Quod licet Jovi non licet bovi?: The Venice Commission as Norm Entrepreneur

Abstract

The Venice Commission was created in 1990, as a part of a wider, generous project to help the former Communist countries with provision of Western expertise. The fledgling Eastern European democracies were meant to be able, in their effort to build constitutional, rule of law states, to tap at short notice on the knowledge and wisdom of an apolitical constitutional Areopagus. The Commission proved adroit at this task and its early track record generated a reputational snowball effect. More and more jurisdictions have joined it as members, observers or special status entities, spanning now almost all continents. Furthermore, the Commission has recently engaged in an intense, fast-pace effort at multi-layer cooperation, liaising with both other structures of the Council of Europe system and with counterparts in other international organizations (EU, OSCE/ODHIR, even the IMF). For instance, in the context of the recent EU ‘populist crises’, the EU Commission has increasingly relied on its Council of Europe colleague, in order to put out the populist fire with the help of a genuine expert in the field of ‘democracy and the rule of law’. In its newer role, however, the Venice Commission has often displayed an unsettling degree of militancy, also by way of cross-hybridizing policy imperatives and normative criteria. Its country reports and guidelines are sometimes difficult to reconcile with traditional constitutional understandings of various concepts and institutions (and, frequently enough, with one another). By the same token, such determinations reinforce, in a vicious circle, preexisting deficiencies of procedural, methodological, and institutional design. The paper offers a critical assessment of the Commission’s recent work, with a focus on recent Romanian developments, comparatively assessed.