7. Lessons Learned and Policy Recommendations

Open Access
2024
OriginalPaper
Buchkapitel

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Verfasst von: Astrid Lorenz; Lisa H. Anders; Dietmar Müller; Jan Němec
Erschienen in: Narrating the Rule of Law
Verlag: Springer Nature Switzerland

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Abstract

Das Kapitel geht den Lehren und politischen Empfehlungen in Bezug auf die Rechtsstaatlichkeit in ostmitteleuropäischen Parlamenten über drei Jahrzehnte nach. Sie analysiert die Entwicklung von Narrativen und Rhetorik in parlamentarischen Debatten und deckt nationale und zeitliche Unterschiede in der Art und Weise auf, wie Rechtsstaatlichkeit diskutiert wird. Die Studie zeigt, dass es zwar ein gemeinsames Verständnis über die Grundlagen der Rechtsstaatlichkeit gibt, aber die spezifischen Herausforderungen und Kontroversen zwischen den Ländern und Zeiträumen erheblich variieren. Die Analyse beleuchtet auch den Einfluss der Parteiideologie und des Kontextes auf diese Narrative und liefert ein differenziertes Verständnis der politischen Dynamik, die die Rechtsstaatlichkeit in der Region prägt. Das Kapitel schließt mit praktischen Empfehlungen für politische Entscheidungsträger und Wissenschaftler, die die Notwendigkeit kontextsensitiver Ansätze und weiterer Forschung zur Schnittmenge von Rechtsstaatlichkeit, Demokratie und institutioneller Gestaltung betonen.

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Much has happened since the end of our study period in 2021, including a change of government in Poland following the 2023 general election and the return of Robert Fico as prime minister in Slovakia’s snap elections in the same year. In both countries, these changes of government were swiftly followed by new attempts at reform pertaining, inter alia, to the judiciary, public prosecution and the media sector. However, patterns of rhetoric and conflict have persisted. As we will show in this concluding chapter, the new reform attempts did not come out of nowhere but, in part, corresponded to earlier processes (Sect. 7.1). Analysing long-term patterns of narratives about the rule of law thus helps to understand the roots and background of later developments. It can also inform future research on the rule of law in terms of topics, theory and methodology (Sect. 7.2). Finally, the study of narratives provides a basis for our recommendations for political practice (Sect. 7.3).

7.1 Patterns of Narratives in East Central European Parliaments

Our literature review in Chap. 2 revealed that patterns of narratives can be expected to occur along three dimensions. Specifically, we expected national and temporal differences, as well as differences between politicians in parliaments. However, the existing literature did not allow us to determine a priori which of these would have more weight for the individual cases or different time periods. Our introduction to the empirical background of the cases analysed was intended to sensitise the reader to the respective contexts. These included dynamic party systems, the many facets of the rule of law legislation adopted during our period of investigation, the incoherence of waves of legislation defined based on macro-structural factors (such as pre-EU accession), the relevance of processes in the judiciary, and a potential effect of European institutions. Our analysis of the parliamentary debates in five parliaments covering three decades reveals the following overall picture.

A liberal model of the rule of law was rhetorically supported in all parliaments. Czechia stood out, as the discourse in this country was much more affirmative and less controversial than in the other countries. The parliamentary discourses in the other countries shared some characteristics, notably an emphasis on effective rule of law institutions and an opposition that repeatedly accused the ruling majorities of violating the rule of law. However, the specific content of the narratives and the degree of conflict differed. Controversies emerged earlier in Romania and Slovakia (during the second wave of legislation), while the rhetorical divide between government and opposition was much more pronounced in Hungary and Poland during the third wave of legislation, and the problems discussed differed. The emphasis on the need to limit the power of elected majorities varied between countries, and parties typically blamed each other for (varying) violations of the rule of law principles. Their increasingly one-sided and diverging narratives were related to country-specific paths of reform and counter-reform. Overall, the narratives seemed to be influenced less by party ideology than by belonging to the governing or opposition camp and temporal context.

In this section, we present the main findings of our study with respect to national similarities and differences, temporal patterns and patterns of politicians’ rhetoric by party affiliation and the status as government or opposition party. We then summarise the overall discursive development in each national parliament.

The cross-national comparison of the parliamentary debates on the rule of law reveals a number of important similarities. These concern in particular the narratives about the foundations of the rule of law and the importance of addressing the challenges and problems related to them.

In all parliaments, members overwhelmingly emphasised that the rule of law serves to limit the power of governing majorities and state institutions and to ensure the functioning of the system. In all countries and throughout the periods studied, parliamentarians frequently referred to legality, legal certainty and effective institutions as essential elements of the rule of law. Furthermore, representatives in all parliaments routinely referred to the national constitution when discussing rule of law issues and expressed that they saw constitutionality or legality as the core of the legitimacy of the rule of law. This means that the rule of law and rule of law issues in general were strongly associated with the constitution—the national fundamental law that prominently enshrines the rule of law and other key principles of the constitutional order.

Another similarity was that, in debates on the rule of law, MPs generally supported individual rights and often linked democracy to the rule of law, as formulated at the top of their national constitutions. In most cases, however, they did not elaborate on the relationship between these concepts. When they did so, differences of opinion came to the fore.

Finally, in all cases parliamentarians frequently referred to challenges to the rule of law. Such critical interventions were often accompanied by emphasising the constitution and the rule of law as its guiding principle, together with an outline of MPs’ own ideas about the foundations of the rule of law. In this way, particular disputes over specific issues were opportunities to talk about the importance of the rule of law and its purpose. At the same time, politicians also invoked the rule of law to bolster their arguments. These speeches productively complemented the more abstract commitments to the rule of law, for instance at ceremonial events. In their speeches, parliamentarians acted as guardians of the rule of law as enshrined in the constitution. When mentioning challenges to the rule of law, they also referred to European institutions, mainly the Council of Europe and the European Union, although these played a minor role in parliamentary discourses on the rule of law in general.

Differences in the patterns of narratives on the rule of law between national parliaments were primarily visible in the intensity with which MPs discussed the rule of law issues, in the formulation of narratives on rights, and in the extent to which they actively espoused liberal rhetoric. Variations could also be observed in the types of rule of law challenges that MPs addressed.

In Poland and Slovakia, frequent discussions explicitly referring to the rule of law, coupled with the expression of distinct positions, resulted in the highest number of narratives over time. In contrast, the lowest number of significant narratives were used in Czechia. Hungary and Romania were in between. Similarly, the range of aspects discussed within specific areas related to the rule of law varied across countries. For instance, while in Poland narratives covered various aspects of rights, in other countries parliamentary discussions on rights in the context of the rule of law focused on only a few facets. Moreover, several aspects were only mentioned in some parliaments with great intensity, e.g. minority rights in Romania and the right to abortion/life in Poland. Some other issues, such as the admissibility of restricting the individual rights of people who held positions in the pre-1989 non-democratic system, were debated with higher intensity only in Czechia and Poland.

When talking about the rule of law, Czech parliamentarians placed the greatest emphasis on the role of individual citizens, freedoms and equal rights, and the need to limit political power. These positions were widely shared across party lines. The discourse in the Hungarian parliament shared some of these features but was more divided in terms of the underlying ideas. After 2010, the liberal rhetoric was neutralised by the ruling majority. In Slovakia and Poland, certain aspects of a liberal model (protection of individual rights and autonomy of the judiciary, prosecution and other law enforcement agencies) were not fully supported by all parties. In the Romanian parliament, some MPs emphasised the nation (or Romanian interests in the world) rather than the individual when talking about the rule of law. They pointed to the necessity of convincing Euro-Atlantic organisations that the rule of law was working in their country. In fact, this goal was emphasised to a greater extent than the original benefit of establishing a system of checks and balances centred on the protection of the individual.

