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Democratic Backsliding in the European Union  

Nick Sitter and Elisabeth Bakke

Democratic backsliding in European Union (EU) member states is not only a policy challenge for the EU, but also a potential existential crisis. If the EU does too little to deal with member state regimes that go back on their commitments to democracy and the rule of law, this risks undermining the EU from within. On the other hand, if the EU takes drastic action, this might split the EU. This article explores the nature and dynamics of democratic backsliding in EU member states, and analyses the EU’s capacity, policy tools and political will to address the challenge. Empirically it draws on the cases that have promoted serious criticism from the Commission and the European Parliament: Hungary, Poland, and to a lesser extent, Romania. After reviewing the literature and defining backsliding as a gradual, deliberate, but open-ended process of de-democratization, the article analyzes the dynamics of backsliding and the EU’s difficulties in dealing with this challenge to liberal democracy and the rule of law. The Hungarian and Polish populist right’s “illiberal” projects involve centralization of power in the hands of the executive and the party, and limiting the independence of the judiciary, the media and civil society. This has brought both governments into direct confrontation with the European Commission. However, the EU’s track record in managing backsliding crises is at best mixed. This comes down to a combination of limited tools and lack of political will. Ordinary infringement procedures offer a limited toolbox, and the Commission has proven reluctant to use even these tools fully. At the same time, party groups in the European Parliament and many member state governments have been reluctant to criticize one of their own, let alone go down the path of suspending aspect of a states’ EU membership. Hence the EU’s dilemma: it is caught between undermining its own values and cohesion through inaction on one hand, and relegating one or more member states it to a second tier—or even pushing them out altogether—on the other.

Article

Land-Related Conflict and Electoral Politics in Africa  

Catherine Boone

Land-related disputes and land conflicts are sometimes politicized in elections in African countries, but this is usually not the case. Usually, land-related conflict is highly localized, managed at the micro-political level by neo-customary authorities, and not connected to electoral competition. Why do land conflicts sometimes become entangled in electoral politics, and sometimes “scale up” to become divisive issues in regional and national elections? A key determinant of why and how land disputes become politicized is the nature of the underlying land tenure regime, which varies across space (often by subnational district) within African countries. Under the neo-customary land tenure regimes that prevail in most regions of smallholder agriculture in most African countries, land disputes tend to be “bottled up” in neo-customary land-management processes at the local level. Under the statist land tenure regimes that exist in some districts of many African countries, government agents and officials are directly involved in land allocation and directly implicated in dispute resolution. Under “statist” land tenure institutions, the politicization of land conflict, especially around elections, becomes more likely. Land tenure institutions in African countries define landholders’ relations to each other, the state, and markets. Understanding these institutions, including how they come under pressure and change, goes far in explaining how and where land rights become politicized.

Article

Russian Legal System and Use of Law  

Kathryn Hendley

The Russian legal system has a spotty reputation, both domestically and internationally. The distrust stems from well-publicized cases involving enemies of political or economic elites in which the outcome in favor of the elites is obviously predetermined. Coexisting with such cases are millions of mundane cases in which judges adhere scrupulously to the statutory law. This sort of legal dualism is not uncommon under authoritarianism. Russia’s constitution reflects this dualism. Its relevance to daily life and its capacity to constrain arbitrary state actions is questionable. Adopted in 1993, it proclaims Russia to be a state governed by the rule of law and includes a chapter with a comprehensive list of rights guaranteed to citizens which cannot be changed without convening a constitutional assembly. The constitutional court, which is a post-Soviet institutional innovation, is charged with ensuring compliance with the constitution. Amending the constitution requires consent from both the national legislature and two-thirds of the regional legislatures. The electoral dominance of the political party associated with Vladimir Putin has made this seemingly high threshold for amendments easily achievable. He has bent the constitution to his political will with multiple amendments, culminating in a set of over 100 amendments approved in 2020. The use of courts by Russian citizens and businesses has increased steadily during the post-Soviet period. As a rule, disputes are handled quickly and inexpensively. Even so, litigating is not the preferred option; Russians typically end up in court only when informal negotiations fail. As a rule, they go to court to solve practical problems rather than to advance issues of principle. The courts’ dockets are dominated by civil claims, such as family law disputes and various forms of debt collection. The straightforward nature of the procedural rules allows many litigants to represent themselves. In criminal cases, which are fewer, defendants are required to be represented by a licensed attorney (advokat). The state covers the cost of legal representation for the poor. Litigants who are dissatisfied with the outcomes of their cases can pursue appeals, culminating in the Russian Supreme Court. Citizens who believe that officials have violated their rights can pursue their claims in the stand-alone constitutional court, whose decisions serve as binding precedent. The post-Soviet era has witnessed wide ranging reforms to the legal system. Some were aimed at depoliticizing the courts. Judges are selected by a professional council dominated by judges that assesses candidates’ knowledge of law and appropriateness for the bench. They enjoy life tenure, subject to removal for cause—a process that is occasionally hijacked to remove judges who fail to toe the line in political cases. The reforms also sought to ease the heavy workload of judges by introducing a form of plea bargaining in criminal cases and opening the door to a type of summary judgment in civil cases in which defendants have conceded their culpability.