2. Actors, Institutions and Narratives. The Neo-Institutional Framework of Analysis

Applied to the emergence and development of the rule of law, our general assumptions outlined above underline the relevance of actors. Since the rule of law has been and continues to be a differently interpreted and contested idea, the actors interpreting it (and the narratives they use) make a difference when it comes to the institutionalisation and de-institutionalisation of the rule of law. The contentiousness of the rule of law has not always resulted in direct confrontations but also in parallel institutionalisations of law and the rule of law in different countries with competing ideational underpinnings, narratives and logics of action. With increasing transnational and international connections and interdependences, however, a clear legal definition became necessary, but this led to struggles over the right way of understanding and realising it. These three aspects are discussed below.

Historically, the creation of the rule of law—at least in its liberal form⁴—was embedded in the bourgeois revolutions in Europe and North America since the end of the eighteenth century and closely linked to the idea of constitutionalism.⁵ It thus pre-dated democracy in this area (Fukuyama 2010; Zakaria 1997). Law and justice and the recognition that they have to be respected had existed before.⁶ However, now the bourgeoisie shackled the nobility and itself by means of constitutions (Elster 2000). These consisted of a catalogue of liberties and property rights for all citizens against encroachments of state power and a judiciary independent of political power (Waldron 2008, p. 7ff.).

These new rights and institutions created opportunities for legal mobilisation, also against ruling majorities. Parties with various political agendas and, especially in East Central Europe, also movements striving for political unification or secession benefited from the rule of law, and increasingly perceived it as advantageous. Later, this process went hand in hand with the expansion of the electoral principle and the spread of democracy. The further formalisation of the rule of law, including the expansion of the judiciary, gained importance, as it promised to protect classical liberal negative rights (Martini 2009). Therefore, judges became influential actors in addition to politicians (Halliday and Karpik 1997; Tamanaha 2004, p. 29).⁷

These processes were inspired by the new idea of liberalism and accompanied by a theoretical rationalisation. While initially the liberal content in the sense of a “rationally inspired constitutional programme” was emphasised more than formal aspects (Martini 2009, p. 308), formal aspects received growing attention. Thinkers from Locke to Kant perceived “institutionalized government” as a precondition “of the realization of liberal ideals” (Flathman 1994, p. 298). Constitutionalism was a combination of universalist values and particularistic interests (Olgiati 2006, p. 55). It was linked to the conviction that society had self-control mechanisms that would lead to prosperity and justice if only these mechanisms were allowed to operate unhindered (Grimm 1994, p. 45) and that civic public culture, economic activity and a professional state administration were crucial for modern statehood (Habermas 1962/1990, 1992). In a historical comparison of systems, the essential value of constitutionalisation was to replace a non-consensual state power, which was legitimised by itself, with a state power “that required consensus and was legitimised by those subject to the rule” (Grimm 1994, p. 404). The rule of law was thus one component of a broader ideational framework regarding state, market and society legitimising the modern state as a rational, reason-based order. In this respect, the essence of the concept of the rule of law lay in the legality of political rule and the principle of equality before the law (Stein 2021, p. 6).

Actors soon intended to export the new rule of law principle. “(T)here have been several historic waves of international rule of law promotion, often linked to war, colonialism, and occupation” (Schimmelfennig 2012, p. 111; see also Lange 2019, p. 85ff.). However, liberalism was criticised as early as the mid-nineteenth century. From a Marxist perspective, for example, the new rights were the result of an emancipation of parts of the society—the bourgeoisie—but at the same time an instrument to preserve pre-political relations (above all the existing property rights), to enforce political decisions, ideologically justify an ‘inherently unjust’ system, and conceal the ‘actual power relations’ in society (Campbell 1997).

In developing these ideas, the Marxist movement sought to replace the (capitalist) constitutional state with a classless society without a state. It became politically influential in the October 1917 Russian Revolution, where it suppressed the first beginnings of the liberal rule of law from the late tsarist era, which can be regarded as an early example of de-institutionalisation. While in the autocratic tsarist empire formal law was established, but given little value in practice, in the emerging Soviet Union, it was completely subordinated to the state ideology.

Later, fascism and National Socialism broke with the logic of the liberal democratic rule of law by means of undermining and de-institutionalising it. Contemporaries characterised the National Socialist system as a Doppelstaat, a “dual state” that applied laws tactically (Fraenkel 1940/1974). Operating within the framework of the “norm state” it was intended to ensure the integration of bourgeois elites into the new system and its economic and administrative functionality in the short term. From the beginning, however, the norm state was undermined by the Maßnahmenstaat, the “prerogative state”, which no longer accepted any constraints on state action through law (Stolleis 1994; Mertens 2009). The invocation of legality and the rule of law, even by dictatorships, conversely testified to the attractiveness of statehood based on law.

After 1945, political majorities in several European states introduced comprehensive models of non-majoritarian legal control, (also) in response to the experience of National Socialism and in competition to the new state communism. Independent constitutional courts and the protection of fundamental rights were the main objectives. Especially in West Germany (required and supported by the Western Allies), Italy and France, efforts were made to establish safeguards against repeating past mistakes. Nevertheless, the concrete institutional arrangements differed, influenced by how much authority and respect the former political institutions and incumbents enjoyed, and political decision makers built on the pre-war institutional arrangements rather than creating entirely new ones (Johnson 1993, p. 28). Re-institutionalisation trumped new institutionalisation.

Countries under communist rule, including in East Central Europe, did not generally deny the rule of law but understood it in terms of communist or socialist legality. Ruling parties argued that a bourgeois rule of law would only serve the interests of property owners while law in socialism would help to provide legal certainty and effective central state administration in a system which realises the working class’s interests (Gardos-Orosz 2021, p. 1329ff.). All state institutions were to serve these ‘class interests’ in the planned transition to communism (Garlicki 1977, p. 55; Sect. 2.2). At the heart of this ‘socialist’ conception of the rule of law was the rejection of the separation of powers in favour of “the principle of the unity of state power based on the doctrine of Rousseau” (Garlicki 1977, p. 55). Formally, the parliament elected by the people was the highest state authority.⁸ At the same time, socialist constitutions enshrined prominently a superior role for the communist party in society and the state. The communist party was understood as the “vanguard of the working class” and the “militant alliance of the most active and most politically conscious citizens from the ranks of the workers, peasants and intelligentsia”, as stated in Article 4 of the 1960 Czechoslovak constitution.⁹ It was the ruling party that defined the ‘class interests’ (Gardos-Orosz 2021, p. 1329ff.).

