The Seventh Value – Episode Five: Rule of Law

Christian Kvorning Lassen:
There are a refugee couple that spends a long arduous journey crossing parts of the Middle East spending most of their wealth on human traffickers to smuggle them onto the shores of Europe. And after they've spent most of their money, they walk all the way up through Europe. Their first stop is in Budapest, where they get placed on the Keleti train station by government officials, and nobody's telling them what should happen. So they huddle up with whatever little belongings they have thinking at least they're safe from Assad's bombs in Syria, that got to count for something, right?

Christian Kvorning Lassen:
They might not have anything, but the very least they're not being carpet bombed every night. So positive thinking despite the arduous journey. Then they get sent suddenly through the night on trains going all the way to Germany. Some of their friends tell them that it makes more sense to go to Denmark or Sweden. It's higher up, there are less people, and the systems historically have been very good, very tolerant, and the success rate of their asylum plane tends to be higher. So they make the journey up, end up in Denmark. The Danish weather is not particularly good, so they keep on trotting along until at some point they meet the asylum authorities and they are granted asylum. The man is currently 26 years old, the wife and they are married in Syria. The wife is 17, almost turning 18, and they want to have a child

Christian Kvorning Lassen:
After they lodge their asylum application and they're told that the chances are high, she gets pregnant and they have a baby. And suddenly this Minister of Integration decides that one of the surest ways to reelection is to crack down on migrants, it's becoming increasingly popular. So how can you crack down on migrants if you already pushed the international conventions as far as they can possibly be? She goes out into the media and says that there are a group of children brides in Denmark and that won't happen on her watch. So she's going to crack down on them and protect these poor girls. The problem is that this then 17, now 18 year old girl, she's also counted as a children's bride according to the Integration Minister. So she gets forcibly removed from her now 27 year old husband even though their relationship is consensual.

Christian Kvorning Lassen:
They get separated and the Integration Minister continues to go into the media and say that they've separated many childrens brides from their awful, old husbands and no more information can be given because these brides needs to be protected. So our refugee protagonists get separated and girl is incredibly distraught. She's walked almost half the world around with only her husband as support, fleeing from bombs, murder, rape, and even worse. And now she gets separated in the name of something she doesn't understand because they want to be together, but nobody hears her. She doesn't get the opportunity to be heard. She's kept on one of those integration centers where they're not allowed to communicate with the outside. Essentially, she wasn't treated as an equal human being, which is ultimately the foundation for the rule of law that we're all equal under it. And of course she was a migrant but I would dare to go out on a limb and say that you could end up in not exactly the similar situation, but a similarly worrying situation if you're homosexual in the wrong country, or if you end up studying the wrong thing and suddenly your thoughts are deemed a threat to national security.

Juli Simond:
Europe is built around six different values that make up the fabric and face of the European Union, human dignity, freedom, democracy, equality, the rule of law and respect for human rights. Over 70 years ago, these founding pillars were written into the Treaty of the European Union, but how have they withstood the test of time? From deconstructing the original meaning to reimagining the future.

Guest:
It's a hard question.

Guest:
The six European values.

Guest:
Six European values.

Juli Simond:
This is the seventh value.

Guest:
Democracy?

Guest:
Equality.

Guest:
Free movements.

Guest:
I'm thinking about the French, [foreign language 00:05:51], I don't know the third one.

Guest:
Something with the law?

Guest:
I'd be ashamed, I don't know.

Guest:
This is difficult.

Guest:
How many did I guess?

Juli Simond:
Today we ask Christian Kvorning Lassen.

Christian Kvorning Lassen:
This is Freya.

Juli Simond:
Oh, hello, little cat. We actually have a dog in the studio with us so it's a very pet-friendly call. Who does the law serve and who serves the law?

Christian Kvorning Lassen:
Yes, of course.

Juli Simond:
In other words, what to do with the EU's fifth value, the rule of law?

Christian Kvorning Lassen:
My name is Christian Kvorning Lassen. I'm a Deputy Director and Head of Research at Europeum Institute for European Policy, which is European Think Tank originating and operating within the Czech Republic.

Juli Simond:
How about we play a quick one-word game to get to know each other. So I'll ask you a question and you'll reply in just one word.

Christian Kvorning Lassen:
All right.

Juli Simond:
Where do you live?

Christian Kvorning Lassen:
Prague.

Juli Simond:
Where do you work?

Christian Kvorning Lassen:
Prague.

Juli Simond:
What values are important to you? I would say pick three.

Christian Kvorning Lassen:
Honesty, transparency and empathy.

Juli Simond:
What motivates you to work hard?

Christian Kvorning Lassen:
Making a difference, that's not one word, but...

Juli Simond:
What did you want to be when you were small?

Christian Kvorning Lassen:
I wanted to be an author.

Juli Simond:
And lastly, if you ruled your own country, what would be the first law you would introduce?

