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Euro Dust-Up Over the Rule of Law

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The governments of Hungary and Poland vetoed the European Union’s six-year budget on Monday, along with the special additional recovery stimulus proposed by the EU Commission (its executive body). This adds up to quite a bit of cabbage, two thousand billion dollars American, which, as the late, great Sen. Everett Dirksen might have noted, suggests they are talking real money in Brussels and Strasbourg.

But are they really talking about money, or are some getting into others’ business that they ought better leave alone? This is the view of the governing parties of Hungary and Poland. They are not opposed to stimulus packages and multi-year budgets, from which they receive more than they contribute. What Fidesz (Civic Alliance, Hungary) and Prawo i Sprawiedliwość (Law and Justice, Poland) object to is the EU’s requirement that member states conform to its definition of “rule of law.”

The EU Commissioners in Brussels, the confederation’s executive branch, and the deputies to the European Parliament in Strasbourg are eager to distribute the huge epidemic relief package, as well as nail down a budget for the next six years. It will involve taking on a huge pile of debt, but at a time of uncertainty about the severity and duration of the “second wave” of the virus, they figure the social contracts on which contemporary Europe is founded depend on such mortgaging of the future.

They also aim to tie the funds to respect for the rule of law, absent which, the argument goes, the allocated relief funds will be misappropriated or lost. The Hungarians and Poles view this as interference in their sovereignty and refuse to go along.

The vetoes could trigger a complicated procedure to deprive the two countries of their allocations, or diminish them, but in the meantime the package will be bottled up. In effect, the two sides are staring each other down. The Eurocrats, more exactly the politicians to whom they answer in northern and western Europe, insist they are doing it in the name of clean government; for good measure, they also say they are defending democracy.

Viktor Orbán has referred to his political program as “illiberal democracy”; he and others, including his Justice Minister, Judit Varga, more formally speak of Christian Democracy, with a strong emphasis on securing Hungary’s national personality. This comes across in west European chanceries as shockingly bad-mannered, but Fidesz has won three parliamentary majorities in a row, most recently in 2018. A newly united opposition bloc made gains in last year’s municipal elections (winning control of Budapest); however, it lost a bellwether by-election in October. The next parliament will be elected in 2022.

Judit Varga observes that mixing up budgetary matters with interference in member-states’ constitutions sets a terrible precedent. This is also the point of view of Poland’s government, whose leaders insist on their right to design their own judiciary, without EU regulations — assuming anyone knows what they are.

EU member states’ judiciaries are anything but uniform, and one would not expect them to be. And apart from the superstructure, the basic question of how to define the rule of law is not, Mrs. Varga points out, what agitates the critics. The layman’s idea of the basic element of “rule of law” is that the judiciary functions independently of the political authority; under this standard most countries in Europe, or the world, could be faulted.

Mrs. Varga, who spoke from Budapest at a Zoomed conference sponsored by the Friends of Hungary Foundation this week, notes that the most recent EU Rule of Law report comes, coincidentally or conveniently, just when the mammoth budget is on the table. This puts pressure on everyone to cave in and let the money flow. But as she says and has explained in Hungary Today and many other media outlets, notably the German Welt and the European Politico, the Commission is promoting a political, not a jurisprudential, agenda.

The Commission claims, Mrs. Varga maintains, it wants to improve the way Poland and Hungary manage their judiciaries. What really vexes the commissioners, however, is the Orbán government’s restrictive immigration policy. They dislike both countries’ overtly Christian and pro-family policies. They are appalled to find that men and women are defined, in Polish and Hungarian law, as such.

Zoltán Kovács, Secretary of State for International Relations, explained to the conference that on migration, Hungary since 2015 — the year German Chancellor Angela Merkel invited a million refugees from the Mideast in and opened a floodgate of illegal immigrants — has been consistent, and consistently proven right. Immigration, he says, is not a human right, and it requires that laws be followed and orderly controls — including the walls Hungary built on its borders — be maintained.

Family Affairs Minister Katalin Novák, in her remarks, explained that the government encourages large families with cash allocations, housing loans, and other subsidies, and, without planning to reverse the abortion laws as they now stand, offers programs to promote and protect life.

For these kinds of policies, the Orbán government has been labeled with the usual epithets from another era. If, in addition to this, it partakes of graft with EU funds, then it is following the examples of the western members of the EU when it was only the Common Market: rackets involving development funds and agricultural subsidies and much besides began as soon as the first treaties were signed.

The gulf between the two positions may be too great to bridge if a compromise (which almost certainly would amount to kicking the can down the road) cannot be reached.

Is there a U.S. interest in this standoff? On the one hand, we have no interest in encouraging a crisis in the European Union that could give Russia — or Turkey — an advantage in the region.

In the broader picture, it would appear the EU is after its own manner stumbling into the kind of contradiction that flummoxes American democracy missionaries. It is admirable of American diplomats and soldiers to announce their mission for freedom, in the defense of which democracy is usually recognized as a necessary governance tool. But this, face it, is broad indeed and abstract to boot. (Take that, Max.) It is in fact not surprising that, particularly in the post-Soviet international jargon (since about 1990), we have usually heard the corollary “rule of law” along with “building democracy.”

In the two most often cited American successes in “building democracy,” namely Japan and Germany, the rule of law dossier was left to the natives. To be sure there was American advice and input, but the working principle was that they should build upon their legal traditions. Most societies, anthropologists tell us, have legal traditions.

The more we have talked about the rule of law in the past three decades, the less we seem to know what we are talking about — and the less we have been listened to. Is there anything we would recognize as the rule of law in Iraq? In Kabul?

Though she is too polite to say it, this is precisely Judit Varga’s point. The prosecutor function, to take a crucial detail in any judicial system, varies considerably among the 27 members of the EU. It is by no means uniform, and its independence varies and in fact is a matter of controversy in many if not most countries.

The rule of law issue is certainly vexing. The Polish attorney general, as we would call him, depends on the ministry of justice; in fact he is the minister of justice. The legal minds of Brussels do not approve, but then they do not, either, of the total independence enjoyed by the top prosecutor in Bulgaria, because, they say, maybe he goes after people they think merit more due process. In Hungary, the prosecutors are independent, but there has been some soft-pedaling of cases that might touch friends of the boss, according to observers of varying bias.

That, of course, is the nub of the problem. Rule of law is easy to say — at bottom, it means the law, whether given by the Higher Power or drafted by the Fabulous Founders, is the last word. Not man, but law, governs. Well, you still require men of honor and grit. Take a second look at The Man Who Shot Liberty Valance, and think through the problem again.

We can urge the rule of law on others, and perhaps we ought to. But we tend to do it from bubble offices in Washington, D.C., and Brussels, and pretend to be surprised when we get serial coup d’états in Mali and one-man elections in Côte d’Ivoire, civil war and mass misery in Libya, rule by the gun across the plains and savannahs, desperate refugees on rafts in the Mediterranean, not to mention asylum-grantees who kill teachers in French schools and worshippers in French churches and the streets of Vienna whose gates are beyond breached.

Poles and Hungarians have the benefit of recent memories of a system allegedly based on the rule of law so twisted and corrupt that they maybe can be excused if they hear sanctimonious advice from people who did not lift a finger to help them. Maybe they deserve a hearing, rather than a scolding. We have no skin in this game, but we might listen in and learn a thing or two about what keeps countries — I say, what keeps them.