The report observes thatwith context-driven caveatsthe Romanian Constitution could be categorised... more The report observes thatwith context-driven caveatsthe Romanian Constitution could be categorised as representing 'legal' or post-authoritarian constitutionalism. The report outlines weaknesses in Romanian constitutionalism, including issues that have necessitated the EU post-accession monitoring procedure. At the same time, it also documents a number of ways in which EU law has caused strain on the constitutional culture. In particular, it emerges that many of the key adverse impacts of EU law explored in the present research project were raised by Romanian courts. For example, the Romanian Constitutional Court was the first to annul the national law implementing the EU Data Retention Directive, and a lower instance court was the first, in Radu, to send a question about the presumption of innocence and liberty in the context of the automaticity of extraditions in the European Arrest Warrant system to the ECJ. The constitutional adjudication by the Constitutional Court is marked by a high proportion of annulments, especially on substantive grounds. The report also outlines the adjudication regarding the European Commission and IMF austerity programmes, social rights and the economic emergency regime. Regarding the discourse, the report makes insightful observations about the way the constitutional language and logic are changing through EU and transnational law, e.g. as regards the adaptation of the proportionality analysis from protecting the individual to benefitting commercial freedom. The report observes that the older methodological predilection for 'simplistic legal positivism with a thin Marxist sauce' (Czarnota) has been replaced by an equally simplistic and often instrumental internationalisation.
BOGDAN IANCU biannual monitoring within the framework of the Cooperation and Verification Mechani... more BOGDAN IANCU biannual monitoring within the framework of the Cooperation and Verification Mechanism and the Venice Commission by way of an collaborative expert opinion 1. There are, to be sure, notable differences between the two instances of external Constitution intervention, concerning the status of the concerned institutions and the strictly legal nature and effect of the acts involved. The Venice Commission, a consultative body of the Council of Europe, adopted, after the fact, an opinion on the "compatibility with the with constitutional principles and the rule of law" of the actions taken, in view of expediting the impeachment process, by the Parliament and the Government in power. This opinion is drafted in primarily narrative form and detached, normative-constitutional terms. Indeed, the document reads on occasion much like a professorial brief on the compatibility of the Romanian Constitution with general "constitutional principles". Nominally, the act has no binding legal traction in Romania. However, recent judicial and jurisprudential events-references to documents issued by the Venice Commission in high-stake constitutional adjudication and a number of official letters by the Constitutional Court to the Commission, soliciting the latter's help against domestic political pressures-have raised the actual relevance of such interventions, including their potential manipulation in local political contests. Moreover, the EU Commission cited in its last progress report the findings in the Venice opinion. Perhaps aware of their enhanced status, the members of the Venice Commission, in spite of the purported, relatively modest purview of the act, undertook not only to assess the impugned legal actions, but also suggest a number of remedies, among which various amendments to the Romanian Constitution as such. Conversely, the EU Commission is a supranational administrative institution. Its documents are formal acts adopted within a EU law mechanism, upon a legal basis in the Act of Accession 2 , and designed to monitor the progress undertaken by the two last members of the Union, Romania and Bulgaria, in terms of judicial and anti-corruption reforms (Bulgaria is also monitored with respect to progress in combating organized crime). The exact effects and status of the monitoring are somewhat unclear, given that, in spite of the three-year deadline set forth in the Accession Act (Arts. 36-38) and the specific benchmarks itemized in the initial 2006 decision of the Commission, the monitoring has not yet been lifted, whereas-paradoxically-its initial purview has seeped into ever further areas of interest and inquiry. In spite of these differences between the two bodies and their respective systemiclegal contexts, a comparative treatment is warranted by the methodological constraints and epistemological endeavor of this argument, namely, seeking a qualified answer as to whether and to what extent older conceptual frameworks of references are useful if detached and abstracted from the context of nation-state constitutionalism. The argument will proceed by a brief introduction of the general problematics of constitutionalization and constitutionalism beyond the classical nation-state, continuing with a summary chronology of the Romanian events over the summer of 2012, and closing with an analysis of the international reactions to this crisis.
