Stop the World – I want to get off

Yuval Harari famously wrote in 2016 “Homo Deus – a brief history of tomorrow” (the link gives you the full book) to which LRB devoted an extensive review 

Once upon a time, we accepted three score years and ten as our divinely allotted lifespan; we reckoned there wasn’t much we could do to prevent or counter epidemic disease; we looked on dearth and famine as bad hands dealt by fate or divine judgment; we considered war to be in the nature of things; and we believed that personal happiness was a matter of fortune.

Now, Harari says, these problems have all been reconfigured as managerial projects, subject to political will but not limited by the insufficiencies of our knowledge or technique. We have become the masters of our own fate – and ‘fate’ itself should be reconceived as an agenda for further research and intervention. That is what it means to refer to the world era in which we live as the Anthropocene: one biological species, Homo sapiens, has become a major agent in shaping the natural circumstances of its own existence. The gods once made sport of us; the future will ‘upgrade humans into gods, and turn Homo sapiens into Homo deus’…… 

The current version of Homo sapiens will become surplus to economic and military requirements. War will be waged by drones and work will be done by robots: ‘Some economists predict that sooner or later, unenhanced humans will be completely useless.’ Algorithms embedded in silicon and metal will replace algorithms embedded in flesh, which, Harari reminds us, is what biology and computer science tell us is all we really are anyway….. 

Wealth will be concentrated in the hands of the ‘tiny elite that owns the all-powerful algorithms’. Some of us will then be as gods: members of a new species, Homo deus, ‘a new elite of upgraded superhumans’ clever enough, and rich enough, to control for a time the knowledge that controls the rest of humankind, and to command the resources needed to transform themselves through intellectual tools and biologic prostheses. ‘In the long run, we are all dead,’ Keynes said. If some of the wilder ambitions of anti-ageing prophets are realised, the dictum will need to be reformulated: ‘In the long run, most of us will be dead.’… 

I remember reading the first 50 pages of “Homo Deus” and feeling that this and a couple of other reviews had told me all I needed to know about the book. I was eager to see what his ”21 Lessons for the 21st Century” (2018) held for me….Once I realised that it consists of a lot of op-eds and answers to his fan-club mail, I decided against reading it. A contrarian article and a "digested read" tend to confirm my prejudice....  

If you can’t be bothered to read these two books of his or a post of mine from last year which tried to give a sense of the basic argument, then you will perhaps find more exciting this hour-long discussion between Harari and Jonathan Haidt, the social psychologist whose “The Righteous Mind” I enthused over a couple of years ago.

Haidt start the discussion by articulating a concern he feels about trends in social media, AI and the incredible rate at which the world is changing. It’s a really great discussion and I thoroughly recommend it. It certainly made me realise that I had been a bit unfair to Harari and should certainly persevere with his ”21 Lessons for the 21st Century” One of the reasons the video gripped me is because of the obvious respect the two men have for one another. It’s so great to see a serious discussion of ideas 

And if that does in fact grab you, then I would suggest you view a discussion between Harari and the author of another book I enthused about recently – Rutger Bregman’s Humankind – an optimistic history. Indeed I was so impressed with Bregman’s book that I did one of my famous tables summarising the various myths he exposed.

Other Assessments of Harari

A profile of Harari in The New Yorker revealed that a team of eight people supports him in his various speaking and writing endeavours. Doesn’t that risk “groupthink”???

https://www.theguardian.com/books/2016/aug/24/homo-deus-by-yuval-noah-harari-review from the ever-thoughtful and challenging David Runciman..

https://sydneyreviewofbooks.com/review/a-big-history-of-the-future/

https://www.theguardian.com/books/2018/aug/15/21-lessons-for-the-21st-century-by-yuval-noah-harari-review

https://quillette.com/2018/10/26/21-lessons-for-the-21st-century-a-review/

Trouble Ahead

Like an underwater volcano, a big issue has been simmering away for some time and arguably showed its first sign of life with the judgement a few weeks ago of the Polish Supreme Court that Polish law trumps European. The issue is the power and legitimacy of the European Court of Justice.

We are told that, in these days of pooled sovereignty in matters, for example, of trade and defence, the question of national sovereignty is of marginal significance - if not an outdated notion. But here I agree very much with the picture painted by the conservative philosopher John Gray who is now in charge of book reviews in the leftist “The New Statesman” 

Brexit was a revolt against globalisation. Asserting the state against the global market is in Brexit’s DNA. Thatcherites swallowed a mythical picture of the European Union as being hostile to the free market—the same picture that befuddles much of the left.