Czech parliamentarians used narratives about the challenges to the rule of law with less intensity than their counterparts in other countries, and they also focused on different problems. They criticised unconstitutional legislative proposals and, in some instances, attempts to exceed power. In Hungary, Slovakia and Romania, MPs were more likely to attack public authorities for breaking the rules or attempting to exceed their powers. In Poland, Romania and Slovakia, the politicisation of public authorities was often mentioned as challenging the rule of law. This rhetoric was accompanied by repeated attempts at reform and counter-reform by successive governments, each of which provoked critical interventions from the opposing camp. In Hungary, Poland and Slovakia, MPs criticised ineffective institutions and attempts to centralise power. These accusations represent two sides of the same phenomenon, with parliamentary majorities justifying judicial and other reforms to make the institutions more effective for ‘the people’. However, the narratives diverged in terms of the authorities accused of overstepping their powers (e.g. the president in Romania, the constitutional court in Czechia) and the institutions diagnosed as having become politicised (the judiciary in Hungary and Poland, the prosecution in Poland, Romania and Slovakia). Other narratives of challenges to the rule of law varied even more between countries, including the extent to which MPs actively criticised corruption (Romania, Slovakia) and limited lustration and decommunisation (Hungary, Poland).

Comparison over time. The similarities and differences of the narratives between the countries presented above summarise 30 years of parliamentary discourse. While this facilitates the identification of national specifics—such as the liberal profile of parliamentary discourse in the Czech Republic—it neglects case-specific trajectories. As we discuss below, the rule of law discourses have developed over time. Similarities of this development concerned the very existence of dynamics of the use of narratives since the second wave of legislation, the rise of criticism of rule of law deficiencies, and the degree of controversy.

In all parliaments, MPs actively discussed the rule of law issues during the first wave of rule of law legislation, when they debated the features of the new regime and many fundamental laws.¹ During this period, which was characterised by a prevailing sense of political optimism, narratives about the purpose and elements of the rule of law tended to be both rather vague and uncontroversial. In general, the constitution provided a stronger point of reference than the theoretical concept of the rule of law. Later, parliamentary discourse changed considerably. In all parliaments, the term ‘rule of law’ was used more frequently, while MPs still often referred to the national constitution. The narratives used with great intensity became more elaborate and tended to encompass a broader range of issues. References to the constitution tended to be routine rather than symbolic or emotionally charged. At the same time, MPs addressed a wide range of challenges to the rule of law, and the level of controversy increased. The narratives evolved into more elaborate ‘stories’ about the content of the rule of law, its elements and the challenges it faces. The rule of law became more closely associated with a liberal model centred on individual rights and checks and balances and with criticism of alleged shortcomings in this respect.

However, there were also notable differences between countries in terms of the temporal dynamics of rule of law patterns after the first wave of legislation. These differences related to the number of narratives that were used intensively during the second and third waves of legislation in each parliament, as well as to the degree of controversy reflected in these narratives in these waves and the topics of the narratives. In some cases, the temporal dynamics seemed related to changes in power constellations within a wave of rule of law legislation, e.g. in Poland and Romania during the second wave, while in others, this was not the case.

During the second wave of rule of law legislation, the paths of parliamentary discourse around the rule of law became heterogeneous. While in Hungary and Czechia, MPs used only a few narratives with high intensity, in the Romanian and Slovak parliaments there were heated debates on specific rule of law issues accompanied by many actively used narratives. In Romania, the conflicts were triggered by a difficult cohabitation between the president and the government, which prevented the parties in government from smoothly implementing their counter-reforms to the policies of previous governments. In Slovakia, an anti-Mečiar coalition used its constitutional majority to reshape many institutions through constitutional and legislative reforms, prompting criticism from the new opposition. Poland is a special case, with MPs using fewer narratives of particular intensity than during the first wave of legislation, but still more than their counterparts in Romania and Slovakia. In all three parliaments, the proportion of diverging and one-sided narratives increased.

During the third wave of rule of law legislation, in most parliaments the number of actively used narratives was almost as high as during the first wave. At the same time, the numbers differed between countries, with more actively used narratives in Poland and fewer in Romania. In Slovakia, the number of narratives used with particular intensity was significantly higher than during the first wave of legislation. The level of controversy increased significantly in all countries except Czechia. However, it took different forms. In Slovakia and Romania, where there were changes in government during this period, all parties criticised those in power for the way in which they handled the rule of law, resulting in a general controversy over the issue, distrust and dissatisfaction with the quality of the rule of law in the country. Such criticism was also expressed in Hungary and Poland, but only by the opposition, as there was no change in government.²

Narrative patterns of political actors. At first glance, the general pattern of the narratives across countries reveals a paradox. On the one hand, rule of law issues were relevant for party competition, for example when parties with an anti-corruption agenda achieved electoral success during the third wave of legislation, e.g. Andrej Babiš’s ANO in Czechia or presidential candidate Zuzana Čaputová in Slovakia. Also, the rule of law problems in Hungary and Poland since 2010 and 2015 were clearly linked with specific parties coming to power and pursuing a specific political agenda while undermining the system of checks and balances. On the other hand, most narratives were used across party lines. On closer examination, it becomes evident that the government–opposition divide largely shaped the discourses about the rule of law, with opposition parties being more active in articulating narratives and circulating particular views, especially the need to limit governing majorities.

In particular, the narratives about the elements of the rule of law used in the three decades under study were voiced across party lines. This was particularly true for the Czech parliament. Taken together, these overlapping narratives formed a ‘story’ around the rule of law. Across all parliaments, parties rhetorically agreed that the rule of law serves to ensure the functioning of the system, that legality is particularly relevant to it, and that constitutionality and the provision of procedural guarantees are essential sources of legitimacy for the rule of law, generating people’s trust in it. They also agreed that the rule of law, democracy and rights were interrelated achievements of the 1989 changes, but rarely discussed the relationship between these three principles. These narratives were still used when opposition representatives increasingly criticised the ruling parties for their apparent disregard of these principles. In general, however, there was no rhetorical disagreement about them.

Criticism of the quality of the rule of law in each country was also widely shared across party lines. In particular, the narratives of those in power stretching the rules, trying to misuse the judiciary, prosecutors and other institutions for their own purposes, or trying to exploit their political majority by pushing through policies that violate the rights of others were typical accusations used by all parties when in opposition.³ Since the second wave of rule of law legislation, they have circulated in all parliaments, in parallel with the increased use of the term ‘rule of law’. While in government, the parties adopted reforms to address the criticised problems, which provoked opposition accusations of regulatory overreach, unconstitutional behaviour, abuse of power and the like. Since these narratives focused on practices around what the parties declared to be the core of the rule of law, this pattern of criticism was highly relevant to the overall negative public image of the rule of law in these countries. This, in turn, contributed to the rise of the anti-corruption agenda and the parties that emphasised it.

It also seems relevant that the few narratives referring to European institutions—such as the European Court of Human Rights and the European Commission—were mainly used by parties in opposition (in Czechia, Hungary, Poland and Romania). This pattern may have contributed to the association of European institutions being linked to the national opposition and potentially limiting national political majorities, reinforcing the support of some parties for European institutions as well as the EU-sceptical views of other parties.

Despite many shared narratives, a rhetorical divide beyond the government–opposition line mentioned above was visible in each parliament at certain times. In such cases, parties with a particular position on the ideological spectrum (not necessarily all of them) used certain narratives more intensively, often but not exclusively when in opposition. There was no consistent pattern across cases in terms of such one-sided or divergent narratives based on party ideology. However, in Poland, Romania and Slovakia, especially left-wing parties tended to advocate for the absolute protection of individual rights and judicial independence. Conservative parliamentarians, in turn, more often emphasised the need for ‘internally independent’—i.e. impartial—and uncorrupted judges and the importance of ensuring justice as a source of legitimacy for the rule of law. In their view, this implied exceptions to the principle of non-retroactivity (e.g. to redress past injustices) and to the absolute independence of judges and other authorities in certain circumstances for the sake of their accountability.

