The rule of law

Martin Mendelski
Max Planck Institute for the Study of Societies, Cologne, Germany
mendelski@mpifg.de

1. INTRODUCTION .................................................................................................................. 2

2. THE RULE OF LAW: TRENDS AND EXPLANATIONS .................................................. 4

2.1 Trends in rule of law development ................................................................................... 4

2.2 Explanations of differences in the rule of law .................................................................. 7
2.2.1 Judicial reform literature: structure and agency matter ............................................. 7
2.2.2 The rule of law promotion literature: A defective reform process ............................ 8
2.2.3 The EUs rule of law promotion literature: conditionality, capacity and empowered
change agents ..................................................................................................................... 8
2.3 Critique of the literature ................................................................................................. 10
2.4 Healthy and pathological reform cycles: Towards an integrated causal theory ............. 11

3. CONCLUSION: CHALLENGES FOR FUTURE RESEARCH......................................... 13

Forthcoming in Routledge Handbook of East European Politics

(edited by Adam Fagan and Petr Kopeck)

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1. INTRODUCTION

Establishing the rule of law has been one of the key challenges (next to building capitalism
and democracy) for post-communist countries.1 However, not all post- communist countries
have overcome this challenge and transitioned to the rule of law. How can the rule of law be
established? Practitioners have responded to this question by stressing different means (laws,
judiciaries and enforcement bodies) and objectives (legality, equality before the law, law &
order, predictability) of rule of law reform. Judges have argued that the rule of law requires
above all judicial independence and the institutional and material safeguards to maintain it.
Businessmen and economists have emphasised the importance of judicial efficiency to reduce
the length of proceedings, the respect of property rights, and the enforcement of contracts.
Politicians have used the rule of law as a buzzword with changing meanings, calling for
judicial accountability, judicial independence, or the fight against corruption. Legal experts
have advised building judicial capacity and adopting best practices (including best legal
frameworks, international standards, anti-corruption agencies, judicial academies, etc.) to
improve the rule of law. International donors, with their different priorities and agendas, have
emphasised a plethora of issues to establish the rule of law, such as judicial capacity building
(EU, USAID, and World Bank), respect for human rights and a fair trial (ECtHR), fight of
corruption, improved judicial review, judicial independence, impartiality and training
(Council of Europe and EU), law and order and minority rights (OSCE), and in general the
adaptation to European and international legal standards through processes of institutional
transplantation and approximation. What becomes obvious is the heterogeneity of means,
goals, opinions, agendas, and priorities of diverse stakeholders, which makes rule of law
reform a complex, expensive, and challenging issue.

1
I conceive the rule of law as a socially, politically and historically embedded mode of governance which
includes two main components: 1. Quality of laws, that is, clear, general, stable, coherent, and enforced laws;
and 2. Quality of the judicial system, that is, a capable, independent, accountable, and impartial judicial system.
Human rights are not included and not analysed in this chapter.

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Figure 1: Varieties of the rule of law in Central and Eastern Europe

Cluster Rule of law variety Countries

1 Very weak rule of law Albania (ALB), Armenia (ARM),
Azerbaijan (AZ), Georgia (GEO), Moldova
(MOL), Ukraine (UKR)
2 Weak rule of law Bulgaria (BG), Bosnia and Herzegovina
(BIH), Macedonia (MAC), Romania (RO),
Russia (RUS), Serbia (SER)
3 Moderate rule of law Czech Republic (CZ), Hungary (HU),
Latvia (LAT), Lithuania (LIT), Montenegro
(MTN), Poland (PL), Slovakia (SK)
4A Strong rule of law (type A, capacity-driven)
Slovenia (SLO)

4B Strong rule of law (type B, impartiality-driven)

Estonia (EST)

Source: Own elaboration based on judicial budget data from the European Commission for the Efficiency of
Justice (CEPEJ) and the judicial independence indicator from the World Economic Forum Executive Survey
(WEFEOS). Note: Judicial independence is measured on a scale from 1 (worst) to 7 (best). Data reflects the
average values between 2001/2002 and 2012/2014.