National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law, 2019
The report observes that – with context-driven caveats – the Romanian Constitution could be categ... more The report observes that – with context-driven caveats – the Romanian Constitution could be categorised as representing ‘legal’ or post-authoritarian constitutionalism. The report outlines weaknesses in Romanian constitutionalism, including issues that have necessitated the EU post-accession monitoring procedure. At the same time, it also documents a number of ways in which EU law has caused strain on the constitutional culture. In particular, it emerges that many of the key adverse impacts of EU law explored in the present research project were raised by Romanian courts. For example, the Romanian Constitutional Court was the first to annul the national law implementing the EU Data Retention Directive, and a lower instance court was the first, in Radu, to send a question about the presumption of innocence and liberty in the context of the automaticity of extraditions in the European Arrest Warrant system to the ECJ. The constitutional adjudication by the Constitutional Court is mark...
Time and again, the German discourse on European legal matters has facilitated the charge that it... more Time and again, the German discourse on European legal matters has facilitated the charge that it attempts to create a German-dominated space, even after World War II. Armin von Bogdandy and Verfassungsblog have asked a number of eminent scholars and practitioners of constitutional and EU law in Europe and beyond to share their thoughts on whether or not German legal hegemony is, in fact, a matter of concern in contemporary EU law, and, if so, what could and should be done about it. The symposium has been published first and can still be accessed on the Verfassungsblog (https://verfassungsblog.de/category/debates/german-legal-hegemony-debates/).
National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law, 2019
The Questionnaire forms the basis for the twenty-nine national reports which were prepared as par... more The Questionnaire forms the basis for the twenty-nine national reports which were prepared as part of the research project 'The Role and Future of National Constitutions in European and Global Governance', funded by a five-year European Research Council grant. The Questionnaire contains three main parts, which address the following issues: (1) constitutional culture and constitutional amendments regarding EU membership; (2) constitutional/fundamental rights, the rule of law and constitutional adjudication regarding EU measures such as the Data Retention Directive, European Arrest Warrant and ESM Treaty; and (3) novel challenges that are increasingly highlighted in the wider context of global governance (i.e. beyond the classic international treaties that advance human rights, peace and environmental protection) in relation to democratic participation, judicial review and the rule of law. The different parts of the Questionnaire each start with a brief background outlining the specific constitutional issues or challenges encountered in some Member States, and subsequently invite the national constitutional law experts to explore these in relation to their respective countries. Whilst the mainstream English language European constitutional discourse has typically focused on autonomous EU constitutional law, the Questionnaire seeks to make
BOGDAN IANCU biannual monitoring within the framework of the Cooperation and Verification Mechani... more BOGDAN IANCU biannual monitoring within the framework of the Cooperation and Verification Mechanism and the Venice Commission by way of an collaborative expert opinion 1. There are, to be sure, notable differences between the two instances of external Constitution intervention, concerning the status of the concerned institutions and the strictly legal nature and effect of the acts involved. The Venice Commission, a consultative body of the Council of Europe, adopted, after the fact, an opinion on the "compatibility with the with constitutional principles and the rule of law" of the actions taken, in view of expediting the impeachment process, by the Parliament and the Government in power. This opinion is drafted in primarily narrative form and detached, normative-constitutional terms. Indeed, the document reads on occasion much like a professorial brief on the compatibility of the Romanian Constitution with general "constitutional principles". Nominally, the act has no binding legal traction in Romania. However, recent judicial and jurisprudential events-references to documents issued by the Venice Commission in high-stake constitutional adjudication and a number of official letters by the Constitutional Court to the Commission, soliciting the latter's help against domestic political pressures-have raised the actual relevance of such interventions, including their potential manipulation in local political contests. Moreover, the EU Commission cited in its last progress report the findings in the Venice opinion. Perhaps aware of their enhanced status, the members of the Venice Commission, in spite of the purported, relatively modest purview of the act, undertook not only to assess the impugned legal actions, but also suggest a number of remedies, among which various amendments to the Romanian Constitution as such. Conversely, the EU Commission is a supranational administrative institution. Its documents are formal acts adopted within a EU law mechanism, upon a legal basis in the Act of Accession 2 , and designed to monitor the progress undertaken by the two last members of the Union, Romania and Bulgaria, in terms of judicial and anti-corruption reforms (Bulgaria is also monitored with respect to progress in combating organized crime). The exact effects and status of the monitoring are somewhat unclear, given that, in spite of the three-year deadline set forth in the Accession Act (Arts. 36-38) and the specific benchmarks itemized in the initial 2006 decision of the Commission, the monitoring has not yet been lifted, whereas-paradoxically-its initial purview has seeped into ever further areas of interest and inquiry. In spite of these differences between the two bodies and their respective systemiclegal contexts, a comparative treatment is warranted by the methodological constraints and epistemological endeavor of this argument, namely, seeking a qualified answer as to whether and to what extent older conceptual frameworks of references are useful if detached and abstracted from the context of nation-state constitutionalism. The argument will proceed by a brief introduction of the general problematics of constitutionalization and constitutionalism beyond the classical nation-state, continuing with a summary chronology of the Romanian events over the summer of 2012, and closing with an analysis of the international reactions to this crisis.
