INTERVIU. Profesorul Stefan Voigt, Facultatea de Drept, Universitatea din Hamburg – Statul de drept și identificarea limitelor sale

Statul de drept este un concept fundamental, dezierabil de perfectonat in toate statele europene. Cu toate acestea, este îngrijorător cât de puțin se cunoaște despre factorii etiologici ai acestui fenomen. În acest sens, o condiție premergătoare aprofundării materiei statului de drept este reprezentată de identificarea limitelor sale.

Într-o lucrare recent publicată, prof. Stefan Voigt si prof. Jerg Gutmann din cadrul Institutului de Drept și Economie al Facultății de Drept, Universitatea din Hamburg au abordat cunoașterea limitelor conceptului de stat de drept cu ajutorul unui sondaj efectuat în 99 de state, stabilind un index al statului de drept. Este pentru prima oară când doctrina introduce un astfel de index care verifică tocmai calitatea și oportunitatea normelor legale. Rațiunea a fost aceea că, dacă pentru statul de drept, definitorii sunt supremația legii și egalitatea de șanse a cetățenilor, pentru a da eficiență acestui concept, caracteristicile legilor care implementează aceste principii sunt cel putin la fel de importante.

Lucrarea intitulată The Rule of Law: Measurement and Deep Roots folosește acest index pentru a identifica două probleme. Prima vizează existența unei eventuale relații directe între statul de drept și sistemul politic, în timp ce a doua problemă ridică întrebări asupra posibilității delimitării condițiilor favorabile de cele nefavorabile pentru dezvoltarea statului de drept.

Sondajul relevă faptul că regimul democratic prezidențial, în comparație cu cel parlamentar, are rezultate mult mai slabe în ceea ce privește implementarea conceptului de stat de drept. Aceleași surse arată că atât factorii de natură geografică, cât și valurile europene de colonizare influențează nivelul la care se află statele în ceea ce privește indexul statului de drept. Autorii au înțeles, prin studiile lor, că statul de drept este un concept al statelor vest-europene.

In interviul dedicat exclusiv studentilor si practicienilor dreptului care urmaresc pagina ABCJuridic, prof. Stefan Voigt a raspuns pe larg intrebarilor adresate cu privire la implementarea si perfectionarea cunoasterii conceptului de stat de drept din perspectiva cercetarilor si a studiilor efectuate la Hamburg, punctand inclusiv viziunea actuala a relatiei statului de drept cu democratia.

Ii multumesc si pe aceasta cale profesorului, pentru raspunsul pozitiv si promt la invitatia noastra!

Publicam transcriptul interviului, cu mentiunea ca va fi adaugata cat de curand si traducerea pentru limba romana:

S.-A. Predescu: Thank you, Prof. Stefan Voigt, for accepting our invitation. This interview is going to be highly appreciated by the Romanian Constitutional Law experts and students, as your knowledge, experiences and your contribution are well-known in the field of law science. I feel honored and enthusiastic to find out your perspective and opinions about the rule of law and its future, in today’s European social context.

S.-A. P.: I’d like to ask you first about the paper called “The Rule of Law: Measurement and Deep Roots”, which you and Dr. Jerg Gutmann published in 2015. What is the aim and how does the conclusion of the study affect the current constitutional and political approaches?

Prof. dr. rer. pol. Stefan Voigt: The paper really has two aims: as the title indicates, we propose a way how the rule of law can be measured. If we succeed in making the rule of law measurable, this means that we can also compare how successful different countries are in implementing the rule of law. This is the first aim of the study you mention. We further inquire into the reasons why some countries do fairly well with regard to the rule of law, whereas others have an abysmal record. We refer to that aim of the study as identifying “deep roots” because we are not primarily interested in the proximate (or short-run) determinants of the rule of law but the fundamental causes, such as geographical and historical factors.

Prof. Stefan Voigt: Regarding possible implications of our study let me say the following: There are many people and organizations advocating the rule of law. The EU, the World Bank, you name it. To be able to realistically evaluate the chances for a quick improvement, knowing the fundamental causes of the rule of law is very important. Policies promoting the rule of law may only make sense if it is not overwhelmingly determined by so-called exogenous factors, such as geography, climate, or the quality of institutions hundreds of years ago. These factors you cannot change and if they are important for the level of rule of law a country can achieve, this implies improvements in the rule of law are difficult to realize. In a way, former British Prime Minister Gordon Brown might have been right when he quipped that “when introducing the rule of law, the first 500 years are always the most difficult.”