In general, law remained important under socialism.¹⁰ Significant decisions were cast in legal form, and constitutions and legal texts remained present. State socialism in East Central Europe was organised bureaucratically. Socialist law served not only as a means of “protecting socialist conditions, but […] also as an instrument of socialist education” (Buhr and Kosing 1979, p. 277). Social guarantees, such as the right to work, education or housing, were recognised (albeit with limited individual choice).¹¹ However, the law did not constrain the ruling party (Küpper 2005, p. 417ff.) and citizens enjoyed no or only minimal political rights to defend themselves against the state and limited individual property guarantees. The law did not protect citizens from possible state restrictions of fundamental rights. Instead, socialist constitutions allowed the exercise of these rights to be restricted in cases where they conflicted with the “public good” or with the “principles of social cooperation” (Osiatynski 1994, p. 112), or simply with the “‘superior nature’ of socialist law” (Sajó 1990, p. 331). Nor did they secure control over the executive and the legislature as anchored in liberal constitutions (Brunner and Meisner 1980, p. 7ff.; Heydebrand 2002, p. 16ff.). Instead, the lack of autonomy of society and the economy from state decisions, the recurrent recourse to the socialist collective and the state, and its legitimation through material benefits rather than liberal freedoms and participation rights were strong features of socialist systems.

With the transitions from communism and planned economy to democracy and a market economy from 1989 onwards, these principles were removed from the constitutions of all East Central European states. Actors in all post-communist states supported the establishment or activation of independent constitutional courts. However, these changes could also be superficial (Sajó 1990) as old ideas persisted and traditional practices were continued under different institutional banners (Krygier and Czarnota 2006, p. 302f.; Bugaric 2015; see Sects. 2.3 and 2.4, Chap. 3).

In the early 1990s, Western states intensified their rule of law promotion. “Like the state, the market, and the bureaucracy, with which it is closely linked,” this “institution based on Western, rational values” was now “backed by the authority of international organizations, and disseminated across the globe”, as Schimmelfennig (2012, p. 111) put it. Referring to Rodríguez-Garavito (2011) and Trubek (2006), he also mentions that “the emergence of the rule of law paradigm resulted from the shift from ‘embedded liberalism’ to ‘neoliberalism,’ the upsurge of democracy promotion after the end of the Cold War, and ‘global neoconstitutionalism’” (Schimmelfennig 2012, p. 111). The spread of legal norms was driven, among others, by lawyers and judges with different interests (Halliday and Carruthers 2007, p. 1192f.). During these processes, the rule of law as an ideal was “never seriously rejected”, although understood in different ways (Magen and Morlino 2009, p. 7f.).

In fact, the comparative history of constitutionalism suggests that throughout history both directions of impact (the rule of law as a result of human action and as a factor affecting it) have been influenced by events outside individual states. Since the nineteenth century, European constitutional thinking and written constitutions have been based on norms and institutions formulated and created in the French and American Revolutions (Brandt et al. 2006; Daum et al. 2012, 2020). In Europe they were adopted in several waves of constitutionalisation through norm diffusion and legal transfer, which varied from selective reception and adaptation to the complete takeover of texts and institutions. In the heyday of constitutionalisation in Central and Eastern Europe, the interwar period of the twentieth century, constitution makers from Estonia to Albania not only looked at traditional Western European models but also reflected intensively on the constitutional development in other states of the wider region (Müller 2021).

External developments also influenced the post-1945 stabilisation of the Western European democratic constitutional states. The Cold War competition between the political systems contributed significantly to the expansion of welfare states¹² and, thus, indirectly, to the acceptance of the rule of law and democracy (Johnson 1993, p. 38). This was accompanied by discussions about the extent to which legal guarantees aimed at social benefits and participation rights contradicted the constitutional principles of legal equality, freedom of enterprise and property (Forsthoff 1964, p. 38ff.; cited in Böckenförde 1991, p. 160). Left-wing criticism of an ideological bias of the rule of law in favour of the privileged classes and its instrumentalisation for imperialist aspirations persisted (Campbell 1997). In addition to the experience of wealth and freedom, however, the reference to communist states as negative counterexamples strengthened the legitimacy of the institutional structures.

On the other side of the Iron Curtain, states experienced direct external intervention after 1945, above all through the claim of the Soviet leadership (or the Central Committee of the Communist Party of the USSR) to set up the basic institutional parameters. The invasion of Hungary by Soviet troops in 1956 and Czechoslovakia by the Warsaw Pact states in 1968 ended attempts to liberalise socialism and became deeply inscribed into the collective memory of East Central Europe. That is why the CSCE Helsinki Final Act of 1975, with its stipulation of non-interference in the internal affairs of the signatory states and respect for human rights and fundamental freedoms, became a significant point of reference for the burgeoning political opposition in the communist states of the region. Therefore, from 1989 onwards, the new political majorities in the East Central European states found it natural to join transatlantic and European institutions (NATO, Council of Europe, EU) as communities of values and guarantors of national independence (Sect. 3.4).

Membership in these international organisations promoting the rule of law increased transnational interdependence and meant that international or supranational legal obligations became applied at the national level. This changed the power balance between governments (including those who had not negotiated and signed the international treaties but inherited them from their predecessors), opposition parties, NGOs and other actors. Such power shifts could result from the creation of new venues where actors could pursue their interests. For example, actors at the EU and the national level as well as transnational actors were now able to strategically activate the European Court of Justice or the European Court of Human Rights to challenge and alter laws and policies at the national level (e.g. Kelemen 2003; Fuchs 2013). In situations where rights that are enshrined in national and international law but not further defined (e.g. fundamental rights), the case law of the courts may differ from national interpretations in favour of litigants. They can strategically use such differences to gain an advantage.¹³

Courts (and with them judges) were thus enhanced by the possibility and necessity of extended judicial review. The European Court of Human Rights has developed a rich body of jurisprudence on human rights, but also on the rights of judges and judicial independence (Gutan 2024), which has ultimately led to “significant structural change” of the signatory countries’ constitutional systems (Keller and Stone Sweet 2018a, p. 677). In the EU, national courts can initiate preliminary reference procedures before the European Court of Justice (ECJ) by submitting questions concerning the compatibility of national law with EU law (Conant et al. 2018). By activating the ECJ, they can indirectly influence the interpretation and application of national law, primarily since the ECJ is known for its integrationist rulings.¹⁴ In landmark cases, it developed the Community independently of the will of the member state governments¹⁵ (Weiler 1994). In addition to these entanglements, national courts interpret EU secondary law in their case law.

In this context, judicial networks gained in importance. Since the late 1990s, various networks within the framework of the Council of Europe, as well as transnational NGOs,¹⁶ have developed a wide range of blueprints and recommendations to standardise jurisprudence and the rule of law. These have become checklists for policymakers. At the same time, many governments started formulating requirements for more efficiency, transparency and accountability of judicial institutions instead of specific institutional requirements. The concept of the rule of law changed from one based on institutional guarantees of judicial independence to a more results-oriented one, measured by the efficiency of the judiciary (Piana 2017).

