Who gets to make the rules?

Central European University is the first university to have been expelled from a European state since the 1930s. Its story tell us about the nature of law — and why the EU must evolve.

On 25th March 2017 eduline.hu, a news organisation for the Hungarian education sector, reported that the government was conducting a periodic audit of ‘foreign’ universities. This story was accompanied by a photo of a green exit sign against an otherwise blank brick wall, with no explanation of what the image had to do with the text.

Screengrab from eduline.hu. Translation: ‘The Education Office is examining foreign universities with degree programmes in Hungary’. The brick wall and exit sign seem to have no relation to the story. They are not mentioned in the text.

Three days later the Hungarian government announced (without providing evidence) that the audit had uncovered cheating at several universities, and they would therefore change the Higher Education Law. These changes were quickly dubbed ‘lexCEU’ — lex is Latin for ‘law’ — because the way the changes were worded, they had substantive consequences for one institution in particular.

Central European University (CEU) was founded in the aftermath of the end of the Cold War. It was conceived as a social sciences and postgraduate institution, with a focus on ‘open society’ and training of the next generation of political and civic leadership. It was initially based in Budapest, Prague and Warsaw but in its second decade it moved exclusively to Budapest. In 2016 the university opened a new, purpose built home in the city centre.

Six days after lexCEU was announced (seven years ago this week) 80,000 people protested in the city centre: about 5% of the city’s population. The equivalent number in London would be 440,000. Further protests followed. Ignoring them, the government passed the legislation into law through an expedited process in just two weeks.

The legislation was amended further in the following months. At one point the continuing operation of CEU in Hungary required, among other things, the successful negotiation of a treaty between the Hungarian government and the US federal government — but education is not a federal matter in the US, making it legally impossible for such a treaty to be written, let alone signed. Many meetings took place but in practice it was soon impossible for CEU to take on new students in Budapest. The university began operations in Vienna in 2019.

In 2020 lexCEU was struck down by the European Court of Justice. The court ruled that the Hungarian government had violated WTO law, EU law and the Charter of Fundamental Rights of the European Union. Legally speaking, CEU could now operate in Budapest again. But by this time two new cohorts of students were enrolled in Vienna. The lives and families of many staff and faculty (myself included) had been uprooted and €200m of additional expenses had been incurred. The facts on the ground had changed. CEU had already become the first university to be expelled from a European state since the 1930s.

The building that CEU moved to in 2016 has been underused ever since. A modern take on classical Hungarian architecture, it garnered much attention and praise for its design. Inside, its main walls have a distinctive pattern of open brickwork, easily recognisable if you are familiar with it. And so it turns out that the end point was there to be seen from the beginning. The photo that accompanied the announcement of the ongoing audit into higher education, which would later find ‘evidence’ of cheating and was hence used to justify the attack on CEU, was a photo of one of the exit signs in CEU’s own premises. My Hungarian friends tell me this is how the Hungarian sense of humour works.

The main building of Central European University, at Nádor utca 15, central Budapest. The photo in the other image above, which accompanied the announcement of the audit into higher education that would later be used to justify the attack on CEU, is a photo of one of the exit signs inside this building. Image: Wikimedia Commons.

---

I want to describe how the CEU story shows, in an especially clear way, the difference between ‘rules’ and the 'rule of law' — and also why the EU must evolve.

In the most basic sense, humans create rules because rules help us coordinate our affairs. In the family, there are rules about who does the washing up and what time the kids go to bed. In the community, there are rules about how to eat and when to speak. Some everyday rules collapse as soon as they are made, while others prove robust and become matters of tradition and habit. They are kept stable by occasional debate and backed by the informal power of shame, trust and reputation.

Law is something more than simple rules. Philosophers of law commonly say that law starts with the creation of ‘secondary rules’. Primary rules are rules in an ordinary sense. Secondary rules are rules about who can make primary rules.

Arriving at the local library, Mary is still eating her lunch. Her Dad tells her she can’t take it inside. “Do we have a rule that we can’t eat in the library?”, she asks. “No…,” says Dad, “..but we do have a rule that we respect the library’s rules — and they have a rule that you can’t eat in the library.” So Mary and her Dad have a secondary rule: that the library’s leadership gets to make the rules about what you can and can’t do in the library. Mary respects this secondary rule and so respects, in turn, the primary rule about not eating in the library. Law begins with secondary rules (and there can be, of course, secondary rules about secondary rules).

So the ‘rule of law’ is, effectively, the ‘rule of secondary rules’. The rule of law is the rule that we respect the rules about who gets to make the primary rules.

But who is that? Who gets to make the primary rules and why do we let them?

In modern nation states rule makers have their authority through a mix of two main factors. One is the implied threat of violence. If we break the rules set by rule makers then we are, by definition, challenging their authority, and this can initiate a process that ends with your own imprisonment. This factor is decisive in authoritarian regimes but it is there in democracies also. The other factor is choice and consent. In a representative democracy citizens choose, through some albeit imperfect process, who the rule makers will be.

Accordingly, it seems to me that when you look at canonical cases of challenges to the ‘rule of law’, their shared distinctive feature is not rule breaking as such. The shared distinctive feature is challenges to the authority of rule makers. The January 6th insurrection, for instance, was an attempt to change a secondary rule: to insist by force that the Electoral College does not get to choose the next President. Russia’s invasion of Ukraine is also characterised in terms of the rule of law, and indeed it is not simple rule breaking: it is not a quasi-colonial project motivated by simple territorial gain. It is rather an expression of Vladimir Putin’s belief that ‘the Ukraine’ is historically and rightly a part of Russia, and as such the legitimate rule makers for that part of the world are Russians. Putin wants to change the rule makers.

Ditto lexCEU. Here the relevant rules include adherence EU law and the relevant rule makers are, accordingly, EU legislators. LexCEU was a challenge to this secondary rule. And while the the January 6th insurrection failed and the invasion of Ukraine is currently unresolved, in this case the challenge was a success. The authority of the rule makers was successfully undermined. Because while the relevant rules still hold in theory, in practice nobody is naive enough to believe that if CEU were to return to Budapest it would face no further threat. It is this fact, above all, that shows who the rule makers really are. Whoever they might be de jure, they are de facto the Hungarian government. Secondary rules about EU law simply did not hold on the ground.

The EU is a historically distinctive political project: an effort to create secondary rules above the nation state. To make this happen the EU has adopted many of the trappings of stable states: an executive that proposes new rules, a legislature to pass them, a court that adjudicates on disputes and so on. There is not, however, any implied threat of violence. The only police forces that exist are the police forces of nation states i.e. the forceful arm of the entities that are themselves subjects of the rules. So what can be done when it is they who challenge the rule makers? Nobody yet has a good answer to that question.