A. Introduction
Populism is normally perceived as a phenomenon of constitutional retrogression, degeneration,Footnote 1 or backsliding;Footnote 2 liberal democracies consider it a pathology.Footnote 3 It is, however, a largely amorphous phenomenon,Footnote 4 and its contours are hard to grasp. The comparative constitutional studies that focus on general trends—instead of specifics—have encountered difficulty in tracking populist developments worldwideFootnote 5 and determining how they intersect with the winding processes of new democracies.Footnote 6
This Article explores whether and how contemporary constitutionalism may have triggered or facilitated populism, its threats to the rule of law,Footnote 7 and its illiberal agenda.Footnote 8 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.Footnote 9 Without endorsing populism, this Article hypothesizes that populism’s mounting wave in Europe can serve as an alert for some diseases that contemporary constitutionalism may have contributed to creating.Footnote 10
Of course, populist rhetoric has many variations.Footnote 11 Populist movements have mushroomed throughout the world:Footnote 12 They have succeeded in Latin America, the Philippines, the Middle East, some Central and Eastern European countries, and have gained momentum in the U.S. and Israel.Footnote 13 It is natural that their agendas overlap only partially. Generally, however, populists claim to propose an alternative to the phenomenon of “global constitutionalism”Footnote 14 in the legal lingua franca of rightsFootnote 15 that has flourished in liberal democraciesFootnote 16 and to what they perceive to be the contemporary elite culture “strongly imbued with liberal values of individualism, internationalism, multiculturalism, permissiveness and belief in progress….”Footnote 17 They understand themselves as a reaction to such values. As Viktor Orbán, the Prime Minister of the EU member state that seems to have moved most deeply into the realm of constitutional populism so far,Footnote 18 stated in a famous speech in 2014:
[The] Hungarian nation is not a simple sum of individuals, but a community that needs to be organized, strengthened and developed, and in this sense, the new state that we are building is an illiberal state, a non-liberal state. It does not deny foundational values of liberalism, as freedom, etc. But it does not make this ideology a central element of state organization, but applies a specific, national, particular approach in its stead.Footnote 19
Orbán accepts the core values of liberalism, although he places them in a different framework and distances himself from some of the values that have driven the construction of pan-European institutions and legal orders:
I will mention another example that is another obstacle of reorganizing the state. When I mention the European Union, I am not doing this because I think it is impossible to build an illiberal nation state within the EU. I think this is possible. Our EU membership does not rule out this option. It is true that many questions formulate, and many conflicts develop… a lot of battles have to be fought…. Contrary to the liberal state organizational logic of the past twenty years, this is a state organization originating in national interests. Conflicts that erupt are, therefore, not coincidental, do not originate in ignorance (well maybe only sometimes), but these are debates that necessarily accompany the rebuilding and self-definition process of a new state.Footnote 20
Actually, the conflict between national populists and transnational or supranational organizations in Europe seems to be profound.Footnote 21 One of the drivers of populist backlash resides in the urgent conviction that the people and elected institutions get to the center stage of politics and law. This is troubling Europe because the driving forces behind the legal and institutional developments since the end of the Second World War have been organs with only indirect or loose democratic legitimation and accountability. Courts, rather than elected bodies, have often been the pan-European key players.
This Article ultimately takes the view that increasing the democratic accountability of pan-European institutions can only be a palliative cure if the doctrines of their judicial fora are not thoroughly reconsidered. In this respect, populism does more than suggest changes in the existing “institutional arrangement” at the transnational and supranational level: It defies the “deep-seated political culture,” that such courts have been shaping for decades now and on which they are premised.Footnote 22
In order to achieve its goal, this Article first sketches the role of courts in shaping contemporary transnationalism and supranationalism in Europe vis-à-vis the rallying lexicon of populism. Then, it analyzes two key components of the ideology behind the judicialization of pan-European legal culture—namely, progress and equality—distilling how these components have unfolded. Finally, it ponders the consequences of the constitutionalization process of European law for the role of democratically accountable institutions.
B. Taking back control and the role of courts
One of the rallying cries of populist movements involves giving the center stage to the people vis-à-vis the elites who exercise public powers. The typical anti-elitist and anti-establishment populist narrative is characterized by a high level of political frustration among groups that understand themselves to be social outliers.Footnote 23 It is fueled by masses of “[disgruntled] citizens [who have] los[t] faith in their system of government” and have voted to “break the system by electing a leader who promises radical change.”Footnote 24
This insistence on the will of the people is neither distinctly European nor populist. As Michael Sandel noted, “restoring control over the forces that govern our lives and giving people a voice”Footnote 25 has also been a priority for the supporters of both Donald Trump in the 2016 U.S. presidential electionFootnote 26 and Brexit.Footnote 27 Bringing people to the center stage, however, is problematic for supranational and transnational organizations in Europe. One of the main criticisms these organizations routinely receive is their lack of democratic legitimation.Footnote 28 Although supranational and transnational organizations enact rules and render judicial decisions that impact individuals and States alike, they do not represent people the way domestic institutions do. They affect the lives of those living within their jurisdictions without being fully accountable to the population.
