Rule of Law vs Majoritarian Democracy

Giuliano Amato, Benedetta Barbisan, Cesare Pinelli, Giuliano Amato, Benedetta Barbisan, Cesare Pinelli

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509936854
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

What is more paradoxically democratic than a people exercising their vote against the harbingers of the rule of law and democracy? What happens when the will of the people and the rule of law are at odds? Some commentators note that the presence of illiberal political movements in the public arena of many Western countries demonstrates that their democracy is so inclusive and alive that it comprehends and countenances even undemocratic forces and political agendas. But what if, on the contrary, these were the signs of the deconsolidation of democracy instead of its good health? What if democratically elected regimes were to ignore constitutional principles representing the rule of law and the limits of their power? With contributions from judges and scholars from different backgrounds and nationalities this book explores the framework in which this tension currently takes place in several Western countries by focusing on four key themes: - The Rule of Law: presenting a historical and theoretical reconstruction of the evolution of the Rule of Law;
- The People: dealing with a set of problems around the notion of 'people' and the forces claiming to represent their voice;
- Democracy and its enemies: tackling a variety of phenomena impacting on the traditional democratic balance of powers and institutional order;
- Elected and Non-Elected: focusing on the juxtaposition between judges (and, more generally, non-representative bodies) and the people's representation.

1

Introduction

GIULIANO AMATO*

This book deals with something the lovers of democracy generously hope would never happen. Indeed, years ago nobody expected it to happen. The adjective ‘majoritarian’ simply indicated one of the features of democracy, due to which, one way or another, the Government should rely on the will of the majority. However, such will being the fundamental pillar of any democratic form of government, we took it for granted that the rule of law was more than compatible with it. Respecting human rights and setting limits against the abusive use of power, first of all an independent judiciary, are the main implications of the rule of law. Are they not inherent to the notion of democracy itself, which is much more complex than respecting the will of the majority? In this sense any democracy should be both majoritarian and liberal. What has happened that has created tension between the rule of law and majoritarian democracy? Why is the will of the majority becoming intolerant towards the precepts of the rule of law?

It is not occurring everywhere in our western societies, nor has this unexpected trend had the same intensity in every country where it has gained ground. Only in two European states, namely Hungary and Poland, can we speak of majoritarian democracies in the new sense. In most other states there are political parties supporting majoritarian democracy as a prospect and frequently gaining a good share of the electorate by doing so. Here, liberal democracy is still in place, despite running a new and disturbing risk. In any case, a more or less profound intolerance of the rule of law has entered into our societies.

The most general explanation that is given goes to the economic and social consequences of globalisation in our western societies, accompanied by the ongoing technological revolution. The longstanding compromise between capitalism and liberal democracy, based on high employment and on the reasonable expectation of an increasingly equalitarian social structure, is over, because the circumstances that made it possible in the twentieth century are over. Now loss of jobs, reduction of income and paralysed economic and social ladders have entered the lives of the many, while the few are receiving an increasing share of the produced wealth. The many are dissatisfied with the pre-existing elites that have allowed globalisation to create such damages without defending them at all; those who live in Europe are also dissatisfied with the European Union, which they see as a transmission belt of globalisation; and several of them are ready to follow the leaders who preach closure against the world and closure against any newcomer who is perceived as a stealer of jobs and life opportunities. Whenever these feelings are shared by the majority, the impact upon the rule of law is inexorable. It is an undisputable fact that they lead both to a lesser respect for individual and minoritarian rights and to a distrustful wariness towards the institutions, not least of all the judiciary, whose task is to control and curb the power of the majority.