Studia Politica. Romanian Political Science Review, 2006
Public Law and Politics "The lawyer scholar is still a lawyer. Lawyers are, ought to be, and must... more Public Law and Politics "The lawyer scholar is still a lawyer. Lawyers are, ought to be, and must be, defenders of courts. Courts rely for their institutional legitimacy on their reputations for independence and neutrality. If courts are political that fact needs to be hidden by the judges themselves and by those who are dependent on courts.
The programme of the event can be accessed here https:// nec. ro/ events/ core-perip heral-and-su... more The programme of the event can be accessed here https:// nec. ro/ events/ core-perip heral-and-supra natio nal-corre lates-of-the-rule-of-law-emerg ing-syner gies-and-tensi ons/ (All links were last accessed on 15.05.2024).
Anticorruption has become the fulcrum of conditionalities for unstable democracies. In the EU, an... more Anticorruption has become the fulcrum of conditionalities for unstable democracies. In the EU, antigraft packages formed the common denominator of stabilization policies for Romania, Bulgaria, the Western Balkans, Moldova, and Ukraine. Union conditionalities trailed broader international trends and campaigns. The shift led to a crescendo of institutional innovations. Discursively, it generated a degree of conceptual overlap: anticorruption, for peripheral stabilization purposes, equates with the rule of law. I argue that the exclusive stress on anticorruption as a panacea for the (semi)periphery is fraught with perplexities. Paradoxically, in systems that can be reliably described as corrupt, the policy has a propensity to be derailed from its ostensible purposes. This danger results partly from categorial tensions between RoL normativity, on the one hand, and, on the other, the ethical purism and policy quantification inextricably linked with anticorruption. In the context of peripheral crusades, tendencies towards legal instrumentalism and populist emotionalism are exponentially higher than in stable jurisdictions. Consequently, unidirectional attempts to stabilize such systems by way of repressive anticorruption backfire. Likelier results are instability or forms of stability that might not correspond to central, received understandings of how a rule of law liberal-democratic system should operate. By the same token, in the integrated transnational constitutional system located at the intersection of EU and Council of Europe guarantees, "reverse conformities" tend to upset core tenets and representations of the rule of law. The paper argues that anticorruption policies, albeit eminently useful, should be fettered by rule of law constraints, not equated with the notion of the rule of law.
For over a decade now, the mainstream liberal discourse, also on the Verfassungsblog, has consist... more For over a decade now, the mainstream liberal discourse, also on the Verfassungsblog, has consisted in the incantation of one mantra: ‘populists’ are destroying ‘the rule of law’.Populists (Orbán, PiS (Kaczy#ski), etc.) have been accused, not without reason, of manipulating Western models and ideas to aggrandize themselves. Kim Lane Scheppele, “The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work,” 26 Governance 559 (2013). What started as an attempt to describe the post-2011 situation in Hungary has gradually become a conceptual master key or, better yet, a jack-of-all-trades.
There was a time that my generation, the cohort of those who came of age in the 1990s, still reme... more There was a time that my generation, the cohort of those who came of age in the 1990s, still remembers well. In Eastern Europe, after 1989 and for a good decade and a half thereafter, the world appeared, at least through the eyes of young postcommunist urbanites, brimming with liberal-constitutional potential. True, there would be hurdles and a few bumps on the road and yes, our societies were dirt-poor and most of our industry heaps of half-corrugated metal. Yet the future lay ahead full of promise: we were to build constitutionalism and free market economies at home, have international human rights protections through the Council of Europe, security via NATO membership, and then, perhaps, one day, full Western prosperity and freedom in the newly-minted European Union. In those years, one read Francis Fukuyama's End of History, today's global punchline, with interest and excitement.