Pan-European institutions have tried to respond to this criticism.Footnote 29 For example, the EU, which has been agonizing over an agenda of democratization for decades now,Footnote 30 has tried to address the perennial want of democratic legitimation through the empowerment of the EU ParliamentFootnote 31 and, more recently, the introduction of the “Spitzenkandidaten.”Footnote 32 In 2014, each of the EU Parliament’s party groups selected its candidate for leadership of the EU Commission before the Parliamentary elections, so citizens could cast their votes in the ballots with a fuller picture of what the EU government would be like.
The democratic character of the EU, however, has been treated by its judicial branch as a reality and not simply as a goal, even in the early stages of European integration. In the 1960s, the European Court of JusticeFootnote 33 (ECJ)’s Van Gend en Loos Footnote 34 seminal judgment grounded the direct effect of the European Economic Community laws in the democratic nature of the Community itself. It said that its founding Treaty created a new legal order—an order that was made by the people and for the people, as “the nationals of the states brought together in the Community are called upon to cooperate in the functioning of this Community through the intermediary of the European Parliament….”Footnote 35
Rooting the new legal order and its direct effect in the involvement of the “nationals of the states” in the legislative process was an astute move. The ECJ needed to stress the democratic basis of the Community because it was construing a daring legal doctrine—one that even the framers of the Treaty had not envisioned.Footnote 36
If one considers the weak powers that the Community gave to the European Parliament in the early 1960s, however, especially in comparison with the constitutional structure that the EU has today, Van Gend en Loos was far from reality.Footnote 37 The Community did not function in a democratic fashion. Nonetheless, in order to bless the Community rules with direct effect, the ECJ found the democratic legitimization it needed in the Parliament.
The democratic problem with transnational and supranational constitutionalism in Europe is also particularly acute in light of the role that the judiciary has played in it.Footnote 38 There is broad consensus that the main drivers of the legal development beyond the state have been judicial. Among the theorizers of this court-centered constitutionalism was Professor Mauro Cappelletti, a towering figure of comparative constitutional law in the second half of the twentieth century. In the mid-1980s, he correctly predicted that the judicial bodies would become the protagonists of the wave of constitutionalism that was emerging in the West and spreading throughout the globe.Footnote 39 Transnational and supranational fora were merging the international success of judicial review in protecting freedoms with the equally strong international call for institutional transcendence beyond the states to create a new wave of constitutionalism.Footnote 40
The late Cappelletti provided his readers with two examples of this new wave of constitutionalism: The ECJ and the European Court of Human Rights (ECHR),Footnote 41 which patrolled the two “inseparable” facets of the post-Second World War’s European concerns for human rights and internationalism.Footnote 42
The populist calls to take back control on the one hand, and the attempts to vest transnational and supranational institutions with more democratic robes on the other hand, can be reappraised in light of the central stage that the judiciary has gained. Enhancing the accountability of the institutions beyond the state might be not enough to respond to the democratic call, as the patterns of transnational and supranational legal development are located in the judiciary. Imbibing the EU and the Council of Europe’s institutions with democratic mechanismsFootnote 43 may not serve the cause of bringing the people of Europe to the center stage if this path is taken by courts. More specifically, the efforts to democratize the EU further in order to regain popularity seem doomed to fail—as the longstanding, unsuccessful “struggles to connect [the Parliament] to its electorate”Footnote 44 confirm—if the legal development at the EU level is first and foremost a matter for unelected institutions, such as its court.Footnote 45 The lack of democratic legitimation of its political branch is not totally resolvable through institutional reforms. Part of the response to the populist complaints must be theoretical and judicial.
Two core components of the legal culture under which transnational and supranational courts operate in Europe are the ideas of progress and equality. The way European transnationalism and supranationalism is understood today, especially at the judicial level, deprives the debates over the democratization of pan-continental institutions of much of their significance.
C. Democracy and progress
The Council of Europe and the European Union are both committed to legal and political projects that unfold incrementally. This is no surprise, as they both have drawn inspiration from international law and its optimisticallyFootnote 46 progressive reading of history.Footnote 47 They align themselves to Western mainstream cultureFootnote 48 and see the European legal scenario achieving greater and higher levels of respect for human rights, stronger democratic culture, and widespread adherence to the rule of law through the passing of time.Footnote 49 This approach sees legal development as an incremental, broadly foreseeable process which time unveils. The ECHR and the CJEU’s case law have both confirmed this belief by each shaping a distinctive judicial doctrine.
The ECHR does not merely patrol the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). It famously expands its scope and meaning by interpreting the Convention as a living instrument,Footnote 50 a metaphor that sees human rights as ever-expanding.Footnote 51 The overarching idea behind the living instrument approach is that the passage of time is good for human rights, to the extent that “a failure… to maintain a dynamic and evolutive approach would risk rendering [the ECHR] a bar to reform or improvement.”Footnote 52
Along these same lines runs the CJEU’s perspective on legal development, which has been knitting together an “ever-closer [U]nion” through its progressive jurisprudence.Footnote 53 More precisely, the goal of legal integration among the member states has bolstered the CJEU’s adoption of the teleological interpretation of EU law.Footnote 54 This interpretive pattern has led its judges to choose, among many plausible interpretations of a rule, the one that best meets the needs of legal integration.
