Chaos theory describes dynamic systems that are extraordinarily sensitive to initial conditions. A popular example is the “butterfly effect,” the idea that a butterfly flapping its wings in Beijing could cause a hurricane in Kansas. Chaotic systems, or systems with non-linear qualities, are radically non-deterministic. Even by knowing the initial conditions and the equations governing the system, tiny, immeasurably small deviations can have an unexpectedly large impact. Seemingly stable systems can rapidly become unstable, simplicity turning into staggering complexity. Conversely, in such a system chaotic conditions can suddenly give way to stability. Examples of such systems abound in nature, from our planet’s climate to our heart rate and even a simple pendulum.
Such systems appear in culture, too. One of such systems is the Albanian judiciary system. Those who designed the justice reform thought of the state of the judiciary and rule of law in Albania as a stable system with undesirable qualities: it was corrupt, judges were not independent, and politicians exerted undue influence. The system was inefficient, underfunded, and had a low public credibility. This stable but undesirable system, so the architects of the reform thought, could be transformed in a linear manner into a stable system with desirable qualities: a non-corrupt, independent, and credible judiciary that is sufficiently trained and funded for their work.
The means of transforming the Albanian judiciary system of 2016 into a new, improved system was the Albanian justice reform. The idea behind this reform was that changing a few of the parameters of the Albanian justice system – the legal framework in which it operates, the composition of the judiciary, its pay grade, and its mode of governance – would create a new form of stability: the desired “reformed” justice system.
Unfortunately for these architects, often nameless bureaucrats with a worldview not only constrained by their training but further impeded by their lack of understanding of the very nature of the system upon which they were operating, the Albanian justice system – and I would say any justice system, or any mode of political and social organization – does not behave linearly, but non-linearly. Variations in its “input” (Albanian legislation) can lead to radically different and unpredictable outcomes. And the variations were not just small amendments; they were large jolts to the system: the constitutional amendments of 2016.
One of the first effects of this shock to the system was that the Constitution itself collapsed: initial deadlines set for the establishment of the vetting institutions were not met, after which a cascade of other deadlines passed without consequence. The missed deadlines led to the absence of crucial infrastructure, which gave rise to ad-hoc, sui generis solutions such as the “Temporary” General Prosecutor and “Temporary” Justice Appointments Council. The new justice governance institutions were filled with candidates not fulfilling the formal requirements, who then passed regulations openly violating justice reform standards and principles: major legal inconsistencies nearly instantly proliferated into further inconsistencies, paradoxes, and contradictions, where cause and effect often became indistinguishable. Meanwhile, the stabilising factor of the Constitutional Court was rendered dysfunctional. The instability of the justice system affected adjacent political institutions: the parliament, the presidency, elections, and the government, all transforming into barely recognizable variants of their former, lawful and well defined selves.
But chaos theory also teaches us that a complex situation does not necessarily persists: new, simple equilibriums may be found in the midst of apparently chaotic processes. They may, however, not be the equilibria initially envisioned in the anonymous offices of EURALIUS and OPDAT. A one-party state is one such equilibrium. Rather than having a clear division of independently operating and balancing powers, a functional rule of law, and a healthy opposition and civil society, the stability of this particular system is provided by a single party occupying the government, parliament, local government, and the judiciary, having fully profited from the uncertain state created by the justice reform. I say here profited, because to attribute too much agency to the Rama government in the way it has manipulated the reform would be to misunderstand the underlying complexity; the government was simply in the best position to profit from it.
Now that the Albanian justice system seems to converge onto the “strange attractor” of a one-party state, rather then the desired EU-style rule-of-law-based democracy, the most pressing question is perhaps “what is to be done?” Unfortunately, yet again, chaos theory teaches us that it is unpredictable whether a small push (a single legal amendment) or a large shock (rewriting the Constitution) is needed to move the Albanian justice system into trajectory that converges onto the stable equilibrium initially envisioned as the outcome of the justice reform.
Unlike turbulence and heart rhythms, justice systems do not lend themselves easily to experimental set-ups that would allow us to trace possible outcomes. We know, for example, that a precisely dosed electrical shock to the heart will “reset” a chaotic, defibrillating rhythm. But what would be the analogue in terms of legislation? I doubt whether there is much mathematical modelling available in the offices of the European Commission that would allow us to pinpoint other equilibria than the ones we already know: corrupt judiciary, non-corrupt judiciary, judiciary subservient to one-party rule. We don’t even know whether there is only one form of corrupt judiciary or only one form of non-corrupt judiciary that is stable – my intuition says that there should be many. Which ones of those are desirable? And are some more desirable than others, and more or less desirable than the current, converging status quo?
No doubt this uncertainty explains the complete paralysis of EURALIUS and OPDAT and their total reliance on the Albanian government to “fix” the justice reform. Unfortunately, the more Rama consolidates power – the more the system converges to a stable autocracy – the more harmful such a paralysis becomes.
