Challenges to the Rule of Law in Europe

Session Submission Type: In-Person Full Paper Panel

Session Description

In the years following the end of the Cold War, many scholars and policymakers presumed that European states and the European Union (EU) had succeeded in locking in democracy and the rule of law. Through a multi-level system of judicial protection and the vigilance of both civil society and supranational actors, the EU was hailed as the most successful transnational legal order in the world, leading Francis Fukuyama to highlight Europe as the exemplar of his “end of history” thesis. Today, however, the foundations of Europe as a transnational community based on the rule of law are widely acknowledged to be under serious strain. The rise of the EU’s first competitive authoritarian regimes in Hungary and Poland alongside the disruption caused by a series of transnational crises – the Euro-crisis, the refugee crisis, Brexit, and the emergency wrought by COVID-19 – have fundamentally transformed European law and politics. This panel brings together cutting-edge scholarship unpacking the shifting politics plaguing the rule of law in Europe. The papers evaluate whether national judiciaries are well-equipped to defend democratic institutions; how the behavior of national judges mutates under the strain of rule of law breakdowns; the weakness of the EU’s institutional toolkit to defend constitutional democracy in its member states; and why supranational actors are increasingly reluctant to make use of their enforcement powers to safeguard compliance with the EU’s legal and democratic values.

To illuminate these complex and salient questions for scholars of European politics and society, the panel brings together papers that gather novel quantitative and qualitative data and represent the rich methodological pluralism of contemporary political science: From econometric methods and qualitative comparative analysis (QCA) to process tracing analysis of archival and interview data. First, Pablo Castillo leverages an original dataset spanning 46 countries to demonstrate that the judicial governance model promoted by the EU and the Council of Europe is less effective at safeguarding democracy than its promoters might lead us to believe. Second, Marlene Wind and Juan Mayoral assess the capacity to domestic judiciaries to collaborate with supranational judges in the EU when they are under siege by authoritarian governments, demonstrating how political capture obstructs multi-level systems of judicial protection. Third, Cassandra Emmons critically examines the EU’s toolkit for enforcing constitutional democracy in the member states, revealing via a comparative analysis with other regional organizations that the EU’s toolkit is far less effective than previous scholarship presumed. Finally, Daniel Kelemen and Tommaso Pavone unpack why the European Commission has recently retreated from ensuring that member states comply with their EU legal obligations, leveraging longitudinal statistics and dozens of interviews with European officials. Taken together, these papers highlight systemic shortfalls in Europe’s multi-level system for defending the rule of law, thus focalizing debates concerning which interventions would be most appropriate to rectify these institutional vulnerabilities.

Sub Unit

• Division 15: European Politics and Society

Individual Presentations

• The Euro-Model of Judicial Governance and Its Impact on Democratic Quality (Pre-Recorded) - Pablo Castillo Ortiz, University of Sheffield

• Judicial Independence and Cooperation with the CJEU (Pre-Recorded) - Marlene Wind, University of Copenhagen; Juan Antonio Mayoral, University of Copenhagen

• Deterring Democratic Decay? Regional Organizations and Democracy Enforcement (Pre-Recorded) - Cassandra V. Emmons, Harvard University

• Where Have the Guardians Gone? The EU’s Shifting Politics of Legal Enforcement (Pre-Recorded) - Tommaso Pavone, University of Arizona; R. Daniel Kelemen, Rutgers University, New Brunswick

Chair

• Tommaso Pavone University of Arizona

Discussant

• Lisa Conant University of Denver