Nevertheless, the rhetoric of parties with a particular ideology varied from country to country. In Poland, the narratives of PiS and its predecessor parties were centred around the common good, Christian values and ‘the people’. No other parties claiming to represent conservative values in the analysed countries used such narrow rhetoric in our selected documents. Fidesz also represented a political (instead of liberal) model of constitutionalism and emphasised the role of the nation, but this approach was not reflected in the rule-of-law-related narratives in parliament in our documents. In Romania, the role of the nation was also repeatedly emphasised, but across party lines. In Czechia, conservative parliamentarians stressed the protection of citizens’ rights and their freedoms from state interventions. The Slovak conservative MPs underlined the necessity to establish and ensure equality before the law in order to promote justice. However, the ideological flexibility of some parties over time makes it difficult to assign narratives to party families. The rhetoric also seemed to be influenced by the need to compromise with coalition partners representing different ideological positions in the cabinet. The intermediating effect of coalition membership on the parties’ narratives and policies can explain why the intensive use of narratives and their controversy during the second wave of rule of law legislation in Romania was followed by a wave with fewer narratives and less controversy.

A closer examination of the patterns of individual politicians discussing the rule of law reveals that a great number of parliamentarians mentioned the general relevance of the rule of law (and democracy), its purpose and its elements and challenges. For these topics, we found a broad discourse in terms of the individuals involved, which may have influenced the language of parliamentarians as a whole group of actors. Other issues—such as rights, sources of legitimacy of the rule of law and its relation to democracy—were of more special interest, with a relatively small number of MPs addressing them in the parliaments. The discourse on these issues was mostly limited to expert politicians from their respective parties, resulting in a more closed and focused discourse on these issues.

Summarising the overall findings by country, parliamentarians in Czechia were particularly active in using the rule of law narratives during the first and third waves of rule of law legislation. Throughout the period under study, only a few narratives were one-sided or diverging. During the first wave, the narratives used with particular intensity focused on different issues. MPs from all parties emphasised that adherence to legal principles and regulations and respect for fundamental rights and freedoms are essential for the rule of law. In terms of challenges to the rule of law, they stressed that proposed laws violate the constitution or foundations of the rule of law and that the executive exceeds its powers and acts arbitrarily, undemocratically and against the principles of the rule of law. KSČM argued that the legitimacy of the rule of law requires a broader social base and that special procedures for punishing acts committed under the previous regime are illegitimate restrictions on citizens’ rights. During the second wave, parliamentarians from all parties highlighted the role of the rule of law in protecting citizens’ rights and emphasised the importance of constitutionality, legality and respect for fundamental rights and freedoms. Criticism of bills that allegedly violated the constitution or basic principles of the rule of law continued. The leftist parties ČSSD and KSČM often invoked the European Court of Human Rights as an important body for the protection of citizen rights in Czechia. In the third wave, elected representatives argued more strongly that the rule of law serves to ensure equal treatment before the law and promotes legal certainty. Equality before the law, effective institutions and an independent judiciary were more strongly emphasised as elements of the rule of law. Party representatives were unanimous in stating that the rule of law derives its legitimacy from codified legal rules, effective state institutions (to ensure trust), non-politicised rule of law processes and the idea of fairness and equality. MPs stressed that the right to an effective remedy and a fair trial is fundamental to the rule of law and that the rule of law constrains democratic majorities. They also shared concerns that proposed laws violated the constitution or fundamental principles of the rule of law, that the executive was overstepping its authority, that it was interfering with the police and prosecutors to drop criminal cases, and that its actions and rhetoric towards the judiciary and law enforcement agencies were leading to a loss of confidence among citizens in the rule of law. During the second and third waves, the leftist parties (KSČM and ČSSD) criticised the constitutional court for being too activist and thus undermining the system of separation of powers.

Parliamentary discourse on the rule of law in Hungary was most vibrant during the first and third waves of legislation. Until 2010, the level of controversy was low. During the first wave of rule of law legislation, MPs actively used different narratives. They agreed that the rule of law ensures checks and balances between the government branches and sustains or improves the functioning of the (political) system through legal stability, security and predictability. They highlighted legal certainty and the separation of powers (including local governments and various independent bodies) as elements of the rule of law. In their view, the rule of law was legitimised by law and constitutionality, as well as the will to establish democracy, a free market and the protection of rights, and by procedures established by parliament. MPs also agreed on the need to guarantee rights and freedoms, including the rights of minorities. They identified frequent legislative amendments and the need to actively investigate, punish and compensate for crimes committed under the previous regime as important challenges. During the second wave of rule of law legislation, parliamentarians continued to emphasise that establishing various independent bodies was essential to shaping the rule of law. However, this was generally a period of ‘silence’ on rule of law issues. In contrast, during the third wave, MPs across party lines still agreed that the rule of law aims to limit the power of government and ensures the functioning of the system. There was also no controversy on constitutionality and legality as essential elements of the rule of law and that constitutionality and legal principles (including human dignity) are important sources of the rule of law legitimacy. At the same time, the opposition parties spread a liberal model of the rule of law in response to Fidesz’s and KDNP’s strategy of using their large parliamentary majority to determine the entire personnel and institutional set-up of counter-majoritarian institutions. The opposition parties pointed out that the rule of law ensures checks and balances and prevents the abuse of power, and that legal certainty, effective institutions and the separation of powers, including the independence of various organs, are essential. They underlined that the ruling parties restrict or endanger certain rights, thereby also violating the rights and fundamental values enshrined by the EU and human rights institutions. In their view, government parties violate the principles of the rule of law, seek to politicise the judiciary, the constitutional court and the prosecutor’s office, limit the independence of officially independent institutions by appointing their loyalists to top positions, restrict media freedom, and interfere in public administration – all this through legal means.

In Poland, the number of narratives was highest during the first and third waves of rule of law legislation, and the level of controversy increased significantly since the second wave. During the first wave, MPs debated various aspects of the rule of law. Rhetorically, they agreed that the rule of law provides checks and balances, limits government by law and prevents arbitrariness. They considered as fundamental an independent, impartial and well-functioning judiciary and prosecution service, the supremacy of the law, law-abiding state institutions and correct implementation of the law, respect for and protection of fundamental rights and freedoms, and the separation of powers and checks and balances. Effective state institutions, legal principles and the idea that the rule of law is also guided by the will to establish democracy, a free market and the protection of rights were highlighted as the primary sources of legitimacy for the rule of law. MPs stressed that independent authorities are essential for the protection of democratic principles and civil rights and supported the need to establish and protect individual rights. They generally argued that, as a legacy of the old regime, the judiciary lacks the resources and competences to act effectively and is insufficiently independent, and that the lack of law-abiding and trustworthy state institutions and the absence of a stable legal system constitute problems. Prominent one-sided narratives were related to a lack of lustration, especially in the judiciary, which was depicted as an obstacle to the establishment of a just state. In the second wave of rule of law legislation, MPs from all parties emphasised that the rule of law serves the functioning of the system and underpins citizens’ security, trust and respect for constitutional principles. Some narratives on elements and challenges did not change much. However, the rhetorical divide between conservative and right-wing and other parties deepened. The former argued that a just state based on the rule of law guarantees justice for ‘ordinary people’ and that morality and the common good form the basis of a functioning and just state. They pointed out that the judiciary and the prosecution must be politically accountable and impartial, and identified the lack of all these qualities as the main challenges to the rule of law in Poland. This view of the rule of law guided PiS when it entered government in 2015. Now, the only key narrative emphasised by MPs from all parties was that effective state institutions are essential for ensuring trust in the rule of law. Opposition forces actively supported the liberal model of the rule of law, which was linked to their criticism of PiS policies. They emphasised that the rule of law serves to limit the ruling majority and that an independent judiciary and prosecution, and separation of powers in general, with effective checks and balances, are its crucial elements. Opposition forces also pointed out that legal principles, constitutionality, ‘European standards’ and citizens’ rights must be respected. They argued that undermining the separation of powers and appointing one’s own people to positions in formally independent institutions means undermining the democratic (state under the) rule of law, that the dependence of the prosecution on the executive is detrimental to its functioning, and that the PiS majority generally violates the principles of the rule of law.

