Introduction to the Special Issue of The Hague Journal on the Crisis of Constitutional Democracy in Central and Eastern Europe

This Special Issue of the Hague Journal on the Rule of Law derives from the debates at the workshop on How to Resolve the Crisis of Constitutional Democracy in Central and Eastern Europe? held at the Graduate School of Government and European Studies in Ljubljana, Slovenia, on 9 and 10 December 2016. The workshop was organised under the auspices of the project on the Reform of the Rule of Law and Democracy, generously funded by the Slovenian Research Agency [J5-7359 (A)]. The contributions to the workshop examined the state of the constitutional democracy and the rule of law in the Central and Eastern Europe.

In the constitutional democracy, all of the three elements of democracy: input and output legitimacy and the political process through which they are connected, have to take place within the framework of the rule of law. Simultaneously, there can be no rule of law if the laws by which the individuals are ruled do not come into being in a democratic manner. Democracy and the rule of law thus presuppose each other, but at the same time their relationship is not entirely symbiotic. There is a dormant democratic threat that the democratic majority will trump the rights of the outvoted minorities. This is what the rule of law is there for to prevent. This counter-majoritarian problem, as it came to be known, is, however, only a seeming one. If democracy is not understood as a simple rule by the majority, but rather as a system of the organization of political power whose central value is the protection of equal human dignity, then the constitutional self-limitation of the democratic majority is not democracy’s denial, but its vindication. Against this theoretical background, this Special Issue proceeds from the fact that the constitutional democracy has been in an incremental, but definite decline across the European Union, but in particular and most acutely, in the Central and Eastern European States. On this basis, the Conference centred on the following question: How to redeem the status of constitutional democracy properly in the praxis of Central and Eastern European countries?

This Special issue includes six contributions. The first two engage in a more general, analytic and theoretical discussion of the contemporary challenges to constitutional democracy in this part of the world. Gianluigi Palombella’s opening contribution entitled “Illiberal, Democratic and Non-Arbitrary?” dissects the theoretical issues related to the epicentre and circumstances of a Rule of Law Crisis and explores some complexities of rule of law and democracy in Europe. On the other hand, Bojan Bugarič and Alenka Kuhelj examine the phenomenon of constitutional populism and queries how the latter impacts on the rule of law. The following four articles form an applicative part of the Special issue, by presenting four case-studies in the state of constitutional democracy in respective CEE jurisdictions. Matej Avbelj suggests a sociological turn in the scholarship on constitutional democracy and on the Slovenian example suggests a better understanding of what the real causes of constitutional democracy in this part of Europe are. Tatjana Papić and Vladimir Djerić, on the other hand, provide a timely and illuminating insider’s perspective on the role and impact of Serbian Constitutional Court on the quality of constitutional democracy in this former Yugoslav republic. David Kosař and Katarína Šipulová return the debate in the Visegrad context and in their critical contribution address how the European Court of Human Rights really approached the Baka case and what have been its broader consequences for the state of constitutional democracy in Hungary. Finally, Jernej Letnar Černič, dissects the role and impact of the ECtHR on the rule of law and constitutional democracy in Central and Eastern Europe even more in general and emphasizes the missed opportunities.

All six contributions provide insights into the selected aspects of the functioning of constitutional democracy and the rule of law in Central and Eastern Europe and the actual and potential impact of European Institutions. As a result, they all share common concern over old and new crises in the region. The Special issue does not exhaust all of the many facets of constitutional democracy and the rule of law in Central and Eastern Europe. Its aim has been to put forward a pluralistic contribution to already existing debates by taking stock of recent events and proposals and thereafter drafting alternatives to move beyond crises of constitutional democracy and the rule of law in the region.

The Editors would like to thank the contributors to this special issue as well as to profesor Ronald Janse, the editor-in-chief of the journal for his support and patience. Further, we would like to thank the Graduate School of Government and European Studies for providing the institutional support in organising the conference. The generous financial support of the Slovenian Research Agency is acknowledged too. This special issue has benefited from a discussion the editors and contributors have had at the conference and in the past years with Andrew Drzemczewski, Martin Krygier, Matthias Goldmann, Hent Kalmo, Marko Novak, Sara de Vido, Alen Uzelac and Jan Zobec. We hope that this special issue will stimulate further debates on the state of the rule of law and constitutional democracy, which remain at peril across the region.

Ljubljana, March 2018

Jernej Letnar Černič

Matej Avbelj

Special Issue of The Hague Journal on the Rule of Law

The Hague Journal on the Rule of Law has published Special Issue on the Crisis of Constitutional Democracy and the Rule of Law in Central and Eastern Europe. The contents is available below.

