Core, Periphery, and Universals in Rule of Law Promotion: Contextual (Dis)incentives, Conceptual Shifts

1 Core and Periphery: From Deference to Rankings

ROLPERIPHERAL¹ is a collaborative research project that grapples with centre/periphery interplays in the evolution of rule of law (RoL) conditionalities and conformities. The topic is particularly apposite in 2024, on the anniversary of 20 years since the so-called ‘Big Bang Enlargement’, a moment perceived as constitutional for both the ‘old’ Union and the CEE countries to which ‘democracy and the rule of law’ were meant to be spread (Sadurski 2012; Sadurski et al. 2006). The anniversary invites a tally of success and failure and poses old questions in new contexts. Where is the centre that should provide the (rule of law) model? In the EU/CoE, for instance, are supranational/international institutions as such the core in terms of norm-generation? Or is the core, rather, the ideal–typical, historically grounded model of a law-based, mature constitutional democracy of the Western variety? Should conditionalities and standards, in the European context, be/have been related to specific practices in Western jurisdictions (Rechtsstaaten, rule of law-based states)? If so, which practices and what would be the properly calibrated common denominator?

In theory, multiple cores and perhaps multiple peripheries can also be postulated. The honorary Rector of the project’s host institution, Andrei Pleșu (Romanian minister of foreign affairs during pre-accession, 1997–1999), proposed to rethink Europe more fluidly or, as he put it, more “untidily”: “Viewed historically, Europe looks less like a schematic apricot and more like a pomegranate, with multiple cores.” (Pleșu 2018). And yet, appealing as the pomegranate metaphor should be, the law is more apricot- than pomegranate-like in its perverse reductionism (Katz 2011). A measure of centrality is crucial as the condition for the possibility of gauging conformity with, rapprochement towards, and deviation from an ideal model. Enlightenment-driven constitutionalism presupposes an ideal framework within which reasonable constitutional variation may also occur.

In nation-state constitutionalism, from the nineteenth century onwards, the road towards centrality has implied a mise à niveau of the periphery by the incorporation of a prestigious Western normative constitutional model. The latter was usually itself IKEA-patented on other, even more central practices. For instance, Romania –whose elites dubbed it “Belgium of the Orient” at the time, while at the same time styling its capital, Bucharest, as “little Paris”– copied the Belgian constitutional model in 1866. For its part, in 1831, Belgium looked up to and emulated what from its standpoint were even “more central” models. Its Constitution, still in force today, was “drafted in record time, which [was] understandable as 90% of its articles were copied verbatim from other texts”: France (Charter of 1830 and Constitution of 1791), the Netherlands (Constitution of 1815), and English constitutional practices (van Caenegem 1995, at pp. 235, 237). The process of voluntary imitation of a Western fundamental law, picked up on “the global IKEA market of the nineteenth century” (Frankenberg 2013, at p. 300) has driven modernization from the late eighteenth century up until recently. It constitutes a recognition-type model of structuring core-periphery divisions and dialectics. The periphery recognizes its peripherality, accepts its subordinate place in the natural order of things willingly, and tries to supersede it by imitating, at least at the superficial level of positive law translation, its preferred core blueprint. How core models actually functioned in their peripheral transpositions-instantiations is a different, exponentially more complicated proposition (Iancu 2023).

Hierarchies based on recognition have been anything but self-evident more recently, for a variety of reasons, not least because many formerly core jurisdictions have receded in terms of their power to command respect. The United States, for example, undoubtedly a hugely influential central model in constitutional law, has seen its status downgraded to that of a flawed democracy. Its place was severely docked in various rankings. For instance, in the Economist Intelligence Unit’s 2022 Democracy Index, the US fell to number 30, slightly below Portugal and Israel, slightly above Slovenia and Botswana.² To a certain extent, as the example reveals, the global industry of econometric point-based indicators and rankings (Merry et al. 2015) replaces, in a more intractable and fluid way, older, deference-based delineations and hierarchies between the West and the rest.