In Romania, the parliamentary discourse on the rule of law was most vibrant and controversial during the second wave of legislation. During the first wave, representatives from all parties emphasised that the rule of law provides norms and procedures for the stable functioning of post-communist society and safeguards the moral values and justice of the 1989 revolution. They agreed rhetorically that legal certainty is a relevant element of the rule of law, that the state must guarantee citizens’ rights and freedoms, and that the judiciary’s lack of resources and competence is a problem. In the second wave, MPs discussed more challenges to the rule of law and almost half of the narratives were used by only some parties. They often mentioned the need for EU recognition of Romania’s compliance with the rule of law to stabilise the functioning of the system. They stressed the need to respect legal procedures and the separation of powers, including the independence of the judiciary and the prosecution. Across party lines, MPs criticised the authorities for overstepping their powers, the judiciary for lacking the resources and competences to act effectively, and the political class for failing to build and stabilise a functioning and independent judiciary, which they said had led to a decline in people’s confidence in the rule of law and the state. Initially, one-sided narratives were used only by the Hungarian minority party UDMR, which demanded more respect for specific collective minority rights. During the second wave, PSD and ALDE on the one hand and other parties on the other used diverging narratives. The former argued that the separation of powers was in danger because the president was overstepping his constitutional powers, especially with regard to the judiciary, that the prosecution was violating individual rights and the presumption of innocence, and that those in power were misusing the prosecution to criminalise political opponents. The number of narratives used with great intensity was lower during the third wave of rule of law legislation. MPs across party lines stressed that the rule of law was a measure to end the application of the EU Cooperation and Verification Mechanism and that all political and judicial actors have to respect legal procedures and equal rights. They continued to point to the lack of institutional independence of the judiciary and public prosecutors and frequently criticised corruption and patronage in politics and the judiciary. Some parties, such as the liberal-conservative PNL but especially the pointedly pro-European USR, argued that European institutions were crucial in helping to protect citizens’ rights.

In Slovakia, the number of narratives used intensively in parliament gradually increased over time, as did the level of controversy. In the first wave of rule of law legislation, MPs emphasised that the rule of law ensures checks and balances between the branches of government and that political goals must be translated into legal documents compatible with the constitution in order to be legitimate. They also agreed that ruling parties restrict certain rights, that some fundamental rights are under threat, and that public authorities exceed their powers and disrupt the system of checks and balances. The opposition parties argued that a state is perceived and accepted as truly constitutional if it guarantees (democratic) rights and freedoms to its citizens. During the second wave, the debate on rule of law issues intensified. MPs from all parties emphasised that the idea of the rule of law is to limit the state power through legislation to protect individual rights and create conditions that attract foreign investors and promote economic development. They also pointed out that respect for the law and its enforcement and equality before the law are fundamental elements. There was a continuity in the criticism. However, a rhetorical divide between HZDS, and later Smer, on the one hand and other parties on the other was evident. The former used the narratives that unconditional respect for the principle of non-retroactivity and the right to an effective remedy is crucial to the rule of law, that an independent judiciary is essential to ensure the protection of rights, and that those in power misuse the prosecution and other law enforcement agencies to criminalise political opponents. In the third wave, all parties stressed that the rule of law ensures checks and balances between the branches of government, and they continued to point to the need to attract foreign investors and promote economic development. They identified legal certainty, an independent and impartial judiciary, equality before the law, separation of powers with checks and balances and effective state institutions (especially the judiciary and law enforcement) as crucial elements of the rule of law. MPs agreed that the inadmissibility and possible punishment of arbitrary or unlawful actions by public officials was essential for legitimising the rule of law. They also continuously accused ruling parties of restricting certain rights and proposing unconstitutional laws. Moreover, public authorities were accused of overstepping their powers. Court proceedings were described as excessively lengthy, thus restricting citizens’ rights. MPs also claimed that citizens had lost considerable trust in the rule of law because of public officials’ arbitrary actions and omissions. In addition, the liberal-conservative parties used narratives that were not shared by others in the third wave of rule of law legislation. They argued that the rule of law serves to limit the power of the state by law in order to protect the rights of individuals and to ensure justice, which implies redressing injustice by legal means if necessary. MPs also argued that trust in the rule of law is undermined by the ineffectiveness and relevance of vested interests in the judiciary, and that the prosecution and the judiciary are part of a system of corruption that reaches into the highest echelons of politics. They, therefore, called for fundamental reform of these rule of law institutions. Other parties, notably Smer, pointed out that the conservative-liberal government was trying to gain control over the judiciary and prosecution under the guise of modernising reforms.

7.2 Implications for Research on the Rule of Law

Guided by the metatheoretical assumption that theory-building is always embedded in given empirical contexts that (consciously or unconsciously) shape our perception and interpretation of the world, this study provides an in-depth overview of the patterns in the rule of law narratives in East Central European parliamentary debates. Our findings demonstrate the value of this theory-informed and context-sensitive approach, particularly in relation to the role of political parties and the concrete problems associated with law, institutions and specifically the judiciary in the five countries analysed. In this section, we discuss the broader implications of our research for the theorising of national, temporal and actor-related patterns of speaking about the rule of law. We also offer suggestions for future research and methods that we believe will help to critically examine, apply or extend findings from our study.

Based on our discussion of the different (neo-institutionalist) lines of theorising about the rule of law in Chap. 2, we decided to compare narratives over time, across countries and between different actors. Our analysis showed that this complementary approach allowed us to systematically shed light on different aspects of how actors shape and narrate the rule of law. Our study also suggested that party positions might be less relevant for the structuring of narratives in our cases than in Western countries and that the respective context was highly relevant for the content of parliamentary debates and the rhetoric on some critical challenges. Relevant context conditions included the high dynamics of rule-of-law-related legislative reforms in a relatively short period of time (Coman 2014; Sect. 3.2) and a particular situation in the judiciary, which was given a high degree of autonomy without significant personnel changes in the course of the system transformation, and which often lacked the resources to work effectively (Sect. 3.3).

National differences. The first implication of our study is that the relevance of belonging to a similar macro-region for rule of law issues should not be overstated. The parliamentary discourses in the five countries studied were clearly different, as were the changes of the narratives over time. By abstracting from the specific statements to more general narratives, we were able to understand certain overall similarities. However, this should not overshadow the many differences we observed. Even Czechia and Slovakia—two neighbouring countries that were part of the same state until the end of 1992—did not share many narratives that were used with great intensity in their parliaments. This illustrates the importance of always testing whether groups of countries selected as empirical cases because of their geographical proximity or a shared political past perform well in explaining patterns. This does not mean that belonging to a macro-region may not be relevant for some questions or coincide with some empirical similarities, such as ambiguous party positions or a low level of trust in courts (Şerban 2018) in East Central Europe.

Moreover, our empirical findings indicate that the shared experience of the 1989 regime change, regained sovereignty from the Soviet Union, democratisation and economic liberalisation did not create a ‘tabula rasa’ situation leading to similar paths after the critical juncture. To different degrees, the long shadow of the pre-1989 past regarding the personnel in the branches of government as well as cultural and structural legacies (which differed among countries) was still relevant for subsequent national politics and the way parliamentarians debated rule of law issues. Even if in the 2010s the younger generation in particular did not address pre-1989 issues in their speeches, they were still present in the form of particular contextual conditions for institution-building and policymaking, e.g. as part of criticism of ineffective institutions and incoherent lawmaking. Individual national policies, expectations and contexts influenced the ways and sequences of dealing with the structural legacies of the past.

