Martin Mendelski

EU-driven judicial reforms in Romania: a success story?

This article examines the impact of the European Union (EU) and domestic actors on the development of judicial quality (rule of law) across two key dimensions: judicial capacity and judicial impartiality. It argues and shows empirically that although the EU has been crucial in eliciting change in the judicial capacity dimension, it was largely unsuccessful in changing aspects of the judicial impartiality dimension. The author concludes that the EUs involvement in Romania through accession conditionality has been of limited success: that is, the EU had a considerable impact on improving de jure judicial quality, but it was unable to affect rule implementation and thus failed to create de facto judicial quality. Methodologically, this article makes use of a detailed case-study method with process-tracing. Data are drawn from a number of primary and secondary sources such as official governmental documents, reports, surveys and scholarly literature relevant to the topic.

The EU's Pathological Power: The Failure of External Rule of Law Promotion in South Eastern Europe

What impact does the European Union (EU) have on the development of the rule of law in South Eastern Europe (SEE)? The author of this article argues and shows that the EU has: 1) a positively reinforcing (healthy) effect with regard to judicial capacity and substantive legality, i.e. the alignment of domestic legislation with international standards, and 2) a negatively reinforcing (pathological) effect with regard to judicial impartiality and formal legality (the inner morality of law). The author explains the pathological impact of EU-driven rule of law reforms by referring to the EU’s deficient reform approach and to unfavorable domestic conditions, which in their interplay reinforce certain reform pathologies (legal instability, incoherence, politicization) that undermine the rule of law. The main argument is supported by a mixed method study. A quantitative indicator-based analysis measures rule of law development across four key dimensions on the basis of a variety of data (e.g. survey-based indicators, CEPEJ data, and a unique dataset on legislative output). Additionally, the author draws on a number of qualitative interviews that he conducted with magistrates from SEE and representatives from the EU, the European Court of Human Rights, and the Council of Europe. The author concludes from these findings that external rule of law promotion in weak rule of law countries is not transformative, but rather reinforces systemic deficiencies that undermine the rule of law.

Europeanization and the Rule of Law: Towards a Pathological Turn

Recent scholarship has exposed the “EU’s pathological power”, which has undermined the creation of the rule of law in South Eastern Europe (SEE) and beyond. This paper discusses the “pathological turn” in Europeanization studies by identifying and providing evidence for several “pathologies of Europeanization”, i.e. legal and political deficiencies related to rule of law reform, such as legal instability, lack of generality and enforcement, and increased politicization. These pathologies result, among others, from a deficient approach of the EU to rule of law promotion and assessment. In particular, the author highlights three main fundamental problems of Europeanization in the area of the rule of law: 1) valuing quantity over quality; 2) partisan empowerment of domestic change agents; and 3) biased assessment of the rule of law. These problematic issues are further clarified on selected country examples of reform failure from SEE and the 2012 “rule of law crisis” in Romania. It is argued that given the EU’s inability to objectively assess and effectively promote the rule of law, the EU should either abstain from evaluating rule of law or radically revise its approach and methodology, for instance by following the policy advice provided in this paper.

Europeanization of good governance in Romania: where and why does it fail, and what can be done about it?

What impact does the European Union (EU) have on good governance Romania? The analysis shows that EU-driven governance reforms improve substantive legality (the alignment of domestic legislation with international best standards), state capacity but weaken formal legality (the inner morality of law), many aspects of impartiality, efficiency-effectiveness and the coherence of state structures and policies. As a result, good governance is undermined. The persistence of bad governance is explained by three fundamental problems of Europeanization: 1. Focus on quantity instead of quality, 2. Partisan empowerment of change agents, 3. Biased assessment of reform progress. The main argument is supported by an indicator-based analysis and qualitative interviews with representatives from the EU and Romania.

The Revival of Balkanization: How Externally-Driven Reforms Reinforce the Fragmentation of Governance in South Eastern Europe

What impact does the European Union (EU) and other international donors have on the development of good governance in South Eastern Europe (SEE)? The comparative analysis shows that the externally-driven good governance reforms improve substantive legality (the alignment of domestic legislation with international best standards), state capacity and efficiency but weaken formal legality (the inner morality of law), many aspects of impartiality and the coherence of state structures and policies. As a result, good governance is undermined. To explain the persistence and reproduction of bad (i.e. fragmented) governance, the author offers a “vicious reform cycle�? explanation, in which a fragmented governance structure is reproduced by competing and factionalized actors and by fragmented and politicized reform and policy processes. The implication is that externally-induced reforms, instead of allowing to transition towards good governance, are reproducing Balkanization and “bad governance�?, i.e. fragmented, unaccountable, personalized and instable state structures, policies and formal rules. The main argument is supported by a mixed method study. A quantitative indicator-based analysis measures the development of good governance across six dimensions between 2003 and 2015. Qualitative interviews (with judicial and political representatives from SEE, the EU and international organizations), relevant data and secondary sources offer revealing insights on processes of hybridization and fragmentation.