The rhetoric of inaction: failing to fail forward in the EU’s rule of law crisis

ABSTRACT

In the EU, political crises often serve as catalysts for policymaking and ‘failing forward’. Yet as a breakdown of the rule of law has swept some member states, EU institutions have repeatedly failed to react. We argue that this outcome is partly tied to how political elites strategically mobilize rhetoric to legitimate stasis during crises. Building on theories of rhetorical action and discursive institutionalism, we rectify their bias for change and draw on Albert Hirschman’s work to theorize ‘rhetorics of inaction’: A coordinative discourse wielded by national and supranational actors to reconcile divergent preferences and justify stasis by appealing to the very policies and values threatened by crisis. We specify the conditions under which rhetorics of inaction are most likely to pervade EU policymaking and illustrate the theory’s explanatory purchase in a case study of the EU’s (non-)responses to the constitutional breakdowns of Hungary and Poland. By tracing the discursive interactions between EU and government policymakers, we demonstrate that populist and partisan affronts on the EU conceal far more sophisticated and obstructive argumentative strategies behind-the-scenes. We conclude that rhetorical politics are central to understanding the EU’s failure to respond to crises and elaborate avenues for future research.

KEYWORDS:

• Rule of law
• democratic backsliding
• European Union
• rhetorical action
• discursive institutionalism
• failing forward

Acknowledgements

The authors would like to thank Erik Jones, R. Daniel Kelemen, Sophie Meunier, Dimitry Kochenov, Joelle Grogan, Kim Lane Scheppele, Laurent Pech, Tomek Koncewicz, John Morijn, Konstantin Vössing, and Allyson Benton, as well as participants of the ‘Failing Forward or Falling Apart?’ workshop held in September 2019 at Princeton University, the 2020 Law and Society Association virtual annual meeting, and City University of London’s Comparative Politics Lecture Series for constructive feedback and helpful comments. Dr. Pavone's research was supported by the Research Council of Norway through its Centres of Excellence funding scheme, project number 223274 (PluriCourts). All remaining errors are our own.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 This follows Schimmelfennig (2017, p. 316)’s definition of an EU crisis as ‘a decision-making situation with a manifest threat and a perceived significant probability of disintegration’. The ROLC was also labelled a ‘crisis’ in 2013 by Commission Vice-President Reding, see Trax.25.

2 C-294/83, Les Verts v. European Parliament [1986] ECR 1339, par. 23.

3 The ECJ has legitimated vigorous EU rule of law enforcement (Kochenov & Bard, 2019), but it remains dependent on the Commission to bring infringements, and the Commission has been reluctant to do so (Scheppele et al., 2021). For a more critical perspective on the ECJ, see Conant, 2021.

4 Minister for Justice and Equality v. Celmer (No.1), [2018] IEHC 119.

Additional information

Notes on contributors

Cassandra Emmons

Cassandra Emmons is a Postdoctoral Fellow with the Weatherhead Center for International Affairs Research Cluster on Regions in a Multipolar World at Harvard University. She holds a PhD in Politics from Princeton University.

Tommaso Pavone

Tommaso Pavone is an Assistant Professor in the School of Government and Public Policy at the University of Arizona. He holds a PhD in Politics from Princeton University.