This is precisely what is occurring in Hungary, where majoritarian democracy is already a fait accompli. However, even though the economy has played a paramount role, the transformation is not due to the economic consequences of globalisation. The main reason has been the regime change, that has increasingly disappointed the citizens precisely for its economic and social impact. After communism, democracy was expected to bring not only more freedom, but also economic prosperity and material improvement. To the contrary, vis-à-vis a new class of ‘plutocrats’ (who have certainly enjoyed a remarkable material improvement) most of the others, mainly those with a low level of education, have been losing jobs and income. In this context, Prime Minister Viktor Orban, who was born a liberal, discovered and is now successfully practicing illiberal democracy.

On the assumption that liberal democracy, with all its protection of individual rights, promotes the selfish interests of the individuals, illiberal democracy proudly stands for the general interest of the nation, for the values mostly shared inside its community and for the protection of all those who live upon their work and accept the responsibility to work. Quite obviously this peculiar brand of democracy is not only illiberal, but also majoritarian and, as such, identifies the voice of the majority with the voice of the people, that no institution is entitled to contradict. Not surprisingly, in this new Hungary the traditional family prevails over other forms of family unions, minorities are not protected and immigrants are not allowed to enter. Nor is it surprising that institutional checks and balances are weakened to the advantage of governmental control.

Poland is arriving at a similar outcome, both in terms of values and in terms of institutional setting, for reasons that have nothing to do with the economy and therefore widen the horizon of the tensions between the rule of law and majoritarian democracy. In the Polish case, the electoral appeal and the power of the current majority are based on the defence of the traditional values of a society still embedded in its conservative Catholicism, against the assault of the tolerant principles, the expanded individual rights and the transgressive (but admitted) habits of our western societies. What has become ordinarily accepted in these societies throughout decades of civil and social developments sounds foreign and hostile to many members of a society that has not undergone a similar renovation. Furthermore – and most interestingly in relation to our purposes here – the rejection directly involves the case law of the two European Courts (the European Court of Justice and the European Court of Human Rights), that have codified the abandonment of traditional principles to the advantage of new and advanced individual rights. Therefore, in the Polish case the conflict transparently is between majoritarian democracy and what the supranational guardians of the rule of law have been defending (or introducing?) in our legal systems.

This last observation brings us to a further and disturbing reason to be considered in order to explain the conflict: may it also be that, beyond the economy and independently of it, the rule of law itself contributes to its own rejection? For sure the rule of law, by widening individual liberties far beyond their original range, has contributed to nurturing the reaction in the name of traditional values and also of national identities. Furthermore, when the grund norm becomes ‘nothing above the will of the people’, the main interpreters of the rule of law, the courts, fall under a well-known and widespread criticism: where does their legitimacy come from, as long as nobody has elected them? Even more so when European Courts are under fire: justice is generally administered in the name of the people (so several Constitutions assert). There is no demos in Europe. In the name of what people do these courts exercise their function?

The case of the UK is exemplary. Brexit has been promoted to the end of ‘taking back control’ and one of the main adversaries to be neutralised was the European Court of Justice with its binding decisions. Undoubtedly the case of Brexit is an extreme one. However, in the continent the attention paid to the defence of national identities vis-à-vis a rule of law coming from the supranational order has also been higher and higher. It is a fact that national courts, and first of all constitutional courts, have been visibly adapting their role. Throughout the previous decades they had become the national terminals of that supranational order, accepted as the source of hierarchically superior norms and decisions. Recently they have increasingly been instances of control of the judicial decisions adopted at that level, in the name of national identities and principles they have defined as fundamental and therefore untouchable. It has to be said that the German Bundesverfassungsgericht has always asserted the existence of this red line, despite its flexibility in assessing the enduring distance from it of individual European decisions. However, these days this position is much more widely supported, also on the basis of the explicit safeguard the Lisbon Treaty offers to national identities. Other courts, such as the Italian Constitutional Court, have expressed their readiness to erect national ‘counter-limits’ against European decisions contrary to their national fundamental principles. Outside the Union, in the wider Europe of the ECHR, the amended Russian Constitution, that already proclaims its ‘highest legal force’, will openly deny validity to international treaties and decisions that ‘contradict’ its clauses.

