Invited by the Central European Academy of the University of Miskolc and the Ferenc Mádl Institute of Comparative Law Bertrand Mathieu professor, professor of law at the Sorbonne-Université Paris I, member of the Venice Commission, vice-president of The International Association of Constitutional Law and member of several other international and French expert bodies, gave a lecture at the conference "International Public Law from a Central European Perspective", organised at the Hungarian Academy of Sciences (Budapest) on 22 April 2022.
Interview with the professor:
In response to the invitation of the Central European Academy of the University of Miskolc and the Ferenc Mádl Institute of Comparative Law, Professor Bertrand Mathieu, Professor of Law at the Faculty of Law of the Sorbonne-Université Paris I, member of the Venice Commission, Vice-President of The International Association of Constitutional Law and member of several other international and French expert bodies, gave a lecture in 2022. The conference entitled "International Public Law from a Central European Perspective" was held at the Hungarian Academy of Sciences (Budapest) on 22 April 2022.
The notion of the rule of law is the main axis along which the debate between national identities and European values is taking place, Mathieu explains. There are two possible definitions: a limited definition, according to which it is protection against authoritarianism - citizens know what rules apply to them and cannot be subjected to police measures outside legal guarantees - and an ideological definition, developed by the European courts. "They mainly include non-discrimination."
The question is, who can define what exactly is meant by the definition? And is it possible that some people are using the term as a weapon? European judges use it to develop the same concepts of fundamental rights, so that all judges at national level use the same concept on certain issues. According to Mathieu, the main examples are abortion, gay couples and religion. The problem is that this concept can conflict with different national identities and values. "European values are not democratically established, but are essentially shaped by unelected judges."
But then what is the definition of democracy? The traditional European conception of democracy is based on a complex system, democratic because power is legitimised by the representation of the will of the people, but also liberal because the separation of powers is limited and the possibility of appeal is given. Political power is democratically legitimate; judicial power derives from the latter logic. "The big question is the balance between the two," Mathieu explains. At EU level, recent developments point to a weakening of political power and a strengthening of the judiciary, creating an imbalance between the democratic and liberal aspects.Orbán has used the term "illiberal" to describe his intention to strengthen political power, to restore what he sees as an upset balance.
The question arises: is it even possible to resolve the conflict between the liberal and democratic definitions of the rule of law? According to Mathieu, it is questionable whether a judge has the right to define the content of the concept of the rule of law. The judge's role is to apply existing laws, to provide legal certainty - but he or she cannot decide on the laws themselves. The judge is therefore legitimate only in this role: when he guarantees, but not when he decides on the law. This can happen at the national, state level and at the European, supranational level. The way to resolve the conflict would be to redefine competences: to identify what is part of common EU values and what is specific to national identities. This work is unavoidable, because failure to do so will lead to further conflict, threatening the very idea of European cooperation.At EU level, therefore, it is necessary to give more power back to the politicians representing the people, because it is now more in the hands of unelected judges.
As you know, Hungary and Poland are regularly accused of populism, with some comparing them to China or Russia. Mathieu believes that the parallels are not based on reality. The word 'populism' is used as a dirty word. In reality, however, populism is also the will to exercise power on the basis of democratic legitimacy and to resist the excesses of the judiciary. "They want to favour democratic logic over liberal logic." Russia is a sham democracy, China is not even a sham democracy. "I would add that in France populism exists on both the right and the left, and is expressed in the desire to give back to the people the power they see as taken away."
According to Mathieu, the rule of law case against Hungary revolves around all of these issues. If we accept that judges can define the rule of law, then the procedure is fully justified. What is less acceptable is that the EU institutions interpret the rule of law in the broadest possible terms, which leads to member states being forced to follow rules they did not accept when they joined. The EU then uses the watered-down notion of the rule of law as a tool, for example "in the case of the ban on homosexual propaganda in Hungarian schools, which is not a rule of law issue". Mathieu believes that ultimately both the federal Europe and the death of the European vision should be avoided. A middle way between the two dead ends, made possible by political agreements, must be found. The Central European Academy is a public legal research institute within the University of Miskolc, committed to promoting Central European jurisprudence and developing international relations. Its objectives include the implementation of extensive research and training projects involving Central European countries through, among others, the Central European Professors' Network and the Central European Junior Programme, fostering and strengthening international professional relations. The tasks of the Ferenc Mádl Institute of Comparative Law include, in addition to supporting and developing domestic applied legal research, increasing its international standing and recognition, and promoting international legal relations and cooperation.
This interview took place in the framework of the research programme Legal Studies on Central Europe, established by the two institutions, in which the professors involved focus on the national legal system, with a special emphasis on international and EU law, with a special focus on the field of comparative law in Central Europe.