This Article grapples with the instrumentalization of the past in Romania, in the specific contex... more This Article grapples with the instrumentalization of the past in Romania, in the specific context of “judicial lustration” measures. It argues that decommunization and lustration policies, which could not be pursued in the immediate aftermath of the collapse of state socialism in 1989, were weaponized much later and used in order to advance other purposes. In 2006, an expedited judicial vetting procedure, in the context of the EU-driven fight against corruption, was repurposed by the center-right as a lustration instrument. In the same year, the dismantling of an intelligence service created after 1991 in the Justice Ministry (SIPA) to monitor ‘vulnerabilities’ in the justice system has set in motion a long series of failed attempts to bring closure to the question regarding the service’s archives, fomenting continuities of suspicion until today. More recently, in 2018, a form of ‘mock-judicial lustration’ has been used by the political left to deflect or at least delegitimize repr...
Romanian Journal of Political Science, Dec 22, 2012
Constitutionalism and Constitutional Law: Referential, Transnational, Supranational, Global Since... more Constitutionalism and Constitutional Law: Referential, Transnational, Supranational, Global Since the appearance of the modern normative constitution, at the end of the 18th and the onset of the 19th century, the question as to the proper balance of universal "essence" and idiosyncratic particularities in constitutionalism has been a recurrently perplexing theme in legal and political philosophy. At the normative level, this local/universal tension reflects in fundamental legal key an overhanging Enlightenment dialectic concerning the preconditions and limits of reason. To wit, Montesquieu himself, the father of modern separation of powers theory, straddles in his Spirit of Laws a fine and rather hesitantly drawn line between sociological determinism and the extraction of ideal-typical, purportedly rational, immutable, and universal models of government. The simultaneous conceptual symbiosis and tension between constitutionalism and constitutional law (26), the notorious irresolution and confusion of methodology in comparative constitutional law (constitutionalism?) (27), and the recurrent divergences between 'functionalist' and 'expressivist' schools in comparative law have in the meanwhile constantly evinced, replayed, and reinforced, in various keys, the original problematic (28). Until recent times, the primary import of such cross- and counter-cultural constitutional debates was relatively and relationally limited in both normative and contextual terms. Namely, the practical stakes of "constitutionalism beyond the nation state" concerned either the transplant of foreign models as a constitution-making tool or--more recently--the relevance of foreign interpretations of analogous provisions and concepts in domestic constitutional adjudication. In both cases, the scope of the transplant and the approximation of the local instantiations of borrowed rules and institutions to the logic of their original models have been the object of an, albeit referential, jurisdictionally confined assessment. This is not to deny the pre-existence of direct foreign interventions in domestic constitutional affairs. During the nineteenth century, for instance, such inroads commonly took place by way of capitulations or demands extracted from non-Western, 'uncivilized' states by the means of bi- or multilateral treaties (29). Yet, in such cases, interventions were punctual and emphatically pragmatic in nature. Namely, they concerned concessions extracted by the dominant Western powers from civilizational laggards in the name of bare state interest. Even though such instrumental considerations were sometimes thinly veiled in a universalistic-idealized garb, they were and were certainly perceived by the weaker party as the result of uneven power relations rather than as expressions of a disinterested desire to enforce universal constitutional values (30). Constitutionalization, primarily undertaken by way of import or cross-fertilization or "migration of constitutional ideas" (31), is still a widespread phenomenon, for example in the wake of transitions from authoritarian regimes (32). However, these developments take place nowadays in an environment characterized by an important paradigm shift. Contemporary constitutionalism does no longer function in a limited normative and institutional universe, wherein processes of legal modernization in one jurisdiction tread purely referential and jurisdictionally delineated paths. First, as a result of both phenomenal evolutions towards the erosion of the state-centred lines of division that enabled and reinforced the practices of nineteenth- and early twentieth-century constitutional and public international law (33) and of related theoretical/ideological leanings towards cosmopolitanism (34), constitutionalism is nowadays a ubiquitously global legal phenomenon and doctrinal narrative. In contemporary legal and political science literature, overlapping references to "multi-level governance" and "transnational", "global", and "pluralist" constitutionalism abound, sometimes to the point of satiety (35). …
