century. But Dicey had taken over the notion of the rule of law from the ancient philosopher Aristotle. According to Aristotle, the rule of law may indeed mean just that, i.e. the supremacy of law but also obedience to God’s laws. Anyway, it is certain that Aristotle could only imagine the rule of law in Greek polises, particularly in Athens, where the required cultural conditions were available.

It is this notion that Dicey took over and applied to the conditions in Britain in the late 19th century. He believed the rule of law could only be established and sustained among the inhabitants of the British Isles. Hence, his classic work titled Introduction to the Study of the Law of the Constitution.³ To Dicey, the rule of law actually means a gentlemen’s agreement between Brits seeking to settle their conflicts in accordance with the local habits. The notion was further shaped in the early 20th century and became an important factor in the legal theories of more and more European and colonial states. But when a notion is adopted, its wording and translation also have a major power and significance. The English term became common as Rechtsstaat in German-speaking areas, involving submission to law and rationality, breaking away from the original British gentlemen’s agreement. Discourse on legal theories after the Second World War removed the notion from its original meaning, primarily in the works of Jürgen Habermas. In his view, morals and religion lost their social significance in the post-traditional societies that emerged after the Second World War, with the rule of law acting as a kind of social glue.⁴ If morals and religion disappear, it is the rule of law that can keep these Western societies together and ensure social cohesion – so he thought.

This is how the rule of law has become a universal and exportable notion. It was exported to the former colonial countries of the post-Soviet region ignoring that those states had developed an incipient version of the concept in one way or another. It is generally accepted that a government should be organised under the law and not the people. The universal notion of the rule of law was exported ignoring this ancient wisdom, typical of each society. This is also clear now in the disputes about the EU. We do not know what exactly the rule of law means in Europe so we have no chance for a definition by objective methods or standards. Consequently, the rule of law cannot be imposed on each member state by a specific mechanism. This is why the rule of law championed by an EU institution is actually not a dogmatically defined and supported legal notion but a political sword of Damocles. A case at hand is the Sargentini Report criticising the rule of law situation in Hungary. The European Parliament invoked this report to initiate the “Article Seven” procedure against Hungary. The report includes criticism of policy measures based on a conscious choice of political values, such as the support of Hungarian families and the definition of marriage as a voluntary union between a man and a woman. The report calls Hungary’s legal approach to families “obsolete and conservative”. Naturally, this is a political statement but not a pertinent criticism of the rule of law. In essence, the European Parliament is trying to criticise, in legal rather than political terms, policy measures that go against the views of the EU’s elite. Thus, the notion of the rule of law is degraded to a political tool.

HUMAN RIGHTS – A MULTI-GENERATION REINTERPRETATION PROCESS

The situation is similar when it comes to human rights. As mentioned above, a country or international community subject to a constitution cannot work without respecting the principles of the rule of law, human rights and democracy. But these principles can only be effectively enforced if they are kept in balance. And only nation states have the knowledge of keeping this balance.

The EU was initially aware of the key role of nation states. It started as an economic cooperation, which of course implies the harmonisation of certain fields of law, but not on the level of fundamental rights and freedoms. This is all the more true because the European continent already had its mechanisms to promote and endorse human rights. The European Convention of Human Rights and the European Court of Human Rights, which both were established by sovereign nation states, provided sufficient guarantees and tools of judicial review. Nonetheless, the EU itself also accepted the Charter of Fundamental Rights of the European Union in 2000, which became a binding legal text in 2009, according to the Treaty of Lisbon. In the light of this development, the Luxemburg-based Court of Justice of the EU started to compete with the Strasbourg-based European Court of Human Rights. The effects of this parallelism can be detected even nowadays.⁵ But the Treaty of Lisbon created other difficulties than the ones in connection with the two courts. To illuminate this set of problems, we need to examine the nature of human rights.