Christian Kvorning Lassen:
I don't think I would introduce one, I think I would actually abolish quite a few.

Juli Simond:
The rule of law is enshrined in article two of the Treaty on the European Union and seems to be a bit of a heavy hitter when we talk about the fundamental values of the Union, how would you define the rule of law, Christian?

Christian Kvorning Lassen:
The underpinning of our very democracy and the rights we have under it, it fundamentally acts a framework under which everyone have equal opportunities and have the equal status irrespective their social class or their economy or their ethnicity or creed, gender, or any other orientation. So it's a fundamental purpose of that and why it is such a dominant model for our modern society is that it regulates the exercise of public powers and ultimately kept in check and under control by independent and impartial courts. In an ideal world, that definition of rule of law is what everyone would adhere to and what would be the guiding staff for our democracies and our societies.

Juli Simond:
Do you know how and why the rule of law ended up in the Treaty in the first place?

Christian Kvorning Lassen:
We often forget nowadays that Europe as a continent has almost existed in perpetual war until the European Union. That doesn't mean that Europe is impervious to such developments in the future. The moment countries start persecuting certain minorities, such as homosexuals, then obviously the safety of those people cannot be guaranteed and that also includes other European citizens, which ultimately also can cause problems. We can have a European Union without barriers, without borders, without frontiers, where you have the same rights going from one country to another, and the moment that cannot be guaranteed, then the European Union starts fragmenting and falling apart. So it really is absolutely fundamental. During the 1950s, somebody tries to inscribe fairness in all its permutations, in all its scope into a definition of the rule of law.

Ursula von der Leyen (recording):
The rule of law helps protect people from the rule of the powerful. It is the guarantor of our most basics of everyday rights and freedoms. And breaches of the rule of law cannot be tolerated.

Juli Simond:
You just listened to a part of the State of the Union by Ursula von der Leyen, President of the European Commission. If the rule of law conveys a sense of fairness and protection from the excessive exercise of power, it seems perhaps a bit strange that it says nothing about the laws, fairness, itself. So if a law forbids women to vote or same-sex couples to get married or allows torture, can that still fall under rule of law if it abides by its criteria?

Christian Kvorning Lassen:
That's an excellent question. Fairness is ultimately derived from our own biased, personal possibly even fallible moral compass. If we imagine it this way, that during the 1950s, somebody tries to inscribe fairness in all its permutations, in all its scope into a definition of the rule of law. The 1950s weren't the most progressive in terms of sexual equality or gender equality either. So chances are that if this was actually inscribed very concretely into it, or even if it goes to the '60s or '70s, it wouldn't hold up in today's world. And we would constantly have to go back and revise the Treaties. Of course, that could happen. But at the same time opening up the Treaties is a bit of a Pandora's Box because you don't really know what gets put into it at the end of that struggle, that those negotiations usually are. And you might not like what you end up having in there.

Juli Simond:
Now allow me to be a bit cynical when we're talking generally about law and order. Let's dive deep into the central focus of this episode. In today's Europe, does the law serve the people or do people serve the law?

Christian Kvorning Lassen:
I think it's a very valid question, one that many would ask, but in an ideal world, those two are not incompatible. The law only has legitimacy if people recognise it. And in an ideal world, I think, and in the majority of cases, the rule of law does serve the people by ensuring an equal and level playing field for their democratic and human existence. The law does serve the people, but the people also serve the law simply by participating in the democratic process, because if the law is not matched, so to speak, with an engaged populous, then the democratic legitimacy within the country is dramatically decreased.

Christian Kvorning Lassen:
It's not a coincidence that in the countries where we most often see the rule of law being fundamentally challenged, such as the Visegrad, four countries, which is Slovakia, Poland, Hungary and Czech Republic. We also have some of the lowest voter turnouts within the entire European Union for the national elections and for the last European parliament elections, I recall that it was 28% only, amongst the lowest as well. So at the same time, when there is such a little democratic participation compared to most other countries, the leaders usually are the ones to whom democracy and rule of law are seen as hindrances rather than sacred charges. It often becomes the most radicalised.

Juli Simond:
So at Europeum, you focus on integration and cohesion. What are the challenges between the rule of law and this goal?

Christian Kvorning Lassen:
I think the main challenge right now is that our societies are becoming more and more polarised. And therefore there are more and more interpretations of what rule of law actually is. The moment this polarization and fragmentation started occurring fundamentally, we also created this vicious cycle where we constantly need others or out-groups to rally against rather than actually building something that is more inclusive. Ultimately that is something that very concretely risks undermining this fairness that we think should be inherent to the rule of law.

Juli Simond:
If we take into consideration the fact that the rule of law is something that's coming under pressure and we look at Poland and Hungary as maybe the most well known cases on the continent of this, does that mean that this backsliding is solely an Eastern European issue however?

