The Poverty of Militant Doctrinal Constitutionalism in the European Union

‘Obstinate ignorance is usually a manifestation of underlying political motives.’¹⁾

– Michał Kalecki

Almost seventy years ago, Bertolt Brecht published a poem in which he ironised the communist party discontent with the attitude of German workers. The poet wrote that instead of trying to get back the support of the people would it not ‘be simpler for the government to dissolve the people and elect another?’. Reading the recent comments of EU law scholars on the provisional acceptance of Poland’s recovery and resilience plan, one might similarly ask ‘would it not be better if law professors dissolved the Union and created another one?’

First, Franz C. Mayer wrote about ‘Die Kapitulation’ of the European Commission. Next, Laurent Pech described the Commission’s action as ‘Rewarding the Destruction of the Rule of Law’. Both contributions are a reaction to the Commission’s decision to provide a positive assessment of Poland’s plan. The decision is a big step towards the EU transferring €23.9 billion to Poland in grants and €11.5 billion in loans under the Recovery and Resilience Facility (RRF), which is intended to revive European economies and enable them to emerge from the post-pandemic crisis.²⁾ Both texts are also part of a broader and long-standing discussion among constitutional and EU scholars who, in public speeches and academic contributions, ‘defend the rule of law’ by ritually criticising the Commission and demanding that it ‘does more’ (implicitly – discipline more) about ‘populist’ or ‘illiberal’ Poland and Hungary, classified as the ‘naughty children’ in the European Union. Criticisms of this kind often are justified. Poland and Hungary are indeed systematically dismantling their liberal constitutional systems. However, these criticisms are based upon reductive doctrinal argumentations that overlook the political, social, and economic context. This discourse is also often based on suspicious oversimplifications. For example, Mayer writes that the Polish Constitutional Court (PCC) declared ‘that European law cannot claim precedence over Polish law’, while the PCC in fact gave an interpretative ruling on the question whether the scope of two provisions of the Treaty extends to the correctness of the appointment of judges in Poland and the possibility of examining the legal status of PCC justices and the usage of EU law in that process by Polish national courts. In the same way, the ECtHR has never ruled that the PCC ‘is not a court within the meaning of Article 6 of the Convention [the right to fair trial]’, but decided in a particular case that the PCC failed to fulfil its role due to irregularities in the appointment of a particular justice. This may seem detailed and complicated, but after all, we are lawyers and scholars. Such details matter. It is also interesting that Laurent Pech never misses an opportunity to describe the democratically elected governments in Poland and Hungary as ‘autocrats'³⁾, a term that is as emotional and moral as it is devoid of any analytical precision.

This type of doctrinal argumentation, which dominates the public discussion on the rule of law crisis, does not lead to an understanding of populist/illiberal mechanisms. It is rather replacing analysis with easy moral evaluation aimed at accumulating academic capital. This simplistic and often ignorant way of framing ultimately undermines the branch on which European constitutional scholarship rests.

Context Matters

Doctrinal constitutionalism fails to recognise the context in which the constitutional processes, including the crisis, take place. By reducing the rule of law only to a legalistic ideal where boxes are checked, it fails to see the real consequences and social processes in which it operates. If we talk about the Polish part of the RRF, four elements are worth mentioning: the war in Ukraine, the climate crisis, the mutual economic ties between the other EU Member States and Poland, and the impact of the decision on potential further antagonism between the EU and the Polish government.

Since the beginning of the Russian invasion of Ukraine, Poland has accepted more than 3.2 million refugees. Such a significant number of war refugees poses a very big challenge for the Polish state and society. RRF funds, as any instrument designed to boost and revive the economy and job market, can therefore be seen as a tool to help with this challenge. Foreigners are always the first victims of an economic crisis, and a growing economy and stable jobs – in contrast – promote social integration.

It is necessary to consider the purpose of the fund, which is not directly related to the rule of law. Poland is supposed to spend this money to ‘decarbonise the Polish economy, accelerate the digital transition and reinforce Poland’s economic and social resilience.’ The RRF has become a crucial part of a larger green transition that is intended to make the EU a net-zero emitter of greenhouse gases by 2050. The whole world is experiencing yet another year of record-breaking temperatures, the costs of climate change are increasing, and the chances that irreversible consequences for the whole ecosystem can be avoided are becoming more and more unlikely. While Poland has been rightfully bashed for not embracing the green transition in full, the lack of RRF funds would have contributed to this destructive path. EU constitutional doctrine seems to suggest allowing the world to combust if it does not comply with its standards. We tend to trust climate scientists that perhaps our time to make everything (legally) right is not unlimited. Here, some considerations referring to the very legal idea of proportionality could have been useful.

Legal constitutionalism is ignorant not only to the social and ecological context but also to the economic one. It is too easy to say that Poland is ‘getting money from the EU.’ Rather it often acts only as an intermediary for the benefit of other Member States. This was expressed by Günther Oettinger, the former EU Commissioner for Budget, in an interview with the German business newspaper Handelsblatt. Oettinger argued against a reduction of EU subsidies for Poland because of rule of law infringements:

‘Budgetary policy shouldn’t be used to impose political penalties. The structural funds are for making weak regions more competitive. And a large part of every euro the EU gives Poland comes back to Germany. The Poles use the money to place orders with the German construction industry, to buy German machines and German trucks. So net contributors such as Germany should be interested in the structural funds. From an economic perspective, Germany isn’t a net contributor but a net recipient.’⁴⁾

Treating European funds as disciplinary tools is therefore not so easily justified. The former commissioner properly recognised the interconnectedness of States’ and intrastate interests in the EU. Even in its jurisprudence, the Court of Justice of the European Union points out the necessity of linking – and thus strictly demonstrating – violations of the rule of law with ‘seriously risk affecting the sound financial management of the Union budget.’⁵⁾ To put it differently: how would the distribution of the RRF fund by Polish authorities to internal and external stakeholders significantly threaten the European budget?