This is exemplified by the varying importance that MPs in different countries attached to the issue of lustration or vetting. In Romania, only a few MPs in the early 1990s called for officials under the communist regime to be banned from public offices. These demands were only directed at high-ranking officeholders if they had actively and evidently violated human rights. Thus, there was a high degree of elite continuity. Similarly, in Slovakia, parliamentarians did not express significant concern regarding people who had previously served the autocratic system in relevant positions within the judiciary. The lustration scheme adopted by the federal parliament of Czechoslovakia in 1991 was ineffective in practice in independent Slovakia after 1993, despite its formal legal force until the respective law eventually expired in 1996. The need to build a functioning state administration of the newly independent state obviously overshadowed the past. In Hungary and Poland, in contrast, various parties expressed dissatisfaction with the nature of lustration. Much later, this issue was still raised as a problem and it seems that parliamentarians were deeply divided in their interpretations of how ‘just’ the political changes in their countries were, even if only a small proportion of the pre-1989 officeholders were still in their position. However, as many studies have shown, factors such as a tendency to associate with people who share similar characteristics (in terms of class/habitus, gender, ideology etc.) and networking contribute to a self-reproduction of elites when recruiting the next generation of personnel, ultimately resulting in a homogeneous socio-cultural background of elites (Veit 2022; Purcell et al. 2010). Therefore, the country differences in lustration and personnel policies beyond lustration may have long-term effects (for Slovakia, see Spáč 2020).

This suggests that even more than three decades after the transition to democracy, in-depth research on enduring national trajectories and models of order is necessary to understand today’s rule-of-law-related associations and disputes, even if parliamentarians do not mention historical determinants as relevant. As theorised in Sect. 2.2, the challenges to the rule of law identified by parliamentarians varied across the cases, depending on factors that have yet to be systematically explored. Lustration was not mentioned as a challenge to the rule of law in all countries and all waves of legislation. The same is true for narratives of corruption which were present in Romania and Slovakia and of politicisation of the rule of law institutions in Hungary and Poland. What these narratives on different issues have in common, however, is that they address structural problems, legacies of past decisions and actions, e.g. reforms and counter-reforms. Therefore, it seems short-sighted to analyse the narratives around the rule of law only from the moment of the rise to power of a particular political party that has attracted political, media and academic attention with its controversial actions in this area.

In addition to long-term analyses, we also need more comparative analyses of how phenomena that parliamentarians in our cases addressed as challenges to the rule of law were handled in other countries facing similar challenges, albeit in different contexts. For example, it would be beneficial to compare how high-ranking officials and judges were treated after the collapse of the European autocracies after World War II or after the end of the South European dictatorships in the 1970s. How did parliamentarians, the public and later generations in these countries discuss the independence of the judiciary, including autonomy in the recruiting of new judges and senior judges? Moreover, did the rule of law help or hinder in coming to terms with questions around past moral guilt during the democratisation process in these countries?

We also need further studies to better understand how rhetorical action in parliaments is embedded in the broader parliamentary context. As mentioned above, of our five cases, the discourse on rule of law matters since 1989 has been the most intense in the Polish Sejm. However, so far, we do not yet know whether Polish MPs have debated other political matters and policy areas with similar intensity, or whether the rule of law is indeed an issue of exceptional salience. We also need to know whether the parliamentary discourse on all policy matters was much less vibrant in Hungary during the second wave of rule of law legislation or whether this was a peculiarity of rule-of-law-related issues.

Temporal differences. The highly dynamic nature of rule of law narratives is a key finding of this study. In all five parliaments, the rule of law narratives developed continuously. However, this did not happen in a linear way, as suggested by traditional democratisation, Europeanisation or consolidation research, nor did it occur in a similar pattern across countries. All parliaments underwent a transition to democracy, national sovereignty and a market economy as well as the accession to transatlantic institutions. However, these similarities were not accompanied by or resulted in the same rhetoric. The timing of conflicts and processes in the national parliaments seems to have been influenced by individual paths of conflict between government and opposition in each country, different modes of rule-stretching (see above) or amnesties which were used in some cases (Czechia, Romania, Slovakia) but not in others, different policy decisions (e.g. judicial reforms), particular scandals (e.g. the leaked speech of MSZP leader Ferenc Gyurcsány in Hungary in 2006) or specific court decisions. It would, therefore, be worthwhile to investigate more systematically which factors foster the emergence, stabilisation and disappearance of narratives.

Our study also shows that in several parliaments, members disagreed sharply on how to deal with past decisions related to the rule of law. Three types of past decisions were debated with particular intensity: legislation concerning the judiciary and public prosecution, amnesties and personnel decisions (e.g. with regard to the constitutional court, ordinary courts and prosecution). The debates were particularly intense when relevant parties regarded such past decisions unconstitutional but, at the same time, they did not have constitutional means to correct them. These dynamics are perhaps different from established liberal democracies because they touch on serious problems. While “those fortunate to live where the rule of law is strong may have a lot to do to defend, secure, sustain, improve and extend it, … those enterprises are, by comparison, more in the nature of running repairs. They may be major repairs, but there is something, often a great deal, of structure and helpful material there to work with and on” (Krygier 2011). Such topics need to be investigated in more depth to understand the rule of law developments.

In some of the countries studied, MPs repeatedly discussed whether non-retroactivity as a rule of law principle should be observed or whether exceptions could be made. Although the national contexts differed, it is clear that this question will continue to arise with each major change of government. However, this topic has been more of an issue for jurisprudence in these countries since courts have been called upon to rule on the matter. It deserves more attention from legal and social scientists, also in other countries. They need to analyse empirically and discuss theoretically the relation between different—and potentially conflicting—principles of the rule of law and the relation between the rule of law and democracy (in the form of the constitutional sovereign) while being sensitive to the concrete cases and circumstances.

We also need more research on the possibilities and limits of adapting the institutional foundations of the rule of law to specific experiences. Such a perspective on the rule of law as an evolving or dynamic system (e.g. always considering its temporal dimension) presupposes an understanding of the functioning of the rule of law in different contexts (on the relevance of context knowledge, see Rech 2018, p. 343). For example, how can a separation of powers with checks and balances be established or adapted when there is a high degree of systematic mistrust by actors in the impartiality of state institutions central to the functioning of the rule of law? Under what circumstances is it possible to remove judges (and thus limit judicial independence) in favour of judicial accountability and constitutionality under the rule of law? Our study provides rich empirical material on how parliamentarians across party lines discussed these controversial questions. Future research could incorporate such reflections into theorising. This would mean also considering the various potential threats to judicial independence beyond the influence of politicians (which is already a well-established topic) and broadening the focus to include the potential influence of business networks or the existence of power camps within the judiciary, which possibly favour certain conflicts within the branch without direct instructions or interference from executives (see on that topic Spáč et al. 2018).

We also need more research on how to handle amnesties under the democratic rule of law. What happens if, after a change of political power, amnesties are granted to enemies of the constitution or to serious criminals? Can such decisions be reversed at a later date? This question has received little scholarly attention, at least in political science. However, it may have greater practical significance in the future, given the rise of parties with an illiberal agenda in many countries. Their agenda may include amnesties for people who have been punished for system-damaging behaviour. Fruitful empirical material can be drawn from the discourses of parliamentarians in the countries studied to investigate the handling of amnesties under the democratic rule of law. The same is true for personnel decisions. A high degree of independence of judges, judicial councils, prosecutors and other officials relevant to the functioning of the rule of law only works well with an adequate recruitment model. It is still an open question whether, in addition to expertise and performance, other features should be assessed or reassessed at different points to qualify for a position.

