Should the EU Protect Democracy and the Rule of Law inside Member States?

• Published date: 01 March 2015
• DOI: http://doi.org/10.1111/eulj.12124
• Author: Jan‐Werner Müller
• Date: 01 March 2015

Should the EU Protect Democracy and the

Rule of Law inside Member States?

Jan-Werner Müller*

Abstract: Against the background of recent developments in Hungary, the article

discusses the question whether the European Union ought to play a role in protecting

liberal democracy in Member States. First, it is argued that the EU has the authority

to do so, both in a broad normative sense and in a narrower legal sense (though the

latter is more likely to be disputed). The article then asks whether the EU has the

capacity to establish a supranational militant democracy; here it is argued that at the

moment both appropriate legal instruments and plausible political strategies are

missing. To remedy this situation, the article proposes a new democracy watchdog,

analogous to, but more powerful than, the Venice Commission. Finally, it is asked

whether EU interventions would provoke a nationalist backlash. There is insuff‌icient

evidence to decide this question, but the danger of such a backlash probably tend to be

overestimated.

Demokratie heißt, sich in die eigenen Angelegenheiten einmischen.

[Democracy means to meddle in one’s own affairs.]

Max Frisch

Recent developments in Hungary and, to a much lesser extent, Romania have

prompted a question that once would have been considered fanciful at best: could

* Professor, Department of Politics, Princeton University, 130 Corwin Hall, Princeton, NJ 08544-1012,

USA. This essay draws extensively on my Transatlantic Academy working paper ‘Safeguarding Democ-

racy inside the EU: Brussels and the Future of Liberal Order’, as well as ‘Defending Democracy Within

the EU’, in Journal of Democracy, vol. 24 (2013) and ‘The EU as a Militant Democracy, or: Are There

Limits to Constitutional Mutations within EU Member States?’, in Revista de Estudios Políticos, no. 165

(2014). For discussions on EU interventions for democracy and the rule of law, I am grateful to Elmar

Brok, Giovanni Capoccia, Carlos Closa, Gábor Halmai, Dan Kelemen, Mattias Kumm, Alexander Graf

Lambsdorff, Miguel Poiares Maduro, Peter Niesen, Grigore Pop-Eleches, Kim Lane Scheppele,

Wojciech Sadurski, Alexander Somek, Rui Tavares and Vladimir Tismaneanu. I also wish to thank my

fellow fellows at the Transatlantic Academy, Washington, DC, during fall 2012; the audience at the

Engelsberg seminar on ‘The Pursuit of Europe’, June 2012; the participants in the workshop ‘Saving

Democracy in Europe’, Princeton University, October 2012; the staff of ARENA, Oslo; the participants

at the workshop on Central and Eastern European constitutionalism at the Clough Center, Boston

College, October 2013; as well as the participants at the NYU colloquium on ‘backsliding in Central and

Eastern Europe’, November 2013, and the participants in the Princeton LAPA seminar in September

2014 (especially Lisa Miller). Finally, I am grateful to Agustín José Menéndez and the anonymous

reviewers of the EULJ for very helpful suggestions.

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European Law Journal, Vol. 21, No. 2, March 2015, pp. 141–160.

© 2015 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

there be a dictatorship inside the European Union?1In both countries, there have

been attempts at what I would term ‘constitutional capture’: leaders have sought to

gain control of the political system as a whole, weaken checks and balances, and cap

the process with actually writing a new constitution. As of now, constitutional capture

has not been implemented in Romania. But in Hungary, the project seems to be

succeeding. There, the ruling Fidesz party has diminished the power of the constitu-

tional court (the major check on governments in a unicameral political system in a

highly centralised country with a largely ceremonial off‌ice of president). It has created

a ‘Fidesz state’ by staff‌ing off‌ices with loyalists and securing their positions for

exceptionally long periods. It is arguably now proceeding to create a ‘Fidesz people’

in that the last remnants of media freedom and independent civil society are being

attacked (very often with the charge, familiar from Putin’s Russia, that civil society

activists are really just foreign agents).2It is rather an understatement to say that a

country like Hungary is experiencing what a European Commissioner has called one

of a number of ‘rule of law crises’.3Rather, democracy as such is under attack.

Clearly, an extended discussion of the relationship between the rule of law and

democracy is beyond the scope of this article. Still, one needs to be precise about what

kind of ‘crises’ we are witnessing and what might have to be the object of ‘protection’.

So far, EU off‌icials and politicians concerned about developments in Hungary and

Romania have referred almost exclusively to the rule of law as the thing that is

threatened. One unintended consequence is that the national governments being

criticised can keep claiming democracy for themselves, or even openly advocate a

model of ‘illiberal democracy’ against supposed mainstream European liberal democ-

racy.4In other words, according to this (rather Schmittian) picture, the EU tries to

safeguard liberalism; national governments, by contrast, assert proper democracy.

But that picture is misleading. One can make this claim without having to argue that

1On Hungary, see the special section on Hungary’s illiberal turn in the Journal of Democracy, vol. 23, no.

3 (2012) and the collection edited by G. A. Tóth, Constitution for a Disunited Nation: On Hungary’s 2011

Fundamental Law (Budapest: CEU Press, 2012); on Romania, see V. Tismaneanu, ‘Democracy on the

Brink: A Coup Attempt Fails in Romania’, in World Affairs (January/February 2013), 83–87; V. I.

Ganev, ‘Post-Accession Hooliganism: Democratic Governance in Bulgaria and Romania after 2007’, in

East European Politics and Societies and Cultures, vol. 27 (2013), 1–19; and V. Perju, ‘Constitutional

Coup, Interrupted: Tales from a Romanian Summer’, I-CON Symposium on Constitutionalism in Central

and Eastern Europe, Newton, MA, October 2013 (on f‌ile with author). There are other examples, to be

sure: in actions reminiscent of what happened in the late Weimar Republic, the Czech Republic’s

president Miloš Zeman has attempted to transform a parliamentary democracy into a presidential system

through what was widely described as a constitutional ‘coup’. See ‘Zeman’s Coup’, Eastern Approaches

blog, The Economist, July 2013, at: http://www.economist.com/blogs/easternapproaches/2013/06/czech-

politics-2 [last accessed 25 January 2014]. Let me add that I do not mean to suggest that all these cases

can simply be equated. Nobody has gone as far as the Hungarian government, and nobody has been as

openly ideological about it. I would insist, however, that Hungary does provide a template—and that

there are very strong reasons to think that others are studying the template and are very tempted, given

the right conditions, to follow it.

2At the time of putting the f‌inal touches to this text (December 2014), there is evidence of increasing

resistance from parts of civil society.

3V. Reding, ‘The EU and the Rule of Law—What Next?’, at: http://europa.eu/rapid/press-release

_SPEECH-13-677_en.htm [last accessed 26 January 2014].

4See the speech by V. Orbán in July 2014, where he declared his intention to build an illiberal, work-based

state, while not abandoning democracy: http://www.miniszterelnok.hu/beszed/a_munkaalapu_allam

_korszaka_kovetkezik [last accessed 26 December 2014]; an English translation can be found at http://

budapestbeacon.com/public-policy/full-text-of-viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26

-july-2014/ [last accessed 26 December 2014].

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