After more than two decades of legal and judicial reform, there is evidence that post-
communist countries from Central Europe and the Baltic States (CEB) have tackled the
challenge of rule of law reform better than countries from South Eastern Europe (SEE) and
the Commonwealth of Independent States (CIS) (see Figures 1 and 2). Empirical evidence
points to persisting differences in the rule of law, exhibiting an advanced group (CEB) and

3
two laggard groups (SEE and CIS). Despite several reform waves and despite the millions of
dollars and euros spent on rule of law promotion from abroad, most of the countries from SEE
and CIS seem not to have established the rule of law. Considering the different levels of the
rule of law in post-communist countries (despite similar and continuous external pressure for
legal and judicial reform), it can be stated that this region has experienced a transition towards
a varieties of the rule of law (see Figure 1), which consists in systematic differences in the
level of judicial capacity, impartiality as well in other aspects, such as judicial review,
separation of powers, quality of laws, etc. (see Mendelski 2014).

How has the rule of law developed in Central and Eastern Europe (CEE) since the collapse of
communism? What explains the dissimilar development of the rule of law among European
post-communist countries? These fundamental questions have been addressed by legal and
political science scholars dealing with the rule of law in CEE (for example, Schwartz 2000;
Sadurski et al. 2006; Coman/De Waele 2007; Magen/Morlino 2009; Piana 2010; Dallara
2014; Mendelski 2014, 2015, 2016). The answers to these questions have been manifold.
They reflect diverse methodologies to measure (for example, qualitative case studies vs.
quantitative, indicator-based analysis) and different explanatory factors to account for rule of
law development (for example, domestic and external, structural, actor-related and process-
related variables). This chapter reviews the existing literature on the rule of law in CEE and
focuses on the literature which has tried to account for uneven rule of law development across
post-communist countries. It proceeds as follows. First, it identifies major trends and
explanations of rule of law development in CEE. Second, it identifies the gaps in the existing
literature and in particular the methodological and conceptual challenges for rule of law
scholars. Third, it presents an integrated causal explanation for rule of law development and
proposes a research agenda for the future.

2. THE RULE OF LAW: TRENDS AND EXPLANATIONS

2.1 Trends in rule of law development

How has the rule of law developed in CEE since the collapse of communism? This question is
difficult to answer empirically, at least for the first decade of post-communist transition, for
which valid and reliable rule of law indicators are not available (see Oman/Arndt 2008). Since
the late 1990s and early 2000s, two commonly used rule of law indicators exhibit lack of
progress and even decline. The Freedom House judicial framework and independence index

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decreased between 1997 and 2014, from 3.4 to 3.0 for CEE on an inverted scale where
1=worst and 7=best. The Bertelsmann Stiftungs Transformation Index (BTI) rule of law
index decreased slightly between 2004 and 2014, from 7.1 to 6.9 on a scale of 1 to 10, where
1=worst and 10=best. These stagnating and even declining trends, despite the millions of
euros spent on judicial reform and rule of law promotion, are puzzling and suggest that the
rule of law is a sticky or path-dependent phenomenon (see Prado and Trebilcock 2009), and
also that externally-promoted reforms are not able to change the dominant logic of
governance. The BTI rule of law indicator from Figure 2 reflects this almost unchanged but
persisting trend in the rule of law across three groups of post-communist countries. The
indicator also shows that some countries (CEB) are better evaluated than others (from SEE,
CIS) and that there is hardly a catching-up of the laggard groups. When we look behind the
aggregated scores we can find only three countries which either considerable improved (for
example, Moldova +1.8) or decreased (for example, Hungary -2.5, Azerbaijan -1.3) with
regard to this indicator. All other countries from the region remained at a similar level,
suggesting little impact of donor-driven rule of law reforms.