Political actors. Our finding that the party affiliation of MPs was irrelevant for most patterns of narrating the rule of law in our cases should be further tested in analyses based on other empirical material (e.g. interviews). If this finding is confirmed, this would be highly relevant for theory-building. Our finding that all parties identified more or less fundamental problems with the rule of law when in opposition deserves critical examination in future studies of parliaments in the region and elsewhere. What effect does it have on citizens’ trust in politics, the rule of law and democracy in their country if all parties rhetorically agree on the foundations of the rule of law—thus giving this principle a special significance in the public eye—but at the same time opposition representatives constantly criticise the governing parties for disregarding the principles of the rule of law? In the debates we analysed, several MPs argued that low levels of trust were the result of the misbehaviour of governing parties. In this case, future studies need to explore why parties ignore their convictions when in government. However, low levels of trust can also result from a rhetoric of perpetual wrongdoing by governing parties. We need systematic analyses of the link between the practices and quality of the rule of law, measured objectively, and the narratives of the rule of law over time in each country.

Our findings also suggest that more research is needed on the similarities and differences of narratives of parties from certain party families across countries also outside parliaments, e.g. in their manifestos, party conferences or election campaigns. The policy profiles of parties that claim to have the same ideological orientation vary from country to country, even within the European Union. This is also reflected in some heterogeneous political groups in the European Parliament (Kantola et al. 2022, p. 6f., 16). Analysing the relevance of ideology for narratives depending on context factors would contribute to a better understanding of the logic of political rhetoric and action and prevent the use of misleading ideological labels for parties in systems that are different from those of countries currently overrepresented in party research.

It is also worth considering other factors beyond party affiliation and the government–opposition divide potentially influencing MPs’ narratives on the rule of law. As noted above, parliamentarians have discussed the principle of non-retroactivity in increasing detail over time. In this case, their arguments also referred to respective rulings of the constitutional courts, e.g. in Czechia and Slovakia. The same was true for the right to abortion in Poland, where different actors referred to court rulings. In general, when mentioning the constitution, MPs included its interpretation by the constitutional court. This raises the question of the relevance of court rulings for the debate on key political issues in the parliaments. Future analyses should review empirical patterns of invoking, citing or criticising courts, and compare them over time and by issue. This would contribute to a better understanding of national paths of the relations between parliamentarians and courts, or “local ecologies” (Krygier 2011, p. 86).

Methodological issues. Our findings underscore the need to understand how actors address the issues under study prior to compiling the relevant sources. For example, in our cases, parliamentarians used the terms ‘rule of law’ and the (national) constitution almost interchangeably. Also, the concrete language used (words, associations, reference systems) is embedded in contexts, as area and historical studies have shown. The relatively low frequency of the use of the term ‘rule of law’ in Czechia was related to the tendency to implicitly include this category in the notion of democracy, the restoration of which was the central message of the post-1989 changes. For Romanian parliamentarians, the notion of ‘forms without substance’ was relevant to the rule of law, which may not be apparent without case knowledge. In Slovakia, on the other hand, the debates around the rule of law were mainly linked to criticism of its abuse by officeholders. For this reason, it was necessary to assign positive content to the narrative arguments used in critical speeches to unravel narratives about the purpose or legitimacy of the rule of law, for instance. In Poland, the notion of ‘thick line’ was highly relevant and triggered a whole chain of (controversial) associations. This implies that all analyses of the rule of law issues—including legal and quantitative studies—should consider the particular context to produce meaningful results.

Another methodological implication is that studies of the rule of law are well advised to look ‘below the surface’. For example, overlapping narratives of challenges to the rule of law reflected a high degree of conflict despite rhetorical agreement. Parliamentarians’ rhetoric also overlapped with regard to the relationship between the rule of law and democracy, but politicians rarely communicated their underlying views. The same applies to rights, which were discussed in the context of the rule of law in a very general way while the rhetorical consensus on them was often superficial. Or in the case of Slovakia, our selected debates did not cover disputes over the rights of ethnic and national minorities, although they existed. It is therefore important for research to be aware that the empirical material may not fully capture the apparent reality. This underlines the usefulness of our approach of triangulating case literature and knowledge, media coverage and background interviews to ensure the validity of the interpretations of the parliamentary documents.

Another methodological implication is that scholars interested in the debates surrounding the rule of law should not focus their attention too narrowly on the specific topic of interest. As our findings suggest, it would be misleading to limit analyses of the rule of law to just those categories or ‘standards’ of the rule of law that have been identified in international comparative research. While these are very helpful in structuring the material and have become more sophisticated over time, they do not cover issues that were highly relevant in our cases. These include (in)effective institutions, personnel and other resources in the judiciary, problems of retroactive legal action and questions of justice and guilt in democratisation processes. To understand conflicts and actors’ positions on some rule of law principles, it is necessary to know how they are empirically embedded.

The need to contextualise more specific research also applies to EU studies. The plethora of publications on the rule of law and the EU, as well as the rigorous EU accession requirements that necessitated the transfer of thousands of legal provisions to the candidate countries, may suggest that the EU has figured prominently in the domestic parliamentary discourses in general and those related to the rule of law in particular. However, our study reveals that, except for Romania, the EU did not play an important role when national parliamentarians spoke about the rule of law. They referred more to general or national developments, and when mentioning the international or European level, they often also cited the European Court of Human Rights’ ruling on violations of the European Convention on Human Rights, the Council of Europe and transatlantic institutions. The EU formed part of this overall package of international linkages and commitments, except for brief periods.

Studies on the transfer of specific institutions such as judicial councils have suggested that Czechia, for example, would be the ‘black sheep’ (Bobek 2007) in terms of its resistance to establishing this model of judicial self-government. However, our research has shown that in several countries where parliaments established a judicial council, it has—at least in the eye of parliamentarians—been captured by power groups, for example in Slovakia and Poland. In general, EU studies should contextualise their findings by studying the overall political rhetoric and developments in the countries and determining the relevance of the EU in this context. In addition, more interdisciplinary studies are needed on the relevance of the European Convention on Human Rights and the jurisdiction of the European Court of Human Rights for domestic processes and interactions between legislators, executives and judges, not just analyses from a legal perspective (see, e.g., Keller and Stone Sweet 2018b; Letnar Černič 2018).

General suggestions. As the reflections above have underlined, our empirical study—like any other empirical study—does not provide definitive answers to all questions regarding the rule of law narratives. It is also important to remember that rhetoric and action are not identical. While narratives can have a tangible impact when employed to justify legislation or to elicit feelings of opposition or solidarity, the effect of this varies across empirical cases (Coman and Volintiru 2021). It is crucial to distinguish between narratives and the perceptions and mindsets of actors. As outlined in Chap. 2, the way actors refer to issues can have strategic reasons and diverge from their actual thoughts and actions.

In addition, although MPs are important actors in the political discourse of a country, there are other key players, such as judges, the media and NGOs. It would be beneficial to study their narratives and discourse coalitions related to the rule of law in a systematic way across countries and time. Moreover, narratives regarding the rule of law may be interwoven with narratives on other issues and concepts, such as power, sovereignty or the nation. These broader intellectual narratives are suitable for framing the public debate and views of the world. Therefore, it is essential to investigate linkages to other narratives. Our in-depth regional analysis also does not allow for assessing the extent to which the observations represent regional deviations from other EU member states. Further studies on other cases would be necessary to broaden our understanding of the empirical patterns and causalities in one region and to assess the extent of similarities and differences.