From a historical-institutionalist perspective, globalisation and the transnationalisation of law, human rights discourses and EU integration in the 1990s entailed that non-majoritarian institutions above the nation states (supported by national governing parties) have gained an increasingly important role in determining policies (Zürn 2022). At the same time, the “massive intervention of international and supranational actors, both governmental and non-governmental, within national judicial systems” has been justified by them “mainly […] in the name of the principle of the rule of law (Carothers 2006; Börzel and Risse 2004)” (Piana 2010, p. 1).

These developments increasingly constrained the national governments’ room for manoeuvre and prompted discontent (ibid.; De Wilde et al. 2019; Dilger 2023). This is reflected in the success of new parties and movements that oppose liberal, cosmopolitan values, and in the shift in position of some existing parties,¹⁷ which now advocate rolling back non-majoritarian institutions and foreign influences (Berman 2019). They partly referred to postcolonial theories (Fomina 2016), partly to populist, nationalist and illiberal ideas. Some observers even speak of a ‘counter-revolution’ against liberalism (Zielonka 2018).

The rise of illiberal actors and their policies triggered conflicts and reactions from the targeted parties and authorities. The majority in the EU Parliament, the European Commission and the European Court of Justice condemned the rule of law backsliding in some member states, i.e. the de-institutionalisation, which endangers the legitimacy of the EU as a whole. They sharpened and further developed the EU’s concept of the rule of law and the instruments to protect it, i.e. a supranational institutionalisation (Coman 2022; Priebus and Anders 2023; Sect. 3.4).

In summary, the rule of law is the result of human action (including rhetoric) that has historically led to processes of institutionalisation, re-institutionalisation and, in some cases, de-institutionalisation at different points in time. In these processes, it has been especially politicians and judges who nurtured ideas of the rule of law, cast them into law, justified, interpreted, applied and developed them further or disregarded them—increasingly in interaction with actors above the national level. This was reflected in narratives used in politics, academia and society. However, the narratives that shaped these developments have not been analysed systematically across countries, time and actors involved.

The description presented in the previous section is a rough sketch of the history of the rule of law that ignores many differences between countries and actors. However, sociological institutionalist approaches highlight the fact that institutions and human action (and rhetoric) are “embedded in structures of meaning and resources that are relatively invariant in the face of turnover of individuals and relatively resilient to the idiosyncratic preferences and expectations of individuals and changing external circumstances” (March and Olsen 2008, p. 3). They structure which actions are thinkable and deemed appropriate (Hall and Taylor 1996, p. 948). This suggests that rule of law narratives reflect long-standing local or national ideas of appropriate behaviour, “structures of meaning, embedded in identities and belongings […] that give direction and meaning to behavior, and explain, justify, and legitimate behavioral codes” (March and Olsen 2008, p. 3; see also March and Olsen 1989, 1995, 2011).

For our subject of the rule of law this means that although all studied countries have undergone a transition to democracy and a liberal market economy since 1989 and introduced formal rule of law institutions before joining the European Union, there might exist and persist national differences regarding the concrete ideas, narratives and practices associated with the rule of law (Ilie 2015). Since the end of the 1980s, Václav Havel’s notion of a ‘return to Europe’ was spreading across East Central Europe, signifying the assertation of East Central Europe historically belonging to a normatively conceptualised Europe. However, this truly transnational and regionally shared moment soon dissolved due to different developmental paths and a strong locational competition between the countries (through economic reforms) since the late 1990s (Bohle 2009, p. 179ff.). Regional coordination and cooperation formats, including the Visegrád framework, were more relevant for joint lobbying vis-à-vis the EU than for convergence inside the region (Walsch 2014). Therefore, national differences persist. Depending on where we look, they may be minor nuances or represent genuine differences.

Like sociological institutionalism, historical institutionalism suggests that after the founding moment of a polity, mechanisms of institutional stability and specific national contexts might have contributed to the solidification of certain national narratives or systematic differences between national rule of law conceptions. The starting point of this argument is that historically the various nation states were the arenas for inventing, negotiating and establishing political institutions, although this does not exclude—as demonstrated in Sect. 2.1—diffusion among states and through international and supranational institutions. Power relations, specific problems or experiences and practices in the founding moment or in formative periods differed across countries and influenced later developments. These differences were cast in institutional arrangements that persist as legacies, limiting the scope for action and perspectives of subsequent actors (Mahoney 2000; Pierson 2000; Shane 2008, p. 194f.).

Once established, these institutions provide specific options for action and exclude others, they co-constitute the identities and interests of the actors (Steinmo et al. 1992, p. 7ff.; McCann 2009, p. 835). As Dahl (1982, p. 65) noticed, a country’s cleavages and conflicts partly shape political institutions, and in some countries (he mentions Britain, the Scandinavian countries, Switzerland and the United States), “many of the most crucial constitutional features antedate industrialisation and are partly the consequence of older rather than contemporary patterns of cleavage and conflict.”

The conceptual history branch of historiography has similarly departed from the assumption that institutions and structures determine human agency. Reinhart Koselleck, a leading scholar in conceptual history, has offered an influential concept for explaining human agency, both its principal openness and its limits (Koselleck 1984). Humans would live in the present of their daily experience in society (Erfahrungsraum); any change in this highly institutionalised and routinised setting would be dependent on their Erwartungshorizont, horizon of expectations, on what they would expect in the future. Expectations for the future, of course, are informed not only by present lives but also by lived and selectively remembered history. This means that parliamentarians when speaking about the rule of law act within particular national contexts and their institutions. Thus rule of law narratives can differ by country.

While the idea of national paths and traditions is primarily rooted in sociological and historical institutionalism, the emergence of nationally distinctive institutions and related narratives can also be conceived in terms of rational institutionalism. In this perspective, actors can approve and support institutions once they are in place since they create predictability, reduce transaction costs, improve options for cooperation within the system and contribute to the peaceful resolution of conflicts of interest and the integration of entire systems (North and Weingast 1989; Buchanan and Tullock 1962; Arthur 1994). They can use ideas shared in a society strategically for their own goals as actors, especially politicians, publicly invoking shared ideas of appropriate institutions.

Rationalist and historiographic views were combined, for example, by North and Weingast (1989), North (1998) or David (2000). In their view, the advantages of existing models are used more adeptly over time due to learning effects, and adjustments or path changes would be associated with higher costs, which makes them unattractive (Sanders 2008). This cost–benefit structure fosters lock-in effects that can persist even when the original intentions or assessments that guided the decision to adopt an institution no longer apply (David 2000; for EU enlargement, see Dimitrova and Pridham 2004). It does not mean that adjustments do not occur, but learning is filtered through the culture of a society (North 1998, p. 252).