Figure 2: Rule of law development in CEE

10.0

9.0

8.0

7.0

6.0
CEB
5.0
SEE
4.0
CIS
3.0

2.0

1.0
2004 2006 2008 2010 2012 2014
Source: Bertelsmann Transformation Index 2016, http://www.bti-project.org/de/index/
Notes: CEB (Central Europe and the Baltics) includes the Czech Republic, Estonia, Hungary, Latvia, Lithuania,
Poland, Slovakia, and Slovenia; SEE (South Eastern Europe) includes Albania, Bosnia and Herzegovina,
Bulgaria, Croatia, Kosovo, Macedonia, Montenegro, Romania, and Serbia; CIS (Commonwealth of Independent
States) includes Armenia, Azerbaijan, Belarus, Georgia, Moldova, Russia, and Ukraine.

The persisting post-communist diversity in the rule of law is also identified in scholarly work.
First, authors recognise several success cases from the advanced group (CEB), for example,
Hungary, Poland, the Czech Republic, and Estonia, which managed relatively early to attain

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high levels of judicial independence and constitutional review (Schwartz 2000; Seibert-Fohr
2012; Coman 2014), judicial capacity (Anderson et al. 2005), judicial accountability (Piana
2010), and judicial impartiality (Mendelski 2014). Also Slovenia, Latvia, and Slovakia (after
2000) were assessed as relatively successful cases with regard to judicial reform (Pridham
2008; Dallara 2014). Second, authors have identified intermediate cases from SEE, such as
Romania, Bulgaria, Slovakia, or Serbia. These countries have progressed across some
elements of the rule of law, such as judicial independence or judicial capacity but did not
improve or even regressed across others elements of the rule of law, such as judicial
impartiality, accountability, and integrity (see Magen/Morlino 2009; Mendelski 2012, 2013b;
Schnfelder 2005; Bobek/Kosar 2014; Hipper 2015). Third, authors who dealt with countries
from the CIS and partly from SEE, identified predominantly cases of failure, that is, country
cases where judicial and legal reforms did not lead to the rule of law. The absence of the rule
of law in the Western Balkans and post-Soviet countries is reflected in politicised judicial
systems, defective constitutional review, weak separation of powers, weak or ineffective
horizontal accountability institutions, insufficient judicial capacity, presence of (judicial)
corruption, and a low quality of legislation (see Schwartz 2000; Trochev 2008; Popova 2012;
Magen/Morlino 2009; Morlino/Sadurski 2010; Mendelski 2012, 2013a, 2013b, 2015;
Natorski 2013; Dallara 2014; Radin 2014; Peshkopia 2014; Capussela 2015). In short,
persistent diversity can be identified among post-communist countries.

When we analyse trends in the rule of law, we need to bear in mind that the rule of law as a
contested concept can mean different things to different scholars and can therefore be
measured through different methods, which might result in different evaluations of the rule of
law in a particular country. This explains partly why one and the same country is sometimes
evaluated as a success case and other times as a case of failure (for example, Romania and
Serbia). In this regard, three methodological pitfalls of rule of law assessment in CEE can be
observed.

First, most of the literature has relied on qualitative methodology (cases studies, comparisons
of few cases) thus offering only restrictive, non-generalisable insights about rule of law
development in the region. Second, several scholars have resorted to questionable indicators
of the rule of law (for example, from the World Bank and Freedom House) which have been
criticised for lack of objectivity, transparency, reliability, and replicability (see Oman/Arndt
2008; Giannone 2010; Hyland, et al. 2012; Steiner 2014; Cooley/Snyder 2015). Third,

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assessment of the rule of law has been relatively narrow and unsystematic, focusing on the
quality of the judiciary and Constitutional Courts, and above all on their degree of
independence and power to exert review. Scholars as well as providers of rule of law
indicators have barely measured the inherent quality of law (inner morality of law, see Fuller
1969), that is, the stability, coherence, generality, and enforcement characteristics of laws.
Only recently was this lacuna filled by the World Justice Project, which provides indicators to
assess the quality of laws. One problem with such a narrow and non-systematic assessment is
that the notion of the rule of law is reduced to the empowerment of the judiciary
(judicialisation of politics), a misguided best-standards recipe, which has resulted in several
countries in independent but unaccountable judiciaries, judicial councils, constitutional courts,
and a worrying trend towards juristocracy (Hirschl 2009; Mendelski 2016).