Although the CJEU interprets EU regulations, it actually pushes the integration further, so much so that it has been able to bring many state powers under the control of the EU before legal texts conferred them to the EU.Footnote 55 EU lawyers have prepared the ground for this interpretative pattern, as they have “cultivated an ethos in which the transfer of competence to the European level is regarded as a good thing per se,”Footnote 56 without requiring any type of political decision.Footnote 57
The progress-bound judicial reasoning of the two courts is rooted in the belief that democracy, rule of law, and human rights consolidate through time rather than roll back, and that this process leads to stronger forms of legal integration within the European supranational legal order. States that reach a satisfactory level of respect for the basic values of constitutionalism are not supposed to backslide away from constitutionalism; they are expected to solidify their relations. The two courts operate as if the line of constitutional progress were unidirectional.
This belief in the unidirectionality of constitutional developments informs the very mechanisms that patrol state membership to the EU, both before and after the accession. The process of accession to the EU routinely involves the institutions of the EU and Council of Europe and entails a quarantine during which the applicant State is subject to close scrutiny in order to verify its compliance with EU core principles. This approach has been in place since before the introduction of the so-called “Copenhagen Criteria,” which crystallized the membership’s checklist. The EU has constantly subjected State candidates to a thorough check before accepting them into the EU.Footnote 58
Keeping the changing behaviors of national institutions under the radar of the EU after they enter the club, however, has constantly posed far greater legal and conceptual difficulties to the EU,Footnote 59 as the debates and doubts on the measures against the recent legal developments in Hungary and Poland have recently confirmed.Footnote 60 The TEU’s Article 7 of the Treaty on European Union (TEU)—which the EU introduced in part to address the possibility that an Eastern Member State might derail from EU core valuesFootnote 61—theoretically should patrol such crises. But both the EU’s hesitations in enacting such a nuclear option,Footnote 62 which lasted for a while,Footnote 63 and the broadly shared consideration of the Article 7 procedure as an “unsuitable instrument to ensure the rule of law,”Footnote 64 seem to confirm the progress-bound EU mindset.Footnote 65 Article 7 was a safety valve, good only for hypotheticals, but very unlikely to be deployed: “[T]he assumption has long been that pre-accession checks would guarantee that no country would be admitted to the EU club unless it had already reached the stage of a sustainable democratic regime based on the rule of law, an accomplishment that appeared to preclude backsliding.”Footnote 66 This assumption has finally clashed with the reality of democracy backsliding among EU’s state members,Footnote 67 and, more generally, with a steady decline of countries’ democratic performances worldwide.Footnote 68
One can now re-appreciate the ECHR’s doctrine of living instrument and the CJEU’s focus on the teleological interpretation of an EU text.Footnote 69 Far from simply being the fruit of the personal ideologies of its members, these theories see history incrementally as the process of a primarily linear development,Footnote 70 which would bring about more human rights protection and benefits in a way that echoed Hegel’s reading of history according to Cappelletti.Footnote 71
This ideological framework resonates with the broader comparative legal studies’ mainstream. Ugo Mattei has surveyed the academic textbooks on comparative legal systems,Footnote 72 finding that comparatists often embrace an optimistic, progressive reading of history. After the end of the Iron Curtain, some referential textbooks of comparative legal systems removed socialist law from their models altogether, with the additional practical purpose of sparing “the reader some sixty pages[.]”Footnote 73 Socialist law was buried with Soviet Union, however, well before it was dead. At the time in which socialist legal tradition was considered extinct and removed from books, over 1.5 billion people worldwide were still under communist rule.Footnote 74 It seems fair to agree with Mattei that almost thirty years ago comparative law celebrated what has been called “the end of history”Footnote 75 by removing a specific legal tradition from the bookshelf.
The very idea of progress is now put on trial by populist forcesFootnote 76 who feed on a “politics of resentment against a status quo created by incumbent governing elites” operating globally.Footnote 77 This anti-progress resentment is often translated into law and constitutional clauses that aim at resisting the force of progress through the lexicon of identity.