The initial approval of the Polish part of the RRF was not at all perceived as a victory by the Polish government. The far-right wing of the ruling camp has criticised the fund for committing to a ‘tax on combustion cars’ as part of a broader ideological project aimed at shifting the costs of the energy transition to ordinary citizens.⁶⁾ There have even been calls for an exit from the fund. This is because the Commission, by its decision, deprived the Polish populists of an important argument on which they built their narrative. Politicians claimed that the EU was punishing Poland for pursuing sovereign policies. The creation of a Manichean political imaginary based on the ‘sovereign state’ vs. ‘corrupt European elites’ divide allowed those in power in Poland to cast themselves as morally superior defendants of the ‘normal people’ against globalists. The Commission’s decision and approval of the fund is an act of exchange that forces the Polish government to cooperate. Further development depends on the political wit and interests of both sides, but the current trajectory seems to be strengthening the interaction between the Polish government and the Commission, if not even creating common interests, forcing the Polish government to defend the EU towards its critics within Poland.

Consideration of the contexts sketched above allows us to frame the discussion on the RRF beyond the quasi-Hamletic question ‘rule of law or no rule of law?’. This could be a good start for a more serious discussion of the burning issues of how decisions are made in the EU, the legitimacy of political sanctions for contesting the idea of the rule of law by Member States, the scope of the authority of European law for citizens, constitutional pluralism within the EU and, especially, the political and social role of constitutional scholarship. This requires going beyond the doctrinal approach.

Beyond Constitutional Doctrine

Selective simplification and blindness to context of the doctrinal, legal constitutionalism has its function. What is at stake here is the position of power in defining what the European rule of law is and the position in the academic field. The rule of law itself is an idea as much legal as political, on which various theories, empirical studies and documents from governmental and non-governmental organisations could fill more than one library. It is a necessarily contested and ambiguous concept. European law professors, however, seem to know better – there is only one kind of the rule of law, and they know what it is. And if anyone questions these doctrinal arrangements, invoking banned concepts like ‘constitutional pluralism’ or ‘the political’, then he or she is either a ‘populist’ or a ‘useful idiot’ for the populists.⁷⁾ However, if we consider the rule of law or constitutionalism to be concepts open to contestation, then the threat to their vitality and viability will not be the discussion of these concepts but the absence of such discussion.⁸⁾ For its persistence, political and legal ideals require participation, even if it were to be confrontational.

The rule of law crisis discussion is transforming the entire academic field of comparative constitutional law. Success is thus measured not in volumes of empirically based analysis or critical examination of existing legal practices but more and more in op-eds in which Poland, Hungary or the Commission should be chastised like unruly children in the most imaginative and entertaining way possible. It is possible because of the ultimately fatal grip of constitutional law scholarship and constitutional design in the EU which blurs the distinction between theoretical and more practical uses of constitutional concepts. The EU is probably the only legal framework in which the idea of the rule of law has been politically weaponised to such degree. The treaty’s ‘rule of law’ clause has been combined with a series of institutional mechanisms, such as complaints or conditionality, which have their own launch and application conditions. However, with the generality of the very concept of the rule of law, these conditions are not only gradual and therefore difficult to pinpoint precisely but also embroiled in a political process of antagonism of interest and negotiations. This opens the space for academics who legitimise such use through a scientific (and therefore deceptively apolitical) description of its conditions. This simultaneously causes the critical distance between the subject of the study and its use to fade. Only quite recently has Jan Komárek reminded us of the political dimension in which constitutional law scholars operate in and pointed out the dangers and temptations involved.⁹⁾

Too much involvement in current political conflicts in the long run politicises and therefore delegitimises constitutional scholarship that should remain largely critical – not only of its subject and actors who are involved, but also of itself. We are not criticising referring to current conflicts in the classroom (which should be done) but rather confusing speaking at a rally with the classroom. It is yet another question to what extent this type of discourse – which tries to put individual countries in line by disregarding local cultural and institutional context – has in fact provoked this type of ‘populist’ reaction. We observe the emergence of various counter-reactions to globalist discourse in the spirit of ‘there is no alternative’ – not only at the semi-periphery like Poland and Hungary, but in countries with a long and established history of democratic institutions – like the US and France. Cas Mudde is right when he indicates that populism is partly a response to undemocratic liberalism.¹⁰⁾

It seems that some legal scholars are taking the position of the ‘mouth that pronounces the rule of law’. This orientation toward rule-making and not rule-examining also results in frustration and the all-too-dramatic terms about ‘capitulation’ or ‘reward for breaking the rule of law’ when social actors fail to follow doctrinal guidance. It is said that when Hegel saw Napoleon, he called him ‘world spirit on horseback.’ Today, to see the rule of law in the flesh, all you must do is walk into a professor’s lecture on European law. We dread to think what will happen if reality continues to fail to keep up with their guidance.