Must we conclude that the game between majoritarian democracy and the rule of law is over? At the moment, as far as Europe is concerned, it would be, to say the least, a hasty conclusion. First of all, the two Member States, Poland and Hungary, that have adapted their institutional frameworks to the demands of their newly formed majoritarian democracies, are still challenged by the institutions of the European Union. Some of their new arrangements, namely the reduction of judicial independence, are irrefutable violations of the Treaties. This is a still open controversy and it is not at all unlikely that ultimately the two majoritarian democracies will have to submit to the core of the rule of law. Secondly, the new attitude of our national courts vis-à-vis the European ones is not at all settled. The path of a reasonable balance between the demands of national identities and the demands of the rule of law seems to be where they will try to go from here. We will return to this later on, but surely they cannot ignore that their own authority would be heavily diminished and eventually cancelled, should they appear completely subjugated by the will of the people.

However, our future is not at all certain nor easily predictable. I would exclude the extreme prospect in which the rule of law is deprived of its historical and essential meaning while the rule by law (by whatever law the majority adopts) takes its place. Not only it is very unlikely in Europe, where the rule of law is a founding principle both of the Union and of the Council of Europe, but it is hard to foresee also in the wider world. The rule of law frequently happens to be more of an unaccomplished aim than a reality; furthermore, when entering into a variety of legal and cultural contexts ‘universal’ values necessarily multiply their own facets. Nonetheless, would anybody dare to openly challenge the Universal Declaration of Human Rights, whose clauses transparently enshrine single and eventually all the components of it?

We cannot expect an undisturbed continuation of a rule of law which, even though codified by many of our national legal systems, is an essential part of a supranational order whose commands enter into such systems by decisions of supranational courts. In times of surge of national communities defending and prioritising their demands and their overall identities, when these communities feel ignored or not sufficiently considered, the risk of rejection (or, to say the least, of not compliance) is very high. Are there remedies to avoid or at least to reduce this undesirable effect? The first one, not at all new, is the margin of appreciation that mostly the European Court of Human Rights always has recognised as regards its Member States in controversial matters, upon which our national communities have diverging views. Before asserting that same sex couples are entitled to have their union registered, the Court has waited until a wide (even if not unanimous) consensus existed in the Member States.

Let us be clear: the judicial use of the margin of appreciation is not a form of political opportunism. On the contrary, it directly goes to the fundamental issue raised by the rule of law as interpreted and enforced by supranational courts. We all agree that there cannot be democracy without the rule of law. Can there be rule of law without democracy? Where does its legitimacy (and the legitimacy of the corresponding courts) come from in a supranational order in which there is no demos and therefore no democracy? The only possible answer is that it comes from the demoi whose representatives have stipulated the Treaties and the Charters where the rule of law is embodied and have consequently accepted the jurisdiction of the respective courts. That being so, let us assume that one of these courts is deciding upon a controversial issue in relation to which only one individual state still dissents from the wide majority of the others. The (not sufficiently explored) issue is whether the Court could ignore the margin of appreciation, just because it would go to the benefit of only that state. It is a fact that in our domestic arenas we expect our own national courts to defer to the appreciation of their respective parliaments, whenever they have to decide on delicate matters where conflicting values play a paramount role. In such cases, the necessary balancing is for the representatives of the people, not for the judges. National judges are not entitled to supersede that balancing act unless it is manifestly unreasonable. Nor are they entitled to step in, while enduring divisions prevent a parliamentary decision on the matter, unless some right or principle protected by the Constitution is patently violated, due to this lack of action.

Is a supranational court entitled to infringe these boundaries to the detriment of no more than one of the national communities under its jurisdiction, just because all of the others agree with its solution? As long as its jurisdiction is conferred and accepted by each and all of the Member States and by all the corresponding demoi, one might argue that there is no reason for one of them to be differently treated in a context where majority voting does not apply. Nor is it an answer that in the US the Supreme Court decided in 2015 (in Obergefell v Hodges¹) that same sex couples had the right not only to be registered, but to get formally married like any other couple, despite several Member States being still contrary to such an extended equal treatment. However controversial such a decision might have been in the US, the fact of the matter is that there is a federation there, there is a federal demos, and there is a federal Constitution that is supreme.