2 Structured Peripherality in the EU: Paradoxes of State (In)equality

In Europe as such, the concepts of centre and periphery build on a formal distinction, constitutive of the Enlargements and arguably still relevant in many ways. The Copenhagen Criteria were predicated upon a dividing line separating the EU-15 of 1995 (predominantly but not entirely Western, stable liberal democracies) from peripheral candidates (poorer, predominantly post-communist, unstable). Romania and Bulgaria, until recently, were subject in addition to a sui-generis post-membership conditionality, the Cooperation and Verification Mechanism (CVM), which was initially supposed to last three years but was extended formally until 2023.³ This form of Art. 49 membership with strings attached⁴ underscored both the status of the two countries as quasi-periphery of sorts within the Union⁵ and Enlargement fatigue. By the time of the two countries’ accession in 2007, Constitutional Treaty enthusiasm (‘Philadelphia Moment’, ‘Big Bang’) had already been replaced by a much gloomier retrenchment mood, reinforced shortly thereafter by the Global Financial Crisis. To wit, with the exception of Croatia in 2013, no other country has joined the Union since, even as an ever-growing number of candidates are waiting in a limbo of soft law and receding rewards and horizons (as pointed out by Hogic in this issue).

Such instruments (pre-accession monitoring under the Copenhagen Criteria and the CVM) assumed that EU Enlargement was constitutionally civilizational. The process took the form of top-down, core-periphery “state-building” (Janse 2019). In time, the “rule of law” became the dominant narrative of action and reaction towards the periphery (rule of law crises, rule of law backsliding, rule of law monitoring/mechanism/conditionality, CJEU jurisprudence pegged unto the rule of law element -value- of Art 2 TEU). Current general-applicability soft-law (RoL Mechanism) and hard-law instruments (Regulation 2020/2092) arguably reformulate procedural forms, standards, normative and policy representations constructed/tested vis-à-vis the periphery, via Copenhagen or CVM monitoring.

If the status of new member states and candidate countries as peripheral was entrenched as a predicate of the Enlargement, the hypothetical/presumptive Centre was normatively designed at the intersection of supra- and international-level RoL standard-setting. Specific standards partly originated in Western models but were then not representative of common EU-15 practice. Starting from both Western blueprints and international trends and conformities such as anticorruption, the Commission as “master of conditionalities” (Ziller 2018), in synergy with Council of Europe organs, proffered specific reforms. The concreteness of policies advanced as peripheral panacea under the canopy of the rule of law does not square the conceptual and contextual circles. Rather, it raises new questions. Is, for example, anticorruption, when promoted as the rule of law, conducive to peripheral rule of law, as traditionally understood in central jurisdictions? Otherwise put, is this policy creating a higher degree of systemic political probity, or does it induce, particularly in peripheral systems, pathologies? Does an insistence on particular institutional frameworks, adapted to perceived reform needs at the periphery (e.g., enhanced prosecutorial autonomy or judicial councils) result in systems that function according to (ideal–typical/idealized) representations of a functional Western liberal-constitutional justice (rule of law-based) system? Furthermore, can reforms created for peripheral stabilization purposes be reserved for the periphery, or will they produce ratchet and boomerang effects? Should not all EU jurisdictions be encouraged, prodded, cajoled to adopt the council model, prosecutorial independence, anticorruption watchdogs? If they do not, what could be the justification? How much can be left to contextual determinations, and how much should be formalized and generalized, according to EU formal premises of state equality and Fullerian expectations of uniformity (i.e., “the rule of law as a law of rules”).