Many scholars do also combine rationalist arguments with sociological ones to explain human action. They assume that there are behavioural regularities reproduced through habitualisation (enacting mode) and strategic use (acting mode) (Jepperson 1991, p. 149). This results in actors building up trust which is no longer exclusively based on knowledge of the historical circumstances and guiding ideas of the introduction of the rule of law, but also on experiences of the functioning of the institutional order. They also derive the expectation from such knowledge “that persons or organisations are sufficiently structured and controlled by institutionalised rules even in unpredictable situations” (Lepsius 2013, p. 57; also March and Olsen 1995). These and other mechanisms (Mahoney 2000) contribute to the fact that specific guiding ideas (scripts) or ‘mental maps’¹⁸ are repeatedly maintained and often shared in a community (Thelen 2003).

Institutions and the mental maps that people have of them are further stabilised if they are intertwined with complementary, mutually supportive models of order, such as ideas of democracy or the constitution. If one follows the assumptions of path dependency, constitutional cultures are passed on over generations (Aust and Nolte 2012, p. 49; Chesterman 2008, p. 342). Therefore, even though there is some formal institutional convergence regarding more separation of powers, recognition of fundamental and human rights and the primacy of written law, national differences continue to exist (Vorländer 2007, p. 171ff., 176f.). Similarly, the understandings of democracy vary across states (Cho 2015; Ferrin and Kriesi 2016; Shin and Kim 2018). In general, empirical studies on political culture point to stable national differences (e.g. Almond and Verba 1963; Pickel and Pickel 2006; Easton 1965; Inglehart 1979). It is often assumed that, in addition to the abstract functional conditions of institutions, attitudes and normative beliefs which are adapted to the institutional arrangements and support it are particularly relevant “for the success of order” (Wischmeyer 2015, p. 418).

Thus, according to various approaches, the particular culture of the rule of law and corresponding institutional arrangements go hand in hand with specific national contexts and processes, which promotes self-perpetuating solutions for perceiving and handling problems. According to Finer, different historical contexts create “different preoccupations”, and “different preoccupations have generated different emphases” (Finer 1979, cited in Elgie and Zielonka 2001). In this sense, for example, the past experience of national movements and the formation of nation states may have left its mark, as it provides a fund of legitimacy narratives for subsequent actors (Vorländer 2007, p. 169). Narratives about the rule of law might be entangled with notions of national sovereignty and legitimacy.

In line with these theoretical assumptions, systems described as guided by the rule of law differ, sometimes significantly (Tamanaha 2004). While states in Europe and North America are generally committed to liberal concepts of the rule of law and thus concerned with guaranteeing freedom and property (Böckenförde 1991, p. 148) through legal equality, legality, judicial protection of individual rights and legal certainty (Pech and Grogan 2020, p. 17), the underlying ideas and constitutional traditions differ. For example, the British rule of law or the French état de droit are not identical to the German Rechtsstaatlichkeit (Martini 2009). The differences are linked to divergent ideas about the source of legitimacy (people or law, see Abromeit 1995) or about how an independent judiciary should be organised.

England is an example of “historical-evolutionary constitutionalism” with an “equally historical and political understanding of order” (Vorländer 2017, p. 224f.). Constitutional law has limited influence over politics, whereas established rules, conventions and the parliamentary system, which is strictly based on majority rule, hold greater relevance (ibid.). Given its unitary system and the parliamentary government, a rigid separation of powers is not an essential element of its rule of law conception (Dahl 1982, p. 66).

France is an example of a “rational-voluntaristic concept of order”. Here, “(i)t is the ideas of a nation or republic and the associated notions of order that provide the legitimation resources for the political system” while the constitution is more an “instrument of government” (Vorländer 2017, p. 225). French constitutionalism attaches great importance to the parliament and the legal order of the republic created by it as an expression of the volonté générale.¹⁹ The rule of law and constitutional review are far less prominent than other constitutional principles (Martini 2009).

The United States and Germany are examples of a “rational-juridical concept of order”. Here, the constitutions have a prominent legal status and “normally take legal precedence over the political decision-making process, which is reflected not least in the establishment of constitutional courts” (Vorländer 2017, p. 225f.). In the U.S., arguments about the rule of law are dominated “by debates about the proper place of courts” in the constitutional order (Shapiro 1994, p. 2). In Germany, a comprehensive catalogue of fundamental rights and a high level of judicial control have been typical features since 1949.

The Swedish legal culture—to give a final example—leaves the clarification of moral issues to parliament, attaches a lower status to courts and formal rights, and values extrajudicial solutions to conflicts, for example through the parliamentary ombudsman (Husa 2010).²⁰ If specific national paths of understanding the rule of law exist in Europe and the U.S., then this can also be true for the East Central European states.

It is reasonable to assume that different national paths and understandings also persist even with EU integration. Close coordination with and at the EU level does not need to result in rapid convergence of national legal cultures and ideas of the rule of law. While in federations, federal institutions such as the federal constitution can partly compensate for differences in rule of law conceptions and narratives between territorial units (Hueglin and Fenna 2006, p. 43), such a mechanism is not yet working for the EU multilevel system. This is because the overarching rule of law concept and a common understanding of what it precisely means are still in the making (Meier et al. 2023, Sect. 3.4). The EU Treaty contains in Art. 4 para. 2 sentence 1 TEU the requirement to respect the member states’ “national identities, inherent in their fundamental structures, political and constitutional”. Some national constitutional courts developed the instrument of “constitutional identity review” to safeguard such national peculiarities (Wischmeyer 2015, p. 416). This results in conflicts about institutions and their meaning.

Historically, references to the rule of law and constitutionalism came in different varieties in our five cases. Romanian actors traditionally oriented themselves towards the French legal system (Piana 2010) but selectively borrowed foreign constitutional norms, adapted them to suit their context and partly never implemented (Müller 2022). The legal systems of Czechia, Hungary, Poland and Slovakia share some elements of the Austro-German constitutional tradition with its rule-of-law-related arrangements. However, there are differences. In Poland, the memory lives on that the first modern European state constitution came into force here—in 1791—and that since the nineteenth century, there has been a virulent tradition of resistance and revolt against foreign domination and imperial dominance by the three partitioning powers (1830/1831, 1863/1864). In Hungary, resistance against Austrian dominance (1848) (Jedlicki 1999),²¹ the enormous territorial losses due to the Treaty of Trianon (1920) and a narrative of the “thousand-year constitutional tradition” play an important role. Czechoslovakia first enjoyed statehood after the First World War, although a modern Czech national identity had begun to form in the phase of ‘national revival’ (národní obrození) in the eighteenth and nineteenth centuries. There were short experiments in that time with democratic constitutions in the partly newly created states. However, these suffered many setbacks in interwar Poland, Hungary and Romania (von Beyme 1994, p. 11).