The report observes thatwith context-driven caveatsthe Romanian Constitution could be categorised... more The report observes thatwith context-driven caveatsthe Romanian Constitution could be categorised as representing 'legal' or post-authoritarian constitutionalism. The report outlines weaknesses in Romanian constitutionalism, including issues that have necessitated the EU post-accession monitoring procedure. At the same time, it also documents a number of ways in which EU law has caused strain on the constitutional culture. In particular, it emerges that many of the key adverse impacts of EU law explored in the present research project were raised by Romanian courts. For example, the Romanian Constitutional Court was the first to annul the national law implementing the EU Data Retention Directive, and a lower instance court was the first, in Radu, to send a question about the presumption of innocence and liberty in the context of the automaticity of extraditions in the European Arrest Warrant system to the ECJ. The constitutional adjudication by the Constitutional Court is marked by a high proportion of annulments, especially on substantive grounds. The report also outlines the adjudication regarding the European Commission and IMF austerity programmes, social rights and the economic emergency regime. Regarding the discourse, the report makes insightful observations about the way the constitutional language and logic are changing through EU and transnational law, e.g. as regards the adaptation of the proportionality analysis from protecting the individual to benefitting commercial freedom. The report observes that the older methodological predilection for 'simplistic legal positivism with a thin Marxist sauce' (Czarnota) has been replaced by an equally simplistic and often instrumental internationalisation.
BOGDAN IANCU biannual monitoring within the framework of the Cooperation and Verification Mechani... more BOGDAN IANCU biannual monitoring within the framework of the Cooperation and Verification Mechanism and the Venice Commission by way of an collaborative expert opinion 1. There are, to be sure, notable differences between the two instances of external Constitution intervention, concerning the status of the concerned institutions and the strictly legal nature and effect of the acts involved. The Venice Commission, a consultative body of the Council of Europe, adopted, after the fact, an opinion on the "compatibility with the with constitutional principles and the rule of law" of the actions taken, in view of expediting the impeachment process, by the Parliament and the Government in power. This opinion is drafted in primarily narrative form and detached, normative-constitutional terms. Indeed, the document reads on occasion much like a professorial brief on the compatibility of the Romanian Constitution with general "constitutional principles". Nominally, the act has no binding legal traction in Romania. However, recent judicial and jurisprudential events-references to documents issued by the Venice Commission in high-stake constitutional adjudication and a number of official letters by the Constitutional Court to the Commission, soliciting the latter's help against domestic political pressures-have raised the actual relevance of such interventions, including their potential manipulation in local political contests. Moreover, the EU Commission cited in its last progress report the findings in the Venice opinion. Perhaps aware of their enhanced status, the members of the Venice Commission, in spite of the purported, relatively modest purview of the act, undertook not only to assess the impugned legal actions, but also suggest a number of remedies, among which various amendments to the Romanian Constitution as such. Conversely, the EU Commission is a supranational administrative institution. Its documents are formal acts adopted within a EU law mechanism, upon a legal basis in the Act of Accession 2 , and designed to monitor the progress undertaken by the two last members of the Union, Romania and Bulgaria, in terms of judicial and anti-corruption reforms (Bulgaria is also monitored with respect to progress in combating organized crime). The exact effects and status of the monitoring are somewhat unclear, given that, in spite of the three-year deadline set forth in the Accession Act (Arts. 36-38) and the specific benchmarks itemized in the initial 2006 decision of the Commission, the monitoring has not yet been lifted, whereas-paradoxically-its initial purview has seeped into ever further areas of interest and inquiry. In spite of these differences between the two bodies and their respective systemiclegal contexts, a comparative treatment is warranted by the methodological constraints and epistemological endeavor of this argument, namely, seeking a qualified answer as to whether and to what extent older conceptual frameworks of references are useful if detached and abstracted from the context of nation-state constitutionalism. The argument will proceed by a brief introduction of the general problematics of constitutionalization and constitutionalism beyond the classical nation-state, continuing with a summary chronology of the Romanian events over the summer of 2012, and closing with an analysis of the international reactions to this crisis.