Paradoxes inevitably result from formalisation and even more so from the reverse projection of forms tailored bespoke for the periphery on Western core systems. In many formerly EU-15 systems, many forms had not existed, while at the same time the values underlying the forms have been, in context, overall guaranteed. An example should suffice to shed light on ensuing perplexities. In the Commission’s 2021 Rule of Law Communication, for instance, in less than one page of text, the Commission 1. Proceeds to admit that independence, quality, and efficiency are “essential parameters of an effective justice system, whatever the model of the national legal system and tradition in which it is anchored”; then, 2. Enumerates the key parameters of all 27 MS country chapters, which are: “reforms of the Councils of the Judiciary, of judicial appointment processes, and the independence of the prosecution service”; after which, 4. Salutes the highest positions, occupied by Austria, Finland, Germany, the Netherlands, and Luxemburg in Eurobarometer and EU Justice Scoreboard surveys on perceived judicial independence (these countries, notably, do not have Italian-style councils; furthermore, in Germany, Austria, Netherlands, Luxemburg prosecutors are executive in nature and formally subject to instructions, weisungsgebunden); but 5. (Rightly) scolds Croatia, Poland,⁶ and Slovakia (all of which have councils, created or reinforced under the Commission’s tutorship), where perceived independence is very low, and finally, 6. Salutes the fact that the process of creating judicial councils as “key safeguards for independence” proceeds apace, duly exemplifying: “In Luxembourg, the proposal to establish an Independent Council for the Judiciary is progressing and consultations including how to align its composition with Council of Europe recommendations are ongoing.”⁷

This string of contradictions is in no way the Commission’s fault, simply the result of structural context/form tensions within a Union of 27, states, nominally equal now, in spite of their significant substantial differences. In order to bridge some of these widening gaps, the CJEU has adopted the non-regression standard in Repubblika.⁸ This standard, initially introduced by an EFTA Surveillance Authority written submission in A.K.,⁹ quoted by AG Tanchev (as he then was),¹⁰ states essentially that countries that joined the Union without formal RoL conditionalities may keep their systems as such, ‘frozen in perpetuity’ as it were, in a micro- “end of history” of sorts (Scholtes 2023; but cf., more optimistically, Leloup et al. 2021). Should however changes be made, those changes should advance judicial independence from politics, i.e., move closer to variants of the autonomous council model. The judgement makes it possible therefore to admonish Poland for its PiS-driven ‘Frankenstate’ (Scheppele 2013) move towards a Spanish-style council of judges selected by Parliament, while leaving an unreformed Spain to its own devices. By the same token, the ruling makes it harder, on point of principle and standard at least, to pressure Spain into addressing the increasingly more dysfunctional model it joined the Union with. If the non-regression principle is read back to cover constitutional developments in the EU-15 however, many can be found wanting, including those on the basis of whose approximately similar practices various good standard blueprints were initially devised. France, in 2008, “backtracked” significantly on the autonomy of its CSM,¹¹ which, in its prior form, had served –together with Italy– as a model for the judicial council good practice addressed as RoL remedy to peripheral jurisdictions.¹²