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Oñati workshop on the Rule of Law, Populism and Militant Democracy in Europe (12-13 April 2018)

Oñati workshop on the Rule of Law, Populism and Militant Democracy in Europe will take place between 12-13 April 2018 at the International Institute for the Sociology of Law in Oñati, the Basque Country, Spain.

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For some time now the European societies have been marked by extreme movements from all ideological poles who directly assault the values of democracy and the rule of law. Liberal democracies are therefore faced with challenges of how to respond to the rise of radical movements from different parts of the philosophical poles. Are European states justified to prohibit the exercise of freedom of assembly and of association, expression and religion, all with the aim of protecting the democratic and liberal order, or would be such measures disproportionate and excessive? Some argue that measures of militant democracy, as they have been known, themselves undermine the rule of law and democracy as they directly interfere with the values of pluralism, human dignity, freedom and equality. On the other hand, others argue that it is indispensable to counter the populist movements with constitutional individual actions arising from civilizational heritage of European liberal democracies. The concept of rule of law includes how a society proceeds and functions on the basis and through law. Genuine respect for rule of law is one of the key prerequisites for the functioning of a free and democratic society, as it enables and secures the exchange of different opinions, attitudes and views. Its normative protections are reflected in the provision on civil-political and socio-economic rights. The European Convention on the Protection of Human Rights and Fundamental Freedoms only specifically refers to the rule of law in the preamble, where it notes that ‘as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’.

The topic first of all addresses hard conceptual issues. The central concepts of the workshop: the rule of law, populism and militant democracy tend to figure as essentially contested concepts. To avoid speaking past each other the workshop will strive toward an incompletely theorized agreement about the shared meaning of these concept. Having passed this theoretical conceptual threshold, the concepts will applied and studied in several case-studies in national and supranational contexts. So far the questions of the rule of law, illiberal movements etc. have been addressed predominantly, if not exclusively, within the context of the nation state, either unitary or federal. The EU is neither. As a specific constitutional structure of a post-statist union it posses specific epistemic, explanatory and normative challenges of addressing and responding to the conflicts between the rule of law, populism and militant democracy.

The specific challenges, different as has typically been the case, should be addressed just through the judicial lens, but also through the lens of a legislative branch, administrative authorities, and least but not last, the civil society. The prevailing formalist approach to the rule of law should be complemented by the sociological approach that has interestingly been lacking in the legal writings about the rule of law and democracy.

Against this background, the proposed workshop will first dissect the current state of the rule of law, populism and militant democracy in Europe and, second, demonstrate how the liberally democratic states, based on the rule of law, should respond to the contemporary threats to themselves without denying their own very values.

Akademski forum ob svetovnem dnevu človekovih pravic

V ponedeljek, 11. decembra 2017, je na Fakulteti za državne in evropske študije Nove univerze potekal zelo obiskan akademski forum ob svetovnem dnevu človekovih pravic v spomin na življenje in delo prof. dr. Borisa Furlana, medvojnega in povojnega profesorja prava, političnega zapornika ter zavednega Slovenca. Na njem so sodelovali Alenka Puhar, Lovro Šturm, Stasha Furlan Seaton v odsotnosti (v njeni vlogi študentka Sara Flis), Rok Svetlič in Jernej Letnar Černič.

Vsem gostom in obiskovalcem se za udeležbo in sodelovanje v razpravi iskreno zahvaljujemo.

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Spoprijem z razmerami in razmerji v Sloveniji

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Inštitut Nove revije je 17. novembra 2017 izdal zbornik z naslovom “Spoprijem z razmerami in razmerji v Sloveniji”. Iz opisa zbornika “Poglavitni namen tematskih razprav in posvetov, ki jih že vrsto let prireja Inštitut Nove revije, pogosto tudi v sodelovanju z zainteresiranimi inštitucijami doma in v tujini, je, da se uveljavi vodilo spoprijema namesto spopadanja, ki se ga ne uspemo otresti iz preteklosti, kar onemogoča produktivno družbeno argumentacijo….Izobraževalni, kulturni, znanstveni, tehnološki, okoljski, medijski, religijski, gospodarski, finančni, politični in drugi sistemski vidiki upravljanja družbe izgubijo svojo tehtnost, kolikor ti ne izkazujejo odgovornosti do bivanja državljanov in državljank ter humanega dostojanstva. Zato je na vseh omenjenih družbenih področjih in v celoti potreben spoprijem z razmerami in razmerji v Sloveniji”.