The transnational drivers of populist backlash in Europe: The role of courts

Abstract

This Article explores whether and how contemporary constitutionalism may have triggered or facilitated populism and its illiberal agenda. In particular, it focuses on some of the legal doctrines that have characterized the growth of transnational and supranational judicial fora, contrasting them with populism in Europe. The Article first sketches the role of courts in shaping contemporary transnationalism and supranationalism in Europe. Then, it analyzes the role that the ideals of progress and equality have played in the judicialization of pan-European legal culture. Finally, it ponders the consequences of the constitutionalization process of European law for the role of democratically accountable institutions.

Protecting fundamental EU values: In search of a balanced approach

“…The ECHR famously treats the Convention for the Protection of Human Rights and Fundamental Freedoms as a 'living instrument', seeing human rights as ever-expanding and gradually being locked into ever stronger supranational safeguards (Pin 2019). This was not always so and need not always be so.…”

“…Over the last 20 years, both courts have adopted ambitious and progressive definitions of democracy, the rule of law and human rights. For example, under their rulings the principle of equality has been transformed from a limited one focused on the neutral arbitration of conflicts among market operators to a much more intrusive concept of equality as non-discrimination (Pin 2019, 237–40). The same can be said, as explained above, of the two supranational political institutions of the EU, the Commission and the Parliament.…”

“…. an individual vindicating a personal, private interest’ against the public good as perceived in the community to which he belongs, thus ultimately placing him ‘at odds with his or her thicker national political space’ (Joseph Weiler, in Pin 2019, 241). This is less destabilising for national cultures and democracies when it is rights of access to the market that are at stake.…”

“…Relatedly, constitutionalising at the supranational level an ever-expanding list of rights whose exact content is still contested in many member states also means reducing the scope for legitimate democratic debate and disagreement at the national level. This ‘depoliticisation’ of debates that go straight to the heart of national cultures and identities encourages the rise of right-wing Eurosceptic populism (Pin 2019, 241–2). A flawed and ultimately anti-pluralist conception of European integration is to blame for this, as are the equally flawed and anti-pluralist notions of ‘illiberal democracy’.…”

Europeanization as Pragmatic Politics: Italy’s Civil Society Actors Operating in the Face of Right-Wing Populism

“…At the same time, a-potentially-powerful legal instrument based on the supremacy of EU law can also backfire politically, as opposing parties have regularly portrayed these legislative processes as an EU imposition or violation of national sovereignty (Pin 2019). CSOs thus run the risk of nurturing the Euroscepticism that populist-nationalist forces have made the trademark of their political identity.…”