Author Interview: The Impact of EU Institutions on the Rule of Law and Democracy (Slovenia and Beyond)

Matej Avbelj & Jernej Letnar Cernic

Since 2010 the European Union has been plagued by crises of democracy and the rule of law, which have been spreading from Central and Eastern Europe (CEE), catching many by surprise. This book argues that the professed success of the 2004 big bang enlargement mirrored the Potemkin villages erected in the new Member States on their accession to Europe. Slovenia is a prime example. Since its independence and throughout the accession process, Slovenia has been portrayed as the poster child of the 'New Europe'. This book claims that the widely shared narrative of the Slovenian EU dream is a myth. In many ways, Slovenia has fared even worse than its contemporary, constitutionally-backsliding, CEE counterparts. The book's discussion of the depth and breadth of the democratic crises in Slovenia should contribute to a critical intellectual awakening. It clarifies the real causes of the present crises across the other CEE Member States, which threaten the viability of the EU and Council of Europe projects. It is only on the basis of this improved understanding that the crises can be appropriately addressed at national, transnational and supranational levels.

Q1: What inspired you to take up this project?

Matej: This project grows out of a personal experience, living in a post-communist country, which has been for more than thirty years now caught in a so-called transition that threatens to become a new normal. This transition has been marked by a profound, and perhaps deepening, discrepancy between a declaratory compliance with the requirements of constitutional democracy and how the latter are actually met in practice. For many years, however, Slovenia has, despite its profound shortcomings in the rule of law and democracy, counted as a poster child of the New Europe, a flag-bearer of the progress achieved by the Central and East European (CEE) countries on their way back to Europe. As the process of constitutional-backsliding was set in motion since 2010 in Hungary and Poland, I felt that the story of Slovenia must be told too, so to offer a critical account of what this democratic and rule of law decay in the post-communist countries is actually about.

Jernej: I was born in communist Slovenia, when it was still part of the former Yugoslavia. I witnessed, as a young boy, how tides of justice turned with the fall of Iron Curtain, the first democratic elections in Slovenia in April 1990 and the independence of Slovenia in June 1991. As I started law school in the second half of the 1990s, we observed first-hand the normative project of the making of the Slovenian constitutional democracy and rule of law. Unfortunately, those normative safeguards have still not been internalized and employed in practice in Slovenian society. This book is therefore primarily a result of rigorous critical analysis of the shortcomings of Slovenian constitutional democracy from first-hand observers, but it also gives a positive message for its prospects for its reform in the future.

Q2: Whose work was influential on you throughout the course of the project?

Matej: I embarked on this book-project informed and persuaded by the leading philosophers of liberal constitutional democracy: Dworkin, Rawls and Habermas. Their theoretical message for a pluralist society: that it has to act with integrity in order to find a balance between unity and diversity and to implement a paradoxical union of contradictory principles of democracy and rule of law, has been my main guiding line as a scholar and an intellectual.

Jernej: I have been influenced by several scholars before and throughout the course of the project. They include scholars of constitutional law and legal sociology : Martin Krygier, Wojciech Sadurski, Adam Czarnota, Jože Pučnik and Lovro Šturm; and work of writers such Svetlana Alexievich, Drago Jančar, Václav Havel and Rudi Šeligo; their most important message being that the functioning of every constitutional democracy and rule of law hinges primarily on the people.

Q3: What challenges did you face in writing the book?

Matej: Well, this is, to paraphrase Feyerabend, a book written against method. It goes against the conventional wisdom, that the EU 2004 enlargement was a success and that the new member states have thereby proven to be well-ordered societies. The writing of the book was also challenging due to its deliberate interdisciplinary character. It is not just an example of legal research, but it combines the tools of sociology, economics and it is, finally, also deeply normative, providing guidelines for breaking out of the present unhappy rule of law and democracy affairs in the European Union.

Jernej: Definitely, the interdisciplinary nature of this book has been a challenge, as we are primarily legal scholars. Nonetheless, we embraced this challenge as best as we could. We were assisted by our colleague Gorazd Justinek, who wrote a chapter on the Slovenian economy. As we are both living in Slovenia and have been active in its civil society, the greatest challenge has perhaps been to critically distance oneself from the daily contours of the Slovenian constitutional democracy and not be swept under its many tentacles.

Q4: What do you hope to see as the book’s contribution to academic discourse and to constitutional or public law more broadly?

Matej: This book provides an original case-study in the rule of law and democracy problematique in the European Union. Slovenia was a missing piece in this mosaic. So, the book tells a story which is not just counter-intuitive, it might come as a veritable shock for some. The latter might raise the awareness of the depth and breadth of the effects of communism in CEE countries. A so-called illiberal democracy is not an invention of Viktor Orban. It is a system that has long pervaded this part of Continental Europe. Hence, if one wants to reverse the present trend of constitutional backsliding, it is entirely insufficient to focus on the legal mechanisms. For these only scratch the surface of the problem. It needs to be dug deeper, sociologically, economically, also psychologically in the mindset and modus operandi of these polities to bring them back on the track of constitutional democracy.

Jernej: Our book critically scrutinizes often untold stories of crises of the rule of law and constitutional democracies in CEE beyond the usual suspects of Hungary and Poland, taking the Slovenia as a case study. The crises of the rule of law and democracy have been plentiful in Central and Eastern Europe. The rule of law and democracy have been often replaced by the rule by law and “democrature” (term coined by Drago Jančar). Our critical investigation contends that those crises have perhaps a more deep and wide-ranging impact in Slovenia and other post-communist countries than only in Hungary and Poland, as sometimes partially presented in the literature. This book contends that the post-communist “nouveau riche” elites have often worked against application of the constitutional democracy and rule of law in Slovenia and elsewhere. For the rule of law and democracy to stick, the mentality of elites has to be reformed.

Q5: What’s next?

Matej: We hope to present this book in as many different fora as possible, to provoke debate, receive constructive criticism and contribute to the improvement of the actual practices in the EU at large. The latter has now been hit by a public health crisis that will soon grow into a deep economic crisis. The future of the EU is thus, again, at stake. My new project is therefore dedicated to the development of an integral theory for the future of Europe (https://eufuture.nova-uni.si/en/home/).

Jernej: We are finishing an empirical project on measuring judicial ideology at the Slovenian Constitutional Court (https://judiology.nova-uni.si/en/home/). My next project deals with Business and Human Rights, more specifically with “holistic approach to business and human rights:  a normative reform of Slovenian and international legal order” (https://humanrightsinbusiness.nova-uni.si).

Matej Avbelj is Professor of European Law at the New University, Slovenia.

Jernej Letnar Cernic is Associate Professor of Human Rights and Constitutional Law at the New University, Slovenia.