Virtual icon Populism and the Rule of Law

Abstract

Speakers: Luisa Antoniolli (University of Trento) Carlo Ruzza (University of Trento) Discussants: Jens Woelk (University of Trento) Carlo Berti (Charles University of Prague) In recent years, populist forces have developed in distinctive ways in the EU and other Western countries. They have become widespread and closer to yielding decision-making power as central actors in coalition governments or as dominant forces. This has led to their institutionalisation. They now interact on a daily basis with non-populist parties and shape the institutional responses of several EU countries. Transitioning from disruptive movement-parties to dominant political actors has required a process of adaptation and change. Their well-studied assault against aspects of the rule of law needs to be redefined in light of these changes. This presentation will examine challenges to the rule of law in institutionalised EU populist-led governments. It will be structured in two parts. The first part looks at the process of institutionalisation and the implications for the division of powers in key EU democracies, particularly in the test case of Italy. The second part will consider the legal aspects of challenging the rule of law in the EU system of governance. The first part will consider the political and media debate highlights a progressive weakening of one of the elements of the rule of law as understood in Western liberal regimes, namely the division of powers. The rhetoric of the 'will of the people' is, in fact, increasingly invoked to reduce the margins of autonomy of all those institutions (primarily the judiciary, but also independent authorities) that do not respond to the input and control of political majorities. This is a substantial change with political and legal consequences, as highlighted in the many proposals for institutional reforms underway in many European countries. This is linked to a third important development, that of the growing political polarisation of the judiciary's action: whether they are aligned with the political priorities of the majority or if they are opposed to them, judicial decisions increasingly take on an immediate political value (think about decisions regarding migration and international protection, but not only). This is particularly evident at the level of national supreme/constitutional courts, but it also applies to decisions of supranational courts, such as the Court of Justice and the European Court of Human Rights. This dynamic significantly influences the methods of protecting fundamental rights and, more generally, the functioning of justice. The synergy of these phenomena means that the challenges to the rule of law in the European Union highlighted by the editors in the recently published volume' Populism and the Rule of Law' (Springer 2024) are not only confirmed but significantly strengthened. The growing institutionalisation of European populism, therefore, will undoubtedly have important repercussions on the way of conceiving and applying the (necessarily broad and vague) notion of the rule of law, with significant consequences for the way of understanding the role of law and rights, as well as of the relationship between national systems and the European Union.