2.2 Explanations of differences in the rule of law

2.2.1 Judicial reform literature: structure and agency matter

Differences in rule of law development in CEE have been explained by a plethora of selective
factors, such as historical institutional legacies, informal judicial culture, EU conditionality,
reformist actors, and reform processes (see Coman and De Waele 2007). To explain rule of
law variation, several authors have stressed the importance of structural preconditions and in
particular of communist and pre-communist institutional legacies (for example, institutional
legacy of the Habsburg and Ottoman Empires) which might have survived in some areas and
impacted on the modes of judicial and administrative governance (Mendelski 2009, 2014;
Mendelski/Libman 2014; Khn 2011; Beers 2010; Dallara 2014). These legacy explanations
were not meant as predetermined historical, institutional and cultural trajectories from which
countries could not escape, but rather stressed the path-dependent nature of the rule of law
(see Prado/Trebilcok 2009) alongside more recent explanatory variables (for example, impact
of international organisations, formal institutional reforms, etc.). Besides structural
preconditions, scholars emphasised the relevance of domestic agency. It was argued that
(domestic political and judicial) actors and in particular their interests, strategic and short-
term calculations and balance of powers between them matter for the success of judicial
reform as well as effective constitutional judicial review (Magalhaes 1999; Schwartz 2000;
Trochev 2008; Piana 2010).

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2.2.2 The rule of law promotion literature: A defective reform process

Another explanation for differences in the rule of law was attributed to the quality of the
reform process. In particular, the rule of law promotion literature (Jensen/Heller 2003;
Channell 2006; Carothers 2006; Kleinfeld 2012; Mendelski 2014), has explained rule of law
and reform failure by criticizing the badly designed reform strategies of international donors
(for example, the World Bank, EU, and USAID) as well as their insufficient or defective
implementation. Scholar and practitioners from this literature have identified a plethora of
motives for reform failure such as problems of knowledge (Carothers 2006), wrong
assumptions and incentives (Channell 2006), a focus on the formal and institutional means
rather than the ends (Kleinfeld 2012; Jensen/Heller 2003), lack of capacity (Kleinfeld 2012;
Anderson et al. 2005), a top-down elitist approach to reform (Mendelski 2012), donor
heterogeneity which translate into legal and incoherent judicial systems (Mendelski 2013b),
and too much focus on quantitative than on qualitative assessment of the rule of law
(Mendelski 2016). Although the rule of law promotion literature has dealt only partly with
CEE countries (see Mendelski 2014), its insights are relevant for understanding the defective
reform approach of external donors (USAID, ABA/CEELI, World Bank, and EU).

2.2.3 The EUs rule of law promotion literature: conditionality, capacity and empowered
change agents

More recently, a growing number of scholars have analysed the role of the European Union
(namely EU conditionality) in the development of the rule of law (Sadurski et al. 2006;
Magen/Morlino 2009; Morlino/Sadurski 2010; Bozhilova 2007; Mendelski 2012, 2013a,
2013b, 2014, 2015, 2016; Coman 2006, 2014; Pridham 2007a, 2007b, 2008; Piana 2010;
Kochenov 2008; Natorski 2013; Dallara 2014; Parau 2015; Hipper 2015). Two main insights
can be drawn from this literature:

