Anti-democratic Politics in Europe | Lecture and conversation with legal scholar Petra Bárd and political scientist Joep van Lit

Review 

By Pam Tönissen | Photos by Ramon Tjan

While ice and snow covered the campus, over a hundred people gathered inside to hear legal scholar Petra Bárd and political scientist Joep van Lit speak. The topic? Anti-democratic Politics in Europe. Through the years, civic liberties in more and more European countries have come under pressure. And now, the Netherlands too has seen the electoral successes of politicians whose plans are partially incompatible with European rule of law. Is this the beginning of the end of the rule of law in Europe? Will more countries follow? And what can we do to defend European rule of law and democracy? Philosopher Cees Leijenhorst welcomed the audience, and gave the floor first to Petra Bárd.

Rule of law and judicial independence

But what is rule of law? Professor Bárd explains that it embodies a lot of things, like transparency, accountability and democracy. The concept is not as elusive as some politicians would have people believe. “Often illiberal governments are very keen to emphasize the elusiveness of rule of law. They’ll say it cannot be defined and is always flued and open to interpretation. But Bárd stresses that we should not be fooled. “It is not a vague, illusive idea. We have clear definitions of the concept.”

One of the things rule of law is meant to do, is to limit the government’s power of coercion. Where the rule of law is violated, this limitation is often what gets out of balance. Bárd explains that these violations also happen within the EU. It often starts with limitation of academic freedom and the slow but steady capture of the media by the state. “This doesn’t always have to mean censorship,” Bárd says. “it can also be flooding people with propaganda.”

Bárd emphasizes that what happened to rule of law in one member state of the EU effects on all the other member states as well. If there’s no free election in a given EU state, she explains, the representative that this state will send to the broader EU-level will not be democratically legitimate. This may seem minor, but imagine that more and more states send undemocratically elected representatives. The more politicians are elected in an undemocratic way at the national level, the more undemocratic politicians will make up the choices that people have when they are asked to vote at the EU level. In this roundabout way, general EU-elections itself can become less and less democratic. 

Joep van Lit started his lecture by stating what he considers the biggest threat to democracy worldwide: incumbent let democratic recession. “We don’t only see threats to democracy from the fringes of democracy, but also from within democracies itself.” Democracy is thus capable of eating itself from the inside out. 

This is counterintuitive to many people, Van Lit stated. Conventional wisdom would have it that once a country is a democracy, it would take a war or coup to undermine it. But that’s not always the case. In Hungary under Orbán, for example, media and information are slowly captured by the state. This happens by, for example, considering billboards that advertise the party in power as ‘public information’, while billboards from the opposition are considered unfair propaganda. More and more emphasis is laid on government friendly information in this manner. Step by step the opposition is pushed to the fringes of public life and media. Mind you, this is all still democratic in nature, Van Lit stressed. “You don’t always need stolen elections to undermine democracy. It can start by calling media ‘fake’, opposition ‘criminal’, and by asking who the ‘real citizens’ are.” This is a slippery slope towards authoritarianism.

With this, Van Lit turned to the Netherlands. Are we sliding down the slope already? “In one sense, no: we still have very free and fair elections and free media here. In another sense, maybe: freedom of press and of demonstration have declined slightly over the past few years, just like academic freedom. These are not direct threats to democracy, but they can push us further down the slippery slope than we’d like. In a third sense, yes; Dutch democracy is definitely under threat. The sliding down towards authoritarianism is very gradual, so we won’t immediately see democracy die. “But I do see signs of a subtle decline in Dutch democracy.”

Van Lit concluded with the statement that there are still many, many things we can do to protect our democracy. “We need to learn from the cases around us and see what’s similar and what is different. So are there anti-democratic politics going on in the Netherlands that resemble what’s happening in other backsliding countries in Europe? The answer, I’m going to leave to you.”

During their conversation lead by Cees Leijenhorst, the topic of illegitimate judges came up. Suppose  a state just went through a period in which an authoritarian regime appointed illegitimate judges. Now, the new democratically elected government wants to restore democracy in their country. What should they do about these judges? 

Van Lit stressed that judges are appointed for life, so there are legitimate reasons to get rid of illegitimate judges when restoring a democracy. Yet there is a paradox here, because removing them means that you yourself have to make an exception and do something undemocratic. “If you’re inconsistent in your affirmation of democracy, this will be used against you. Not showing commitment to democracy will resonate with people and they will see you as a hypocrite.”

Bárd, on the other hand, argued that the irremovability of judges is a core feature of Rule of law. Yet when a judge is appointed in an illegal manner, it becomes a weakness. She argued that restoring democracy is not always a clean process. “Not removing these illegal judges keeps undemocratic elements upright and that’s not a good way to clean the slate.” 

Announcement

Governments in Poland, Hungary and Romania limit civic liberties. And the electoral successes of anti-democratic parties in other European countries, including The Netherlands, are raising alarms with legal scholars and politicians. Is this the beginning of the end of the rule of law in Europe? Will more countries follow? Have the dominoes started to fall? Come and listen to legal scholar Petra Bárd and political scientist Joep van Lit and learn how we can defend the rule of law in Europe.

Rule of law under threat

According to legal scholar Petra Bárd the rule of law in Europe is under threat. The rule of law is the idea that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. In Europe this has long been taken for granted. But with the rise of the anti-democratic politics this valuable idea is under threat. According to Petra Bárd the fact that fewer states are willing to extradite criminals is a red flag. After all this indicates that states no longer trust that other countries respect the rule of law and that independent courts guarantee fair trial rights for all suspects.

Defense against democratic decline

The decline of the rule of law is only possible if autocratic politicians can come into power. Paradoxically, these autocratic politicians are often democratically elected. Political scientist Joep van Lit investigates defense strategies against democratic backsliding – the dismantling of democratic institutions and civic liberties. What can we do against democratic backsliding and how should we handle the paradox that democracies can produce undemocratic regimes?

Petra Bárd and Joep van Lit will both give a short lecture, after which philosopher Cees Leijenhorst will moderate a conversation between them. Come listen, and ask your own questions as well!

This progamme is in English. 

About the speakers

Petra Bárd is a legal scholar at Radboud University. Her research on ‘sustainable rule of law’ explores the extent to which the decline of rule of law in the member states of the European Union is a European matter. Her research explores issues at the intersection of the rule of law, fundamental rights, their European enforcement mechanism, and EU criminal cooperation. 

Joep van Lit is a political scientist at Radboud University. He works within the field of empirical political science, and researches democratic backsliding and the defense of democracy. 

This programma is a collaboration of Radboud Reflects and Radboud University Faculty of Law