After 1945, communist systems were established in all the countries studied that officially designated the rule of law as one fundamental principle of the socialist state order in the sense of legality serving the ends of communist rule.²² Yet, the legal systems differed. They varied, for example, in the relevance of arbitration commissions, the official legitimation of judicial staff and the possibility for judges to check the legality of laws within certain limits (Garlicki 1977). Furthermore, the nature of informal practices differed. In part, informal practices developed as a means to resist formal legalism; in part, they helped to cope with the dysfunctionalities of socialism and thus contributed to its preservation (Kornai 1992²³).

Historical experiences of external powers interfering in the nation state were revived in communist times, especially in the case of uprisings against Soviet rule. It might be relevant for politicians addressing the rule of law that in Hungary (1956) and Poland (1956, 1980) national motives for these uprisings were considerable. Even after their failure, national liberalisation attempts remained strong. In Romania, patriotism played a vital role, but precisely as the central legitimising basis of the autocratic communist system (von Beyme 1994, p. 17). In Czechoslovakia, nationalism was a divisive factor rather than a unifying one due to the state’s binational character, which had been formally federalised since 1968. The question of Slovak emancipation became a taboo topic after the Second World War, largely due to the role of Slovak nationalism in the destruction of interwar democratic Czechoslovakia. Its re-entry into public life after the fall of the authoritarian regime played a significant role in the swift “velvet divorce” of the joint state (Bútora et al. 1994). Such differences can inform even present discourses (Ilie 2015).

Therefore, country-specific rule of law narratives seem possible. This also includes aspects considered elements of the rule of law in some national contexts (e.g. fighting corruption) not being addressed with reference to the rule of law in other contexts.

As the previous section indicates, different national institutionalisations of the rule of law and related narratives can be subject to temporal dynamics. In fact, historical institutionalism leaves room for both abrupt path changes (Beyer 2005) and smooth transitions from one path to another (Thelen 2003; Pierson 2004). The decision of governments in the studied countries to introduce democracy and a market economy after 1989/90 meant dramatic path changes. Similarly, EU conditionality had a strong impact on the institutional set-up and the pace and nature of judicial reforms in the five countries, which was later viewed critically by some. These developments might have entailed changing narratives. In the following, we therefore discuss how specific experiences, newly created institutions, contextual dynamics and events may have affected the debates about the rule of law.

Temporal differences in narrating the rule of law would not be a unique trait of the countries we study, primarily since the concept of the rule of law itself did not impose a specific meaning over time. For the German constitutional lawyer Ernst-Wolfgang Böckenförde, it is “one of those literally vague […] concepts that can never be defined ‘objectively’ by themselves, but are open to the influx of changing conceptions of the state and constitutional theory and thus also to various concretisations” (1991, p. 143f.).²⁴ The discussion of the history of the rule of law in Sect. 2.1 suggests that even the erosion of established understandings of the rule of law is possible.

According to historical institutionalism, at “critical moments” one guiding concept is replaced by another. Such “critical junctures” include path changes and major reforms that affect the institutional arrangement and its impact (Thelen 2003, p. 216f.; Pierson 2004, p. 135). New ideas and institutions are more likely to be accepted by actors and thus able to develop binding effects and a change in thinking if they are perceived as fair by the norm addressees and can effectively settle political or social conflicts (Kneip 2013, p. 6; Merkel 2010, p. 116).

However, historical institutionalism does not suggest the existence of universal patterns of such significant changes. Instead, they are theorised to “typically occur in distinct ways in different countries (or other units of analysis)” with distinct legacies (Collier and Collier 1991, p. 29). Thus, the idea of changes in institutional development, perhaps linked with a change of related narratives, does not generally contradict the idea of national paths but rather complements it. At the same time, similarities across countries are still possible.

Such similarities are plausible for the post-1989 break with communism and the accession to the European Union in 2004 and 2007. Despite national specifics, these critical junctures occurred almost simultaneously and probably led to the diffusion of certain ideas in the discourses of all the countries studied. Also, regardless of national differences, system change resulted in “functionally equivalent consequences in the economy and society” (von Beyme 1994, p. 12); political, economic and social upheavals were interwoven. This hyper-transformation, together with the resulting desire to join the Euro-Atlantic organisations, distinguishes the contexts of perceptions of the rule of law from all other phases of democratisation worldwide (von Beyme 1994, p. 12). The (on an abstract level) similar sequence of path changes (Collier and Collier 1991, p. 27) might be reflected in a similar track of narrational changes regarding the rule of law.

In the states under study, the 1989 revolutions may have included a break with existing legal concepts, even though the national struggles and discourses differed, as did the features and sequence of revolutionary changes. At critical junctures, actors can deliberately detach themselves from past institutions. Germany after the Nazi regime is an often-cited example. Following “the historical experience that a formal constitutional state could not prevent the material unjust state, but could even serve it as an instrument, it was a central concern of the Parliamentary Council to rule out a similar deviation of the law in the German Constitution” (Sontheimer et al. 2007, p. 140f.). The constitution makers thus established that state action not only has to follow formal rules but also respect fundamental values derived from human dignity, captured as the principle of a “material” rule of law (ibid.).

While (re)gaining sovereignty, transitioning to democracy and a market economy on the one hand and integrating in the Euro-Atlantic space on the other triggered different transformative effects, they were all theorised as supporting the establishment of the (liberal) rule of law. Thus, for the period since the early 1990s, it seems plausible that actors within the region have infused their rhetoric with EU-compatible rule of law frames. Particularly in the political sphere, there could have been a break with ‘state-socialist’ legality that prioritised public law and order over private law and individual rights, administrative provisions over constitutionality and due process, and the instrumental use of law for the social organisation over the protection of rights against infringement by the government (Heydebrand 2002, p. 28). At the same time, the impact of such changes was potentially dependent on actors supporting, implementing and protecting them. It is unlikely that all the actors socialised under communist legality shed these imprints entirely and immediately. Thus, legal positivism centred on the state and its administration potentially may have remained effective in parts of society.

As another problem, system change brought about the enormous challenges related to transitional justice—an issue of high relevance in the post-communist space, including in all countries under study (see Chap. 3). However, institutional theories seldom address this topic. It has mainly received attention in case studies on post-transition countries. Scholars argued that the structural difficulties of transitional justice cannot be adequately solved by means of the rule of law alone, which causes frustration. Cases related to transitional justice may end up in court, making the judges the ultimate arbiter of how to deal with the past. Dissatisfaction with their judgments in these cases can lead to dissatisfaction with the work of judges more generally, especially when actors perceive a lack of lustration²⁵ in the judiciary. This might also affect the narratives regarding the role of the judiciary for the rule of law.

