In this essay, I use Martin Luther King Jr.'s “Letter from Birmingham Jail” to open questions about international order and disorder. The idea of order is central to modern discourse on international politics, but the concept is often ill defined and ambiguous. King's ideas clarify three issues: First, is order understood as an objective condition of a system or a political judgment about its suitability for social life? Second, does compliance with law lead naturally to order? And third, is order always preferable to disorder? The way King answers each question is somewhat different than the conventional wisdom in international relations. IR scholars typically assume that international order is a universal good and that compliance with law enhances it. King highlights the gap between order as defined by the authorities in Alabama and his own lived experience. I use the difference to map the terrain of scholarship on international order and disorder and to draw implications for concepts, research methods, and political judgment.

The toolbox for resisting illiberalism is quite diverse. It includes high-level diplomatic negotiations concerning sanctions to enforce democracy and citizens’ mobilisation for local causes. This article focuses on strategic litigation as legal mobilisation, relying on the language of rights and the rule of law and addressing courts as defenders of liberal democracy. Such mobilisation leads to litigation before national and European courts concerning issues such as media freedom, judicial independence, minority rights or the rights of migrants. In order to be authoritative, however, courts need support from political institutions at national and EU levels from the transnational judicial community and from civil society. The embeddedness in structured civil causes and organisations seems particularly relevant in the context of strategic litigation. This article aims to map out particular factors in the EU legal and institutional systems that directly affect the prospects of strategic litigation against illiberal reforms using EU law.

On the one hand, the EU legal system does not provide direct access to the Court of Justice of the EU (CJEU). The multilevel system of judicial protection in the EU means that litigation aimed at resisting illiberalism mostly needs to start before national courts, making it vulnerable to political capture of national judiciary. On the other hand, the EU law system is based on the purposive constitutional framework of the Treaties. The tendency to follow a teleological interpretation of the CJEU makes it a promising ground for advocating for new interpretations of the law in light of a changing social context. Finally, EU law is a system with a particular legal culture and a field of experts who are well-versed in applying that culture. This field does not directly overlap with the specialised lawyers who often initiate strategic litigation; who tend to be experts in the fields of migration, transparency or the environment; and who do not have a broader understanding of EU law and its integration logic.

Since limiting judicial independence in Hungary and Poland, the politics of the rule of law crisis have been examined by various scholars discussing conflicts within and between EU and domestic institutions. The rule of law is no longer a purely national affair – it is of high political salience both for the Member States and the EU polity. The question addressed here is: how has the rule of law crisis reshaped the EU’s modes of governance? We argue that to safeguard this common value, the EU is evolving into a regulatory polity (3.0). This development marks a shift from Majone’s EU regulatory state’s focus on regulating markets (1.0) and regulation in core state powers in times of crises (2.0) to regulation on the core values of the polity (3.0). The article shows that in a context of growing dissensus over the rule of law, EU institutional actors have sought to strengthen “rulemaking,” “rule monitoring” and “rule enforcement” through a regulatory approach anchored in a market logic. It also shows that shifting from the traditional regulatory state 1.0 to regulation in core state powers 2.0, the regulatory polity 3.0 strengthens the EU’s institutional capacity to act when the rule of law is under strain through depoliticised “rule monitoring” and politicised “rulemaking“ and “rule enforcement“ as illustrated in the cases of Hungary and Poland discussed in this article.

Over the last fifteen years, the European Union has built up its regulatory response to the rule of law crisis. That framework seeks to address rule of law-related undesirable events depending on whether or not they have already occurred. As risk prevention has a limited role in the EU’s rule of law policy, undesirable events are mostly dealt with in the context of crisis management. Evaluation, reaction and conditionality mechanisms are all affected by issues relating to operability and legitimacy which reduce their overall performance. The resulting moderate efficiency of crisis management tools may still be improved by making use of the upgraded rule of law mechanisms in a systemic way.

No cooperative scheme in EU law has displayed bigger tensions between mutual trust and fundamental rights protection than the EAW system. Despite the requirement developed by the CJEU for national courts to trust each other and recognise each other’s arrest warrants, the reality on the ground has shown high levels of distrust between national courts regarding Member States’ alignment with core EU values. In this contribution, we analyze how the CJEU has managed such tensions in the EAW system. To that effect, we first put the Court’s EAW case law into context by examining the broader language of mutual trust used by the Court in other fields of EU law. In doing so, we point out how the Court has espoused different levels of lawful distrust to be exercised in different circumstances under the scope of application of mutual trust. Given that broader context, it is contradictory for the Court to mainly view mutual trust as a requirement rather than a reality in need of permanent and continuing justification between national authorities. The latter conception of mutual trust is more apt to be the basis of EU horizontal cooperation, which must be value-based and sincere according to the Treaties. Therefore, we propose a bidimensional account of mutual trust as a legal principle, one that accommodates both trust and distrust as tools for managing the uncertainty and dynamic nature of trust-based cooperation. Finally, we explore how such account of mutual (dis)trust can be concretised by the Court and other political institutions.