First, scholars find a weak, limited or mixed (differentiated) impact of the EU on the rule of
law (Bozhilova 2007; Dallara 2014; Pridham 2007a, 2007b, 2008; Piana 2010;
Magen/Morlino 2009; Sadurski/Morlino 2010; Mendelski 2012). For instance, most authors
in the edited volume by Sadurski et al. (2006) discover an ambiguous impact of the EU. The
reason is that while the goals of the EUs rule of law promotion are honourable (spreading
democracy and the rule of law), often the means and processes of this promotion and
transplantation (which tend to be elitist, technocratic, instrumentalised and non-democratic)
are highly problematic. Another edited volume by Magen and Morlino (2009), which analyses

8
the EUs impact on the rule of law in hybrid regimes (Ukraine, Romania, Serbia, and Turkey)
discovers that while EU conditionality works for rule adoption, rule implementation and
internalisation are incomplete (Magen/Morlino 2009). Several single-country case studies on
Romania (Coman 2006; Mendelski 2012; Parau 2015; Hipper 2015), Ukraine (Natorski
2013), Bulgaria (Bozhilova 2007), Latvia, and Slovakia (Pridham 2008) find that the EU is
often able to push judicial, legal and, anti-corruption reforms but is not really effective in
promoting the rule of law or only some selective aspects of it, such as judicial capacity, the
establishment of formal judicial structures and formal rules. In short, this literature shows that
the EUs impact seems to be differential and highly context-dependent, that is, it varies across
countries, country clusters as well as dimensions of the rule of law.

Second, scholars claim that this differential impact of the EU in CEE (and the divergent
development in the rule of law) can be explained by three main factors. First, some authors
attribute differences in EU conditionality effectiveness to diverse domestic conditions,
including adverse and favourable structural conditions (historical legacies, political stability,
high institutional and administrative capacity) and beneficial informal institutions which
facilitate EU-driven reforms (Pridham 2005; Sadurski et al 2006; Magen/Morlino 2009;
Mendelski 2009, 2014; Dallara 2014); Second, the differential impact of the EU is attributed
to agency-related explanations which focus on the costs and benefits for self-interested
reformers and on power struggles between reformist change agents and reform-resisting veto
players (Pridham 2005; Magen/Morlino 2009; Mendelski 2011, 2014; Bozhilova 2007;
Dallara 2014). In particular, several authors have highlighted positively the role of reformist
change agents to push reforms and to bring about the rule of law, for instance in semi-
liberal countries such as Romania, Slovakia and Serbia (Magen/Morlino 2009; Pridham
2005, 2008; see Kleinfeld 2012). Mendelski (2014, 2015, 2016) has in contrast argued and
shown that liberal change agents often apply similar questionable reform methods as
illiberal reform opponents. The reason is that both types of actors are (or become)
embedded in the same particularist social order and therefore either assimilate or exit without
meaningful results. Third, some researchers argue that the reform process (reflected in the
EUs approach to rule of law promotion and evaluation) matters (Sadurski et al. 2006;
Mendelski 2014, 2015). In this regard, scholars argue that the consistency of external donor
conditionality is important (Sadurski 2006; Dallara 2014) and that the EU (embodied by the
European Commission) lacks a sufficiently well-elaborated methodology to allow a consistent
and objective evaluation of the rule of law (Kochenov 2008; Dimitrov et al. 2014; Toneva-

9
Metodieva 2014; Mendelski 2015, 2016). On the domestic side, authors critically stress that
the newly created judicial structures are often politicised, instrumentalised, or captured by
change agents or veto players and thus undermine judicial independence and the rule of law
(Mendelski 2013b, 2015, 2016; see Bozhilova 2007; Natorski 2013; Bobek and Kosar 2014;
Radin 2014; Beirevi 2014; Kuzmova 2014; Capussela 2015; Parau 2015).