3 Individual Contributions

Martin Krygier opens the issue with a piece that relativises and contextualises what he calls “anatomical perspectives” on the rule of law, namely, exclusive insistence on specific toolkits to the detriment of the values behind the ideal of the rule of law, tempering power. The overarching purpose of “tempering power” should guide action: “What is universal is the notion and realisation of a state of affairs in which power is reliably tempered, so as not to be available for arbitrary abuse. It is a mistake to identify it, as is typical, with any allegedly canonical arrangement of forms and institutions and rules that are enlisted or assumed to embody it.” (emphasis supplied). His piece is built around an intuition found in a passage in E.P. Thompson’s classic on the Black Act (Thompson 1975). Thompson, perplexingly for a Marxist historian writing a study of vicious legislative and judicial instrumentalism (prey and abuse by the higher-ups on the poor), praises the ideal of the rule of law. He praises it, more precisely, as a “cultural achievement of universal significance”. Krygier undertakes a careful unpacking of each of these three elements: the ideal of well-tempered power; the cultural achievement; the universality. Martin Loughlin’s account, whose perspective may seem at superficial reading to contrast with Krigyer’s is in reality complementary. For Loughlin, provocatively, the rule of law is now often “a slogan in search of a concept.” What he takes issue with, however, is the lazy, policy-oriented use of the term, which, he argues, may mean in the abstract everything and nothing. Indeed, as he shows, the very conflation of superficial linguistic equivalents, the rule of law and its state-centred continental counterparts, obfuscates a correct grasp of the notion. The Anglo-Saxon tradition is concerned with individual rights guaranteed by court-sanctioned remedies. In contrast, Rechtsstaat variants (stato di diritto, estado de derecho, etc.) have up until recently shorthanded traditions much more concerned with regularising state action, channelling it, and making it legible upwards (for instance, the insistence on legal basis).¹³ Loughlin’s primary preoccupation is with the sloganisation of the term, which ensues from its projection upon specific policies that have little to do with classical, limited understandings of the rule of law. Such policies are heaved and legitimised rhetorically, by association, while the concept is sapped of meaning and thus of usefulness. By the same token, reducing RoL to policies obfuscates ideological slants in RoL conditionalities. András Sajó’s legal theory-oriented piece makes a first step in the transition from the foundational to the case and conditionalities-oriented part of the issue. Whereas he does not use the core-periphery distinction, his argument addresses in abstract terms the specific problem of post-accession backsliding to soft forms of authoritarianism in hybrid regimes such as his native Hungary. Such systems, Sajó points out, are not really fully-fledged autocracies. Classical constitutional instruments adapted to the “evil law” of Nazi Germany and the like (such as the Radbruch formula) are not adequate to address not-so-bad (NSB) law. What the author proposes is the militant use of the rule of law by judges, within the interpretative leeway that a NSB system (such as Hungary under the eternal FIDESZ rule or Poland under PiS) already allows. Indeed, the Hungarian Constitution defines the state as a Rechtsstaat.¹⁴ Most post-1950 new constitutions do, in inverse statistical correlation to their actual respect for RoL, as revealed by their places in rankings (Ginsburg and Versteeg 2017, at p. 516)¹⁵ and also by common knowledge. The concept of a “militant rule of law” is a recognizable renvoi to the familiar post-war concept of “militant democracy”. All that is required, according to the author, is a small, baby-step departure from the rudimentary positivism that characterises in his view judicial elites formed in the post-communist jurisdictions of the Eastern periphery. One can, Sajó exemplifies, use reasonableness review or arguments based on insufficient vacatio legis to curb the sliding of NSB systems into full-on legal wickedness or at least alleviate the effects of democratic decay. A militant RoL judge would be then located attitudinally somewhere in between the humanly unattainable heroics of a Dworkinian Hercules and the sheep-like formalist subservience of a Weberian/post-communist “paragraph-automaton”.

The extent to which really-existing peripheral judges can perform the tasks A. Sajó expects of them depends, however, on myriad of real existierenden clusters of incentives and disincentives in peripheral jurisdictions. Adam Czarnota’s contribution provides a piece of the puzzle sorely missing in the backsliding legal literature and partly, he argues amicably, also among us, his fellow contributors. Backsliding, true but what precisely did the periphery slide back from? He argues that, whereas populism is a true crisis, and even as populists are devoid of real solutions to problems, one should see them as canaries in the coal mine.¹⁶ In many peripheral systems, populists rode a wave of justified dissatisfaction with post-communist status quos riddled with skewed opportunities and social inequalities. The populist assault on counter-majoritarian institutions was to be also viewed contextually, since local RoL/constitutional institutions, erected overnight and often staffed with instrumental, opportunistic local elites, hardly lived up to expectations. Some of the post-communist elites the author takes exception to were the un-lustrated communists, the most adept at making use of transitional opportunities, some were aloof and bovaristic intelligentsia, so characteristic of superficially urbanized Eastern countries. Populism also appeared from underneath the façade of Potemkin-village-style Enlargement (Avbelj and Letnar Černič 2020, at p. 9), a process which often meant throwing a hand of paint over a corroded fence (Bobek 2015, at p. 418). After a rushed Enlargement process, local and international players presented a false narrative of success. In this understanding, probably correct, backsliding means really that misery shows when the décor is disassembled, the rust appears from under the fallen coat of paint. Czarnota makes a strong case for reassessment of phenomena within a much longer temporal span of inquiry (not just post-2015 Poland or Romania bracketed 2016–2019). Doing so, he tells us, will reveal the deeper societal causes and implications relating to how and why populists come to power in the troubled periphery, allowing us to draw the proper and useful lessons from these more recent and, in his compelling argument, epiphenomenal crises. Petr Agha’s contribution is complementary, approaching the same problematic from a different angle. Agha emphasizes the way in which ossified ‘manufactured normality’ narratives, spearheaded by the RoL discourse, suppress not only ‘bad populism’ of Orbánite ilk but also legitimate democratic grievances, to the point where it may appear that equal suffrage and majoritarian democracy as such are inimical to the rule of law. This is, as Agha shows, oppressive and not in the best traditions of liberal democracy. His argument is supported by positive constitutional law. Post-war liberal-democratic constitutions that expressly mention the rule of law surround it with qualifications. For instance, Art. 28 (1) of the 1949 German Basic Law guarantees that the constitutional orders of the states (Länder) will be conformant to the “principles of a republican, democratic, and social state governed by the rule of law” (emphasis supplied).¹⁷