The differentia specifica of human rights, particularly the first generation of human rights, was that they limited state intervention in the individual’s life.⁶ The state must respect the private sphere of its citizens, allowing and granting their freedom. This is the rationale behind freedom of speech, assembly and association, i.e. the classic first-generation freedoms. As these first-generation rights emerged, a system of judicial institutions was created to protect them.⁷ A court can easily decide whether a state has breached the individual’s freedom or not, such as freedom of opinion or freedom of assembly. Protecting and enforcing these rights can be entrusted to an (international) judicial forum.

In contrast, the very basis of second- and third-generation human rights is different from that of the first-generation ones. The idea is that the state should actively participate in the realisation of these rights, which means that the state has to establish institutional support to enforce second- and third-generation human rights. These rights are mainly economic, social and cultural or group rights, such as the freedom to choose one’s occupation, the right to healthcare, the right to a healthy environment, or the right to peace. An important feature of these rights is that their realisation depends on the available resources. Thus, governments have an institutional duty to respect, promote and fulfil these rights, but this always depends on the availability of resources. Therefore, political objectives and choices determine the realisation of these rights. These are public policy objectives that are primarily perceived as rights, but it is difficult to define their exact content or the mechanisms for their protection and enforcement. These are much more complex matters than allowing or banning a demonstration. However, the level of ensuring these rights is primarily a political decision which is to be made by each state. Their nature is significantly different from the classical, first-generation freedom rights. The confusion between the generations of human rights is clearly illustrated by the fact that some political forces want to interpret migration as a human right or deduce same-sex marriage rights from the Universal Declaration of Human Rights.

This is where the legal anomalies caused by the extensive interpretation of later-generation human rights become apparent. The mechanisms created to enforce and protect first-generation human rights are now increasingly used to enforce and interpret second- and third-generation fundamental rights as well. However, these rights are not fundamental in the classical sense but rather human needs or public policy objectives. Inserting them into the system aimed at protecting classical, first-generation freedom rights undermines the legitimacy of the entire system as judges are forced to decide issues for which they have exactly the same points of reference as politicians.⁸ Judges are not more competent in these issues than politicians because these are not legal matters but questions of public policy and state operation in a legal guise. This feature in the development of human rights incited many theorists to draw up criticism towards the very recent developments.

Günther Frankenberg, the well-known legal scholar states that human rights have very much become a political ideology which mainly promotes political liberalism.⁹ Hurst Hannum of Tufts University emphasises that the content of second- and third-generation human rights are not defined clearly enough,¹⁰ which makes them a powerful political tool of putting pressure on certain states or political actors. These statements are very similar in their contents to the contemporary practices of the EU bodies.

DEMOCRACY? DEFICIT!

This leads us to the third topic of this article: democracy. The question of democracy as implemented at the level of the EU has been discussed by the founding fathers, politicians and lawyers ever since the Treaty of Rome.¹¹ The majority still doubts that democracy can be sustained at the EU’s level. This must be pointed out because we must be aware of the extreme difficulties already at our starting point. No solution is at sight presently, even though the question has long been around.

Realistic thinkers are sceptical, to say the least, about the possibility of a European-level democracy that also works at the level of nation states. In the past decades, attempts at building up European democracy have had the opposite effect. The best example is the European Parliament. Its role has been strengthened, its authorisation has been expanded, and it has turned from a consultative body into a co-legislator aiming at creating a European demos and stabilising European democracy. But what does the project look like a few decades after it was launched? The European Parliament does not really represent citizens but still operates as it did in the 1970s, i.e. like a large NGO with no actual political liability for its decisions.¹² Consequently, it does not represent the European voters but something else as its real task. It is outside the scope of this article to discuss whether its real task is the advocacy of various lobby interests, the promotion of a European federation project or something else. What is increasingly clear is that the European Parliament’s operation does not deepen but in fact hinders democracy in the EU. In addition, recent changes in the Council, the body representing the member states, do not support the desired creation of democracy but rather undermine it. It is because the Council has moved from unanimous decision-making towards qualified majority decisions in most fields without enforcing the principle of “listening to all parties” any longer.