In conclusion, after years of research we still do not know whether and under which
conditions rule of law promotion and judicial reform (as advanced by the EU and
international donors) establishes or rather undermines the rule of law. Reasons for this
inconclusive finding can be explained by three main factors which will be addressed below.

2.3 Critique of the literature

There are currently three key problems which reduce the explanatory power of the literatures
with regard to rule of law promotion and development in CEE. First, the main literatures
propose a few selective explanatory variables to explain rule of law development, which are
reflected in a variety of selective structural, agency, and process-related factors (for example,
historical legacies, judicial culture, lack of domestic capacity, the nature of EU conditionality,
power balance between domestic veto players and change agents, the reform strategy of
donors, etc.). While some authors explained rule of law development through external-
domestic and agency-structure nexuses (for example, Pridham 2005), we still have only little
knowledge about how these diverse variables are causally connected (for instance through
causal mechanisms) and whether the relationship between the interdependent variables vary
across time and space. So far only few scholars (for example, Mendelski 2014) have provided
a more integrated, causal explanation of how the deeper structural, the shallower agency-
related explanations (Kitschelt 2003), as well as process-related factors are causally linked to
each other.

Second, the methodology of most of the literature dealing with the rule of law in CEE can be
criticised with regard to the research design. Most relevant studies are qualitative in nature,
applying process tracing in few selected case studies or addressing few cases in
geographically restricted regions (either CEB, SEE, or CIS). There is only one cross-regional
mixed-method study (combing qualitative and quantitative methodology) which analyses rule
of law development across all European post-communist countries (see Mendelski 2014). In
order to overcome the restricted findings of single-cases and regional-specific studies, broader

10
and more systematic comparative studies with a larger number of cases are needed which
would help to discover why some countries manage to establish the rule of law and others not.

Third, most of the extant literature assumes that rule of law reforms as advanced by pro-EU,
reformist change agents lead to progress and implicitly that obstruction of reforms by reform-
opposing veto players undermines the rule of law (for example, Magen/Morlino 2009;
Pridham 2005). Authors suggest therefore to identify veto players and to reduce their number
or their power (Magen/Morlino 2009; Kleinfeld 2012). While at first glance this argument
makes sense, upon further investigation this assumption proves to be highly problematic as it
does not consider that also change agents (mis)use the rule of law as a political weapon
(Maravall 2003), for instance by politicising and instrumentalising the transplanted laws and
newly created judicial and anti-corruption structures. Thus, under the conditions of an already
weak rule of law, externally empowered and unconstrained reformist change agents may
undermine the rule of law. This proposition makes sense if one moves beyond the assumption
of a purely positive impact of external EU conditionality and domestic change agents. The
implication is straightforward, rule of law reforms can result in different outcomes. They can
improve, maintain but also undermine the rule of law. More reforms do not mean
automatically more progress in the rule of law. What makes often the difference is the way
how reforms are conducted and this depends on the social order in which reformers are
embedded (Mendelski 2014).

In sum, most of the discussed literature on the rule of law in CEE proposes arguments and
findings which remain restrictive and incomplete. What is needed is therefore a more
comprehensive and integrated explanation which combines different methodologies,
approaches, and literatures, and by so doing broadens the theoretical and methodological lens
through which external rule of law promotion and reform can be analysed. The next section
will briefly present such an integrated causal theory to explain rule of law development in
CEE and the EUs impact on it.

2.4 Healthy and pathological reform cycles: Towards an integrated causal theory
Mendelski (2014, 2015, 2016) has empirically analysed the EUs impact on the rule of law in
post-communist countries (CEB, SEE and CIS) and provided a more integrated, mechanism-
based and context-sensitive explanation to account for rule of law diversity. His work shows
that EU-driven rule of law reforms often result in a considerable increase of judicial capacity

11
and substantive legality (that is, the approximation to Western standards) but have a
negatively reinforcing impact on judicial impartiality and formal legality, i.e. the inner
morality of law (Fuller 1969), for instance by producing more unstable and incoherent and
less enforced laws.