National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law, 2019
The report observes that – with context-driven caveats – the Romanian Constitution could be categ... more The report observes that – with context-driven caveats – the Romanian Constitution could be categorised as representing ‘legal’ or post-authoritarian constitutionalism. The report outlines weaknesses in Romanian constitutionalism, including issues that have necessitated the EU post-accession monitoring procedure. At the same time, it also documents a number of ways in which EU law has caused strain on the constitutional culture. In particular, it emerges that many of the key adverse impacts of EU law explored in the present research project were raised by Romanian courts. For example, the Romanian Constitutional Court was the first to annul the national law implementing the EU Data Retention Directive, and a lower instance court was the first, in Radu, to send a question about the presumption of innocence and liberty in the context of the automaticity of extraditions in the European Arrest Warrant system to the ECJ. The constitutional adjudication by the Constitutional Court is mark...
Time and again, the German discourse on European legal matters has facilitated the charge that it... more Time and again, the German discourse on European legal matters has facilitated the charge that it attempts to create a German-dominated space, even after World War II. Armin von Bogdandy and Verfassungsblog have asked a number of eminent scholars and practitioners of constitutional and EU law in Europe and beyond to share their thoughts on whether or not German legal hegemony is, in fact, a matter of concern in contemporary EU law, and, if so, what could and should be done about it. The symposium has been published first and can still be accessed on the Verfassungsblog (https://verfassungsblog.de/category/debates/german-legal-hegemony-debates/).
National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law, 2019
The Questionnaire forms the basis for the twenty-nine national reports which were prepared as par... more The Questionnaire forms the basis for the twenty-nine national reports which were prepared as part of the research project 'The Role and Future of National Constitutions in European and Global Governance', funded by a five-year European Research Council grant. The Questionnaire contains three main parts, which address the following issues: (1) constitutional culture and constitutional amendments regarding EU membership; (2) constitutional/fundamental rights, the rule of law and constitutional adjudication regarding EU measures such as the Data Retention Directive, European Arrest Warrant and ESM Treaty; and (3) novel challenges that are increasingly highlighted in the wider context of global governance (i.e. beyond the classic international treaties that advance human rights, peace and environmental protection) in relation to democratic participation, judicial review and the rule of law. The different parts of the Questionnaire each start with a brief background outlining the specific constitutional issues or challenges encountered in some Member States, and subsequently invite the national constitutional law experts to explore these in relation to their respective countries. Whilst the mainstream English language European constitutional discourse has typically focused on autonomous EU constitutional law, the Questionnaire seeks to make
BOGDAN IANCU biannual monitoring within the framework of the Cooperation and Verification Mechani... more BOGDAN IANCU biannual monitoring within the framework of the Cooperation and Verification Mechanism and the Venice Commission by way of an collaborative expert opinion 1. There are, to be sure, notable differences between the two instances of external Constitution intervention, concerning the status of the concerned institutions and the strictly legal nature and effect of the acts involved. The Venice Commission, a consultative body of the Council of Europe, adopted, after the fact, an opinion on the "compatibility with the with constitutional principles and the rule of law" of the actions taken, in view of expediting the impeachment process, by the Parliament and the Government in power. This opinion is drafted in primarily narrative form and detached, normative-constitutional terms. Indeed, the document reads on occasion much like a professorial brief on the compatibility of the Romanian Constitution with general "constitutional principles". Nominally, the act has no binding legal traction in Romania. However, recent judicial and jurisprudential events-references to documents issued by the Venice Commission in high-stake constitutional adjudication and a number of official letters by the Constitutional Court to the Commission, soliciting the latter's help against domestic political pressures-have raised the actual relevance of such interventions, including their potential manipulation in local political contests. Moreover, the EU Commission cited in its last progress report the findings in the Venice opinion. Perhaps aware of their enhanced status, the members of the Venice Commission, in spite of the purported, relatively modest purview of the act, undertook not only to assess the impugned legal actions, but also suggest a number of remedies, among which various amendments to the Romanian Constitution as such. Conversely, the EU Commission is a supranational administrative institution. Its documents are formal acts adopted within a EU law mechanism, upon a legal basis in the Act of Accession 2 , and designed to monitor the progress undertaken by the two last members of the Union, Romania and Bulgaria, in terms of judicial and anti-corruption reforms (Bulgaria is also monitored with respect to progress in combating organized crime). The exact effects and status of the monitoring are somewhat unclear, given that, in spite of the three-year deadline set forth in the Accession Act (Arts. 36-38) and the specific benchmarks itemized in the initial 2006 decision of the Commission, the monitoring has not yet been lifted, whereas-paradoxically-its initial purview has seeped into ever further areas of interest and inquiry. In spite of these differences between the two bodies and their respective systemiclegal contexts, a comparative treatment is warranted by the methodological constraints and epistemological endeavor of this argument, namely, seeking a qualified answer as to whether and to what extent older conceptual frameworks of references are useful if detached and abstracted from the context of nation-state constitutionalism. The argument will proceed by a brief introduction of the general problematics of constitutionalization and constitutionalism beyond the classical nation-state, continuing with a summary chronology of the Romanian events over the summer of 2012, and closing with an analysis of the international reactions to this crisis.
