The article of Ana Palacio focus on the importance of a clear rule of law and where can lead a degeneration of the institutions when they are mis or partisan used. This is an issue and great concern o…
Xavier, I think that in your questions you have presented a bit of the answer—which is that nowhere is the rule of law perfect. Every society has to be vigilant in promoting the rule of law. Too often in Europe, we rest on our laurels so to speak and fail to recognize holes in our own rule of law systems. The danger, beyond the threat to free and functioning society, is that these gaps are highlighted by illiberal governments as justifying a race to the bottom. Indeed, this week we have seen Prime Minister Erdogan pointing to the use of police in the United States and Europe to justify the actions of the Turkish authorities.
Procyon, As many have noted, the content and definition of the rule of law has been elusive. I think that your proposed metric of judging the rule of law based on the level of protection of the rights of citizens is as good as any. I would refer you to a 2011 report by the Venice Commission of the Council of Europe which looked into this question of what constitutes the rule of law. The Commission issued a checklist of six categories and 46 questions to evaluate the level of the rule of law in states. Taken as a whole, this lengthy review captures your single lined test. In regard to plea bargaining, it is a difficult issue. The need for some level of systemic efficiency would seem to necessitate the use of such a mechanism. Yet, clearly there is room for abuse and a necessity for some checks. Recent US Supreme Court jurisprudence has recognized this need in a series of decisions finding that criminal defendants are due effective assistance of counsel during the plea bargaining stage. Another case regarding effective assistance of counsel during plea bargaining is on the docket for this term.
I have received several messages about the article that pointed to recent events in Latin America, Turkey and Hungary as further demonstrating the erosion of the rule of law. This piece was focused on political trials and in particular on the Tymoshenko case. However, the larger point regards the threat to the rule of law posed by the perversion of its institutions. The instrumentalization of law, whether through politically motivated prosecution, executive meddling in case distribution, stolen elections, media restrictions, or state-sponsored expropriation, cheapens the normative pull of law generally. I was happy to see this week that, following significant pressure both domestically and internationally, Hungary is likely to give up on some of the constitutional amendments that threaten the rule of law. This is the type of scrutiny, discussion and pressure that is needed more broadly.
I have also noticed a trend in several comments, a perception that the rule of law is solely a national issue. It is not. Clearly trials and elections and police are national institutions. However, the rule of law in today’s world is both national and international. The legitimacy that governments seek by referring to the rule of law is meant both for domestic and global audiences. It is precisely this interconnectedness that makes abuses of the rule of law such as the Tymoshenko case so insidious. The tacit acceptance of domestic perversions of legality filter up into the international community and out to a wide range of states. Thus violations of the rule of law threaten us all.
I completely agree that there has been too much focus in the media on the financial and economic drivers of the crisis. And while responsibility falls upon all segments of Europe’s socio-economic fabric, the deeper underlying problems are, in fact, political. Given that, as you rightly point out, partial unions have little chance of survival, the issue of articulating Europe’s path becomes even more critical. Against the backdrop of Europe’s lack of able political leadership, commentators are right to question who would be up to that important task. The Nobel Peace Prize would hopefully serve as the catalyst that will bring to bear the duty that comes with it.