In reality the EU is now a neoliberal project. Immune to the meddlesome interventions of democratically accountable national governments, a continent-wide single market in labour and goods is hardwired to preclude socialism and undermine social democracy. 

Large numbers of voters in the UK favour nationalising public utilities and firms such as the Tata steel plant while supporting stiffer penalties for law-breakers and strict border controls. “Left-wing” economics and “right wing” policies on crime and immigration are not at odds. Both come from a concern with social cohesion. If there is a centre ground in British politics, this is it.

Old Labour occupied much of this space. But it is almost unthinkable that any senior Labour figure should attempt to do so nowadays. 

Almost a year ago, no less a figure than Perry Anderson trained his large cannon on the technocratic core of the European Union – with a trilogy of essays amounting to a full-size book - starting with a 20,000 word essay entitled The European Coup followed by Ever Closer Union

The second of these looks at the origins and practices of the different institutions within the European Union – arguing powerfully that they breach every principle of the rule of law. A useful summary is here. 

And, this week, another major figure – German Wolfgang Streeck in a short article for Brave New Europe – has applied that general critique to the EU’s handling of the challenge from Hungary and Poland. It’s an explosive article – which starts thus 

Strange things are happening in Brussels, and getting stranger by the day. The European Union (EU), a potential superstate beholden to a staggering democratic deficit, is preparing to punish two of its democratic member states and their elected governments, along with the citizens who elected them, for what it considers a democratic deficit.

For its part, the EU is governed by an unelected technocracy, by a constitution devoid of people and consisting of a series of unintelligible international treaties, by rulings handed down by an international court, the Court of Justice of the European Union (CJEU), as well as by a parliament that is not allowed to legislate and knows no opposition. Moreover, treaties cannot be reviewed in practice and rulings can only be reviewed by the Court itself. 

The current issue is an old one, but it has long been avoided, in the best tradition of the European Union, so as not to wake sleeping dogs. To what extent does “European” law, made by national governments meeting behind closed doors in the European Council and elaborated in the secret chambers of the ECJU, trump national law passed by the democratic member states of the European Union? The answer seems obvious to simple minds unversed in EU affairs: where, and only where, the member states, in accordance with the terms of the Treaties (written with a capital T in Brussels presumably to indicate their sublime nature), have conferred on the EU the right to legislate in a way that is binding on all of them….. 

It was a young Netherlands historian – Luuk van Middelaar (speechwriter for a few tears of the EU’s first elected President von Rompuy) – who let the cat out of the bag in The Passage to Europe (2013) about what he called the “coup” that gave the European Court of Justice its supreme powers in the 1960s. And that was indeed the starting point for Anderson’s essay on The European Coup. Streeck’s article continues - 

Already in the early 1960s the CJEU discovered in the Treaties the general supremacy of EU law over national law. Note at a glance that nothing similar is to be found in the Treaties; one needs to be a member of the Court to observe that supremacy. At first, insofar as the jurisdiction of the European Union was still very limited, nobody seemed to care about this. Subsequently, however, as the European Union set about opening up national economies to the ‘four freedoms’ of the single market and then introducing the common currency, the doctrine of the primacy of European law operated as an effective device for extending the Union’s authority without the need to rewrite the Treaties, especially as this became increasingly difficult with the increase in Member States from six to, pre-Brexit, 28.

What was initially no more than a highly selective upward transfer of national sovereignty gradually became the main institutional driver for what was termed ‘integration by right’, which was carried out by the Union’s central authorities and co-administered by various coalitions of member states and governments. 

Streeck then moves on to make the same point as Albena Azmanova does in last weekend’s Binding the Guardians report which I’ve discussed in the most recent posts – namely that a lot of EU countries are in breach of the rule of law. 

As far as corruption is concerned, Poland is generally considered a clean country (Hungary less so), while countries such as Romania, Bulgaria, Slovenia, Slovakia and Malta are widely known as bastions of business cronyism and venality, not to mention, in some cases, the deep-rooted mistreatment of their minorities.

Indeed, both Slovakia and Malta have recently witnessed the murder of independent journalists, perpetrated by criminal groups connected to their respective government circles, involved in investigations related to cases of high-level corruption. Yet no one threatens to cut off European subsidies to these countries, while the liberal European press carefully refrains from comparing the Polish or Hungarian “rule of law” with those of Slovakia and Malta.

There is reason to believe that this is the case because, unlike Poland and Hungary, both countries pay back by always voting in favour of the European Commission and otherwise keeping their mouths shut. Similarly, political influence over the high courts of a given country is something that EU bodies have good reason not to make too much of a fuss about: where Constitutional Courts exist, they are all without exception and in one way or another politicised. 