The populist wave is thus exploiting the broader revival of the concept of constitutional identity,Footnote 78 which a smattering of countries have deployed lately to mitigate or shield the enforcement of EU law at the domestic level.Footnote 79 Populists shape their identitarian narrativesFootnote 80 along a specific sociocultural agenda.Footnote 81 Their rallying cries emphasize the importance of tradition, ancestry, religion,Footnote 82 and ethnicity,Footnote 83 thereby challenging the very mindset of progress, which is forward-looking.Footnote 84
The conflict between populists and supporters of contemporary constitutionalism is of a theoretical nature. Populists challenge the very idea that the passing of time automatically translates into better laws for a better society, echoing Antonin Scalia’s remarks:
[S]ocieties don’t always mature. Sometimes they rot. What makes you think that… human progress is one upwardly inclined plane every day and every way we get better and better? It seems to me that the purpose of the [American] Bill of Rights was to prevent change, not to encourage it and have it written into a Constitution.Footnote 85
The rise of populist narratives celebrating tradition, the preservation of the past, identity, ethnicity, religion, and skepticism toward the future shows, among other things, that a significant number of Europeans do not accept the progress-oriented philosophy of history and of legal theory that has prevailed at the transnational level. Because this aspect of contemporary constitutionalism is not an unquestioned logic anymore, when pan-European courts adopt it, they can operate divisively.
I. The place that is left to the people
The two courts’ incremental, progressive understanding of history explains their overwhelming role in developing the law. The judiciary has this capacity with little or no help from democratic institutions.Footnote 86 The manifestations of popular will are left at the periphery of this process because legal progress consists of the enactment of values and principles that history brings to surface and that the courts expound autonomously.Footnote 87
One can reconsider now the Van Gend en Loos statement that “the nationals of the states brought together in the Community are called upon to cooperate in the functioning of this Community through the intermediary of the European Parliament.”Footnote 88 This affirmation did not place democracy at the heart of EU mechanisms but was necessary to lay down the foundations for the European Community’s legal development through the ECJ. Van Gend en Loos´ appeal to democracy had a foundational, rather than functional, role. It rooted the Economic Community’s law in the democratic process but actually left the process of legal development in the hands of the ECJ.
Similarly, the doctrine of living instrument places the development of the European Convention from the State members of the European Council and from their democratically elected institutions into the hands of the ECHR, as a brief comparison with the Canadian legal doctrine of the living tree will show. The ECHR’s living reading of the Convention resonates with the metaphorFootnote 89 of the Canadian Constitution as a living tree, which the UK Court of Appeal crafted in Edwards v. Canada (Attorney General) Footnote 90 in the 1930s to suggest that the British North America Act provided that country with a legal text that would ensure legal development. This metaphor has come to mean “the practice of interpreting bills of rights as organic documents, such that the meaning of the protected rights and freedoms evolves.”Footnote 91 One of the most contentious aspects of the metaphor in Canada, however, has been who should make the tree grow.Footnote 92 Understanding a constitution as a living tree does not mean, in itself, that courts should make the tree flourish. This task could be left to political majorities,Footnote 93 with courts only working in the margins of this developmental process. This was the view of Edwards itself,Footnote 94 according to the commentators for whom the ruling “did not invite judicial activism.”Footnote 95
Interestingly, more than 70 years after Edwards, while talking about the broadening meaning of the Convention through the interpretation of the ECHR, Lord Bingham of Cornhill made a comparison between the interpretation of the Convention and the “living tree” doctrine of Edwards that had sparked so much controversy and uncertainty about the role of the judiciary. He referred to the Canadian tree metaphor to warn that drawing legal implications from the Convention had to be “carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept.”Footnote 96 In other words, the metaphor of living instrument, and the usage that the ECHR had made of it, ran the risk of overstretching its powers to interpret the Convention.
In a few words, the idea that transnational and supranational institutions are grounded in democracy and respect the will of the people is not fictional—but, neither is it operational. The democratic character of such legal systems arises from their foundations, rather than in how they pursue legal development.
The sub-primary role of democratically elected institutions in the day-to-day activity of developing the law within the EU and in the context of the European Convention provides some foundation for the anti-elitist, populist charges against the supranational European legal orders.Footnote 97
II. Deliberation v. justification
At least for a while, “[j]udicial review has been viewed as an important way of redressing some of the ‘democracy deficit’ within [the EU]….”Footnote 98 Judicial fora, however, do not make up a viable alternative to democracy. Courts can voice citizen interests and provide “individual redress against powerful and relatively unaccountable institutional forces,”Footnote 99 but their proceedings do not mirror those taking place within democratically elected bodies. The latter deliberate, whereas courts adjudicate.
