Death by a thousand cuts: measuring autocratic legalism in the European Union’s rule of law conundrum

ABSTRACT

Where autocratization through classical coups belongs to the twentieth century, democracies are today primarily demolished through “autocratic legalism”, a governing technique destroying democracies deliberately and incrementally within the law itself. As a result, it often goes unnoticed by hiding in judicial robes. This makes it harder to categorize regimes and necessitates a greater analytical sensitivity of the indices that many decision-makers – like in our case the European Union – have come to rely on when monitoring and attempting to protect democracy. By exemplifying the workings of autocratic legalism in Hungary and Poland, we firstly discuss what is needed to measure this new type of autocratization and how some of the leading indices fall short in this regard. We secondly discuss how relying on less adequate indices like Polity5 and Freedom House makes it more challenging for authorities like the EU to monitor, criticize, and sanction violations of democratic principles. In arguing that an index like V-Dem would offer a better foundation for tackling the Union’s rule of law conundrum, we stress that the EU’s problems are only in part due to the use of mediocre indices but also linked to increased politicization of democratic backsliding in the EU.

KEYWORDS:

• Autocratic legalism
• democracy measurements
• autocratization
• European Union
• rule of law

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Correction

Acknowledgments

We would like to thank Xenia Due for outstanding research assistance and Elise Sydendal for assistance in connection to the final version of the article. We would also like to thank our colleagues at the 2022 EUSA 17th Biennial Conference, Centre for European Politics, and iCourts for substantial and valued comments and criticisms to prior versions of this article.

Disclosure statement

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

Correction Statement

This article was originally published with errors, which have now been corrected in the online version. Please see Correction (http://dx.doi.org/10.1080/13510347.2023.2166271)

Notes

1 Crasnow, “The Measure of Democracy.”

2 European Commission, “Rule of Law Report”; European Political Strategy Centre, “Strong Europe, Better World”; European Commission, 2021 Strategic Foresight Report.

3 Committee on Civil Liberties, Justice and Home Affairs, REPORT on the Commission’s 2021 Rule of Law Report; Committee on Civil Liberties, “AMENDMENTS 1–230”; Committee on Civil Liberties, AMENDMENTS 1–379.

4 Munck, Measuring Democracy, 1.

5 Diamond, “Democratic Regression.”

6 Lührmann and Lindberg, “A Third Wave of Autocratization.”

7 Bermeo, “On Democratic Backsliding.”

8 Scheppele, “Autocratic Legalism.”

9 We mainly use the term autocratic legalism to follow the same typology employed in Scheppele’s original definition. When sometimes referring to “backsliding” or a “new type of autocratization” it is mainly due to linguistic nuance.

10 Scheppele, “Autocratic Legalism,” 547.

11 Pech, “A Court of Justice Protecting Polish Judges.”

12 Sadurski, “Disciplinary Chamber,” 1.

13 European Commission, “Rule of Law Report.”

14 For seminal works through the ages see, for example, Cutright, “National Political Development”; Jackman, “On the Relation”; Neubauer, “Some Conditions”; Smith, “Socio-Economic Development”; Lipset, “Some Social Requisites”; Vanhanen, Democratization; Coppedge and Reinicke, “Measuring Polyarchy”; Bollen, “Issues in the Comparative Measurement”; Arat, Democracy and Human Rights; Alvarez et al., “Classifying Political Regimes”; Diamond and Morlino, “The Quality of Democracy”; Skaaning, “Waves of Autocratization.”

15 Coppedge et al., “Conceptualizing and Measuring Democracy”; Coppedge, “Commentary: Democracy and Dimensions”; Przeworski, “Minimalist Conception”; Pickel et al., “Measuring the Quality”; Bühlmann et al., “The Democracy Barometer.”

16 Vanhanen, Prospects of Democracy; Møller and Skaaning, “Regime Types”; Munck, Measuring Democracy, Giebler et al., “Why Choice Matters”; Coppedge et al., “Conceptualizing and Measuring Democracy”; Bogaards, “Where to Draw the Line?”; Bollen, “Issues in the Comparative Measurement”; Coppedge and Reinicke, “Measuring Polyarchy”; Völkel, “Complex Politics”; Munck and Verkuilen, “Conceptualizing and Measuring Democracy.”

17 Casper and Tufis, “Correlation Versus Interchangeability”; Giebler et al., “Why Choice Matters.”

18 Crasnow, “The Measure of Democracy.”

19 Steiner, “Comparing Freedom House Democracy”; Hudson, “How to Measure Democracy”; Roberts and Tellez, “Freedom House’s Scarlet Letter.”

20 Bush, “The Politics of Rating Freedom”; Giannone, “Political and Ideological Aspects.”

21 Birdwell et al., “Democracy in Europe.”

22 Lürhmann et al., “Regimes of the World.”

23 Dictionary.com, “Legalism.”

24 Mazmanyan, “On Legalism,” 232.

25 Mazmanyan, “On Legalism”; Matczak, “The Clash of Powers.”

26 Scheppele, “Autocratic Legalism,” 548.

27 Ibid., 547–548.

28 Bermeo, “On Democratic Backsliding.”

29 See Pech and Scheppele, “Illiberalism Within”; Sadurski, Poland’s Constitutional Breakdown; Kelemen, “Europe’s Other Democratic Deficit.”