Mendelski (2014) argues and shows that the EUs impact on the rule of law depends on the
social order in which reformers and reform processes are located. Thus, whereas reforms
consolidate the rule of law in already advanced rule of law countries (CEB) they undermine
the rule of law in weak rule of law countries (SEE and CIS). This uneven development is for
instance reflected in the degree of legal pathologies (for example, legal instability,
incoherence, lack of enforcement, and politicisation) which tend to be reinforced negatively
by EU-driven reforms in closed access social orders (in SEE and CIS). These pathological
effects of Europeanisation occur when empowered but unchecked reformers instrumentalise
judicial and anti-corruption reforms (including newly created anti-corruption agencies,
judicial structures, and laws), as occurred for instance in Moldova and Romania. In contrast,
the pathological power of the EU (see Mendelski 2015) is less harmful in consolidated,
open access social orders (for example in Poland and Estonia) where it is constrained by
reform-resisting and independent horizontal accountability institutions (for example,
Constitutional Courts, Ombudsmen, and judicial councils). In short, reforms can both
consolidate and undermine the rule of law. What makes the difference is the quality of the
reform process which depends however on the underlying conditions in a country, in which
domestic actors (reformers) are embedded.

To explain differences in the rule of law more systematically, Mendelski (2014) proposes an
integrated causal theory of healthy (virtuous) and pathological (vicious) reform cycles,
which combines structure, agency, and process-related variables and which links these
different explanatory variables in a causally and cumulative way (see Myrdal 1957). The main
implication of his reform cycle theory is that reforms in general (and EU conditionality in
particular) are not transformative but reinforcing, that is, reformers tend to reproduce the
respective social order in which they are embedded and thus cement the post-communist
divergence in the rule of law.

The uneven effects of EU-driven reform in can be elucidated on the examples of judicial self-
organisation and horizontal accountability institutions, such as judicial councils, constitutional

12
courts, and anti-corruption agencies. These newly created or empowered institutions have
been established in this region as a general panacea to improve the rule of law. However, their
functioning differed across countries. Whereas judicial councils, anti-corruption agencies and
constitutional courts have worked relatively well (that is, in an impartial way) in well in
established democracies from most Visegrd and Baltic States, they became unaccountable,
politicised and polarised in less advanced countries in SEE and CIS. Rather than being
guarantors of judicial independence and the rule of law, most judicial councils, constitutional
courts, and anti-corruption agencies in the region evolved into politicised, polarised, unac-
countable, and non-transparent bodies that tended to undermine the rule of law (Schwartz
2000; Seibert-Fohr 2012; Brzel/Pamuk 2012; Coman 2014; Bobek/Kosar 2014; Capussella
2015; Beirevi 2014; Mendelski 2015, 2016). It could be argued that these transplanted
judicial structures, rather than improving judicial independence, oversight, and constraints on
the executive, simply opened up different channels of political influence and misuse. In
contrast, in more advanced countries from CEB, such pathological reform effects were
mitigated by reform-resisting inter-institutional institutions, which experienced a more
healthy reform process (which was more gradual, less politicised, more coherent, and
accountable) and resulted in the consolidation of the rule of law (Mendelski 2014).

3. CONCLUSION: CHALLENGES FOR FUTURE RESEARCH

The rule of law, as a contested theoretical concept, is difficult to measure empirically and
difficult to create in the short-term. After decades of research and judicial reform, we still do
not know how to transition to the rule of law, especially when reforms are being pushed from
abroad. This rather pessimistic claim is reflected in the sobering findings in the academic
literature and the empirical rule of law indicators, for example, from BTI or Freedom House
indicators, which remain at a similar level despite considerable reform efforts in CEE. What
can be concluded from the literature and the empirical data is that the post-communist
division in terms of the rule of law has persisted. The rule of law has experienced a path-
dependent development and there was hardly any long-lasting, transformative catch-up of
laggard countries from SEE and the former Soviet Union. A second conclusion is that a there
are plenty of explanatory factors which may account for uneven trends and levels in the rule
of law, suggesting that there may be multiple paths and combinations how to get to the rule of
law (that is, equifinality).