As John Rawls put it, judges deal with controversies at a high level of sophistication. Their language and intellectual framework aim to provide their rulings with a justificationFootnote 100 and follow a very specific standard of rationality.Footnote 101 They enjoy the reputation of being “model reason-givers”Footnote 102 at a time in which reason enjoys an “immense prestige.”Footnote 103
How courts and parliaments rank each other in terms of rationality and primacy is a deeply contentious topic, which is reflected in the different levels of judicial deference to the discretionary choices of politically accountable bodies. On the one hand, the historical controversyFootnote 104 over proportionality scrutiny, which is a staple of transnational and supranational adjudication in Europe,Footnote 105 empowers judges to scrutinize the acts of public authorities in depth. On the other hand, the classic British Wednesbury Test,Footnote 106 which traditionally entrusts administrative bodies with a high level of discretion, encapsulates the tension between parliaments and courts.Footnote 107 The adoption of proportionality among pan-European Courts, and the British resistance to it, exemplify the clash between the supranational and transnational preference for the virtue of judicial justification against the British sensibility for political deliberation.Footnote 108
The prioritization of justification over deliberation seems to have also contaminated the doctrine of the “margin of appreciation.” The ECHR adopted this doctrine to acknowledge that States are better suited to answer their citizens’ needs and therefore should have ample leeway to shape their own policies within the limits of the Convention.Footnote 109 Although the margin of appreciation doctrine is able to carve out room for the States and their elected bodies, lately the ECHR has construed it differently. The ECHR has started using it to check whether the State has already scrutinized its own policies through the methods employed by the ECHR itself.Footnote 110 In other words, a State policy is presumptively sound if it has undergone a process of scrutiny at the domestic level that is analogous to what the ECHR adopts. This presumption seems to push the States to adopt doctrines such as proportionality at the domestic level in order to immunize themselves against the ECHR’s scrutiny, reinforcing the impression that doctrines springing from the transnational and supranational judiciary are effectively transforming the balance and exercise of powers at the State level.
The judicialization of controversies that the ECHR and the CJEU are promoting comes with a price. As Jeremy Waldron has noted, judges focus on texts, investigate their plausible interpretations, and wrestle with precedent.Footnote 111 Through extremely detailed and technical processes,Footnote 112 they transform the controversies they deal with into materials they can handle, thereby shrinking the complexities of issues before them.Footnote 113
The difference between parliamentary disagreement and judicial disagreement is striking if one considers the structure of judicial opinions. When judges pen separate opinions, they tend to share a common rationality. They are confronted with the same legal arguments, although they may disagree in how to evaluate them. On the contrary, parliament members may use disparate arguments, which are hardly commensurable; and yet they accept this type of extreme disagreement, as their electors do.Footnote 114 Parliaments are loci of “cacophonous disagreement,”Footnote 115 not just because their members disagree on the bills they vote for or against, but even on the arguments they make. When people deliberate, they operationalize the idea that there are things that should be organized together,Footnote 116 while simultaneously accepting that people can disagree on a substantial number of topics.Footnote 117
The distance between democratically elected bodies and the judiciary is further aggravated by the language factor.Footnote 118 The technicalities of the law as well as the sharpness and precision of legal concepts are features shared between legislation and case-law. But parliamentary deliberations can host narratives that are more easily accessible to the people, and with which individuals and groups can entertain a dialogue.Footnote 119 Courts sustain themselves with their skill in reasoned judgments, and cannot detach themselves from technicalities without running the risk of imprecision or triviality.
D. Democracy, equality, and recognition
Supranational and transnational litigation in Europe has changed over time, thereby also changing the institutional roles. This evolution seems to be particularly visible in the transformation of the value and contours of the principle of equality.
The early era of European supranational institutions was dominated by a limited understanding of equality, during which the ECHR and the ECJ were supposed to behave mainly as nonpartisan umpires and crisis-preventers. The institutions of the Council of Europe created a framework for the peaceful resolution of controversies that placed States of different strengths and sizes on an equal footing.Footnote 120 All Member States were subject to the Convention, and its Commission and the ECHR impartially administered justice and prevented crises. This type of equality, which the Council of Europe guarded closely, operated at the margins of the democratic life of the post-Second World War States.Footnote 121
At the outset, the ECJ decided cases in a scenario that was dominated by the concerns of continental peaceFootnote 122 and economic equilibrium. It aimed at creating a free market of goods and services through enforcing market equality among economic providers regardless of their national origin.Footnote 123
Towards the end of the twentieth century, the scenario seemed to simplify and confirm the equalizing approach. When the Iron Curtain dissolved, economic wealth and social development remained high in the European agenda. None other than the late Edward Shevardnadze, once the Minister of Foreign Affairs for the Soviet Union, affirmed that the end of the Eastern Block had pushed the world into a post-ideological dimension. Politics at its core consisted in the distribution of economic resources within the inescapable market system.Footnote 124 To put it like Fukuyama, history as we knew it—the one made of wars, ideological rifts, and theories of salvation—was over.Footnote 125
In a context in which the debates were mostly about how best to stimulate the economy and bring outliers into the market, democracy and the popular will may be considered as means to fixed, neutral ends. Here, courts—even pan-European ones—that review popular choices seem to ensure that the policies actually pursue foreordained goals.Footnote 126
How to distribute resources and create economic opportunities is, of course, highly contentious, but it is not necessarily a debate around fundamental values. Even more importantly, it is a topic that invites experts to the discussion more than average citizens. Many issues surrounding social rights, taxes, market economy, and public expenditure may be labeled with the language of “applied deliberations:” They belong to a “process of implementing public values as law.”Footnote 127 On such issues, “[m]ost citizens deliberate relatively little,”Footnote 128 as these policy aspects “tend to implicate legalistic arcana”Footnote 129 and are particularly suitable for an expert’s scrutiny.