Peter Lindseth and Païvi Leino-Sandberg implicitly relativise, in an epistemologically very useful way, the issue’s mainstream, state-centred understanding of the periphery. This argument ties up smoothly with Adam Czarnota’s and Petr Agha’s articles. It is a paradox of Europeanisation that the benefits of enlargement are skewed, which contributes also to polarisation decked in rule of law narratives. It is in this sense revealing that recent elections in Poland yielded results that are geographically concentrated in a very unsettling way.¹⁸ In Romania also, Bucharest is well above the EU average in terms of PPP per capita (now at 139% EU average) and, somewhat perplexingly, more affluent than Athens, Budapest, Madrid, Berlin.¹⁹ But the North-East region of the country is over four times poorer.²⁰ Eastern MS vaunt the most stratified societies in the Union; Bulgaria is, for instance, both the poorest and the most unequal, with a GINI coefficient of 38.4 (followed closely by the Baltic states of Latvia and Lithuania).²¹ There are, as the authors point out, peripheries within peripheries. Lindseth and Leino-Sandberg undertake a very sophisticated structured doctrinal analysis of the cohesion flexibility clause of Art. 175 (3), which served as the sole legal basis for the Recovery and Resilience Facility (RRF) and for the NextGenEU programme. They argue that “cohesion” in that specific legal context has traditionally meant –and should continue to mean, unless there is a change in the treaty– bringing underdeveloped regions (i.e., peripheral regions within Member States) up to level, whereas “the RRF model has allowed for spending that makes no distinction between these various regions (…), serving instead as a general spending power to effectuate economic policy goals at the level of the EU or Member States as a whole.” (note 3). The gist of their argument is related to RoL, namely, they point out that overly strained interpretations to produce results, however beneficial those results may seem, can have all manner of unintended negative consequences. In their view, stealthy integration by judges and experts should be replaced by an open, democratic reconsideration of Union constitutionalism, including this quasi-federal form of Union-wide fiscal equalization and assumption of borrowing and spending powers.²²

The papers by Bogdan Iancu and Mariana Mota Prado, Fabio Kerche, and Marjorie Marona, respectively, are in dialogue in the context of the issue. Prado, Kerche, and Marona are also conversing at length with arguments made by Mark Tushnet in his 2021 book on fourth-branch institutions (Tushnet 2021). Both issue articles (Iancu and Prado et al.) deal with an important recent trend in law and development, that of emphasizing anticorruption policies as rule of law imperatives. As regards the Union, this trend is confirmed by the case studies authored by Nedim Hogic (on the Western Balkans) and Maryna Rabinovych (on Ukraine). I deal with the problematics of anticorruption conditionalities comparatively, showing how anticorruption campaigns, ‘crusades’, or ‘wars’²³ may easily enter into conflict with classical elements of the rule of law. I also argue that, paradoxically, the instrumentalization of repressive anticorruption campaigns is particularly likely to occur in peripheral systems, rife with RoL instrumentalism and with dark historical traditions of corruption and anticorruption (on the Romanian interwar, Cercel 2024).²⁴ It is indicative, instrumentalism-wise, that three authors in this issue cite the famous statement: “To my friends everything, to my enemies the [rule of] law.” This peripherally pure theory of law is apocryphally attributed to various Latin-American strongmen and can, at any rate, be generically ascribed to all manner of caudillos and tyrants.²⁵ Another perplexing and perhaps pertinent peculiarity of the periphery is a surfeit of lawyers, somewhat in inverse correlation or at least in tension with the qualities of the rule of law-based peripheral state.²⁶