As noted above, the founding fathers of the EU deemed the EU’s democratic operation vital. A prime example is the Luxembourg Compromise. It actually still operates as a certain kind of customary law. As such, it functions as the quasi invisible, underlying and primary principle of the EU. Specifically, the Union’s decision-making process focuses on nation states (and hence the European Council and the Council of Europe), which primarily make compromise-based decisions. And compromises prevent the European Commission from transgressing its formal (contractual) and informal boundaries.

The Luxembourg Compromise was created as a crisis management method in response to the Community’s constitutional crisis in June 1965, i.e. the “empty chairs policy” of France. France refused to participate in the work of the Council after the introduction of a Commission proposal to take away much of the member states’ control over the EU’s agricultural policy, an area of vital interest to France. In effect to this date, the Luxembourg Compromise was a political deal laying down the operating principle of the EU as a political community between the world of contracts, EU law and international democracy. Nevertheless, references to compromise have all but vanished from the repertoire of EU politics.

Ignoring the democratic principle on the EU’s level is not a new phenomenon. The process has been going on for over a decade. Designed to manage the economic crisis of 2008, the European Stability Mechanism granted rights to the Commission and the Central Bank that raise serious questions about compatibility with member states’ constitutions and the Treaties of the EU.¹³ The Commission is drafting proposals in response to the migration crisis that aim to overwrite the sovereign right of member states to decide who they want to live with. In addition, the EU’s elite often invokes the rule of law and human rights when trying to exceed its competence. This further deepens the EU’s democracy deficit.

Logically, the issue of democracy deficit is addressed by more and more scholars of law and political science. One of the key figures is the Dutch Luuk van Middelaar, who markedly criticises the operation of EU bodies, especially that of the Commission.¹⁴ He argues that the issue of competence division and transfer was closed after the latest revision, i.e. the Treaty of Lisbon and member states have kept and restricted their sovereignty in a well-defined manner. So the Commission’s demand for even broader competences actually undermines the effective operation of the EU and also EU law. Middelaar emphasises that maintaining member states’ freedom to act is indispensable for the EU’s continued legitimacy and for making really good decisions on the Union level.

EACH NATION STATE HAS ITS OWN STATE OF BALANCE

This overview of the issues of the rule of law, human rights and the EU’s democratic deficit highlights a certain imbalance in the operation of the EU. As the EU tries to lift the questions of democracy, human rights and the rule to law to an international level, the dysfunctions of the European community are getting more and more serious. This development increasingly affects member states as well. The reason of this dysfunction is that only nation states can provide democracy, the rule of law and human rights at the same time.

But the EU continues to impose exclusive interpretations of the rule of law and human rights on member states. Concerning the rule of law, this means disregarding the individual countries’ legal traditions. In the field of human rights, the EU prescribes more extensive action by the states, increasingly deviating from the negative nature of first-generation rights.

These trends seem to reveal a political intention of using the rule of law and the human rights regime to introduce policies that are forcefully directed from the EU’s headquarters. In this system, member states’ decision-making mechanisms based on the democratic systems of nation states are increasingly overruled by the EU’s dynamically changing concept of the rule of law and by the intention to turn more and more public policy issues into human rights questions.

This trend, in turn, further deepens the EU’s existing democracy deficit, which has clearly become a dividing line. It is easy to list those who raise their voice for centralisation and those who are against it. Most debates within the EU can be traced back to this opposition.

As sovereignty is exercised jointly, it is obvious that certain policies must be coordinated by the EU’s elite. However, like most bureaucratic powers in history, the Brussels elite seems to be intent on dictating member states’ policies in more and more areas, exceeding its competences laid down in the Treaties. This trend only deepens the lines dividing the member states of the Union. Each member state should be allowed to strike a balance between the rule of law, human rights and democracy according to its own traditions and legal concepts.

Notes: