1. Why and How to Explore Rule of Law Narratives. Introduction

Narratives are highly relevant for policymaking (Shanahan et al. 2018) and the functioning of institutions, including rule of law arrangements. They inform, influence and serve to justify political action, as well as mobilise support (Coman and Volintiru 2023; Smith-Walter and Jones 2020, p. 254; Blum and Kuhlmann 2019). Therefore, to properly evaluate parties’ political behaviour regarding the rule of law, scholars must consider local narratives and their embedding in the respective context (Rech 2018, p. 338). However, narratives used in parliaments have received little attention in analyses of the rule of law, which tend to focus on institutions such as the law itself and its structure. Also, existing analyses of narratives usually focus on individual cases (Schlaufer et al. 2022).

This book analyses and compares narratives of the rule of law in parliaments, directing much-needed attention to this crucial issue. Although most political entities across the globe declare the rule of law as one of their guiding principles, they articulate different ideas of what the rule of law is, what purposes it serves, what elements it comprises and how it relates to democracy. Many understand it as legality, including predictability of public action, legal certainty, general, transparent and prospective laws and their effective implementation. Others add equal and human rights and legal protection by an impartial and independent judiciary, or even media freedom—as the European Commission does in its Rule of Law Reports. Moreover, it is contested if the rule of law serves primarily to limit power or to achieve moral ends¹ (e.g. Shapiro 1994; Fallon Jr. 1997; Kleinfeld Belton 2005; Waldron 2008; Magen and Morlino 2009; Tamanaha 2004; Møller and Skaaning 2014; Bedner 2018; Lorenz 2024).²

The relationship between the rule of law and democracy is also controversial. One side argues that the authority of law and thus the rule of law can only be ensured in a democratic environment. It therefore conceives democracy as an element of the rule of law (Tamanaha 2004, p. 99ff.). Others see tensions between the core ideals of democracy and the rule of law, with democracy revolving “around infusing the law with the will of the majority” and the rule of law appealing to its “supremacy over the wills of the persons” (Shapiro 1994, p. 2; also Murphy 1993). Thus, the very legitimation of the rule of law and the balance of power between elected politicians and non-majoritarian legal institutions is a matter of dispute. Accordingly, politicians and scholars disagree on what challenges the rule of law.

In Europe, disputes over the rule of law and its meaning have been raging for a number of years (Coman 2022), and East Central European countries have been criticised for rule of law deficiencies. Many politicians and scholars pointed out that the governments of Hungary and Poland restricted the independence of the national judiciary, civil society organisations and the media (e.g. Scheppele 2013; Sadurski 2019; Jakab and Bodnár 2020; Bakke and Sitter 2022). Criticism also referred to deficits concerning the independence of prosecuting authorities and media in Slovakia and Romania. Furthermore, EU Rule of Law Reports were critical of half-hearted measures against corruption and politicians’ conflicts of interest in Romania, Slovakia and Czechia (European Commission 2022a, b, c).

According to critics, such rule of law problems in some member states have become a general threat to the EU. As Commissioner of Justice Didier Reynders put it, “(r)espect for the rule of law is a prerequisite for protecting all other values” of the EU enshrined in Article 2 of the Treaty on European Union, “and it is crucial for the effective application of EU law and for mutual trust between Member States and their judicial authorities.” He added that the rule of law is essential for the internal market to function (Reynders 2023, p. 11). All this is in danger if member states ignore rule of law standards. In fact, judicial authorities in some member states refused to extradite suspects to Poland due to serious concerns about the independence of the Polish judiciary (Wendel 2023).

Others challenged this view. The criticised governments emphasised their commitment to the rule of law and some of them dismissed the criticism as politically motivated.³ Leaders in Warsaw and Budapest considered criticism related to the rule of law as unfair and biased (e.g. Morawiecki 2021) and questioned the objectivity of the European Commission’s concept of the rule of law (e.g. Varga 2020). This argument was also supported by some scholars (e.g. Grosse 2020, 2022a, 2022b; Szymanek 2020; Maksymiuk 2022; Drinóczi 2019; Mendelski 2016⁴). In their perspective, the hegemony of a particular Western European, liberal conception of the rule of law clashes with the principles of national sovereignty and democracy to which the EU also subscribes. Moreover, the EU’s general reference in the treaties to the value of the rule of law would leave open how it is to be implemented in the member states.

Embedding their argument in a broader perspective, Grosse (2022a, p. 154) contends that the EU pursues a strategy of proclaiming its own values as universal. This would have long historical roots in “Western Europe’s sense of civilizational superiority over other parts of the world. It was driven by the missionary nature of Europeans relating to the values promoted” and “most often” accompanied by “economic and geopolitical expansion”.⁵ Especially for Poland, observers have identified a link between arguments for Poland’s own ‘authentic culture’ with postcolonial theories since around 2005 (Bill 2014; Bucholc 2022). Scholars and politicians insist that there are different legitimate ways of realising the rule of law based on different cultures and ideologies (Peerenboom et al. 2012, p. 473), that the EU’s approach is “ideologically biased” towards a liberal version (Hertogh 2016, p. 46) and that the competition between different models should be democratically resolved to ensure that the EU’s motto of “unity in diversity” is respected.

So far, the debate on the rule of law has centred mainly on legal developments and theoretical arguments. This book aims to contribute empirically to a better understanding of the related rhetoric and arguments, focusing on national parliaments. Obviously, the competing narratives are more nuanced than sketched above, and the lines of conflict are more complicated than a mere divide between East and West. It is also clear that politics and political developments in the Czech Republic, Hungary, Poland, Romania and Slovakia are by no means identical (Lorenz and Formánková 2020; Bos and Lorenz 2021; Lorenz and Anders 2021; Lorenz and Mariş 2022; Lorenz and Dalberg 2023). Nevertheless, these countries share common historical legacies and experiences.⁶ These include the difficulties of coming to terms with the transition from communism to democracy when rule of law principles like the prohibition of retroactive legislation and the independence of judges who had already served before 1989 rendered it difficult to solve questions around moral guilt. Other shared experiences relate to problems of the transition to a market economy. During that time clientelist networks survived or emerged which could include politicians and judges, and which are still a source of public controversy today. Other shared experiences include the conditionality policy prior to EU accession and the implementation of Western models such as judicial councils based on recommendations from international bodies. These common experiences might have fostered similar rule of law narratives.

In fact, opinion polls on the rule of law reveal regional patterns. The independence of judges, for example, is less supported in Central and Eastern European countries than in other EU member states (European Commission 2018, p. 8, 15; 2023, p. 4). Similarly, the idea of disbursing EU funds only upon rule of law compliance is less popular here than in the rest of the EU (Kantar and European Parliament 2020, p. 4). These differences could result from divergent narratives of what the rule of law means and a diverging view of its relevance. Legal studies also point to regional commonalities, often summarising the post-socialist countries as a group with distinct characteristics. A 2019 study saw them marked by “a detailed Bill of Rights, rule of law safeguards and constitutional review entrenched after the recent memory of arbitrary exercise of power”⁷ when compared to other European countries (Albi and Bardutzky 2019). A study by the European Network of Councils for the Judiciary (ENCJ) observed systematically higher formal standards in these countries, although these are not always implemented.⁸

Identifying regional specifics might also mirror long-standing stereotypes, a lack of case-specific knowledge, or difficulties in classifying the diverse ideas and institutions across Europe. Scholars often lack knowledge of the languages, contexts and therefore also the meanings that actors associate with the words and interpretations they use. These can deviate from the scholars’ own understanding (Sadurski 2018, p. 7). Ilie (2015, p. 6) points to the fact that Central and Eastern European countries, “although they experienced a relatively similar political system during the communist era”, nevertheless have “distinctive, historically rooted political cultures, which are still reflected in specific parliamentary practices.” She especially mentions “differences exhibited by Romanian and Polish parliamentary discourse practices, both during the communist dictatorship and in the postcommunist period” (ibid.). Looking at judicial reasoning, Cserne (2017, p. 41) argues that the emphasis on the regional distinctiveness of Central and Eastern European countries is misguided because several allegedly distinct features can also be observed in other parts of Europe. It would also ignore “the intra-regional differences” as well as processes of convergence “that reduce the significance of topographical or historical differences in judicial style”. Competing narratives can also be found within countries. Blokker (2019, p. 336) observed that the “legal-constitutional paradigm”, which was dominant for a long time, is increasingly challenged by “a number of competing constitutional narratives”, including political constitutionalism and communitarian and democratic constitutionalism.⁹

To complicate matters, ideas and concepts can change over time and this can affect narratives (Skinner 1969; Bödecker 2002). Research on conceptual history (‘Begriffsgeschichte’) tries to capture the past by analysing the different uses of terms over time (Koselleck 2006). Historians commonly try to be sensitive to what people in earlier times meant by their words to avoid an ‘anachronism’ or ‘presentism’ of interpretation (Lange 2019, p. 72f.). This also includes understanding that actors speaking in the past might have had certain things in mind which are now captured by terms that simply did not exist or were used differently in their time (ibid.: 74).

Evidently, the terminology used in connection with the rule of law also varies. In Czechia, the literal translation of the term ‘rule of law’—vláda práva—is relatively rarely used in everyday legal and political language. Instead, people use the notion of the “state governed by the rule of law” (právní stát), similar to the German Rechtsstaat, although over time it has taken on the broader meaning of the substantive rule of law (Šimáčková 2013). In contrast, the term ‘rule of law’ in Polish (praworządność) contains no reference to statehood, while two other terms accentuate the state and the law as a corpus (państwo prawa, państwo prawne). So far, we do not know whether the existence of these different terms or phrases, which help to accurately express issues and nuances, reflect or perpetuate different ideas around the concept (Lorenz and Anders 2023).

Apart from some legal studies (e.g. Martini 2009), research has contributed little to shedding light on these questions. The rule of law situation in East Central European member states has been studied extensively, mainly under the term ‘democratic backsliding’. There are by now numerous analyses on how rule of law institutions have been dismantled (see, for an overview, Anders and Lorenz 2021, p. 9ff.). The recent conflicts over the rule of law have also increased interest in rule of law discourses in some East Central European countries. However, these studies mostly focus on governments (Schlipphak and Treib 2017; Mos 2020; Csehi and Zgut 2020; Brusenbauch and Marek 2023). Much less is known about the rule-of-law-related speeches in parliaments, i.e. how politicians outside the executive talk about the rule of law and make sense of it. There are hardly any long-term and comparative studies on EU member states covering which ideas and arguments parliamentarians use publicly.¹⁰ For example, we do not know if rule of law narratives are coherent and consistent within parties and if they are stable.

It is important to fill this gap because ideas, meanings and sense-making are constitutive of human action (Taylor 1971). Especially actors in parliaments constitute, reconstitute and perpetuate certain narratives, in our case on the rule of law, which, as mentioned at the beginning, can inform and legitimise their actions (Schmidt 2008). “Discourses enacted in parliament not only reflect political, social, and cultural configurations in an ever-changing world, but they also contribute to shaping these configurations discursively, cross-rhetorically, and cross-culturally”, argues Ilie (2015, p. 1). They influence public discourses and sense-making (Schmidt 2008, p. 311) and thus the way the wider population perceives reality. Given that in “a community organised around rules, compliance is secured – to whatever degree it is – at least in part by the perception of a rule as legitimate by those to whom it is addressed” (Franck 1988, p. 706; see also Raustiala and Slaughter 2002, p. 541), it is crucial to know how key actors address, legitimate or criticise the rule of law.

As indicated above, we define narratives as a way of talking about a certain subject and relating it to other themes. We are interested in how actors make sense of it by defining what the rule of law is, relating it to other subjects, such as democracy, and mentioning challenges.¹¹ A narrative emerges when different actors express a certain view in several different statements in different situations. They can reflect the speakers’ normative beliefs but they might also be strategically constructed and applied with the aim to persuade others (Shenhav 2006; Smith-Walter and Jones 2020, p. 355). Speakers may (intentionally or unintentionally) use inaccurate information and narrate the reality selectively.¹² Narratives change over time when speakers use and recombine elements of previously shared ideas to lend credibility to values and arguments.

Against this background, this study explores the narratives of the rule of law used in the parliaments from 1990 in Hungary, Poland and Romania and from 1992 in Czechia and Slovakia until 2021. We want to explore if there are patterns of narratives on the concept of the rule of law and problems around it. Covering 30 years of parliamentary debates on rule-of-law-related issues in five countries, our empirical study of rule of law narratives is based on a broad and unique corpus of documents. It allows us to analyse cross-national differences and to trace changes over time. The findings help to understand if recent crisis diagnoses with respect to the disregard of the rule of law would have been justified also in the past and whether, conversely, the recourse of some governments and scholars to national differences in rule of law cultures is warranted.

What makes this study unique is that we selected and analysed the empirical material in a case-sensitive, interpretative and comparative way. We did this in an international team with a native or excellent command of the languages and profound area expertise. Another unique feature of this analysis is that it provides translations of many of the statements that make up the narratives, opening this empirical material to a wider audience. This allows decision makers, lawyers, scholars, media analysts and anyone else interested to obtain a more nuanced understanding of how key actors address the rule of law in Poland, Czechia, Slovakia, Hungary and Romania.