We can explain the challenges of system change to the rule of law for the example of lustration measures. The very idea of lustration is retrospective justice, while the rule of law does not permit retroactive lawmaking. Therefore, it is difficult to sanction collaboration with the communist secret services in a state under the rule of law because such collaboration had not been “in breach of any positive law” (Williams et al. 2005, p. 22). Similarly, the change of personnel of the judiciary contradicts the idea of judicial independence. Also, general lustration laws contradict the logic of the rule of law by reversing the burden of proof, requiring officials to prove their innocence. They risk new injustice since part of the evidence might have been falsified. Moreover, it struggles with the rule of law logic if a lustration process is based on assessments of former secret policy staff (Michnik and Havel 1993, p. 23). It also suffers from a lack of completeness of the files, since more explosive documents were destroyed by former executives, while others were fully available. This gives an advantage to higher-ranking former officials (von Beyme 1994, p. 188f.). Law is also somehow inadequate to evaluate personal ambiguities and changes of action in the course of a long life, where people could be supporters of an oppressive regime in one situation and victims of observation and sanctions by this very regime in another. Therefore, any lustration or de-communisation law that builds on a person’s intent fails to satisfy the rule of law based on individual responsibility and to reflect the logic of socialist regimes where an autonomous life with individual decisions was possible only to a limited extent (Verdery 2012, p. 78).

Other functional problems of democratisation and liberalisation that may have led to frustration in parts of societies and parliamentarians and thus might have resulted in changing narratives about how the new system works were economic losses, a downsizing of the state (Agarin 2020; Bohle and Greskovits 2012), regulatory gaps and legal grey areas, informal practices, patronage networks, corruption and the shadow economy, attempted ‘state capture’, conflicts between constitutional bodies, and corresponding instabilities and deficits in administrative efficiency (de Raadt 2009; Malová 2001; Dăianu 2000, Dvořáková 2019). For the 1990s, case studies for Romania point to a “loot economy” (Murgescu 2010, p. 467), to patronage in the party structure for the “distribution of the socialist legacy” (Pasti 2004, p. 323) with strong involvement of members of the former Securitate secret service by illegal (Oprea 2004, p. 148ff.) or legal means. Legacies of the past and such problems of system change caused struggles between different actors over the authority to make and to interpret laws and influenced thinking about the functionality of the rule of law and its main elements.

As mentioned, EU accession was interpreted as a factor contributing to the rapid anchoring of new institutions like the rule of law despite such problems accompanying the transition. In fact, in the area of law the EU required candidate countries to adopt and implement many norms before entering the Union. The strong interest in EU accession and the required commitment to EU principles were plausibly theorised as keeping actors on track even in difficult transformation phases (Dimitrova and Pridham 2004; Sadurski 2004; Schimmelfennig and Sedelmeier 2004, p. 678; Börzel and Sedelmeier 2017; Buzogány 2021) and to create “incentives and reassurances to a vast array of social forces” in a cumulative and irreversible process of economic and political transformation (Whitehead 1996, p. 19). Thus, the transfer of EU law was expected to impact on national legal cultures and judicial practices (Cserne 2017, p. 40).

However, earlier backlashes against “elements of the post-1989 consensus” (Lach and Sadurski 2008, p. 2015) and the ongoing conflicts between the EU and some governments in the region suggest that the conditionality has mainly been effective in the short term by ensuring a rapid formal institutional change. In the medium term, it may have proved problematic that the context conditions—traditional notions of norms, established practices as well as actor constellations²⁶—differed from countries with established liberal models of the rule of law and democracy (Zielonka 2013, p. 47; Krygier 2009; Blokker 2016, p. 250; Pridham 2005; Micklitz 2017, p. 10ff.). Some critics have therefore argued that the way in which EU accession was prepared had weakened the “internal morality of law”, i.e. being stable, coherent and accepted (Mendelski 2016, p. 376; Slapin 2015). They further argue that it contradicted the liberal spirit of negotiating and deliberating common norms even against the will of governing majorities, as it was done with the establishment of these norms in the regions of their origin, but strengthened the view that institutions can be changed rapidly according to the political will. For example, the judicial councils promoted by the EU to ensure judicial independence were quickly politicised in some East Central European countries, and their independence allowed them to act in an opaque and unaccountable manner (Mendelski 2016; Bobek and Kosař 2014).

Retrospectively, therefore, some actors have changed their view of the rapid post-1989 transition and the adoption of institutions and policies from the EU. This also might have changed narratives on the functionality of the rule of law and other new institutions. Adding to this, the awareness of the complexity of rule of law developments also may have increased when the new institutions were put into practice, dampening the previous euphoria. At any rate, new political forces spread such views, some of them from the outset, others to a growing extent (Karolewski and Benedikter 2017, p. 519). Tendencies of a backlash against decisions taken in early stages of transformation may have resulted in parliamentary struggles with those supporting and demanding certain norms and institutions, be it inside the countries or beyond.

After the accession of the countries under study, the EU repeatedly took measures against policies in Hungary, Romania and Poland that it considered to undermine the rule of law (Sect. 3.4). According to observers, this reinforced an already widespread sense of a lack of political self-efficacy due to the asymmetrical relation with the EU (e.g. Rybář 2011). Criticism of “soft colonisation” and devaluation, “inner peripheralisation”, and an outsider status despite EU membership, as well as the perception of unfulfilled promises of “the West” in general, spread (Krastev and Holmes 2019, p. 106ff.; Fomina 2016).

In the wake of a changing political and social atmosphere and the reinterpretation of the post-1989 processes, parliamentarians might have adopted a more sceptical view of the rule of law, constitutionalism and other liberal institutions and the EU and changed their narratives.²⁷ They may have no longer regarded the concept of the rule of law or its elements as a “neutral” or “universal” institutional arrangement but as part of a general conflict. Since there were fewer incentives after EU accession had been accomplished to comply with the rules (Sedelmeier 2014, p. 105), the risks of such changes were less pronounced than before accession. This is why it is necessary to understand the context of politicians in parliaments speaking about the rule of law, including the international environment (Sect. 3.4).

In summary, while there are valid arguments for national differences in how actors addressed the rule of law (as discussed in Sect. 2.2), we cannot necessarily expect stable national patterns of narratives over time. This is because actors were immersed in significant changes in their environment, such as democratisation and Euro-Atlantic integration. They may have reacted to perceived benefits or dysfunctions, been influenced by power shifts in the context of these major developments and/or socialised under a new system. Changing narratives in parliamentary debates might also simply result from changes in the composition of the parliament. This may have resulted in a changing focus over time on certain aspects of the rule of law (such as lustration), as well as changing narratives about the general importance of the rule of law. Moreover, national differences might have been strong one period and less pronounced in another.