Following the contemporary debate surrounding two alternative perspectives on compliance – enforcement and management – this article suggests an analysis through the lens of the rule of law crisis. Specifically, the financial and techno-managerial strategy developed by the EU for the indirect protection of the rule of law relies on mechanisms that combine characteristics from both the enforcement and management approaches. This article will identify these mechanisms, namely the European Semester, the Conditionality regulation, the European Structural Investment Funds and the Recovery and Resilience Facility, in order to determine their nature, features, and tools for ensuring compliance with the rule of law. The hypothesis of this article relies on the idea that the EU’s tools are characterised by a mismatch between the causes of the identified problems and the chosen solutions. Considering that the deployment of the above measures has not re-established compliance, the EU strategy toes between inducing rule conformity on the one hand and deterring rule of law violations on the other. However, it seems that only the former can restore the rule of law, as the latter is considered ill-equipped to reverse or at least halt instances of backsliding. This mismatch explains why the Justice Scoreboard, the Framework, and the Review Cycle with its Annual Report have not made any difference, and more generally, why management strategies are unfit for dealing with deliberate backsliding.1

Nudging is a policy tool that steers people’s behavior through noncoercive psychological pushes. This has consequences for people’s lives to varying degrees. For example, the nudge of a sticker of a fly in a urinal encourages peeing inside a urinal, while an organ donation default brings people to agree to donating their organs after their decease. Governments do not yet systematically examine which nudges have to be subjected to all safeguards of the rule of law—for example, parliamentary control, judicial review, or compliance with legal principles such as proportionality. This article argues that a legal doctrine is necessary to carry out this examination. Moreover, it contributes to the development of such a doctrine, using the approach of the European Court of Human Rights as a source of inspiration. The doctrine consists of a “de minimis” principle for nudges: Public institutions only need to ensure that a nudge complies with rule of law safeguards when the nudge has substantial consequences. In addition, the doctrine includes a criterion to determine which nudges have such substantial consequences. In particular, it is argued that a nudge should be subjected to at least some safeguards when it has a serious effect on people’s autonomy.

This introduction develops a theoretical framework for understanding authoritarian backsliding against the backdrop of existing historical and European socio-legal scholarship. It introduces a number of key distinctions to better understand socio-legal variance among autocratisation. Specifically, it highlights the distinction between authoritarian backsliding and complete breakdown of judicial independence and human rights

Authoritarian backsliding is an aggravated form of rule of law decay, where functioning of key rule of law institutions comes under direct threat and it is mostly observable in the contemporary Central and Eastern European context. This differs from historical instances of authoritarian turn referring to the complete breakdown of judicial independence and human rights, characterised by the politicisation of courts as a mainly historical phenomenon. The differentiation and their socio-legal implications is crucial for developing a roadmap to identify different forms of autocratisation and their different contexts (actors, institutional and political context) that need to be considered when addressing rule of law decay in Europe, both at the national and supranational levels. Ultimately, this general overview also offers the possibility to identify and address latent discontinuities in rule of law development at both the supranational and national levels. Identification of such latent discontinuities is of importance when assessing the risks involved in the introduction of emergency measures to combat perceived threats to the state and the society.

This article discusses the thin socio-legal conceptualisation of the rule of law in Hungary. Employing a culturalist perspective, it first shows how the rule of law had a thin foundation prior to the Second World War in this country. Then, the contribution demonstrates how, contrary to previous understandings, even in the most advanced stages of rule of law building in Hungary, in the early 1990s, the resulting concept had been thin mainly focusing on institutional guarantees and legal certainty. The remaining part of the contribution then critically discusses whether and to what extent it is possible to use backsliding to frame the ongoing legal changes in Hungary.

Both Hungary and Poland have been in the spotlight regarding their democratic backsliding, with Executives exerting control over supposedly independent pillars of democracy, such as courts or the media. While the concerns about these countries also voiced by leaders of European institutions were similar, the resistance against the systematic erosion of judicial independence comes in different forms. Using comparative longitudinal case study methodology, this article shows that a defining characteristic in the potential, visibility and feasibility of what judges did or could do under the current threats depends on the role judicial associations, understood as representative collegial judicial bodies. More precisely, the format, organisation and operative tools of judicial associations contribute to their influence on prior judicial reforms and their capacity to withstand ongoing efforts in curtailing their independence from political actors. Empirically, the article reviews multiple judicial changes in the 1992–2015 period in both countries and assesses how judicial associations then shaped the divergent responses to recent attempts at limiting judicial independence. The differences in the legal framework, organisation and network reliance explains variance in resistance. Overall, the article broadens the theoretical and empirical framework for studying the role of courts and judges with considerations regarding professional association organisation and co-ordination, as a potential layer of studying judicial resistance.