Michel Barnier shocked everyone when he put a marker down for French sovereignty which Streeck suggests could help put an end to the relentless push for European integration 

The battle in Poland and Hungary may put an end to the era in which “integration by right”, thanks to its incrementalism, could be treated by increasingly short-sighted national governments with benevolent neglect. For example, some centrist French politicians set to contest next year’s presidential elections, such as Valérié Pécresse (Les Republicaines), Arnaud Montebourg (ex-Socialist) and even Michel Barnier, the combative Brexit negotiator, have begun to show their concern for what they now call French “legal sovereignty”, with some of them, including surprisingly the latter, demanding a national referendum to establish once and for all the supremacy of French law over European law. 

And Streeck concludes with an interesting comment on the real purpose behind the multi billion EC Recovery Fund 

The real purpose of the recovery fund – to keep national elites in power in Eastern Europe committed to the internal market and averse to any kind of alliance with Russia or China – is too sensitive to talk about in public. So it must be shown that money buys something higher than imperial stability: submission to Western European cultural leadership as documented by the selection of leaders to the taste of its elites.

Will Poland and Hungary learn to behave like Romania or Bulgaria, or even like Malta and Slovakia, and thus placate their enemies in Brussels? If they refuse to do so and the CJEU has the last word, another moment of truth may present itself, this time with an Eastern twist. 

Merkel, during her final hours as chancellor, urged the EU to exercise restraint and try a political rather than a legal solution. (Merkel may well have been informed by the United States that it would not look kindly on Poland, its strongest and most loyal anti-Russian ally in Eastern Europe, leaving the EU, where it is fed by the EU so that it can be armed by the US power).

In this context, note that there now seems to be a slow realisation in other member states of the sheer presumptuousness of the EU’s increasingly explicit insistence on the general primacy of its law over that of its member states.

Bulgaria flies under the radar

Bulgaria may be a popular holiday destination – for both snow AND sand – but remains a bit of a mystery for Europeans, not least for its Cyrillic language. Its citizens go to the polls today in the third attempt this year the country has made to find a government which can actually govern

Its neighbour, Romania, with whom it joined the EU in 2007 has more of a profile on corruption - but both are laggards on that and judicial reform. Bulgaria has simply managed to fly under everyone’s radar - for reasons perhaps not unconnected with Boyko Borrisov’s cultivation of Angela Merkel and her EPP grouping in his long rule from 2009 to earlier this year. And, perhaps, with Hungary and Poland to worry about and some political scalps to show in Romania, Brussels didn’t want to make any more enemies.

Given the importance the EU has given in the last two years to the Rule of Law Mechanism, its curious that they appointed a Romanian to head the new office of European Prosecutor. Perhaps they felt that Laura Kovesi falling foul of the Romanian government was proof of the effectiveness of her 12-year spell as Romania’s head Prosecutor. She certainly managed to put enough politicians behind bars – something which Bulgaria never managed to do.

But the notorious Securitate remains as strong as ever in the country and it is clear that Kovesi colluded with them to bring down both politicians and judges who did not act in appropriate ways. I wrote about this almost 5 years ago and was somewhat critical of an American report called Fighting Corruption with Con Tricks – Romania’s Assault on the Rule of Law – but had, ultimately, to agree with their criticisms. Both Bulgaria and Romania have dubious reputations with the European Court of Human Rights which has thrown out many of the cases the two countries have brought to them – for failure to observe “due process”. 

So the release into the public domain, in all the languages of the EU, of documentation from governments, Civil Society and the European Commission about the state of the rule of law is a highly welcome development. It certainly lifts the veil on Bulgarian practices – particularly with the release last weekend of the 100 page report Binding the Guardians from Albena Azmanova about the situation in France, Spain and Bulgaria.

And it is the Bulgarian section I want to focus on in the rest of this post – which can be separately read here (only 34 pages). Let me remind you of two things 1.  

The scope of the European Commission’s exploration of the Rule of Law. Four fields are the focus of the Commission investigations:

-       the justice system,

-       the anti-corruption framework,

-       media freedom, and

-       ‘other institutional checks and balances’. 

Azmanova rightly criticises the absence of interest in the operation of the rule of law in the private sector – the analysis being limited to the operations of the public sector. But I was delighted to see that the critical question of the ownership structure of the media is central to the investigations. The power of the corporate media is a scandal to democracy. 

