Exclusion and Segmentation in Contemporary Europe

• In Event: Sovereignty, Rule of Law and Democracy Challenges in Contemporary Europe

Abstract

Contemporary Europe faces serious problems of democratic backsliding and rule of law violations, with Hungary and Poland as the most obvious cases of state-driven separation of people into different segments: one segment the majority; the other segment, ‘the others’ de facto excluded from the populist leaders’ notion of ‘the authentic people’. What are the implications of such forms of segmentation for rights and rule of law? The first part of the paper draws on the available literature to provide a sense of the magnitude of rule of law violations or transgressions.
The second question is: In what sense does the EU’s character as a segmented political order affect this? With segmentation is meant that the EU integration process unfolds under material, normative, and constitutional constraints (Batora, Fossum and Trondal 2021; see also Batora and Fossum 2020). The ensuing EU-based political order is an incomplete (when compared to a nation-state), constrained, biased, and lopsided political order. The Member States have built-in important controls and constraints on the nature, scope, and depth of EU integration, with bearings on the EU’s ability to take remedial action. This part of the paper clarifies what we mean by segmented political order and presents an overview of the relevant interaction effects between populist-driven forms of exclusion, rights-deprivation, and rule of law violations on the one hand, and the EU’s development as a segmented political order on the other.
The final question relates to the sources of law, and the issue of constitutionality. The rule of law problem related to Hungary and Poland is, generally speaking, depicted as a vertical conflict between the EU and Poland/Hungary. The EU as a segmented political order has a distinct constitutional arrangement, which is marked by an unwillingness on the part of member states to share sovereignty with the institutions at the EU-level. If we consider the Hungary/Poland versus EU conflict in light of the EU’s constitutional evolution, the conflict is not simply a vertical one but equally a horizontal one, between the EU’s other member states and Poland/Hungary. This relates back to the EU’s constitutional development, which was authorized by the member states and emerged through a process of constitutional synthesis of member states’ constitutional principles and traditions (Fossum and Menendez 2011). When one or more member states violates these constitutional principles, this is not only a problem for the EU but for the entire legal-constitutional system. The horizontal member-to-member state dimension underlines that the member states are at least co-responsible for addressing the rule of law crisis. It follows from the EU’s constitutional development and from the very structure of the EU multilevel constitutional arrangement that the member states cannot simply offload this task to the institutions at the EU-level without at the same time abrogating their claim to be the EU’s foremost constitutional chaperons.

Author

• John Erik Fossum, University of Oslo