The dangers intrinsic in anticorruption and generally penal populism at the periphery do not imply in any way that corruption should not be combatted forcefully. They do, however, counsel care for contexts and concepts when engaging in highly disruptive policy and institutional reforms. Anticorruption campaigns and radical reforms are promoted as peripheral RoL conditionalities with a view to accelerate modernization, in view of various benefits attached to such conditionalities: loans by IMF or the WB, OECD membership, EU accession. If they are labeled as the rule of law, this bootstraps exponentially a rhetoric already fired up by the ethical-emotional connotations of “corruption.” One hopes or at least pretends to want to “become Denmark”, as an anticorruption expert provocatively put it (Mungiu-Pippidi 2013). Becoming Denmark (I postulate the aspiration, arguendo) is however not very easy, certainly not within the short time-span of a structural package or conditionality reform implementation. Furthermore, and equally important, institutions do not behave in the same way in Denmark and in a “democratizing” country, respectively. As the authors of a recent monograph on anticorruption prosecutors in Latin America put it, playing on the same quip: “One thing is to empower accountability agencies in Denmark, where if they work well, they are not bound to ravage politics. Quite another is to build similar institutions in contexts of systemic corruption, where if they work half as well, they may end up crashing into reality in a spectacular and dangerous fashion.” (González-Ocantos et al. 2023, at p. 266). Mota Prado, Kerche, and Marona make a similar point in a masterful fashion, starting from the once celebrated Operation Car Wash in Brazil. Brazil is included in the issue since, albeit an economic powerhouse and a country of huge significance in Latin America and worldwide, from the perspective relevant to this issue is still an epitome of “peripheral modernity” (Neves 1992). Also relevant in this context, anticorruption in Brazil was the product of endogenous causalities but also of RoL conditionalities, linked to trade negotiations and its desire to secure coveted OECD membership (Brazil is also included in the comparative scope of my piece). The authors show that an excess of institutional independence, driven by anticorruption imperatives, was unaccompanied by countervailing accountability instruments. The result was a string of unexpected and undesirable consequences, which upset the separation of powers and the rule of law. Accountability had been perceived to have impeded maximalist anticorruption enforcement but rule of law, the authors argue, requires complex trade-offs and equilibriums, rather than policy-effectiveness maximization. Mota Prado and her co-authors counsel pragmatic care and the avoidance of unidirectional policies: “There is no optimal combination of institutional and legal features to maximize ability to combat corruption, while at the same time protecting the rule of law and democracy. All the options available involve trade-offs.”

Oana Ștefan addresses in her contribution the topic of soft law, using the evolution and morphing of the Romanian CVM²⁷ as exemplification. Soft law is crucial for pre-accession monitoring. The CVM served, moreover, as prototype for the current, comprehensive, Union-wide RoL Mechanism.²⁸ Ștefan shows how the hybrid nature of the CVM, part hard-law (the decision itself and the four benchmarks in its annex), part soft law (the biannual progress reports by the Commission, as required by Art. 2 of the Decision) generated various patterns of polarization and debate between judicial associations with various, often diametrically opposed positions on the CVM.²⁹ For a brief interval, divergent interpretations of the CVM also resulted in a light EU law primacy vs. constitutional supremacy skirmish between the CJEU and the Romanian Constitutional Court. Ștefan argues, persuasively, that the CVM contributed, while it lasted (2007–2023), to RoL-generative dialogues and evolutions. The author also addresses, tangentially, the fascinating topic of cross-hybridization in soft-law norms-generation (between the Commission, the Venice Commission, GRECO, and various consultative bodies of the Union and the Council of Europe, such as the CCJE, CCPE, ENCJ).