2.   Four tests are suggested by Azmanova for the Commission’s work -

We suggest that, in order to effectively comply with the rule of law while conducting its annual rule of law surveys, the Commission needs to be guided by (at least) four norms:

·       clarity of communication,

·       thoroughness in addressing rule of law violations (that is, in the full range and depth of detail),

·       equal treatment of the subjects of power, and

·       impartiality in the use of power (in the sense of not having a narrow partisan-political agenda). 

Obscurity is a fertile ground for arbitrariness, omissions tacitly condone what is omitted, favoritism disempowers some, and partisan-political considerations harm the common good.

These excerpts give a reasonable sense of the report 

The overarching problem is that political forces in Bulgaria  are using the justice system, including reforms purportedly aiming at fighting corruption, to complete the state capture by the oligarchic mafia. A Specialised Prosecution, a Specialised Appeals Court, and the Anticorruption Commission have recently been set up - with an attendant ’specialised’ committee dealing with a pre-trial confiscation of property in cases of suspected corruption (the Counter-Corruption and Unlawfully Acquired Assets Forfeiture Commission). These have been set up via ‘extraordinary’ legislation by Parliament. In their area of competence, these courts have enhanced powers that lie outside of the normal legal system. As Evgenni Dainov noted in a 2018 letter to Justice Commissioner Vĕra Jourová, those implicated within the system of specialised courts do not have recourse to the normal institutions of law and order and thus suffer from lack of "due process" (Dainov 2018).

As of December 2018, new legislation specifically allows the Confiscation Commission to hold on to confiscated property - even after a court declares the person innocent. Several case-studies are given in Azmanova’s report - one bringing to light the logic at work in fighting graft and corruption in Bulgaria: the victims of corruption are punished while the perpetrators, usually well-connected political figures, run free.  

Lozan Panov, the President of the Supreme Court of Cassation, says that “the rule of law and the division of powers are highly compromised and key state institutions have been captured by private interests [...] At the same time real corruption remains unchecked and pervasive. Those who are independent from power are under constant attack. Lists of ‘enemies’ and ‘traitors’ are published in newspapers. Xenophobia and hatred have become a government policy” 

The 2020 EC Report, in its commentary on the anti-corruption framework, mentions “the complex and formalistic Bulgarian system of criminal procedural law has been highlighted by different reports and analyses over the years as an obstacle to the effective investigation and prosecution of high-level corruption” — but refrains from addressing the arbitrary power of the specialized prosecution system. 

The politicisation of the judiciary in Bulgaria is endemic and pervasive. Appointments are commonly based on personal relationships and deals rather than professional merit and application of established procedures.

The Supreme Judicial Council (SJC) is responsible for the appointment and promotion of all magistrates (investigators, prosecutors and judges) as well as for monitoring their ethics. A Constitutional reform in 2015 introduced a system of appointments to this body that invites political influence over the judiciary. Thus, eleven of the SJC’s twenty-five members are directly elected by Bulgaria’s Parliament—appointments conducive to political influence. Moreover, the four prosecutors and one investigator who are elected to the SJC are direct subordinates of the Prosecutor General, who is an automatic member of the SJC. This is problematic because all prosecutors are under the direct control of the Prosecutor General, while the Prosecution is strongly influenced by the executive 

The European Commission comments on the deficient independence of the SJC by noting that

·       The overall number of judges elected by their peers does not amount to a majority;

·       the Prosecutor General plays a decisive role in the Prosecutor’s chamber as well as an influence on the plenary and potentially the Judges’ chamber;

·       the “overall structure of the SJC would limit its ability to safeguard judicial independence against pressure by the executive, the legislative, the judiciary, including the office of the PG”;

·       The lack of judicial independence is evidenced by the number of judges subject to attacks and criticism on their rulings (2020: 6-7). 

However, deprived of proper diagnosis, and with a congratulatory reference to the Constitutional reform of 2015 which in fact deepened the SJC’s dependence on political forces, the Report treats the issue only superficially, as a matter of incidents, rather than as a systemic problem. 

Some of the structural issues within the SJC are acknowledged in the Report, but they are framed in a way to convey the government’s commitment to reforms and create the impression of progress amidst a reality of ‘backsliding’—that is, of deliberate and systematic assault on the rule of law by the dominant political forces in Bulgaria. The incidents we reviewed above, however, and which had been communicated to the Commission by external stakeholders are not referenced; neither is criticism included on the amendments to the Constitution of Bulgaria in 2015 which have been contested as having effectively decreased the independence of the SJC (Venice Commission 2015).