S.-A. P.: The rule of law is a hot topic also for the media. Are there factors conducive to it able to pilot this concept into a safer and predictable area?

Prof. Stefan Voigt: I know very few people who would not support the rule of law. The concept seems to be able to gather almost universal support from very different corners. But this is only because people define the rule of law very differently and usually in such a way that it currently suits them. But if we don’t agree on what we mean when we talk about the rule of law, then a consensus on its desirability is meaningless. Such an agreement on the definition of the rule of law does currently not exist.

Prof. Stefan Voigt: In this situation, we are proposing to be very careful with the use of the term. We propose a precise definition and show how it can be made measurable. This has important implications for the debate about the rule of law in the media: only if we have precisely defined the concept can we evaluate if politicians remain within its frame or not.

Prof. Stefan Voigt: We propose to keep the rule of law apart from concepts that are often mentioned together with it such as democracy. In fact, one can even argue that in certain situations the rule of law and democracy are in conflict with each other. This becomes clear when the rule of law protects fundamental rights of minorities against decisions made by majorities. This implies that, at least in some instances, even democratically elected governments will not be happy about being constrained by the rule of law. Just think of US President Donald Trump’s negative statements against federal judges who took down his travel ban on citizens of specific countries. We argue that you need to keep apart the rule of law and democracy (or other concepts), although both might be desirable. Nevertheless they are different concepts and having one does not imply having the other.

S.-A. P.: Your study introduces a new and original indicator for the rule of law. How did you come up with the idea of creating such an index that takes the quality of legal norms into account?

Prof. Stefan Voigt: Thank you for the compliment! In fact, our indicator is not the first to make the rule of law measurable. But we were unhappy with the existing ones. I believe that it is not sufficient to criticize the work of others but one should also prove that one can do better.

Prof. Stefan Voigt: Why were we so unhappy with previously existing indicators? Well, they also relied upon lots of data but it seemed that the construction of these indicators was driven by data availability and not by theoretical considerations. We begged to differ: we first created our theoretical frame and moved to data search only afterwards. We were lucky that the World Justice Project – which aims to foster the rule of law worldwide – had just completed a huge survey among, one the one hand, the populations of around 100 countries and, on the other hand, experts for these countries. We are thankful to the World Justice Project for letting us use their data.

S.-A.P.: What do you think about the results of the study and how do you think it contributes to a better understanding of the rule of law?

Prof. Stefan Voigt: In thinking about the rule of law, it seems to make sense to include both substantial as well as procedural aspects. Our indicator is the first one not only taking into account the procedures by which law is implemented, but also the substance of legislation. More precisely: we ask to what degree legislation conforms to the criterion of being “general”. That is one important value added of our indicator. We hope our study will help to foster a debate regarding both the origins as well as the effects of the rule of law that is more fact-based than has been the case to date.

S.-A. P.: Thank you for taking your time for this interview, Mr. Voigt. It is always very important to hear the specialist’s opinions on the subject, as there is also a lot of misinformation out there. Therefore, what do you focus on next, when is the next study going to be published?

Prof. Stefan Voigt: For a very long time, I have been interested in judicial independence as one very important aspect of the rule of law. In previous studies, we have been able to show that high levels of de facto independence of the judiciary are closely associated with high economic growth, in other words: countries that manage to have an independent judiciary tend to grow faster. If this is accepted as a finding, a follow up question emerges: through what channels does the independence of the judiciary have this highly welcome effect? Together with Jerg Gutmann, we are currently inquiring what aspects of judicial independence are of particular importance to businesses and why.

Prof. Stefan Voigt: Another paper, also co-authored with Jerg Gutmann, inquires into the relationship between the rule of law and Islam. We had previously looked into this relationship empirically and found that many of the deficiencies of the countries in the Middle East cannot be attributed to the influence of Islam but have different causes. However, treating women differently than men and reaching only low levels of judicial independence seem attributable to the influence of Islam on politics. The article we are currently working on goes one step further and searches for reasons why Islam and its leading interpreters seem to be in conflict with certain elements of the rule of law.

S.-A. P.:  Thank you again and good luck with your work!

Sorin-Adrian Predescu

Sorin Adrian Predescu este avocat stagiar in cadrul Baroului Bucuresti si masterand la disciplina Drept fiscal, Facultatea de Drept, Universitatea din Bucuresti

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