The last twenty years of transnational and supranational litigation seem to have almost revolutionized the scenario in two ways. First, concrete controversies called into question the underlying assumption that a unified social market economy would inevitably bring about more prosperity and job opportunity for EU States and citizens. Second, new types of ideologically loaded controversies reached the two courts.
The pre-2008 crisis judgment that best exemplifies the progress-oriented jurisprudence and its optimistic assumption is probably the 2007 CJEU’s Viking judgment.Footnote 130 In Viking, the CJEU justified the limitation on a Finnish ferry crew’s collective action against the ferry-owner’s aim to reflag the ship in order to reduce salaries, thus making the activity more competitive.
The most telling lines are to be found in Advocate General Miguel Maduro’s opinion, which prioritized the right to establishment over the right to collective action under the assumption that this would be conducive to a wealthier Europe and more job opportunities:
Inevitably, the realisation of economic progress through intra-Community trade involves the risk for workers throughout the Community of having to undergo changes of working circumstances or even suffer the loss of their jobs…. [T]he European economic order is firmly anchored in a social contract: workers throughout Europe must accept the recurring negative consequences that are inherent to the common market’s creation of increasing prosperity, in exchange for which society must commit itself to the general improvement of their living and working conditions, and to the provision of economic support to those workers who, as a consequence of market forces, come into difficulties.Footnote 131
Maduro’s prioritization of economic rights over social rightsFootnote 132 clearly stemmed from the belief that free market and globalization would entail progress and increasing prosperity. In 2007, the CJEU probably thought that Viking was striking a fair balance between the right to collective action and the right to establish an economic undertaking. When the debt crisis hit the EU, Viking was put into question. In the span of a few years, Viking gained the reputation of being the CJEU’s equivalent of the early 1905 Lochner judgment,Footnote 133 which epitomized the U.S. Supreme Court’s laissez-faire jurisprudence.Footnote 134 Viking did not foresee that the “[g]lobalization of markets. .. generates losses and new economic insecurities for some occupational strata and sectors.”Footnote 135 It simply viewed a new economic and labor clash as a momentary economic struggle.
The types of issues now at the forefront push the concept of equality further than in previous decades.Footnote 136 The ECHR was probably the first to heed the call for a new understanding of equality. Thanks to its living instrument doctrine, the ECHR has demonstrated an “increasing sensitivity to issues of nondiscrimination,” using it as a prism to address “gender issues, reproductive rights, bioethical problems, the notion and role of the family, law and religion, [and] the protection of ethnic minorities in multicultural contexts” in a rather unprecedented way.Footnote 137
This new wave of intense judicialization of controversies under the prism of equality has sometimes proven to be counterproductive even at achieving a durable peace, which was one of the founding values of the Convention. In 2009, the ECHR struck a blow to the fragile peace in the Balkans. It had to adjudicate whether the rights of Dervo Sejdic and Jacob Finci—two citizens of Bosnia-Herzegovina—to stand for elections had been violated. As members of ethnic minorities—respectively, Jewish and Roma—they could not run for some key institutional posts because Bosnian constitutional provisions reserved those seats to the three biggest national communities—Croatians, Serbians, and Bosniaks. The ECHR found that both applicants had suffered from an inadmissible discrimination under the Convention.Footnote 138
What the ECHR found to be an episode of discrimination was cognizable in a very different light. The Bosnian constitutional system granted the country a fragile peace, precisely because it gave equal status to the three main contending parties that had waged war on each other up until that point.Footnote 139 As Christopher McCrudden and Brendan O’Leary have emphasized, the ECHR failed to consider equality under the prism of the Bosnian Constitution that pacified the region: Namely, it overlooked equality among groups, in order to protect equality among individuals.Footnote 140 The ECHR saw a difficult controversy in the light of individual rights, missing a key component of the issue, and thereby endangering the fate of the Bosnian peace agreements.
The CJEU’s docket has also attracted new, more politically-nuanced and controversial cases. Instead of aiming at securing a fair distribution of opportunities and resources, many controversies it deals with now revolve around the politics of recognition of individuals and groups.Footnote 141 Societies diverging deeply—both within themselves and as a whole in terms of lifestyle, values, and principles they want to live by—have reached out to the CJEU to solve their conflicts. Such issues cannot be the object of applied deliberations, around which ordinary people may lack information and competence. They must be subject to “[v]alue deliberation[s],”Footnote 142 because they revolve around “foundational interests, commitments, principles, ideologies, and worldviews.”Footnote 143 Within this new framework, equality is played to expand rights and increase rights holders, rather than to assess whether everyone has access to markets.
Just to name a field that was virtually empty of CJEU’s judgments, significant case-law on religious freedom has surfaced between 2017 and 2018, with more controversies on the way. Hot topics include the place of Islam in the public sphere,Footnote 144 the selection and treatment of employees on religious grounds,Footnote 145 state funding of religious schools,Footnote 146 religious databases,Footnote 147 and religious holidays.Footnote 148 Many such cases revolve around the EU prohibition of discrimination. As a result, the CJEU receives growing numbers of requests for rulings that involve extremely sensitive topics, which it must assess through the purportedly neutral lenses of nondiscrimination.