Thus, while the Report effectively addresses some of the problems and refers to Council of Europe recommendations, the criticism is framed in terms of incomplete reforms and lack of sufficient resources, not as a lack of political will to undertake the requested reforms.

Legal expert Radosveta Vassileva also points out that the Reports omit several spending scandals that have occurred within the office. Bulgaria has a long troublesome track record of losing cases before the ECHR because of severe violations by the Prosecutor’s Office and this has also been omitted in the Report

 update;  https://verfassungsblog.de/impunity/

Why the Rule of Law is fundamental

We used to take the Rule of Law for granted in Britain – although we were aware that it was a privilege unknown to billions of people throughout the world. Gradually, however, we have been disabused of the trust that we had previously put in our legal and judicial system and in the police – let alone our political class and “the fourth estate”.

That’s why I chose to lead, in what is becoming another mini-series, with the post about the latest UK “sleaze” in a government for whom corruption has become nothing short of systemic. If the UK were still a member of the European Union, it would now be in danger of being named and shamed in the same breath as Hungary and Poland to which the previous post briefly referred - and whose transgressions are well summarised by the Commission in its latest (32 pages) report on Hungary and then its 2021 report on Poland (38 pages)

 I had mentioned an excellent report - Binding the Guardians - commissioned by an Irish member of the Left grouping in the European Parliament which gives fascinating case studies of three member countries – France, Spain and Bulgaria. The French judicial system is ultimately controlled by the Executive – which is inconsistent with the separation of powers; is hugely underfunded; and terrorist incidents have given the French State latitude to increase its powers to a worrying extent.

The MEP’s report is authored by Albena Azmanova who was initially educated in Bulgaria – and suggests 4 useful tests to use in the assessment of the quality and scope of the European Commission’s analysis; applies these tests to the Commission commentary; and finds the following problems

·       A dangerous conflation of “rule of Law” with aspects of procedural democracy

·       Vague, overly-diplomatic language

·       Restricted focus - The Commission report delimits its range to four areas: the justice system, the anti-corruption framework, media freedom, and ‘other institutional checks and balances’.

·       Failing to include the operations of the private sector 

A Blurred conceptualisation; In the 2020 Report, the Commission stipulates that all public powers should not only act within the constraints set by law but also in accordance with democracy and fundamental rights, and defines legality as implying a democratic process for enacting laws. The fallacy of conditioning rule of law on democracy is present explicitly even in some of the constitutions of EU member-states – something the Commission as guardian of the rule of law should be criticizing rather than condoning.

Thus, the preamble of the Spanish Constitution registers a commitment to “consolidate a State of Law which ensures the rule of law as the expression of the popular will” (emphasis added). Thus, the rule of law is reduced to legal provisions of democratic origin. This grave conceptual fallacy in the codification of the rule of law has already had nefarious political consequences. Thus, when trying to suspend the Catalan Independence referendum of 2017 with police violence (which was condemned by Human Rights Watch), Spanish Prime Minister Mariano Rajoy justified his actions as a matter of defending the law (namely, the Constitutional provision stipulating the “indissoluble unity of the Spanish Nation”) itself an expression of the will of the Spanish people. The European Commission at the time openly endorsed this 

As an aficionado of good clear English, I very much appreciated the way Azmanova dealt with the second issue – 

Vague/diplomatic language; while the authority of the Commission is based in its non-political nature and administrative professionalism, it tends to use diplomatic language in which criticism is delivered through euphemisms and understatements. Typically, it speaks about ‘weaknesses’ and ‘needed improvements’ to refer to grave problems.

This vagueness diffuses both the responsibility of the perpetrators and that of the Commission. Thus, in its chapter on Bulgaria, the Commission writes that a “lack of transparency of media ownership is considered as a source of concern”, and “Bulgaria’s regulatory process is considered to be lacking predictability and stability due to frequent changes of the legislation.” Who considers this to be of concern? Does the Commission judge that this is a rule of law breach? The wording leaves doubts about the Commission’s stance.

To help address this, as a minimum, a clarification of the difference between violations of the law and violations of the rule of law should be offered. As we noted earlier, threats to the rule of law emerge not when the law is violated, but when breaking the law is not punished, when the sanction is not uniform, and when there is no legal and institutional framework to enable that inequities be challenged and corrected. As the Report fails to draw this distinction, it covers an indiscriminate selection of issues: from violations of the law to flawed accountability mechanisms. On the one hand, making this distinction explicit would help dispel a common misperception—that any violation of the law is a rule of law violation—especially if this monitoring mechanism is to play an educational role. 