The underpinnings upon which our European Courts are installed are quite different. Their work aimed at the harmonisation of our national legal systems upon the basis of common principles is highly deserving. Furthermore – and here I refer to the Court of Justice of the European Union – the Europeanisation of our common constitutional traditions has greatly contributed to creating a precious cross-fertilisation among the cultural identities of the Member States. Facing the current conflicts, it can also nurture a further step that has actually been suggested. Namely, in cases where constitutional identities are at stake, courts could turn to article 2 of the Treaty (where the ‘values common to the Member States’ are enshrined) instead of relying on article 4 (where the features of national identities that ‘the Union shall respect’ are listed). Should the European Court of Justice pave the way and some, leading constitutional courts proceed in the same direction (as a few of them – such as the Italian one – have already done), the temperature of the identity-based conflicts would hopefully be lowered. However, the fact remains that legitimacy both of the European Court of Human Rights and of the European Court of Justice comes from all the under signatories of the Treaties that provide for their jurisdiction. The principle of conferral, conferral by the Member States, is still the basic norm of our European treaties and organisations.

The sensitive question on the margin of appreciation vis-à-vis the dissent of only one Member State may also remain open to further discussion. In any case, in the described context an appropriate (and not approximate) recognition not only of the common features, but also, when needed, of the specificities of national identities is more than recommended. With a proviso, that has to be clear: there are unsurmountable limits to such flexibility. When the rule of law is at stake, there are boundaries that cannot be crossed. Recognising a national margin of appreciation makes sense when confronting not unanimous views on the family, on parenthood, on giving life or giving death to others and on similarly moral issues. It is not the same when the representatives of the people, in order to make their decisions immune to any independent control, manipulate the judiciary and/or submit constitutional courts themselves to the will of the Executive. Or, even worse, when the Executive, seizing upon the opportunity offered by an emergency, receives from its majority powers manifestly disproportionate to the needs of the emergency. Here no margin of appreciation is admissible. Here the rule of law is bluntly violated and any court, national or supranational as it might be, is under the obligation to declare it; whatever the consequence.

An adequate balance between uniformity and the recognition of diversities will prove essential, not only to preserve the rule of law and its principles vis-à-vis the demands stemming from majoritarian democracy, but also to lower national hostilities against the outside world and first of all of the European Union. This lesson is being learnt by the European institutions in a time when much of the discredit and of the hostility against them has been due to the excess of uniformity of their regulations and directives. United in our diversities, which is not only the motto, but the founding principle of the Union, this would have required a much less simplistic pathway: namely, on the one side a wider use of mutual recognition (according to which national regulations remain also in the integrated market, as long as all of them comply with some common principles); on the other side not only directives, but also regulations that, whenever possible, the states are allowed to adapt to their specific contexts.

Of course, we must be aware that the suggestions advanced here typically correspond to the requirements of the damage reduction theory: nothing less, but also nothing more. More can be accomplished only by removing the roots upon which in most of our countries the appeal of majoritarian democracy relies in order to gain ground. Is it an attainable aim? Perhaps it is, but the arena is the widest of all, namely the globalised economy that has been the main reason for the widespread anxieties and dissatisfactions to which we owe the new brand of majoritarian democracy. This crucial role of the economy has been the starting point of our reflections here. It should not be surprising that, in concluding, we are back to such a role.

Among the scholars who study the economy, nobody thinks the developments ahead of us will ever restore the conditions that allowed our western societies in the past century to have high employment, increasing incomes, social mobility and bright prospects for the future Does this mean that low salaries, uncertain jobs...