When analysing the narratives, we combine a theory-guided deductive approach, more wide-spread in political science and sociology, with inductive elements, more prevalent in history, area studies and ethnography. To date, many studies on the rule of law have used the deductive approach in a normative and prescriptive way, defining certain models as guiding (Schimmelfennig 2012, p. 112). An inductive approach, instead, is open to new and unknown features of the empirical object, making it suitable for reconstructing narratives. Our study is based on general theoretical considerations (and therefore to some extent also theory-driven) but abstains from defining the issues under investigation too narrowly and takes advantage of expert knowledge for interpreting the narratives (Chap. 4). This allows for a fine-grained mapping of narratives that can inform comparative research on the rule of law, revealing, inter alia, the relevance and the meaning that political actors attach to particular elements or indicators of the rule of law.

The structure of the volume reflects the research process. We start in Chap. 2 with the general theoretical background of our study, which builds on approaches and findings from political science, history, sociology and cultural studies. Our point of departure is the neo-institutionalist assumption that existing orders influence actors’ behaviour, but that actors can also use or try to modify these orders according to their interests or normative ideas. They do so by using, constructing and circulating ideas and beliefs through discourse. At the same time, they understand others’ norm expectations and might consider it appropriate to express themselves accordingly, even if they do not share these norms. This is why narratives do not necessarily represent the speakers’ personal views. We further assume that the specific context matters for how politicians refer to the rule of law. This includes the above-mentioned experiences with the transition to democracy and a market economy. Based on these considerations, we expect that regardless of the regional proximity of the countries, there may be national differences in rule of law narratives as well as changes over time.

These considerations provide a rather general framework and we underline that it remains an empirical question how actors narrate the rule of law. Given our premise that theory-building is inseparable from its empirical contexts, there are limits to deriving hypotheses from theories informed by other empirical cases for our object of study. We therefore devote Chap. 3 to providing an in-depth empirical introduction to our cases. As we show in this chapter, drawing on various studies of the region, certain developments in these countries may have affected narratives about the rule of law in parliaments. These developments are either missing or not discussed in detail in current rule of law research, while other factors are possibly overemphasised. Specifically, we discuss the perhaps limited relevance of party ideologies, the massive post-1989 power shifts, conflicts over the post-1989 developments and the consequences of institutional choices, particularities of the relationship between politicians and judges, and the role of the EU. For scholars studying the rule of law from a theoretical perspective and for EU scholars unfamiliar with the region, this chapter provides detailed information to understand the actors’ background and experiences that might inform their rule of law narratives.

Chapter 4 then describes our methodological approach, specifically how we combine deductive and inductive research strategies to map rule of law narratives in a way that is sensitive to the context while aiming to keep findings comparable. It also provides an overview of the sources used. As we describe in this chapter, we analysed debates with direct mentions of the term ‘rule of law’ or its semantic equivalents. We additionally covered debates on key legislation related to the rule of law in order to take into account that the rule of law may be associated with different things in different contexts and that parliamentarians may also talk about the rule of law and related issues without explicitly using the term. Chapter 4 also informs the reader how we analysed these documents. We sketch out how we identified and categorised the relevant parts of the parliamentary documents and then conducted a qualitative content analysis to provide an in-depth examination of the rule of law narratives comparable across our five countries.

Chapter 5 presents the findings of our empirical study with respect to how the MPs and government representatives referred to the foundations of the rule of law. Specifically, we explore how politicians spoke about the purpose of the rule of law, its elements and sources of legitimacy. To substantiate our interpretations and make them comprehensible and trustworthy for readers we provide various illustrative quotes. As mentioned above, we also consider this an important measure to make the original sources accessible. The chapter reveals that speaking about the foundations of the rule of law is much less controversial than suggested by the heated debates at the European level. However, we also found one aspect—the legitimacy of the rule of law—on which the MPs disagreed rhetorically and with growing intensity.

Chapter 6 shows that the rule of law discourses are nevertheless not devoid of controversy, i.e. problems, conflicts and dissent. The chapter reveals that the handling of rights was very controversial in some parliaments while a topic of minor relevance in others, which causes a potential for conflicts among countries at the European level. The relationship between the rule of law and democracy seemed less uncontroversial at first glance, but it was disputed in certain parliaments and time periods. The final subchapter demonstrates that a number of aspects were described as challenges to the rule of law across party lines, often with country-specific narratives. Finally, established rhetoric divides exist regarding some challenges to the rule of law.

Chapter 7 summarises our main findings, discusses their implications for theory-building and provides policy recommendations. We call, inter alia, for putting more scholarly attention on the controversial aspects around the prohibition of retroactive action as one element of the rule of law discussed in several of the analysed countries. This was a matter of great concern in the context of dealing with pre-1989 injustice and later amnesties. We also suggest building stronger ties with and among parliaments. These share many narratives on the rule of law, for example the need to respect the constitution and criticism of tendencies of centralising power.