The final two issues can really be rolled into one 

Restricted focus of the Commission report; The Report delimits its range to four areas: the justice system, the anti-corruption framework, media freedom, and ‘other institutional checks and balances’. Of course, the Commission is right to exercise its discretion in delimiting the range of the Report. However, to avoid arbitrariness in making such a decision, logical argumentation needs to be offered in justifying this choice—none is given. The Commission’s failure to offer either a thorough or well-justified selection of rule of law violations, is evidence in the following features of the Report

The Commission has chosen, without explicit justification, not to address in a systematic way “accountability mechanisms for law enforcement, the role and independence of public service media, as well as measures taken to ensure that public authorities effectively implement the law and to prevent abuse of administrative powers.” (p.5, ft20). It also states that “the country chapters do not purport to give an exhaustive description of all relevant elements of the rule of law situation in Member States but to present significant developments” (p.5).

This is already problematic, as no criterion is offered for how the significance of the chosen developments is established. The Commission thus grants itself an undefined (arbitrary) mandate that enables an arbitrary use of its power. 

Letting the Private Sector off the hook; The definition of the rule of law in the Report correctly places an emphasis on the abuse of power but unfortunately it unduly restricts this to public authority (“Under the rule of law, all public powers always act within the constraints set out by law” -p.1) While concerns with rule of law indeed originated in efforts to constrain the arbitrary power of central governments, threats to the rule of law nowadays come also from powerful economic actors. This is why the Venice Commission uses in its Rule of law checklist a more expansive language: “everyone has the right to be treated by all decision-makers with dignity” (#15), noting that “individual human rights are affected not only by the authorities of the State, but also by hybrid (state-private) actors and private entities” (#16).

Thus, the Venice Commission updates the rule of law conception to the realities of the 21st century by stating that “all persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of the rule of law” (#17) (Venice Commission 2016). 

I haven’t finished! Future posts will put the European discussions in the wider context of a revival of global interest in the issue of the Rule of Law

Challenge to Rule of Law in Europe

2004 saw 10 new member countries admitted to the European Union. Just 2 countries were judged not sufficiently ready – Bulgaria and Romania – on grounds of their levels of corruption and judicial incapacity. They were both eventually admitted to the EU on 1^st January 2007 – but, uniquely, subjected to an annual inspection through a new procedure called the Cooperation and Verification mechanism (CVM).

Coincidentally, these are the 2 countries in which I have lived since 2007 – indeed I had no sooner returned to Romania from an 8 year stint in Central Asia than I took up a position as Team Leader in Sofia in a project for training regional and local officials to ensure the country’s compliance with EU legislation.   

Schengen and the Euro give Bulgaria and Romania additional reasons for feeling the smack of second-class citizenship – particularly because after more than a decade they have not managed to satisfy the taskmasters in Brussels on judicial reform. The requirement for annual reports on judicial aspects and corruption continued until 2019 when it was replaced by the Rule of Law Mechanism (RLM) which necessitates an annual report to be submitted to the Commission by each and every member country.

Bulgaria and Romania had by then become the least of the EU’s concerns - Hungary and Poland had quickly instituted significant departures from the rule of law – packing courts with political appointees, severely limiting media freedom and making political use of European Funds. And some older member countries such as France and Spain were considered to have questionable aspects to their judicial and constitutional systems 

Much of this had passed me by – what caught my attention at the weekend was the release of a critical report commissioned by an Irish MEP Clare Daley on the 2021 assessment by the European Commission - which engages in a dialogue with member countries about their submissions.

Her report – called Binding the Guardians – is just over 100 pages long and was written by a well-known political economist Albena Azmanova who basically analyses how well the European Commission is fulfilling the task of holding member countries to account for their observation of the Rule of Law. It starts, brilliantly, by suggesting four tests for the Commission’s work - 

We suggest that, in order to effectively comply with the rule of law while conducting its annual rule of law surveys, the Commission needs to be guided by (at least) four norms:

·       clarity of communication,

·       thoroughness in addressing rule of law violations (that is, in the full range and depth of detail),

·       equal treatment of the subjects of power, and

·       impartiality in the use of power (in the sense of not having a narrow partisan-political agenda).

Obscurity is a fertile ground for arbitrariness, omissions tacitly condone what is omitted, favoritism disempowers some, and partisan-political considerations harm the common good.

Azmanova then applies these tests to the Commission commentary and finds the following problems

·       A dangerous conflation of “rule of Law” with aspects of procedural democracy

·       Vague, overly-diplomatic language

·       Restricted focus - The Commission report delimits its range to four areas: the justice system, the anti-corruption framework, media freedom, and ‘other institutional checks and balances’.