These cases also pose problems for the types of scrutiny the CJEU is familiar with, fueling the anti-EU and the anti-judiciary propaganda of populists. Cases involving multiple rights and interests have been routinely subject to the proportionality test. While many praise the test’s transparency and consistency, more critical voices consider it an overly technical instrument that dodges conflicts and flattens values in a way that looks digestible on its face, but actually obliterates the meaning and importance of the values involved.Footnote 149 With a growing docket of controversial cases, the populists’ allegationsFootnote 150 that the CJEU may simply avoid considering the legal challenges squarely, using multi-phase processes of scrutiny in order to de-politicize the issues it is confronted with, are likely to increase.Footnote 151
The mechanisms that normally trigger the two courts’ proceedings can exacerbate the populists’ charge that supranational and transnational litigation deprive national communities of their common identities and values. They work by isolating individuals from the collectivities to which they belong. Such opposition is particularly evident in the context of the ECHR’s pilot judgment.Footnote 152 After individual applications flooded its docket, the ECHR invented a procedure to investigate whether a domestic rule is intrinsically flawed to the extent that it can cause serial Conventional violations. For States that enjoy a democratic DNA, this process serves as a check on democratic deliberations or decisions made by democratically elected bodies for the sake of protecting individuals.Footnote 153 It pits individuals against collectivities and democratic institutions.
The CJEU’s preliminary ruling procedure has similar characteristics. The mechanism that has made the CJEU so famous and important for the development of legal integration of EU law with domestic lawFootnote 154 creates a similar tension between the individual and the collective. This is exemplified when an individual claims that her domestic law or practice conflicts with the freedom she enjoys under EU law. Joseph Weiler notes that:
The situation implicated in preliminary references always posits an individual vindicating a personal, private interest against the public good…. [T]he reality of the situation from a social perspective is that—for good legal reason—the principal artifact of the principle of the rule of law in the thin political space constituted by the Union places the individual at odds with his or her thicker national political space.Footnote 155
Weiler concludes that this mechanism “creates the most effective compliance pull,” but, at the same time, “contributes to the national social and political turn against the Union.”Footnote 156
Pitting the individual against the national community had a certain meaning when the issues at stake were overwhelmingly economic in nature or consisted of fine-tuning or smoothing out the domestic democratic process of some member State.Footnote 157 The more the ECHR and the CJEU are prone to engage in highly contentious issues over which State domestic opinions are deeply divided—such as civil rights, family law, or discriminatory practices—the more they are likely to be seen as endangering the social glue across member States.
The pilot judgment of the ECHR and the preliminary ruling procedure are not byproducts of the two courts’ legal doctrines, but their utilization within highly disputed issues raises the question of whether the EU and the Council of Europe can afford having a CJEU or a ECHR that operates undermining the connective tissues of the national communities that compose them.
E. The constitutionalization of supranational judicial trends
An additional factor that motivates the populist call for the re-statalization of EU policies is the process of constitutionalization of the two pan-European courts’ jurisprudence. When the CJEU and the ECHR spell out a certain reading of the EU law and of the ECHR, that reading attaches to the text itself, reaching a high level of stability and resilience that cannot be easily undone.Footnote 158 Through the doctrine of living instrument, the ECHR works by accumulating rights and building upon its jurisprudence, broadening the scope of its Convention. Similarly, as Dieter Grimm has noted,Footnote 159 the CJEU has glossed over EU law with its judgments. This process has not just deprived the political branch of its importance, but the CJEU’s case law has also frozen much of the EU’s legal framework.Footnote 160
This phenomenon is understandable in light of the two courts’ progressive reading of history, which sees a trajectory of improvement through time. Once judicially sanctioned, a right or an issue is removed from the political fore because the overarching theory of contemporary constitutionalism tends to consider the case law as unidirectional.
Some have maintained that the CJEU’s linear approach finds confirmation and encouragement in the fact that “there has been essentially not a single case in which an interpretation or a ruling of the [CJEU] has been explicitly overruled through the process of treaty revision, which allows the member states in their capacity as master of the treaties to amend the constitutional arrangement of the EU.”Footnote 161 Nevertheless, the mere fact that the States tend not to overrule the CJEU’s decisions does not say too much in itself about the appropriateness of a single CJEU judgment or whether the judicial development of EU law is always appropriate. States may decide not to overrule the CJEU’s case law for a series of reasons that have nothing to do with the quality of its judgments. Once the case law has become acquis communautaire, changing it would possibly disrupt the process of integration within the EU and unsettle issues that have already been resolved. Unsettling the existing acquis communautaire is particularly unlikely in the huge field of EU law that controls economic activities,Footnote 162 as predictability is a core value for markets. It was for this reason the English doctrine of stare decisis reached its peak in the nineteenth century’s eve of economic liberalism.Footnote 163 There is an even simpler explanation for the Treaty’s deference towards the CJEU’s established case law: Once the CJEU has spoken, a Treaty provision may alter it only with the agreement of all the Member States, which is difficult to achieve and a time-consuming exercise. In other words, the simple fact that the Member States hardly contradict the CJEU does not make its judicial philosophy more apt than any alternative.
