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The Rule of Law and Democratic Rule at Odds

For three decades now, a pervasive obsession with the "rule of law” has transformed governance across continents. Both political liberals concerned with human rights and economic ones concerned with market...

Madlen Nikolova is a PhD candidate in the Department of Politics and International Relations at the University of Sheffield.

For three decades now, a pervasive obsession with the "rule of law” has transformed governance across continents. Both political liberals concerned with human rights and economic ones concerned with market efficiency have united in the conviction that rule of law reforms and anti-corruption programs will both safeguard the judiciary and human rights from authoritarian overreach, and ensure a stable investment climate for businesses.

That these expectations have not always been fulfilled may be seen on the example of Bulgaria. Since the country transitioned away from socialism in 1990, liberals have invoked supposedly universal claims to governmental transparency, efficiency of court proceedings, and the separation of powers in elevating the principle of the rule of law. These issues also featured in the criteria for Eastern European countries’ EU accession, propelling them to become the hegemonic discourse in many post-socialist states. In Bulgaria, however, both economically and politically liberal initiatives have been plagued by covert or overt suspicion of representative institutions.

High Hopes

For over twenty years, Bulgarian human rights organizations have been at the forefront of rule-of-law monitoring. They have led initiatives for its advancement in the form of organizing workshops for judges, law students, police officers, and other public servants. These workshops deal with issues such as freedom of expression, refugee law, legal protection of domestic human rights, protection against police brutality, access to fair trial for people from disenfranchised communities. Lawyers were also offered trainings in the substantive and procedural aspects of the European Court of Human Rights. Such initiatives are of great importance in Bulgaria, where ethnic minorities like the Roma are extremely racialized and marginalized. In practice, however, anti-discrimination initiatives and legal protections tend to be undermined by the social effects of privatization, liberalization and austerity reforms, backed by the same economic liberals who brought the rule of law trope to the fore of institutional reform.

Liberal economic think tanks, on the other hand, have published hundreds of reports proposing rule of law reforms or lamenting their inadequate implementation. Their main concern is to ensure the efficiency of public institutions. An efficient court, for instance, can dispense justice quickly and effectively, without slowing down transactions or impeding the functioning of the market.

The judiciary, often referred to as the “institutional infrastructure of the economy”, is central to the rule of law, as the inherently conflictual nature of private interests necessitates an independent power to secure the binding nature of contractual relations. At the same time, corruption in the judiciary impedes the effective implementation of anti-corruption legislation, making an independent judiciary the precondition for effective anti-corruption policies.

Some texts published by Bulgarian democratization think tanks  express clear preference for stronger constitutional review over parliament’s “legislative tyranny”. Others articulated concerns with the Constitutional Court’s efficiency and put forward proposals to limit citizens’ right to lodge complaints in order to decrease the Court’s workload.

While we may take such experts at their word that they aim to merely bolster efficiency and reduce public spending on the judiciary, their advocacy for the use of mediation, arbitration and conciliation procedures outside of public litigation raises further concerns about the anti-democratic effects of chasing after efficiency. Arbitration does not simply reduce the costs and delays seen as characteristic of litigation – it is a way to remove the regulatory role of the judiciary, its oversight of business disputes and corporate conduct. The execution of decisions reached under arbitration is no longer the responsibility of public officials, thus circumventing democratic controls. Given that, it is little surprise that such reforms have been widely greeted by corporations. The founding of the Bulgarian Industrial Association’s own arbitration court for commercial disputes, for example, was aided by a rule of law initiative.

Disappointing Realities

But what are the practical implications of pursuing judiciary efficiency? The Bulgarian Specialized Criminal Court and Prosecution were founded in 2011, following the initiative of the center-right GERB government. Tsvetan Tsvetanov, the Minister of Interior at the time, justified their creation by invoking efficiency. The judges and prosecutors would have specialized knowledge, he argued, and would solve "complex" crimes like public graft and organized crime more easily. The court was partly modeled after Audiencia Nacional, the controversial Spanish specialized court with jurisdiction over organized crime and crimes against the Crown.

Yet cracks in the fragile rule-of-law consensus began to appear early on. Liberal journalists, human rights advocates, and judges did not trust the Specialized Court to be impartial, harboring justified suspicions that it would be used as a tool of political repression. Indeed, the court’s most publicized trials (rarely leading to substantial sentences) were against GERB’s political and business rivals. Instead of facilitating a level playing field and a stable business environment, the judiciary served the executive despite constitutional guarantees of judicial independence.

If nothing else, many liberal commentators argue, a constitutional court could at least serve as a guarantor of social rights against conservative social attitudes. This was not always the case in Bulgaria. Well into the late 2000s, the Bulgarian Constitutional Court was celebrated for consistently challenging the executive branch. Venelin Ganev saw it as "bearing little resemblance [...] to a regime where the balance of power is tipped in favor of undemocratic forces”. However, in the past couple of years, that same court has ruled on two controversies fostered by conservative forces. One of these controversies revolved around opposition to the so-called “Istanbul Convention” on preventing and combating violence against women and domestic violence. The Court ruled that its ratification would be unconstitutional due to its assumption of a gender identity independent of biological sex, and held that marriage was a union between a man and a woman, thus striking down an initiative that could have had a real impact for those suffering from violence and abuse.

Dissenting members of the court issued special concurrences, accusing their colleagues in the majority of being influenced by “public opinion” and the “predominant disposition” in Parliament, which was opposed to the Convention. Some political scientists, on the other hand, defended the Constitution from the Constitutional Court itself. When the Constitutional Court ruled in favor of a conservative agenda, some judges externalized responsibility for it onto the general public, while describing their own concurrence as borne out of respect for human dignity. However, the judiciary is always marked by social relations that give rise to conflicts, despite the normative ideal of wise elders adjudicating in favor of abstract universals. No court can claim to be truly impartial all of the time.


What lessons does Bulgaria offer concerning the relationship between the rule of law and democratic governance? So far, institutions like the Constitutional Court, which liberals hoped would protect minorities from the will of conservative majorities, and the Specialized Court, which was justified by efficiency and the importance of anti-corruption efforts, ended up refusing to enforce human rights protections, and fostered and enhanced the private power of the executive branch’s associates.

Two parallel developments can be observed: the insulation of the judiciary from democratic control and obstructed access in the name of efficiency and expediency; and the creation of new arenas for dispute resolution that are not subject to public oversight. But the pursuit of efficiency in the rule of law framework does not tell us much about the structures and goals of the economy, reducing all substantive issues to matters of processes and judges’ integrity. Rather than strengthen civic institutions, delegating substantive decision-making to the judiciary has served to further undermine the principle of democratic representation, demobilizing an already apathetic and detached electorate.

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