·       Failing to include the operations of the private sector 

At this stage, I’m conscious that I recently took a vow of brevity and that I am about to share excerpts from the report which will double the size of this post…..so having tantalised you with the summary, I’ll continue shortly

Rule of Law under attack

One thing I know – ALL POWER CORRUPTS. I know that because I was a senior politician for 22 years and could feel and see its effects on both myself and my colleagues. And that was the 1970s when - despite the swirling doubts - idealism was still in play, understood and respected.

But power brings yes-men, groupthink and conceit. Politicians have generally been well-intentioned and, by nature, seek applause. Criticism they will attribute to malevolence – journalists are written off as purveyors of gossip who are too cynical to appreciate the good intentions of the policy-makers. Sadly, however, those with power make little attempt to run their policy ideas through critical testing - unless they are in a political system which forces them to seek consensus – such as Germany and, increasingly, mainland Europe with their coalition government.   

But the negotiation which is central to the political system of many European countries is actually a dirty word in England. Britain, like the US, has chosen an adversarial two-party system – in the belief that this can better smoke out the truth. The reality couldn’t be further from the truth – with groupthink being strongly evident in both countries. A senior Conservative Minister indeed once argued in an important lecture (in the 1970s) that the UK was “an elective dictatorship”. And that was in an era when the civil service still functioned to challenge simplistic policy ideas - nowadays the echo-chamber of political advisers has replaced neutral civil servants. One prominent political commentator put it very aptly - this Prime Minister is so weak that he has surrounded himself with  "courtiers"

The absence of a constitution is certainly a curious feature in the modern age – and british citizens were stunned to learn in 2019 that their Prime Minister apparently had the power to send parliament packing when he found it troublesome. Only an appeal to the country’s new Supreme Court by a citizen saved parliament’s skin – but a supine press which had branded such judges as “enemies of the state” gives the government full scope to rein in such judicial cheek. 

I had actually wanted to write about a great paper which was commissioned by an Irish member of the European Parliament about the rule of law in European countries (which now excludes the UK) - but find myself sidetracked by the scandal which has blown up this week by Boris Johnson’s typically ham-fisted attempt to protect one of his parliamentary friends from scrutiny.

The details are boring – what it boils down to is that not only was a British PM prepared to throw out an agreed system of scrutiny and bring in a new one simply to protect a friend but that he actually required his conservative MPs (at 24 hours’ notice) to vote that way. With some protests 250 obeyed him – an honourable few refused. When all opposition parties refused to participate in the new system, Johnson backed down. You can imagine how many of those 250 now feel about themselves....They have been made to look craven lapdogs. This was a good article on the debacle – just the latest of a long line of stupidities from the British government 

There is an Arabic expression that warns against the perils of an abundance of wealth: “Loose money teaches theft.” Britain has the dubious honour of being the home of the loose money of the global rich, facilitating its movement through secret offshore companies, setting up entirely legal means to profit from these opaque transactions. 

Taking liberties in office tends to work the same way. Loose power teaches corruption, which in turn happens through technically above-board means. That loose power broadly requires three further conditions to trigger misconduct –

·       a craven or cowed press,

·       a lack of what is seen as a viable political alternative and

·       a large section of the public made quiescent, either through apathy or tribalism. 

Sound familiar? Welcome to the global community of those living under corrupt governance. The good news is that you are not alone. The bad news is that, once corruption starts to set in, it becomes very hard to reverse. It becomes (this will also sound familiar to you), “priced in” to people’s expectations of the political class, even institutionalised. 

People in those other countries – the ones you more easily associate with corruption than your own – will explain the subtle evolution: what was before a furtive cash bribe that you needed to pay for a government stamp becomes an official fee that you are handed a nice crisp receipt for. What was before an outrageous grab of power from a democratically elected government becomes a legal process blessed by an election, perhaps one even overseen by international observers. The unprincipled will not be shunned but enriched and honoured. 

The press will contradict what you have seen with your own eyes. Conspiracy theories will begin to flourish because everyone is in the business of making up narratives, so the truth becomes a matter of spinning and selling the most convincing lie. Ministers might even, after attempting to rig a regulatory system in their favour, tell you that their government is trying to “restore a degree of integrity and probity in public life”. It will begin to exhaust your sense of outrage and warp your sense of right and wrong.