The constitutionalization of EU law and the incorporation of the ECHR’s interpretation into its Convention have been able to push democratic debates in the relevant matters to the sidelines.Footnote 164 The CJEU and the ECHR’s case law do not ossify, because they adopt the idea of progress as their dominant judicial philosophy.Footnote 165 They do tend to deprioritize the role of democratic institutions and the manifestations of the will of the States to the periphery of their legal narratives.Footnote 166
F. Conclusion
This Article has analyzed the shift that occurs when transnational or supranational courts develop their legal systems according to a judicial philosophy that prizes justification over deliberation and progress over time-consistency in a political scenario of widening ideological rifts. These features of the contemporary trends in the CJEU and ECHR’s case law do not simply represent the logical consequence of the institutional mechanisms through which the EU and the Council of Europe operate. Rather, they stem from the judicial doctrines that the two courts adopt.
The judicialization of political choices does not simply shift where decisions are made; it also changes the lexicon of the public discourse. Judicialization translates cultural, ideological, and political issues into arguments that are based on precedents and laws.Footnote 167 By de-politicizing the language, “[d]ecisions of great political impact are taken in a non-political mode.”Footnote 168 If, with Robert Cover’s words, “[t]o inhabit a nomos is to know how to live in it,”Footnote 169 the nomos that pan-European legal systems produce, and which replaces national debates and rules, runs the risk of being incomprehensible to many of their inhabitants who are not versed in legalese and therefore may not feel comfortable with it.Footnote 170
The language barrier aggravates the distance between the judiciary and those who are affected by judicial decisions. At the ECHR even “the applicant party will often not be able to read the judgment because it is rendered in either French or English.”Footnote 171 The formulaic, dry, redundant, and highly technical prose of the CJEU keeps average readers distant, notwithstanding the wide ramifications of its case law.Footnote 172
The gap between the people and the courts creates a disconnect in the very meaning of justification. If justifications are often inaccessible even for those who are directly involved in the proceedings, then the judges, albeit model reason-givers, are nonresponsive—not just to the population, but, more narrowly, to the parties that seek to resolve their dispute. The two courts’ advantage in being composed of selected experts with highly sophisticated skills runs the risk of being useless if individuals feel disenfranchised by the overriding judgments of two courts that they hardly understand.
The disconnect between the courts and the Europeans, combined with the replacement of parliamentary deliberation with judicial justification and the ideal of progress, may trigger a sense of inferiority or superiority that can exacerbate social tensions.Footnote 173 Progress can be defined as a process of incremental awareness, prosperity, and a sense of justice, but if the courts are advantageously positioned to identify what constitutes progress in a given circumstance, then their decisions can unilaterally create ideological rankings that determine what is at the top or at the bottom of the scale of progress. In other words, the narrative of progress may not just disempower the popular will, but it can also harm social cohesion by prompting a sense of superiority or resentment, depending on whether one’s claim has been judicially affirmed or denied. It therefore comes with little or no surprise that “those parties that most successfully appeal to the interests and fears of the ‘losers’ of globalization” are the “driving force of the current transformation of the Western European party systems”Footnote 174 and of political scenarios.
The prevailing judicial doctrines of the ECHR and the CJEU have both configured into the Council of Europe and EU’s historical success, as well as their democratic deficiencies. This Article has argued that supranational European courts are partially responsible for the supranational malaise and the rise of populism in the Old Continent and that the courts can contribute to the recovery of supranational constitutional projects by amending their legal doctrines on the relationship between human rights, democracy, and progress. The default position would consist of abandoning an idea of progress that, as a self-fulfilling prophecy, invites legal development through judicial decisions at the expense of political deliberation, and even fierce disagreement.Footnote 175 A more sound understanding of the proper role of the judiciary should revitalize the public discourse by making room for deliberations, inviting pluralism, and including the narratives of dissonant voices that disagree with the prevailing narratives of progress and equality as nondiscrimination.Footnote 176
A change in the judicial doctrines of the CJEU and of the ECHR should include a clearer distinction between the scope of the judiciary and the place of domestic and supranational political bodies. More precisely, it seems necessary that the ECHR and the CJEU reconsider the role of the judiciary in securing legal development and progress without disempowering the democratic process, as well as become sensitive to the types of interests involved in each litigation. Economic, social, identitarian, political, and religious conflicts have different ramifications and can hardly be treated with the same legal doctrine.
Such changes cannot be achieved simply through re-engineering supranational institutions. Actually, any re-engineering would hardly be as effective as self-reformation in the judicial style carried out by the courts themselves. In a few words, the CJEU and the ECHR are still the main drivers of the supranational constitutional project, and they can bring it back on track, probably even more effectively and easily than democratically elected institutions could do.
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