30 Bogaards, “De-democratization in Hungary.”

31 Scheppele, “The Rule of Law.”

32 Buzogány, “Illiberal Democracy.”

33 Sadurski, Poland’s Constitutional Breakdown.

34 Polgári and Dombos, “A New Chapter.”

35 Mazmanyan, “On Legalism,” 232.

36 Agh, “The Triple Crisis.”

37 Wind, The Tribalization of Europe.

38 Rohlfing, “Methods of Shrinking”; Bard, “The Hungarian ‘Lex NGO’.”

39 Wind, The Tribalization of Europe.

40 Alizada et al., Autocratization Turns Viral.

41 Sadurski, Poland’s Constitutional Breakdown.

42 Ibid., 16.

43 Pech, “Dealing with ‘Fake Judges’.”

44 Judgment of the Court of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C-585/18, C-624/18 and C-625/18.

45 Case of Xero Flot w Polsce sp. Z o.o. v. Poland.

46 Pichlak, “Abortion, Constitution.”

47 The decision by the Polish Constitutional Court was postponed in May 2021.

48 Kelemen, “The European Union’s Authoritarian Equilibrium.”

49 Csaky, “The Antidemocratic Turn,” 3.

50 Kelemen and Pech, “Working Paper: Why Autocrats”; Pech and Bard, The Commission’s Rule, 108.

51 Munck and Verkuilen, “Conceptualizing and Measuring Democracy,” 14.

52 Gurr and Marshall, Polity5: Political Regime, 14–15.

53 Munck and Verkuilen, “Conceptualizing and Measuring Democracy,” 24.

54 Scheppele, “Autocratic Legalism,” 547.

55 Freedom House, NIT Scores 2005–2020.

56 Coppedge et al., “The Methodology”; Coppedge et al., Varieties of Democracy; Dahl, Polyarchy.

57 Freedom House, Freedom in the World.

58 Coppedge et al., “The Methodology.”

59 Scheppele, “Autocratic Legalism,” 548.

60 Pech and Scheppele, “Illiberalism Within.”

61 Tomini and Wagemann, “Varieties of Contemporary Democratic Breakdown”; Pelke and Croissant, “Conceptualizing and Measuring Autocratization”; Boese, “How (Not) to Measure.”

62 Vaccaro, “Comparing Measures of Democracy.”

63 Jakab and Kirchmair, “How to Develop.”

64 Craig and de Búrca, The Evolution of EU Law.

65 Pech and Bard, The Commission’s Rule.

66 Ibid., 125; Moravcsik and Vachudova, “National Interests”; Schimmelfennig and Sedelmeier, “Governance by Conditionality.”

67 Kelemen, “European’s Authoritarian Cancer.”

68 See also Kelemen, “The European Union’s Authoritarian Equilibrium,” on this point.

69 European Commission, Rule of Law Report; Speech by President von der Leyen; European Political Strategy Centre, “Strong Europe, Better World.”

70 Jakab and Kirchmair, “How to Develop.”

71 Scheppele, “The Rule of Law.”

72 Pech and Bard, The Commission’s Rule.

73 Bush, “The Politics of Rating Freedom.”

74 Jakab and Kirchmair, “How to Develop,” 937.

75 Pech and Bard, The Commission’s Rule.

76 European Parliament, Establishing a EU Mechanism.

77 Kelemen and Pavone, “Where Have the Guardians Gone?”

78 Antall, LIBE–AFCO Joint Public Hearing.

79 Committee on Civil Liberties, Justice and Home Affairs, REPORT on the Commission’s 2021 Rule of Law Report; Committee on Civil Liberties, AMENDMENTS 1–230; Committee on Civil Liberties, AMENDMENTS 1–379.

80 Mayoral and Wind, “Unleashed Dialogue.”

81 Speech delivered at the European Parliament’s interparliamentary committee meeting (ICM) on the rule of law in the EU, 9 December 2021.

82 Nugent and Rhinard, “The ‘Political’ Roles”; Pansardi and Tortola, “A “More Political” Commission?”

83 Speech by European Commission President Ursula von der Leyen.

84 Lührmann and Lindberg, “A Third Wave of Autocratization,” 1095.

85 Cianetti and Hanley, “The End of the Backsliding”; Cassani and Tomini, “Reversing Regimes and Concepts.”

Additional information

Notes on contributors

Regitze Helene Rohlfing

Regitze Helene Rohlfing is a PhD candidate at the University of Copenhagen in the Department of Political Science and iCourts Centre of Excellence for International Courts, at the Faculty of Law. She works on issues of civil society and law in times of democratic backsliding and has conducted extended fieldwork among activists in Poland and Hungary. In 2021, she was a research affiliate at the Central European University’s Democracy Institute and a visiting fellow in the Department of Political Systems at the University of Warsaw. She is recipient of the 2021 EUSA Haas Fund Fellowship.

Marlene Wind

Marlene Wind is a Professor in the Department of Political Science at the University of Copenhagen where she is also directing the Centre for European Politics (CEP). She is also a Professor at the iCourts Centre of Excellence for International Courts, at the Faculty of Law at the University of Copenhagen. In 2018–2019 she was Global Law Fellow at Leuven University in Belgium and from 2015–2018 Professor II at Oslo University, Faculty of Law. She has published extensively on the European Union, legal culture and democratic backsliding. Her latest monograph was “The Tribalization of Europe – a defence of our liberal values”, Polity Press.