The Rule of Law: Battleground for Democracy
It has become commonplace to diagnose European politics with a populist disease, even as the meaning of populism is often left vague and contested. Evidence to this effect is drawn from the European left (eg Podemos, Syriza, and Labour under Corbyn), as well as the right (typically Fidesz, PiS, and the Lega Nord). The meta-narrative of the “populist moment,” however, can mask specific threats to democratic politics. Not all populists are anti-democratic.
EU Article 7 proceedings accusing Poland and Hungary of backsliding on democratic and rule of law commitments have been much publicized. The conservative PiS party’s reform of the Polish Supreme Court and Orban’s self-proclaimed pursuit of “illiberal democracy” are symptomatic of a wider realignment of European politics where democracy and the rule of law are increasingly under threat.
In a recent column in the Guardian, Cas Mudde identified three trends in European politics. First, center-right parties have been moving rightwards while center-left parties have been moving leftwards. Second, the party system has become more fragmented, with fewer big parties dominating parliaments and more middle-sized parties across the political spectrum. Third, voters have become more volatile, switching their political allegiance across the spectrum. To these three trends, however, a fourth should be added: parties formerly loyal to the rule of law are increasingly flaunting it.
The recent vote against Hungary in the European Parliament shows this change. While the measure passed by two thirds of voting MEPs, Orban’s supporters could be found not only in Euroskeptic and fringe parties. Many MEPs from traditionally center-right parties also voted against the measure or abstained. This can partly be explained by the fact that Orban’s Fidez party is itself a member of the EPP, the centre-right bloc in the EP, however maligned. But it is also a sign that the rule of law is taken less seriously by “centrists.”
The French right-wing Les Républicains are illustrative of this trend. Many of their MEPs were amongst those voting with Orban in the European Parliament. Last week, they boycotted a vote in support of the rule of law in the French Parliament. On the same day, former French President and former President of Les Républicains, Nicolas Sarkozy, lost an appeal challenging a decision to have him stand trial for illegal campaign financing—he supposedly spent over twice the legal limit in his 2012 reelection campaign. This is just the latest in a series of scandals surrounding Sarkozy and the Les Républicans party that illustrate not its move right-ward (though that is unmistakeable), but its increasing disregard for the rule of law.
Authoritarian tendencies in French politics are not new. Hard-left populist Jean-Luc Mélenchon recently raged “I am the Republic” (la république c’est moi) and “my person is sacred” (ma personne est sacrée) to police searching his party’s headquarters for evidence of fictitious jobs, before shoving the prosecutor against a wall (the far-right Rassemblement National applauded his outrage in Parliament). But it is unusual to see such widespread disregard for the rule of law from the supposedly center-right Gaullist Les Républicains. Indeed, some of their own MPs seem to agree with this sentiment, forming a new anti-populistic and pro-European party Agir. At the party’s launch a month ago, founding-member MEP Alain Lassamour explicitly rebuked Les Républicains leadership for their complicity in rule of law backsliding in Hungary.
What ties these examples together? Aren’t Sarkozy’s and Mélenchon’s legal troubles symptomatic of a longer-standing problem against corruption in French politics rather than any new trend against the rule of law? Well, yes and no. Old-style corruption, whereby politicians enrich themselves and their entourage by taking kickbacks or embezzling public funds have a proud history in French and European politics. But the examples above are not of this sort. Sarkozy is accused of massively breaching campaign-spending limits. Mélenchon (indeed, like Marine Le Pen) is accused of using generous funding for European Parliament assistants to employ people engaged primarily in national politics (the so called emplois fictifs). Instead of seeking personal enrichment, such types of corruption target rules in place to safeguard democratic competition.
Another key example of wavering commitment to democratic principles amongst former political moderates is Brexit. The spectacle of negotiations on Britain’s future relationship with the EU is taking most of the recent limelight. But the lasting story of Brexit is one of voter manipulation, surpassing campaign finance restrictions, and demonizing the judiciary. Crucially for the matter in question, the protagonists of this story are not only fringe politicians like Nigel Farage, but also hail from the largely Conservative-run group Vote Leave. Whatever one’s view on the legitimacy of referenda in general, the procedural legitimacy of the Brexit referendum is clearly heavily tainted.
The problem is not isolated to the formerly centrist European right. Many left-wing European parties and politicians also seem to have an increasingly dubious fidelity to the rule of law. Take three examples: in Romania the ruling Socialist Party, which sits with the S&D centre-left bloc in the European parliament, has been criticized by the Venice Commission for judicial reforms “likely to undermine” the independence of judges and prosecutors and is derided for not only for wide-spread corruption, but for passing laws to weaken anti-corruption rules against abuses of political office. Greece’s ruling Syriza recently appointed Michalis Kalogerou, a lawyer famous for attacking the judiciary, as justice minister, deepening fears of the political weaponization of the justice department. In Malta the Prime Minister and leader the Partit Laburista (also an S&D member), Joseph Muscat, has also been accused of weaponizing the judiciary and undermining judicial independence.
It is clear European politics is transforming. The party system is fragmenting, voters are volatile, and parties are shifting to try to accommodate voters’ changing priorities. While no longer the only game in town, the classic distinction between left and right-wing politics remains useful, at least to be able to characterize the polarization of some formerly center-left and center-right political parties and politicians. The notion of a “populist moment” is also useful to describe rising suspicion of political elites, especially those based in Brussels. But none of these changes need be worrying to democrats. Fragmentation of the political landscape, including the representation of more “radical” parties, increases voters’ democratic choice and sparks public debate. Some skepticism of elites is healthy for democratic politics—we cannot be complacent that those we put in power will not try to abuse their power. Democratic politics need not be consensualist. It is only when these elements are combined with a disregard for the rule of law that democrats should worry. That moment has come in Europe.