Eventually what will begin to settle is a sense that you as an individual have no control, no matter how many freedoms – voting, protesting – you feel you can exercise. Those rights will feel like levers that aren’t connected to anything. And so you give up. The main political emotion I grew up with in the Middle East and north Africa was not that of suffering oppression, but of jaundice – a sort of cultivated cynicism that protected us against the despair of life under regimes that stole from us and then remade the rules in their favour. 

I have felt this creeping up on me in the UK. It is an impulse that I recognise in the continuing support for the Conservatives, or the tepid resistance to them despite their proven malpractice, their endless scandals, their failure to deliver on what were once considered basic criteria for governments: that the state does everything it can to protect its citizens’ lives in a pandemic, and that most people’s material circumstances get better with time.  

Once the state withdraws from that role of honest broker and facilitator, the result is a fatalism: we must carry on and make do with what we have. 

I will return in the next post to the European aspects of the attack on the rule of law

Cultivating Change

Hanno Burmester is an interesting young German, a disappointed activist in the mainstream SDP before working at his own organisational consultancy for almost a decade, who has now produced a little book which argues that we need a “triple transformation” – in ourselves, in our organisations and in our social systems.

Nothing if not ambitious! But the scale of the global crises we face requires nothing less 

The book has an intriguing title - “Unlearn – a compass for radical transformation”. Whenever I’m enticed by a book’s title or marketing I resort to some annoying questions – for starters, does the author take the trouble in the Introduction to try to persuade me that the book deserves my precious time?

His answer is short and clear – few books deal with all three levels. Go into any bookshop and you will be directed to three different parts of the bookshop – self-help, business studies and politics/social change. 

A second question I pose involves the reader going to the back of the book to find the “further reading” which, ideally, should explain why the author has selected the various titles. I need this to give me a sense of the author’s view of the world. In this case, I was simply given a list of a dozen books – half of which I knew but the other half not. They are –      

Tomas Bjorkman The World We Create 2019

Fridjof Capra The systems view of life 2014

Lizabeth Cohen A Consumer’s Republic 2003

Andre Gorz Farewell to the Working Class 1980

Amitav Gosh The Great Derangement 2017

Robert Kegan In Over our Heads – the mental demands of modern life 1995

Naomi Klein This Changes Everything 2015

Frederic Laloux Reinventing Organisations 2016

Jonathan Rowson Spiritualise 2014

Otto Scharmer Theory U 2007

Roberto Unger Democracy Realised 2000 

I very much appreciated that the list puts the anglo-saxons firmly in our place!

You would have thought that, when an author is dealing with three intertwined issues of such magnitude, he would need three times the text to conduct the argument ie a book of about 750 pages. But this one comes in at 135 pages!!

Surely a lot has been sacrificed? 

But perhaps that just reveals my age! My generation was the rationalistic one – and expected things to be proven – by detailed argument. HB is more generous and..well…spiritual and rests more on appeal to values – and stories. He’s pretty strong on self-analysis and, in his comments on organisations, I can hear the voices of Frederic Laloux and David Graeber. His final section on social transformation, however, does perhaps rely too much on the collapse of will of communist regimes in 1989-92. 

His basic argument is that there is a “core self” which warns us when we are going against our nature and that we should listen to it. As individuals, organisation and societies we are too comfortable with the status quo and ignore the multiple signs of stress around us – be it depression, suicide, protest. His section on “things that hold us down” makes some good points.

And the point of his title is that we all – at whatever level – need to prepare properly for what is involved as we make the necessary adjustments to our values and behaviour 

But he doesn’t seem to recognise the strength of the effort which the corporate system is putting into the fight to maintain its privileges.

And – if this is a compass – then I would have wished him to attach a few more pointers and resources to help us on his journey. 

But I enjoyed the book – it is engaging and well-written/translated.

More importantly it made me think – and scribble notes to myself – always a tribute to a good read. For example I could see the link to older material such as Building the bridge as you walk on it (2004) by Robert Quinn about whom I have written several times here. And the triple transformation is also a theme which crops up in Robin Skynner and John Cleese’s Life – and how to survive it (1993) where a therapist and leading British comic 

have a Socratic dialogue about the initial stages of everyone’s development – as babies weaning ourselves from our mothers, learning about the wider environment and coping with our feelings. They then use this understanding of the principles of healthy (family) relationships to explore the preconditions for healthy organisations and societies 

But any reference to such texts would have made the text much longer – and the beauty of the book is its brevity!

Update; I'm remiss in forgetting to thank The Alternative website for alerting me to the book and they also have a feature on Tomas Bjorkman who is the first of the authors on Burmester’s short reading list