Illiberal Europe, East of the Elbe

Law and Justice party leader Jaroslaw Kaczynski (Reuters photo: Kacper Pempel)
Poland’s move toward autocracy will be checked by the Polish people, not the EU.

In Poland, a revolution is afoot. Not the sort that will conjure up glorious memories of 1989, or transfix the minds of Slavophiles reared in that era and eager to make Warsaw into Westminster-on-the-Vistula. This one, rather, particularly offends their senses.

The Law and Justice party (PiS) has spent much of its two years in power irritating the staunch defenders of liberal democracy to the west. Now the party, under the leadership of Jaroslaw Kaczynski, is going farther, attempting to bring the country’s judiciary under political control. Kaczynski and the PiS would force all Supreme Court judges to retire, effective immediately, unless they are granted a reprieve by the justice minister. Legislation that has already been passed, awaiting only the president’s signature, allows legislators to appoint members to the National Council of the Judiciary, which enforces legal and ethical guidelines and appoints judges, and which is currently autonomous from the government.

The European Union and its constituent member states have condemned these moves in the harshest of terms. The German head of the largest bloc in the European Parliament, for instance, urged the European Commission to take action against the Polish government, declaring that it was “leaving the European community of values.” His fellow legislators endorsed his rhetoric, as did a steady stream of watchdogs, NGOs, civil-society organizations, and Western journalists, all aghast at the apparent decline of democracy in the EU’s eastern half.

Now the EU looks set to take action — whatever action it can, at least. This will likely come in the form of triggering Article 7 of the EU treaties, an unprecedented action in the history of the union. The headlines are serious: Poland would lose its voting rights in the bloc, a serious censure if there ever was one. Or it may turn out to be nothing but a load of hot air, with Brussels taking a hard line rhetorically but a much softer one in practical action.

In any case, the reality of the EU’s powers is complicated. Brussels is a famously lethargic apparatus, and it is no different when it comes to sanctioning EU member states for domestic actions. The roadblocks to action occur throughout the Article 7 process, the sanction mechanism of which has two phases and runs through some of the more mind-numbing aspects of the European constitutional structure. First, the European Council and European Parliament would have to find, by a unanimous and qualified-majority vote respectively, that Poland has indeed violated fundamental rights and values. The council can then suspend Poland’s voting rights through a qualified majority. The unanimity required at the first step of the process makes substantive action difficult: Surely Hungary, whose leader, Viktor Orban, is often considered the prototypical illiberal democrat, would block any such move.

How, then, can the European Union can prevent what political scientists call “democratic backsliding”? It can’t, at least not in any formal way. The EU’s cumbersome constitutional apparatus is enough to ensure that. Moreover, such a sanction will be effective only if it deprives the government of something it desperately desires. At this point, it seems quite possible that PiS would consider losing its vote at Brussels an acceptable price to pay for unchallenged control over the domestic judiciary. (It has taken such a position before, as on the admittance of refugees.) Sanctioning works only when its subjects care.

Maybe this state of affairs reflects the essential hubris of the European Union in the first place. In its original incarnation, the organization that would become the EU was a tight, close-knit association of Western European nations speaking similar languages and bearing similar national histories — Germany, France, and parts of Italy had all been ruled by Charlemagne. The addition first of the United Kingdom and later of the nations of southern Europe — Spain, Portugal, and Greece — weakened these bonds. The post-Communist expansion into Eastern Europe has frayed them even further.

The EU’s current structure proceeds from a certain view of history, namely the Whig view, which sees history as the unceasing accrual of progress and virtue, while the darker aspects of our past simply fall away. With the exception of the Nazi era, this is, by and large, not a bad way to summarize the history of Western Europe since the 17th century. The once-dominant monarchies atrophied and collapsed, succeeded by democracy, the nation, and eventually the welfare state. Once the foundations of liberal democracy are acquired — an independent judiciary, the rule of law, respect for civil society, and so forth — they will remain largely in place. That is the price of joining the club, and the assumption is that backsliding is historically impossible. There is thus no need for a mechanism to punish members of the club who renege on that commitment.

How can the European Union can prevent what political scientists call ‘democratic backsliding’? It can’t, at least not in any formal way.

East of the Elbe, things look rather different. There — and I admit I am speaking far too broadly here — history is not a clean, linear progression toward a bright liberal future, but rather a cyclical and repetitious struggle between nations, ethnicities, ideologies, and individual rulers in which gains, once achieved, can be rolled back without difficulty. The Balkans, where politics often looks like the relitigation of ancient feuds and dynastic conflicts, are the paradigmatic example of this. But so it is in Eastern Europe too, in countries that long lived under the shadow of the Ottoman Empire. History looks different there; it is a tune played to a different melody, rarely the Whig one.

It seems to me that the EU simply failed to grasp this reality at the time of the bloc’s eastward expansion. In the end-of-history rapture that gripped Western democracy after the fall of the Soviet Union, it was all too easy to believe that the nations of Eastern Europe subscribed to the Whig model already — or soon would, anyway. But they did not. Hence the EU is left without a real mechanism of enforcing the values that are — whether Euroskeptics like it or not — at the heart of the union.

If a meaningful response to PiS’s moves — and any prospect of rolling them back — is to come, it will be from the people of Poland, not from Brussels. Indeed, this is now beginning to look likely. International opprobrium has had some effect, but the prospect of domestic turmoil is a stronger spur to action. Thousands of Poles marched in central Warsaw against PiS’s plans, and this seems to have spooked the president, Andrzej Duda, who has long been viewed as a mere conduit for Kaczynski’s orders. Not quite so much anymore: Duda has bucked his commander; the legislation he has submitted would give PiS less of a free hand over the National Council of the Judiciary than would the PiS’s.

Poland’s future, then, is to be found with its people, not in Brussels. Well-wishers of liberal democracy would be better off relocating their faith — away from the vaunted institutions of the European Union, and to the endogenous wellsprings of democratic sentiment within the Polish populace itself. To do so would remove the EU’s noxious and distorting influence on the whole matter and allow the debate to occur within the nation, on the level where it properly should.

At the same time, the EU should use the ongoing affair as an opportunity to examine its own deeply held principles. What are the European values the union professes to defend? Does it make sense to pronounce them universal over the now-vast geographic expanse of the union, including many countries with a historical heritage quite distinct from that of the founding members? To what length should the EU be prepared to censure members in violation of those values, and what constitutes a violation worth censuring? If the EU wants to approach the coming years with the vigor and purpose it has much been lacking since the financial crisis, these are the thorny questions it will need to address openly and honestly.


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