The European Union finally seems to be on the point of acting against Hungary for its embrace of “illiberal democracy”. But what will this action look like and what can and can’t we expect from EU action in this area?
Viktor Orban’s government is in a more vulnerable position than before. His sympathetic approach to Vladimir Putin has alienated former allies, and legislation permitting funding cuts for breaches of the rule of law was upheld by the Court of Justice of the European Union in February.
Scholars are divided between those who see the rule of law as covering only the idea that the authority of the government must come from identifiable, non-arbitrary rules that are interpreted by independent judges, and those who take a broader view that the principle also requires that the law respect certain fundamental values such as non-discrimination.
The EU is unlikely to be able to prevent the Hungarian government from having a broader approach that promotes an ethnically-exclusive vision of the nation
The Hungarian government has violated both the narrow and broad understandings of the rule of law. It has restricted media pluralism, curtailed the rights of migrants, passed laws against gay and trans content in schools and restricted the freedom of civil society, all of which could be seen as violating broader conceptions of the rule of law. Its persistent attacks on the independence of the judiciary clearly violate both narrow and broad definitions of the principle.
Although Orban got some of the strongest political backlash to measures such as his “anti-LGBT propaganda” law, which violates the broader view of the rule of law, it is much more likely that EU action will focus on the narrower question of judicial independence for a number of reasons.
EU legislation permitting funding cuts requires that breaches of the rule of law by the member state in question represent a direct threat to the EU budget. Not respecting judicial independence does represent such a threat as it means prosecutions of those connected to the ruling party for misuse of EU funds may not succeed. Attacks on gay rights and migrant rights, though objectionable, do not have the same budgetary impact.
Furthermore, a decision to cut funding needs the support of a “qualified majority” of EU governments (55 per cent of states, representing 65 per cent of the EU population). The Hungarian government is not alone in its social conservatism and scepticism towards migration. It would be much harder to maintain majority support for action to uphold the rule of law if other socially-conservative states feel that upholding this principle precludes them from pursuing their preferred policies in these areas.
While the union must uphold basic liberal democratic values, what we consider to be basic liberal democratic values must be limited unless we are to place the EU’s political authority under unsustainable burdens. The United States is a much more integrated polity, yet even there, attempts to impose liberal outcomes in areas such as abortion and gay marriage have placed the authority of the supreme court under strain.
A narrow approach by the union in this area is in tension with the predominant Irish narrative around European integration which sees EU membership as having played a major role transforming Ireland from the socially conservative, monocultural society it was in 1973. But it would be wrong to think that the Irish experience will necessarily be repeated elsewhere.
Indeed, the role played by EU bodies and the European Court of Human Rights in Ireland’s transformation was more one of nudging along and encouraging an Irish process of change rather than forcing such change themselves.
Embattled 1980s Irish liberals did draw cultural, political and legal support from European bodies. But instances where European law or European judges directly overturned a substantive policy, such as the end of the ban on married women in the civil service or the decriminalisation of male homosexuality, were rare.
European institutions did not overturn bans on divorce, abortion or gay marriage. What they have done is nudge a process of change by nibbling at the edges of these bans, limiting the ability to impose restrictions on abortion information or the right to travel or requiring that states limit some of the impact on same-sex couples of a failure to let them marry.
The EU can nudge states in a liberal direction but if it tries to do more it may cripple its ability to insist on the basic minimum of shared values that it needs
What this means for the EU and Hungary is that the union can take actions in discrete areas where it has legal authority. It can enforce EU law providing minimum rights to asylum seekers and preventing discrimination in employment on grounds of sexual orientation. It could also push cultural change by funding anti-discrimination campaigns. But it is unlikely to be able to prevent the Hungarian government from having a broader approach that promotes a socially-conservative or ethnically-exclusive vision of the nation and which thereby make Hungary a cold house for sexual or ethnic minorities.
The limits on what the EU can hope to achieve in this area highlight a broader truth. EU leaders of the 1990s complacently believed that liberal democracy was destined to triumph and therefore failed to establish proper tools to counteract democratic backsliding. The union has taken a decade to catch up and to start taking proper action to combat breaches of basic democratic norms such as judicial independence which pose significant risks to the EU legal order.
However, to think that if only the EU acts strongly enough, illiberal and socially-conservative worldviews can be marginalised betrays a similar complacency. Contestation between those who prefer greater choice and change over those who value order and tradition has gone on for centuries and will likely never end.
The EU will be living with socially-conservative and illiberal worldviews for the foreseeable future. The union is a great innovation but it is not capable of definitively resolving these fundamental conflicts. It can nudge states in a liberal direction but if it tries to do more it may cripple its ability to insist on the basic minimum of shared values that it needs to ensure its survival.
Ronan McCrea is professor of constitutional and European law at University College London