A Citizen’s Guide to the Rule of Law

Book discussion with authors, Kalypso Nicolaidis and Adis Merdzanovic

On 17 June 2021, in collaboration with the European University Institute, SEESOX organised a book roundtable moderated by Alexander Stubb (School of Transnational Governance, European University Institute) for the recently-published “A Citizen’s Guide to the Rule of Law”, authored by Kalypso Nicolaidis (School of Transnational Governance, European University Institute) and Adis Merdzanovic (School of Management and Law, Zurich University of Applied Sciences).

Sarah Nouwen (School of Transnational Governance, European University Institute) first presented the book and underlined that the rule of law is the most precious human invention of all times – for this reason, it should be accessible to everyone. She explained that the book engages citizens in a clear and direct way and raises awareness on the shared responsibility for threats directed towards the rule of law. While the book focuses on the rule of law in Europe, many of the lessons of this book should be applied for EU rule of law promotional activities beyond the Western Balkans. The fundamental argument of the book is that on one hand, the EU should be more ambitious in promoting the rule of law, while on the other, it should be humbler. The book identifies the areas where the EU should be more ambitious and where it should be humbler, supporting its arguments with suggested alternatives. In commenting on the book, Nouwen congratulated the authors for differentiating the rule of law from the adoption of the acquis communautaire, and recognising that the rule of law is a political concept. Nouwen then stated that in a context where most NGO activism goes into lobbying for laws, the issue in fact is elsewhere. She warned that one should be careful about addressing the particular “culture” where issues arise, the emphasis should be on the political economy instead. Nouwen subsequently posed three questions for the authors: What is the role of discretion in the ordinary application of law? Could some of the components of rule of law be discretional? Could international efforts to promote domestic rule of law be a part of entrenching global absence rule of law?

Othon Anastasakis (SEESOX) stated that the book is written from the citizens’ perspective as this is what the rule of law is about; however it also deals with the macro perspective. Secondly, he noted that in cases of problematic rule of law, there is also problematic trust in different levels of governance, which may also be observed in Western European states. Further, he asked: who was to blame when things go wrong. He commented that the book answers that this was the EU, as it is too means-focused, but in fact the political elites, and the complacency of citizens, also play a role. He then asked whether the EU can really account for a change in the social and cultural dynamics.

Marta Pardavi (School of Transnational Governance, European University Institute) highlighted the fact that focus on the citizen is now very important in the EU, after the recognition that there is a rule of law problem within the community. Institutional efforts have been made to tackle this, but the EU is also about community and citizens. From a human rights defender’s perspective, Pardavi welcomed the implementation of rule of law monitoring mechanisms, but emphasized that these should be more accessible. She took on the idea of a “living citizen centre” and suggested it as an important point to elaborate on from a practical perspective. Finally, she underlined the important role played by media in monitoring and protecting rule of law.

Adis Merdzanovic answered on the role of international efforts and of the EU, by stating that the best way forward is a sandwich act –pressure from the above combined with the internal dynamics. A citizen-centric approach is crucial for this too, as even in the context of this communitarianism, the rule of law becomes something that people would fight for and is translatable.

Kalypso Nicolaidis, taking up Nouwen’s comments, addressed the accountability dilemmas in transitional justice. The question as to what the EU is trying to promote is related to the status of discretion - arbitrary powers must be avoided, but at the same time there is a search for the good discretion that is linked to diversity and pluralism. As to the issue of external intervention, Nicolaidis commented that it should be about empowering citizens and human rights defenders.

During the Q&A session, some important points arose:

• Following on from the distinction between rule of law and rule by law, instances of breach should not be equated with a “fundamental erosion” of rule of law.

• Backsliding can even happen in situations where the rule of law had not fully been established.

• What matters from a rule of law perspective in situations of backsliding is the response given in the language of law, in addition to political pressure.

• While there may be a connection between the atrocious crimes and the lack of rule of law, depending on the definition of rule of law adopted, promoting rule of law would not resolve the issues immediately.
  

Merdzanovic and Nicolaidis ended the session by highlighting that the discussion on rule of law is a global conversation and their purpose is to empower those who fight for justice.

Mehmet Karli (Academic Visitor with SEESOX)