Two papers, by Nedim Hogic and Maryna Rabinovych, respectively, address RoL-based policies towards the new periphery, the so-called Western Balkans and Ukraine. Both arguments stress the accentuated geopolitical implications and effects of RoL reforms. Hogic points out many failures in the gros plan management of the Western Balkans conditionalities. He argues in particular that many local shortcomings (mis)described and approached in rule of law terms are social and economic in nature. “Western Balkans” as such is of course a rudimentary metonym for a variety of states, with partly similar, partly distinct conditions: Serbia is for instance like Albania in terms of geographical proximity but few other similarities are apparent. Kosovo, located in the region, may be a potential Union candidate³⁰ but this potentiality is blocked by no less than five out of 27 EU Member States.³¹ Meanwhile, the Minister of European Integration of at least one WB candidate country simultaneously claims that the only future of the country lies in Europe and that the country will never recognize Kosovo (one of the non-negotiable demands for joining the EU).³² Various reforms are required or encouraged, all ostensibly to promote the rule of law. But on occasion, under this nominalist veneer, propping stabilocracies as a form of EU border damage control appears to suffice (see also Hoxhaj 2021). This is a very complicated geopolitical picture. Nedim Hogic notes that contradictory signals are transmitted by the EU, and that signals fluctuate significantly in relation to geopolitical ebbs and flows. Sometimes full membership, sometimes a “special relationship” or “graduated accession” or “tiered” membership are being promised to countries of the WB region. His main argument is however that RoL has social and economic preconditions. In Hogic’s view, combining reform proposals and massive social and economic investment by the Union in parts of the Region would better prepare countries for membership. RoL reforms proffered to the Region now focus, according to him, exclusively on formal-institutional changes, neglecting the extent to which such institutional reforms, to operate as ideally expected, depend on minimal social and economic preconditions (in education, health-care, widespread digitalization and digital literacy, and the like). Maryna Rabinovych provides a careful taxonomy of RoL reforms proposed to Ukraine, the fulcrum being judicial reforms, including extensive vetting, anticorruption, and combatting organized crime. Rabinovych notes the dramatically distinct context, “integration by war” of Ukraine, Moldova, and tentatively Georgia. Her study identifies path-dependence in RoL reforms, despite dramatic discontinuity in the geopolitical approach to granting candidate status and a firm promise of eventual membership: “[N]otwithstanding the challenges of the two decades of its RoL promotion policy in the Western Balkans, the EU’s approach to the design and scope of its RoL conditionality vis-à-vis Ukraine has so far mirrored the one it used in Western Balkans.”

The issue is both closed and completed by a study of the way in which law applies at the external border towards vulnerable third-party nationals. This is indeed the ultimate legal periphery and a “legal black hole” or –as the three authors, Sarah Ganty, Dimitry Kochenov and Aleksandra Ancite-Jepifánova prefer to put it—a form of “lawlessness law.” Their fascinating study is based on extensive case-law and doctrinal research but also (which is truly rare even in high-end socio-legal scholarship) direct field research by Aleksandra Ancite-Jepifánova. The three authors make a strong case for the argument that what happens on the border to defenceless Middle Eastern and North African migrants, illegally pulled and pushed back, forced to live in forests, under disingenuous and partly false pretences, in a semi-conspiratorial manner, tells us something about central rule of law values. This behaviour, condoned and abetted by FRONTEX and the Commission, was (in)famously justified as a necessary response to Lukashenko’s Putin-serving instrumentalising of the migrants. Yet, whereas dictators act as one expects them to, one should be able to bring questionable EU practices to book, and hold the EU to much higher standards, the authors imply. They also point out also that the phenomenon as such did not warrant the disproportionately brutal response.

FRONTEX employees are the only Union civil servants who can exercise ‘legitimate violence’ outwardly, may carry service weapons, and wear actual uniforms, not two-pieces or suits. There is sound reason for this: the Latvian border belongs also if not primarily to the (Schengen) Union. Yet FRONTEX, whose budget grew exponentially, from 6 million Eur at creation to 754 currently, projected to reach 900, functions like a “black box”, subject to precious few if any constraints. “With great power comes great irresponsibility?” seem to ask the authors, justifiably. Union (lawless) law, meaning draconian restrictions on the right to access official documents, e.g., a 2021 OLAF report on FRONTEX, make it impossible to ensure meaningful accountability. If the rule of law means procedural concern for actions affecting the individual, then how one treats the most defenceless persons imaginable, MENA migrants at the Belarussian border, sheds an unsettling light on core Union RoL commitments. Hopefully, this study, and this issue more generally, will prompt a reassessment and improvements.