The mechanisms described in the previous sections relate to general national developments that form the general context of the parliamentarians’ action. This section zooms in to the countries and focuses on the speakers in parliaments. They are key actors for the development of political systems governed by the rule of law. According to most theories on the functioning of liberal democracy, the actions and rhetoric of politicians are driven by party competition. As Ilie (2015, p. 7) puts it, “(t)he rationale of parliamentary debate lies in the existence of opposite political camps and, implicitly, in the confrontation between different, and sometimes contradictory, standpoints and representations of reality.” And further, “parliaments provide public arenas that instantiate the polarization of political power; this power is disputed among political representatives who are expected to comply with particular institutional constraints involving procedural regulations and debating rules.”

What distinguishes this perspective from those presented in Sects. 2.2 and 2.3 is that actors can use terms such as the rule of law and references to history, culture or changes in the environment strategically and that the networks of carriers and multipliers of particular narratives can change for strategic reasons or because of changing opportunity structures. Even if one assumes that actors are influenced by a certain environment and culture (structure of norms), actors can make “strategic use of norm-based arguments” because they “are concerned about their reputation” and “about the legitimacy of their preferences and behavior. Actors who can justify their interests on the grounds of the community’s standard of legitimacy are therefore able to shame their opponents into norm-conforming behavior and to modify the collective outcome”, as Schimmelfennig (2001, p. 48) puts it regarding actors at EU level.

According to this perspective, there are no national or stable narratives. What politicians present as national traditions or specificities might be a politically motivated attempt to “manipulate collective identity” (Schimmelfennig 2001, p. 68) by changing framing and sense-making. This idea is also present in rationalist and constructivist variants of neo-institutionalism (Hay 2009). As Bucholc (2019) has elaborated for Poland, PiS has engaged in a selective commemorating of certain aspects of Polish legal and political history in the name of national values which is used for defending national peculiarities against a dominating ‘West’. Political actors thus actively revitalise and recombine institutional and rhetorical fragments of the past, including the notion of the necessary moral subordination of law to the will of the people present in the communist legal culture (Agarin 2020). Concepts like the rule of law or terms like ‘corruption’ can become part of and an instrument in political battles, thus losing their original ‘neutral’ character and becoming politicised (Iancu 2018).

The relevance of competition for political actors’ action and rhetoric is based on the institutional logic of parliamentarism in liberal democracies where parties act as policy seekers. They represent different societal groups, interests and ideologies and strive to realise their policy goals.²⁸ To achieve their goals, parties need to be interested in holding mandates and offices and thus to legitimise their goals and action before the public.²⁹ Parties in government are mostly theorised as being interested in improving the prospect of being re-elected and enlarging their overall influence while parties in opposition attack the government in public to come to power (Granat 2023).

This reasoning informs several current studies of rule of law developments in Poland and Hungary. Many scholars conceptualise the dismantling of the rule of law as the result of the populist ideas of the governments, particularly their populist and anti-pluralist and illiberal positions, which collide with core components of the rule of law (Lacey 2019; Halmai 2019; Cianetti and Hanley 2021) and lead them to interpret electoral “victories as a mandate to exercise absolute power” (Bakke and Sitter 2022). Recent studies speak of “a counter-hegemonic strategy that aims at replacing the liberal order with a new, nationalist, ultraconservative, Christian order on domestic and European levels” (Bohle et al. 2023, p. 18) or of a ‘populist agenda’ of PiS and Fidesz, who try to consolidate their power through limiting freedom of the media or changing electoral systems (Pappas 2019, p. 190; Sajó 2021, p. 576ff.). Similarly, for example Kochenov and Grabowska-Moroz describe “anti-institutional actions [as] resulting from the populist narrative in the EU Member States” (2021, p. 22).

However, it has not been systematically investigated if only parties in government or parties with certain ideologies try to weaken counter-majoritarian institutions. In a case study on Poland, Sadurski (2018, p. 7) described that even in formally established democracies, a “catastrophic drop of the norms of civility of discourse, and an accompanying lack of trust” can occur where all actors, not just the government parties, change their rhetoric. “As a result, there are no shreds of mutual respect, of recognition that while the government and the opposition differ in their interpretation of the public good, they are equally sincere in the quest for common interest. The mutual self-restraint is missing, and the situation cannot be reached where (in the words of János Kis in the Hungarian context) ‘the party in opposition can safely expect the party in government to refrain from taking advantage of its majority in order to permanently exclude its rival from power, while the party in government can safely expect the party in opposition not to strive toward debilitating day-to-day governance’.” In such a climate, all sides also exaggerate the risks caused by others (ibid.: 57).

Due to such factors, but also cultural legacies or experiences of the transition to democracy and a market economy (Sects. 2.2 and 2.3), ideologies may not always explain behaviour adequately. While electoral victories of parties broadly described as ‘(right-wing) populist’, ‘conservative’ or ‘EU-sceptical’ have been the proximate causes of illiberal reforms, not all the populist or conservative parties acted illiberally. At the same time, also non-populist governments sought to restrict the judiciary (see Sects. 3.2 and 3.3). Also, formally leftist parties, like PSD in Romania and Smer in Slovakia, tried to undermine elements of the rule of law. Problems with treating the ideology of a party as a relevant factor also arise from the fact that in some East Central European countries, ‘left’ and ‘right’ positions are not the same as in Western European countries, with culturally right positions often associated with economically leftist positions and culturally left positions associated with economically rightist policies (Rupnik and Zielonka 2013).³⁰ Besides, many parties defy clear labelling as pro-EU or Eurosceptic. The party competition differs from Western models (Kitschelt et al. 2008; Balík and Hloušek 2020; Mișcoiu 2022). In her analysis of parliamentary debates in Romania on lifting immunity from prosecution or arrest of ministers in political corruption cases, Iancu (2018, p. 415) found an “absence of politically driven logic that one encounters in the sense of party politics”, even though the debates were very strongly polarised.³¹

In addition, the role of ‘populist’ programmes and rhetoric for rule of law issues is contested. For some, it serves to disguise the pure striving for power (Scheppele 2019, p. 329). Others interpret the populist rhetoric and the dismantling of the rule of law as evidence of an illiberal ideology (Buzogány and Varga 2018; Bohle et al. 2023; Coman and Volintiru 2021). Still others find that there was no ‘populist wave’ because the commitment of the other parties to liberal democracies has mainly had a rhetoric character while there has always been a clash between monism and pluralism in politics (for Poland Bill and Stanley 2020). Country experts question the ability of Western concepts of ‘populism’ to adequately capture the parties in the region. For Slovakia, for example, practically all relevant parties could be labelled as ‘populist’ (Antal 2023). It is also unclear to what extent politicians willing to dismantle counter-majoritarian authorities are critical of all elements of the rule of law. In theory, all democratic parties—regardless of their individual positions—should share an interest in a mechanism for protecting their own rights in the long run. It is also unclear how illiberal parties balance their ideology with other aims. The desire for EU membership, for example, might have motivated or be motivating for a compatible rule of law narration.