Studia Politica. Romanian Political Science Review, 2006
Public Law and Politics "The lawyer scholar is still a lawyer. Lawyers are, ought to be, and must... more Public Law and Politics "The lawyer scholar is still a lawyer. Lawyers are, ought to be, and must be, defenders of courts. Courts rely for their institutional legitimacy on their reputations for independence and neutrality. If courts are political that fact needs to be hidden by the judges themselves and by those who are dependent on courts.
The programme of the event can be accessed here https:// nec. ro/ events/ core-perip heral-and-su... more The programme of the event can be accessed here https:// nec. ro/ events/ core-perip heral-and-supra natio nal-corre lates-of-the-rule-of-law-emerg ing-syner gies-and-tensi ons/ (All links were last accessed on 15.05.2024).
Anticorruption has become the fulcrum of conditionalities for unstable democracies. In the EU, an... more Anticorruption has become the fulcrum of conditionalities for unstable democracies. In the EU, antigraft packages formed the common denominator of stabilization policies for Romania, Bulgaria, the Western Balkans, Moldova, and Ukraine. Union conditionalities trailed broader international trends and campaigns. The shift led to a crescendo of institutional innovations. Discursively, it generated a degree of conceptual overlap: anticorruption, for peripheral stabilization purposes, equates with the rule of law. I argue that the exclusive stress on anticorruption as a panacea for the (semi)periphery is fraught with perplexities. Paradoxically, in systems that can be reliably described as corrupt, the policy has a propensity to be derailed from its ostensible purposes. This danger results partly from categorial tensions between RoL normativity, on the one hand, and, on the other, the ethical purism and policy quantification inextricably linked with anticorruption. In the context of peripheral crusades, tendencies towards legal instrumentalism and populist emotionalism are exponentially higher than in stable jurisdictions. Consequently, unidirectional attempts to stabilize such systems by way of repressive anticorruption backfire. Likelier results are instability or forms of stability that might not correspond to central, received understandings of how a rule of law liberal-democratic system should operate. By the same token, in the integrated transnational constitutional system located at the intersection of EU and Council of Europe guarantees, "reverse conformities" tend to upset core tenets and representations of the rule of law. The paper argues that anticorruption policies, albeit eminently useful, should be fettered by rule of law constraints, not equated with the notion of the rule of law.
For over a decade now, the mainstream liberal discourse, also on the Verfassungsblog, has consist... more For over a decade now, the mainstream liberal discourse, also on the Verfassungsblog, has consisted in the incantation of one mantra: ‘populists’ are destroying ‘the rule of law’.Populists (Orbán, PiS (Kaczy#ski), etc.) have been accused, not without reason, of manipulating Western models and ideas to aggrandize themselves. Kim Lane Scheppele, “The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work,” 26 Governance 559 (2013). What started as an attempt to describe the post-2011 situation in Hungary has gradually become a conceptual master key or, better yet, a jack-of-all-trades.
There was a time that my generation, the cohort of those who came of age in the 1990s, still reme... more There was a time that my generation, the cohort of those who came of age in the 1990s, still remembers well. In Eastern Europe, after 1989 and for a good decade and a half thereafter, the world appeared, at least through the eyes of young postcommunist urbanites, brimming with liberal-constitutional potential. True, there would be hurdles and a few bumps on the road and yes, our societies were dirt-poor and most of our industry heaps of half-corrugated metal. Yet the future lay ahead full of promise: we were to build constitutionalism and free market economies at home, have international human rights protections through the Council of Europe, security via NATO membership, and then, perhaps, one day, full Western prosperity and freedom in the newly-minted European Union. In those years, one read Francis Fukuyama's End of History, today's global punchline, with interest and excitement.