Finally, it is important to note that our study does not provide answers to the normative questions surrounding the rule of law. What constitutes an adequate concept of the rule of law and what are the appropriate institutional arrangements for it? Our analysis did not address this question, yet our findings that in most parliaments the rule of law was not centred around individual rights but more associated with questions of state order (horizontal separation of powers) and system functioning (including effective institutions) can inform this critical intellectual debate. In accordance with the assumption that theory-building is embedded in empirical environments, we also suggest that greater attention is paid to the rich intellectual heritage of East Central Europe and other European regions when discussing these essential normative questions. This would facilitate a more representative debate, encompassing a broader range of perspectives and backgrounds.

7.3 10 Suggestions for Policymaking

Our findings are also relevant for those engaged in the practical application of the rule of law. As members of the Council of Europe and the EU, Czechia, Hungary, Poland, Romania and Slovakia must fulfil their international obligations and align with the rule of law frameworks of both organisations. In the following, we assess to what extent the narratives used in the parliaments correspond to the concept of the rule of law of the Council of Europe and the EU and propose suggestions for policymaking.

In general, the parliamentarians’ narratives on the foundations of the rule of law aligned with the definitions of the rule of law set out by both the Council of Europe and the European Union. These definitions emphasise the principles of legality, legal certainty, the prohibition of arbitrary exercise of power, an independent judiciary, the separation of powers and the exercise of any public authority within the applicable law. At the rhetorical level, there was no disagreement on these issues. Consequently, the parliamentary discourses did not confirm the claim of some parties (mainly in Poland and Hungary) that different national cultures of the rule of law would justify the non-compliance with international obligations or other forms of local exceptionalism.

However, compared to the approaches of the Council of Europe and the EU, the narratives in the parliaments under study placed a stronger emphasis on the necessity of effective institutions and a lesser emphasis on legal protection and courts. In their speech acts, the parliamentarians demonstrated greater attention to the relevance of the rule of law for the general functioning of the system. They also frequently cited the national constitutions as the most important source of legitimacy for the rule of law.

Another difference is that the rule of law narratives used in parliaments were less aligned with the EU’s prioritisation of fundamental rights as an element of the rule of law (European Commission 2020, 2024; European Commission 2021). Only in Czechia did (equal) rights feature as part of the key narratives on elements of the rule of law. In Poland, especially in the first wave, rights, freedoms and equality were also mentioned as elements of the rule of law in the new democratic system. In the second and third waves, criticism of alleged rule of law violations was also directed at breaches of rights, including the right to a fair trial. In the other parliaments, there were no major rights discourses under the heading of the rule of law, and when rights were discussed, the debates included controversial issues.

The EU has identified democracy as a relevant rule of law criterion. While parliamentarians supported the notion of the ‘democratic state under the rule of law’ long before entering the Union, the concrete relationship between the rule of law and democracy was not extensively discussed. In general, the view that the rule of law is about constraining elected majorities prevailed. However, this narrative was mainly propelled by parties in opposition who sought to criticise the government and protect their own rights and interests through non-majoritarian institutions. Thus, their self-interest served as a catalyst for their role as guardians of the rule of law.

The narratives of various challenges to the rule of law, growing criticism of governments for ignoring and actively undermining rule of law principles, and the increasing relevance of parties with an anti-corruption agenda indicate that the national discourses have paid much attention to shortcomings in the field of the rule of law. This might have contributed to the impression that many things were going wrong in the countries and that the term ‘rule of law’ means limiting the will of the sovereign people by individual, opposition and other minority rights. How can policymakers at the European and national levels address rule of law issues under these circumstances? Based on our study, we make the following suggestions:

(1) Understand that national constitutions play a major yet ambiguous role in debates on the rule of law.

In Romania, actors regularly associated the constitution with the transition to democracy after the 1989 revolution. In Czechia and Slovakia, this was less the case, as the constitutions were mostly negotiated behind closed doors during hectic times that led to the dissolution of the Czechoslovak federation. In Hungary and Poland, the revision of the constitutions after 1989 and the drafting of new constitutions were linked with power struggles between different political camps. In all countries studied, the post-1989 paths of constitution-making and constitutional reforms (including those in preparation for EU accession) resulted in the experience that the constitution is not untouchable and uncontroversial. Thus, constitutionalism was supported in a very abstract sense and the constitution was accepted as the fundamental law guiding democratic political action, but this was not necessarily linked to the idea of constitutional supremacy in our period of analysis.

(2) Point out that international commitments were entered into voluntarily.

The parliaments under study voluntarily and often enthusiastically agreed to join the European Convention on Human Rights, the Council of Europe, the European Union, NATO and other Western frameworks. By doing so, they committed themselves to complying with the respective norms and standards. This was perceived as a natural step reflecting the convictions of parliamentarians and complementing the national rule of law framework. It is evident that the transfer of institutions, knowledge and funding from international organisations has assisted in the efforts of the countries under study to establish and protect the rule of law. However, narratives that claim that the establishment of democracy and the rule of law in the member states was a genuine achievement of European organisations and institutions would be incompatible with the national parliamentary discourses and the ‘stories’ of causes and effects.

(3) Spotlight how far the parliaments have come.

Various observers noted an EU ‘accession fatigue’ in East Central European countries and a general disappointment with the post-1989 developments (e.g. Krastev and Holmes 2019). People and political actors may have underestimated the concrete effects of the transition to democracy, a market economy, the rule of law and membership in European and transatlantic organisations. Since 1989, they have constantly dealt with countless policies related to the rule of law for which there was no blueprint (e.g. privatisation of the whole economy) and negotiated rules in complex national and multilevel systems. They had to address the structural legacies of the pre-1989 system, which impacted the functionality of the new institutions, and readjust their institutional decisions several times. In parallel, the demands on the rule of law have increased. Against this background, one should keep in mind that many political efforts in the field of the rule of law were successful, despite shortcomings and setbacks. It is necessary to continue to spotlight the efforts and achievements of parliamentary action in this field in times of general dissatisfaction with deficiencies in the rule of law.

(4) Create more opportunities for debate on the rule of law to raise awareness of it and its purpose.

The purpose of the rule of law is a topic of general interest that is linked with broader societal ambitions and visions. As mentioned, parliamentarians particularly emphasised the relevance of the rule of law in maintaining order within the state and society. Providing more room for debate on the overall value of the rule of law—be it in parliament or in civil society fora—could facilitate the development of narratives that are used across the ideological spectrum and bridge divides on concrete policy positions. In three parliaments studied, the second wave of rule of law legislation was marked by relative ‘silence’ on rule of law issues. Parliamentarians seem to have been preoccupied with the legislative workload on diverse issues in preparing for EU accession. Most notably, we did not find any active debates on rule of law issues in Hungary for this wave of legislation in our selected documents, where the parliament also failed to reach a compromise on a planned new constitution. This ‘silence’ in the parliamentary arena meant a lack of mobilisation for a broader consensus on common rule of law objectives, and may have contributed to the emergence of more one-sided narratives in the third wave of rule of law legislation.

(5) Use the appropriate language.

In order to reach the target groups effectively, it is essential to understand and use their language. This entails employing original phrases and wording that are familiar to national politicians to make the rule of law policy authentic, comprehensible and capable of mobilising support. When addressing rule of law issues, actors should be sensitive to the fact that parliamentarians in the five countries, with the exception of Czechia, generally did not strongly associate the rule of law with individual rights. Therefore, one way for politicians to avoid misunderstandings when advocating for the protection of individual rights might be to explicitly delineate this concept from the broader notion of the ‘rule of law’. Additionally, it is crucial for politicians to be aware of sensitive terms and issues relevant in given countries, like amnesties, problems around retroactivity, and sequences of reforms and counter-reforms of the judiciary in Slovakia and other countries. Referring to overlapping narratives could also help to establish constructive dialogue between opposing sides of the rule of law conflicts. In the Romanian parliament, for example, the notion was widely established that the rule of law means returning to Europe and to one’s own national history simultaneously. Also, politicians violating the rule of law principles should be reminded of what they have said in the past in support of the rule of law and its elements. All of this requires expertise in the narratives involved.