As mentioned, along with ideological party competition, a government–opposition divide is another well-established assumption in neo-institutionalist thinking. Theory states that opposition parties are interested in uncovering or inciting intra-government tensions and presenting themselves as the better alternative (Whitaker and Martin 2022). How opposition and government actors address rule of law problems and what the government is accused of doing in this regard may therefore be constant (to a certain extent), with only the parties speaking changing. At the same time, it is an empirical question how the government–opposition divide interacts with the parties’ ideologies, e.g. if conservative parties really use the same narratives as leftist parties when they are on the opposition bench. In her analysis of party positions regarding the rule of law, Granat (2023) found PiS supported by its coalition partners and the ‘populist’ opposition parties, while ‘mainstream opposition parties’ were critical of PiS’s positions. This pattern was less visible in the European Parliament regarding its policy in relation to rule of law deficiencies in Poland.

On the other hand, it is also questionable whether governing parties always strive for maximum freedom of action. They might also be interested in leaving controversial and unpopular decisions to courts (Whittington 2003; Graber 1993, p. 38; Burley and Mattli 1993), especially when court positions coincide with their own ones (Hirschl 2008) or if intra-coalition conflicts prevent government decisions. This allows them to enforce policies through judicialisation from above, independently of democratic processes (Hirschl 2007).

As this discussion shows, there is no universal theory on how different political actors position themselves towards the rule of law. Existing empirical studies usually focus on a few established democracies with their specific patterns of functional differentiation and relatively stable actor constellations, and it remains unclear how these contextual factors affect political action. It is unclear, for example, how politicians act and argue when their parties are not strong organisations with deeply rooted programmatic positions, but rather groups around individuals with a loose agenda, as was often the case in East Central European countries in certain times during the period of investigation (1990/1992 to 2021). Moreover, it is not clear how economic or other interests affect political action. Especially during the post-1989 transition, but also since 2010 and later (depending on the country), MPs’ turnover was high, and they might have been interested in securing a job and material well-being outside parliaments (Sect. 3.1). However, corruption, patronage and clientelist networks are not a big issue in theorising party action and rhetoric in democracies. Thus, we do not know if and how the outlined assumptions about political action apply to post-communist states.

The assumption that politicians are guided by calculus around political competition and lawmaking legitimised by the demos does not necessarily conflict with the assumptions made in Sects. 2.2 and 2.3 if one assumes that they can share certain ideas or strive to comply with others’ expectations of sharing these ideals. This is because functional elites are interested in maintaining the “ideals and practices of the societies at whose apex they stand” in order to secure the stability of the whole system (Keller 1963, p. 82). Parliamentarians engage not only in confrontation but “also in collaborative work, establishing party political alliances and developing relationships across party lines and ideological commitments”. They are expected by the public “to act and to interact with each other both in adversarial and in collaborative ways, which contributes to creating a special sense of communion and togetherness” (Ilie 2015, p. 2).

In addition, the rule of law is beneficial to all actors, irrespective of their ideology, societal basis and government or opposition status, because it provides a rules-based general framework for pursuing one’s interests and making the anticipation of others’ actions possible, especially when future majority constellations are unclear. It also safeguards their peaceful long-term interaction. Therefore, political competition does not, in general, make shared arguments and narratives around the rule of law impossible.

Along with this, cross-party experiences in struggles with third parties could form the basis for shared views and narratives. For example, throughout the history of liberal democracies, a latent conflict has existed between the democratic primacy of parliamentary legislation and its review by courts (Kneip 2006, p. 259). Courts inevitably make decisions unwelcome by political actors, for example when their interpretation strengthens positions that do not correspond with those of the majorities, when they reject complaints by politicians, when they invalidate legislation or when they limit the powers of parliament, the government or the president. Due to the weakness of social participation typical of East Central Europe (Agarin 2016), with relatively weak public control, this role as a powerful counterbalance to politicians might have been particularly salient.

Another possible cause of struggles, also mentioned in Sect. 2.1, is that through ratifying the European Convention on Human Rights and EU accession, national actors acquired the right to invoke the European Court of Human Rights or the ECJ or to refer to the case law of these courts. These courts can exert considerable influence on national law and policies (Stone Sweet and Caporaso 1998, p. 129; Grimm 2016; Höreth 2009, p. 183; Weiler 1994; Popelier et al. 2016; Goldston and Adjami 2009; Sadurski 2006, p. 30; Gutan 2024). Especially in rule of law conflicts, the ECJ is known to be an available supporter, having ruled that many measures taken by the Hungarian and Polish governments violated EU law (Kochenov and Bárd 2019).

The growing importance of courts at the level above the nation state may have affected politicians’ rhetoric of the rule of law. On the one hand, these courts may have been seen as a welcome new venue for the resolution of political conflicts, particularly by opposition parties, who now had the opportunity to challenge government policies by legal means. Along these lines, Stone Sweet has summarised that it is “one of the basic driving forces of legal integration that those who lose in domestic politics have sought to Europeanize policy, to change national rules and practices in their favour, through court action” (2010, p. 51). On the other hand, the work of these courts could also be interpreted across party lines as a form of de-parliamentarisation, weakening elected actors who can claim a higher direct democratic legitimacy, as underlined by some legal theorists (Bickel 1962; Waldron 2006).

Perceptions of judicial overreach—amply discussed under the terms judicialisation and judicial activism (Stone Sweet 2002, 2007, p. 91; Kneip 2015, p. 6)³²—can prompt politicians to express scepticism about an independent judiciary. Possible counter-strategies of political actors can include changes in the appointment of judges, the length of terms of office and the competences or judicial structures in general (Sieberer 2006, p. 1304; Kosař and Šipulová 2020; Stone Sweet 2002, p. 94f.; Maravall 2003).

At the same time, even unpopular court decisions can be accepted if politicians have normatively endorsed and internalised the idea of judicial review or simply calculate that courts will continue to be needed to monitor the law and arbitrate their conflicts with political opponents (Bartlett 1997, p. 263; for the EU Burley and Mattli 1993; Höreth 2009; Kelemen 2012). Such general acceptance of court rulings can nevertheless combine with public criticism of individual decisions.

In sum, political action is often theorised as driven by ideology, the government–opposition divide and institutional interests of parliaments vis-à-vis counter-majoritarian institutions. However, this does not tell us much about what kind of rule of law narratives we can expect from politicians in our cases because we do not know how much the context matters. Therefore, it is crucial to combine relatively broad assumptions with an inductive, differentiated analysis which is open to new insights.