Christian Kvorning Lassen:
No, it doesn't. I think you have backsliding in most countries to various extents, for instance in Denmark, within certain housing blocks where there was, according to the law, a disproportionate amount of migrants. Some of those were forced into relocating in order for the share of migrants to not exceed a certain percentage. Similarly, if anyone, within those geographically delineated locks come admitted a crime, then they would be punished more harshly than if they lived outside of this so-called ghetto. So that's of course, a very concrete example where the rule of law suddenly becomes very selective based on some arbitrary criteria as such as where you live or the ethnic composition of your neighborhood. That's just to illustrate that even in a country like Denmark, usually topping lists of God knows what, be it happiness index or transparency index, you have some very concrete backsliding that is very hard to justify from a rule of law perspective.

Christian Kvorning Lassen:
Many Western countries, the rule of law violations have some sort of delineation to something that is perceived as clearly defined problem such as migrants, whether or not they are a problem is of course an entirely different debate. Rather than, such as Poland and Hungary, where everything is a bit more systematised where the courts are packed, where constitution is rewritten, where parliamentary process gets disabled if things would potentially be too controversial and things are just fast-tracked instead. So you have rule of law violations potentially everywhere and no society is impervious to it.

Juli Simond:
Surprisingly, the Treaty lacks an official definition of the rule of law. My question to you, Christian, is are all members and organizations of the EU clear on the meaning or is everyone just using the same term for wildly different things?

Christian Kvorning Lassen:
Well, if they all were in agreement, then the various procedures to reign in the sensors such as Poland and Hungary would be much more effective. So no, they're not. Some countries within the council would exercise the tried and true phrase that this is part of our national sovereignty. The people deciding the laws in your country are the members of parliament that you elected. And what gives someone externally the right to determine that the rule of law that you're elected representatives have implemented or decided upon are suddenly in violation of rule of law, and of course then enters this national sovereignty debate that I think especially in recent years have become quite toxic, both in terms of refugees and migrants and how countries renate on their humanitarian and international obligations they're under, but also in terms of climate.

Juli Simond:
And so when push comes to shove, as you say, can rule of law ever beat national sovereignty?

Christian Kvorning Lassen:
In order to answer that, I think first I have to quickly outline an obituary for national sovereignty. National sovereignty, as a concept reaches several hundreds of years back. And it's always been an equal foundation for how we view modern society, that those we elect to govern us within our borders and the people living within those borders have sovereign right to decide what happens within those borders. If one country decides to erect numerous coal power plants or stick with coal for the foreseeable future, such as Poland coincidentally still does, but the air pollution is carried over into other countries, then of course each and every country can feel very sovereign about themselves, but at the same time, they have no control over what the actions of other countries actually affects them.

Christian Kvorning Lassen:
So in that sense, for instance, the Czech Republic could arguably feel less sovereign in terms of climate change compared to if there was an EU-wide body that actually had direct governance over energy policy in order to be able to shut down coal power plants and thereby protect Czech citizens from fumes from Polish coal power plants. So I think ultimately the more we interconnected, the larger the existential challenges that we're facing becomes such as climate change, the pandemic, the less validity or the less relevance national sovereignty has in practice.

Ursula von der Leyen (recording):
Honorable members, in the last month, we have rediscovered the value of what we hold in common. As individuals, we have all sacrificed a piece of our personal liberty for the safety of others. And as a Union, we all shared a part of our sovereignty for the common good.

Juli Simond:
According to you, what should the future of the rule of law look like? Or what could it look like?

Christian Kvorning Lassen:
Imagine rule of law in the future, it would be a rule of law that reflects a hopefully more diverse and compassionate and pluralistic society. And I can already imagine that if anyone listens, who are tired of hearing about compassion towards refugees, then this will be a deal breaker for them and they will switch over and simply I can understand the almost Pavlovian reflex reaction to that. But the world we're looking into with the current climate change projections, that's a world where you will have wars being fought over water, where you will have wars being fought over something as simple as airable land, because there will be uninhabitable zones. If you don't find a way for compassionate coexistence, where we come together as a humanity instead of as nations, then what's the alternative? Is the alternative that we send our sons and daughters to pilot drones shooting down migrant boats crossing the ocean? I sincerely hope that we wouldn't so nihilistically protect our European societies that we would sacrifice the humanity of ourselves and our kids.

Juli Simond:
Today, we've only discussed one of the six values of the European Union, human dignity, freedom, democracy, equality, the rule of law and respect for human rights. If you could add anything to the mix, what would be your seventh value?

Christian Kvorning Lassen:
Sustainability. If we don't manage to decarbonise, then we are staring into either a slow-spiraling extinction or at the very least a very horrible nightmarish future.

Juli Simond:
Thank you for listening to the Seventh Value, a podcast in collaboration between Are We Europe and the Evens Foundation. I am Julie Simond, your host, and with me in the studio, our producer Anneleen Ophoff and sound designer Wederik De Backer.