(6) Strengthen the discourse among national parliaments.

Such an inter-parliamentary discourse could focus on relevant rule-of-law-related issues that promise practical benefits (e.g. strengthening the effectiveness of institutions and better oversight of the executive). It would be a welcome occasion to discuss national similarities and peculiarities, share views and experiences, elaborate best practices and inform each other. International linkages and mutual inspirations have a long historical tradition. In our empirical material, we found references to other European countries. Poland, for example, learned from Italy when establishing its National Council of the Judiciary in the 1980s. The Nordic countries were an example for Romanian politicians when establishing the institution of the ombudsperson. Our countries studied also share many experiences with the current candidates for EU membership, e.g. regarding transformation and related problems (corruption, clientelism, role of old elites) and EU accession requirements. This offers parliamentarians the opportunity to engage in more productive exchanges of authentic and reliable advice on an equal footing. Such interactions could also strengthen the role and visibility of parliaments vis-à-vis their executives and the public.

(7) Acknowledge that others associate the rule of law with different things.

Our findings demonstrate that despite overarching similarities, parliamentarians spoke differently about the rule of law. In the parliaments studied, entrenched narratives across party lines underpinned deep structural issues beyond the usual differences in political positions observed in democracies. They consisted of accounts of a politicised judiciary, endemic rule violations and governments utilising the rule of law for their own interests. Parliamentarians also claimed that public trust in the rule of law was low. The optimism associated with the transition to democracy and the rule of law seems to have dissipated. This can be partially attributed to the fact that in the 1990s, there were instances of politicians who claimed to be committed to the rule of law but abused their powers, restricted the rule of law, or at least neglected to develop it, and engaged in transformation-related corruption. However, such a mismatch between political rhetoric and practice can also be traced in the post-transition period. Even if the challenges to the rule of law are resolved in the future, the established narratives that the rule of law is compromised and that politicians can manipulate regulations will endure for an extended period, making the systems vulnerable to distrust and instability. Effective cooperation presupposes respect for multiple experiences with the rule of law and diverging views of it to build a constructive debate about differences.

(8) Integrate national parliaments into the eu’s rule of law discourse and build on existing narratives.

Together with the European Parliament, national parliaments are a key pillar of the democratic legitimacy of the European Union. While EU actors have broadened their rule of law dialogue to domestic stakeholders such as judges and NGOs, there is still room for intensified communication between EU actors and national parliaments. For example, the 2023 Rule of Law Reports on Czechia, Poland, Romania and Slovakia did not mention any meetings with parliamentarians (European Commission 2023a, p. 29f, 2023b, p. 45f., 2023c, p. 35f., 2023d, p. 35f). The Commission engaged solely with executive and judicial authorities, multiple non-governmental organisations and occasionally with the parliamentary administration. Productive dialogue with MPs may enhance the effectiveness of policymaking pertaining to the rule of law and resolving conflicts. To gain support from parliamentarians in Czechia, Hungary, Poland, Romania and Slovakia, such a dialogue should centre around the purpose of the rule of law to ensure checks and balances between the branches of government and to ensure the functioning of the whole political, economic and societal system. In doing so, narratives and examples of different national parliamentary discourses could be applied to make communication meaningful for national actors.

(9) Debate the relationship between democracy and the rule of law.

In our selected documents, there was no detailed debate about the relationship between elected officials and non- and counter-majoritarian agencies that interpret and enforce the law. However, current disputes over the rule of law and other aspects of liberalism do touch on this relationship. Parliamentarians, as elected representatives, have been granted legitimacy by virtue of their popular mandate. They agreed, with broad rhetorical consensus over time, that the power of elected majorities cannot be unlimited but needs to be constrained under the rule of law. Nevertheless, much of their shared criticism referred to violations of this principle. In our view, there is an urgent need to discuss the concrete system of checks and balances between the branches of government and the relationship between the majority, minority and individual rights at the different levels of policymaking and judicial decision-making. This debate should be conducted with appropriate objectivity and depth. It also applies to the (s)election of decision makers in the political realm and the judiciary: the more extensive the scope of their competences and influence, the more crucial it is to ascertain the selection process and the criteria employed.

(10) Highlight the role of national parliaments in building a common european rule of law.

The parliamentary debates analysed in this study demonstrate that, at least rhetorically, parliamentarians did not oppose the emergence or creation of a trans-European rule of law conception. Such a transnational conception was not a significant issue, although the rule of law concepts in the five states overlap in many respects. National parliamentarians, who play a pivotal role in addressing and convincing national publics, could emphasise their role as decisive creators and protectors of a transnational rule of law framework. European recommendations related to the rule of law should cite more views of national MPs (and members of the European Parliament elected in a given country) to demonstrate the overlapping views. Why not establish a virtual European Hall of Fame for Rule of Law? It would enable the public to gain insight into the various approaches to the development of the rule of law across Europe, showcasing active creators of the democratic rule of law in the European countries (and perhaps beyond). It would also provide an opportunity to examine the challenges faced and the strategies employed to resolve them. Furthermore, the use of original sources would enhance the educational value of this initiative, making it a prominent resource for civic education in schools and beyond.

It is unlikely that these recommendations for European and national policymakers will resolve all conflicts related to the rule of law. Violations of the rule of law, for example, will have to be sanctioned by other means. However, there is no harm in exhausting all the possibilities of parliamentary discourse, including the deliberation across political camps and national boundaries. Moreover, it is a relatively simple process that can be implemented at low cost and can help to resolve existing conflicts. Our study has revealed how numerous narratives were created, developed and changed in vibrant parliamentary debates.

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Vorheriges Kapitel The Rule of Law in Troubled Waters: Narrating Rights, Democracy and Challenges

Metadaten
Fußnoten
Literatur

Titel: Lessons Learned and Policy Recommendations
Verfasst von: Astrid Lorenz
Lisa H. Anders
Dietmar Müller
Jan Němec
Verlag: Springer Nature Switzerland
Buch: Narrating the Rule of Law
Print ISBN: 978-3-031-66331-4

Electronic ISBN: 978-3-031-66332-1

Copyright-Jahr: 2024
DOI: https://doi.org/10.1007/978-3-031-66332-1_7

We found fewer significant narratives in Czechia and Slovakia. However, this may be due to the fact that unlike in other countries, our period of study for these countries began only with the debate on their new constitutions in 1992, i.e. after the foundations of the new democratic regimes had already been laid in federative Czechoslovakia.

Shortly after the change of government in Poland following the 2023 elections (which was outside our research period), PiS made the same accusations against the new coalition as the previous opposition. The same can be expected for a hypothetical change of government in Hungary. As a result, previously one-sided narratives overlap, although the degree of conflict around the criticised issues remains high.

Judicialisation, a topic widely discussed in American and Western European scholarship, was not a separate concern. It was, however, part of debates about judicial independence and the alleged politicisation of public authorities, including ordinary and administrative courts, constitutional courts and public prosecution.

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———. 2023b. 2023 Rule of Law Report. Country Chapter on the Rule of Law Situation in Czechia, SWD(2023) 803 final.

———. 2023c. 2023 Rule of Law Report. Country Chapter on the Rule of Law Situation in Poland, SWD(2023) 821 final.

———. 2023d. 2023 Rule of Law Report. Country Chapter on the Rule of Law Situation in Romania, SWD(2023) 823 final.

———. 2024. 2024 Rule of Law Report. The rule of law situation in the European Union, COM(2024) 800 final.

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7. Lessons Learned and Policy Recommendations

Abstract

Abstract

7.1 Patterns of Narratives in East Central European Parliaments

7.2 Implications for Research on the Rule of Law

7.3 10 Suggestions for Policymaking