13
There are three main possibilities for future research to tackle existing lacunae in the study of
the rule of law in CEE. The first challenge is to better integrate different explanatory variables
in a causal theory that allows distinguishing between the different positive and negative as
well as short-term and long-term effects of external rule of law promotion. This requires from
scholars first of all devising an integrated concept of the rule of law (and its underlying
dynamics) which pays attention to the interaction of its different dimensions and its
components (see Mendelski 2014 for such an attempt). It equally requires taking into account
the diverse interrelationships between explanatory variables (such as structural preconditions,
external conditionality, reform strategy, and domestic reformist actors), and the effects these
variables have under different domestic conditions. In short, we need a more integrated,
systemic and context-dependent analysis of the rule of law in CEE.

A second challenge is to improve the research design and implicitly the measurement of the
rule of law. First, the rule of law is a complex and emergent phenomenon which needs to be
assessed from a comprehensive and systematic perspective that considers the interplay and
balance between different rule of law elements/dimensions (for example, between judicial
independence and judicial accountability). Scholars and practitioners should abstain from
assessing the rule of law through a more is better mind-set which focuses on the selective
performance of atomised rule of law aspects, such as constitutional review, judicial
independence, and judicial capacity. It is the complementary combination of elements which
leads to the rule of law, not their additive, atomised improvement (Mendelski 2016). Second,
systematic assessment of the rule of law requires first of all a shift from small-n case-studies
towards a medium or large-N research design, ideally combining qualitative and quantitative
methodology in a mixed-method research design. Only by measuring the broad patterns and
trends in the rule of law and discovering the causal processes and mechanisms behind them,
will we gain more systematic insights into how to transition to the rule of law. The
methodological challenge for quantitative scholars is then to measure rule of law development
with the help of objective data and subjective indicators in a reliable, valid, and replicable
way. Assessing the rule of law depends on the indicators one chooses (Skaaning 2010).
Therefore, scholars should choose wisely or preferably employ better data to measure the rule
of law and in particular the inner morality of law (that is, the stability, coherence,
generality, and enforcement of rules), a key element which has been often disregarded.

14
A third challenge is to provide sound policy recommendations based on conceptually and
empirically grounded findings, which take into account the diverse domestic preconditions of
CEE countries. This challenge implies several things: First it implies refraining from
transplanting first-best standards or solutions from abroad which do not work on the ground
and more than often become legal irritants (Teubner 1998). Second, it requires
reconsidering the mistaken assumption of the beneficial consequences of external rule of law
promotion (and of reform) under difficult domestic conditions. In other words, reforms can
under certain conditions undermine the rule of law and make things worse. Third, it requires
assessing rule of law development in an impartial way (in order to avoid bias and double
standards) as well as to pay attention to procedural quality of reform and law-making (in order
to avoid pathological effects) (see Mendelski 2016).

Last but not least, there is considerable research potential to uncover the negative
consequences (pathologies) of the EUs rule of law promotion and assessment, as recently
undertaken by several scholars (see Mendelski 2015, 2016; Slapin 2015; Pech 2016;
Bobek/Kosar 2014; Dimitrov et al. 2014; Toneva-Metodieva 2014). In particular, it would be
interesting to discover which combinations of domestic conditions and external (EU)
conditionality result in unintended and pathological effects, such as lower quality of laws,
political instability, more systemic incoherence, increased levels of politicisation and conflict,
etc. Discovering reform pathologies, unintended consequences and analysing the dark side of
Europeanisation (Brzel/Pamuk 2012) may help to improve the EUs currently naive
approach to rule of law promotion/assessment and its dwindling legitimacy in CEE.

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