This Article grapples with the instrumentalization of the past in Romania, in the specific contex... more This Article grapples with the instrumentalization of the past in Romania, in the specific context of “judicial lustration” measures. It argues that decommunization and lustration policies, which could not be pursued in the immediate aftermath of the collapse of state socialism in 1989, were weaponized much later and used in order to advance other purposes. In 2006, an expedited judicial vetting procedure, in the context of the EU-driven fight against corruption, was repurposed by the center-right as a lustration instrument. In the same year, the dismantling of an intelligence service created after 1991 in the Justice Ministry (SIPA) to monitor ‘vulnerabilities’ in the justice system has set in motion a long series of failed attempts to bring closure to the question regarding the service’s archives, fomenting continuities of suspicion until today. More recently, in 2018, a form of ‘mock-judicial lustration’ has been used by the political left to deflect or at least delegitimize repr...
Romanian Journal of Political Science, Dec 22, 2012
Constitutionalism and Constitutional Law: Referential, Transnational, Supranational, Global Since... more Constitutionalism and Constitutional Law: Referential, Transnational, Supranational, Global Since the appearance of the modern normative constitution, at the end of the 18th and the onset of the 19th century, the question as to the proper balance of universal "essence" and idiosyncratic particularities in constitutionalism has been a recurrently perplexing theme in legal and political philosophy. At the normative level, this local/universal tension reflects in fundamental legal key an overhanging Enlightenment dialectic concerning the preconditions and limits of reason. To wit, Montesquieu himself, the father of modern separation of powers theory, straddles in his Spirit of Laws a fine and rather hesitantly drawn line between sociological determinism and the extraction of ideal-typical, purportedly rational, immutable, and universal models of government. The simultaneous conceptual symbiosis and tension between constitutionalism and constitutional law (26), the notorious irresolution and confusion of methodology in comparative constitutional law (constitutionalism?) (27), and the recurrent divergences between 'functionalist' and 'expressivist' schools in comparative law have in the meanwhile constantly evinced, replayed, and reinforced, in various keys, the original problematic (28). Until recent times, the primary import of such cross- and counter-cultural constitutional debates was relatively and relationally limited in both normative and contextual terms. Namely, the practical stakes of "constitutionalism beyond the nation state" concerned either the transplant of foreign models as a constitution-making tool or--more recently--the relevance of foreign interpretations of analogous provisions and concepts in domestic constitutional adjudication. In both cases, the scope of the transplant and the approximation of the local instantiations of borrowed rules and institutions to the logic of their original models have been the object of an, albeit referential, jurisdictionally confined assessment. This is not to deny the pre-existence of direct foreign interventions in domestic constitutional affairs. During the nineteenth century, for instance, such inroads commonly took place by way of capitulations or demands extracted from non-Western, 'uncivilized' states by the means of bi- or multilateral treaties (29). Yet, in such cases, interventions were punctual and emphatically pragmatic in nature. Namely, they concerned concessions extracted by the dominant Western powers from civilizational laggards in the name of bare state interest. Even though such instrumental considerations were sometimes thinly veiled in a universalistic-idealized garb, they were and were certainly perceived by the weaker party as the result of uneven power relations rather than as expressions of a disinterested desire to enforce universal constitutional values (30). Constitutionalization, primarily undertaken by way of import or cross-fertilization or "migration of constitutional ideas" (31), is still a widespread phenomenon, for example in the wake of transitions from authoritarian regimes (32). However, these developments take place nowadays in an environment characterized by an important paradigm shift. Contemporary constitutionalism does no longer function in a limited normative and institutional universe, wherein processes of legal modernization in one jurisdiction tread purely referential and jurisdictionally delineated paths. First, as a result of both phenomenal evolutions towards the erosion of the state-centred lines of division that enabled and reinforced the practices of nineteenth- and early twentieth-century constitutional and public international law (33) and of related theoretical/ideological leanings towards cosmopolitanism (34), constitutionalism is nowadays a ubiquitously global legal phenomenon and doctrinal narrative. In contemporary legal and political science literature, overlapping references to "multi-level governance" and "transnational", "global", and "pluralist" constitutionalism abound, sometimes to the point of satiety (35). …
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