The Rule of the Courts

The algorithm that pronounces the words of the law

to an earlier conception of law. As we shall see, this could be defined as “the algorithm that pronounces the words of the law” 2 . The Constitutional State matured in Europe after the Second World War. The period from its establishment until the end of the 20th century can be considered the golden age of constitutionalism 3 . This historical period of barely half a century encompassed all the elements that make possible the control of power and the full guarantee (from a legal standpoint) of fundamental rights. However, this era is now gradually disintegrating, transforming, and regressing. Rather than a transition within constitutionalism such as the shift from the legal State to the Constitutional State, we are now witnessing a genuine rupture that is endangering the pillars of the Constitutional State, including the role of the courts in ensuring rights and guaranteeing the rule of law. The threats looming over democracy, rights, and judicial independence – the very foundations of constitutionalism – are a sign of a genuine revolution in the making, much like the French Revolution that ushered in the modern world. This is not a merely a transition such as that from the legal State to the constitutional State. This is a revolution driven by technological development, shaping a virtual world that serves the economic interests of large technology companies and politically, this manifests as the promotion of populism 4 , which is currently the primary threat to judicial independence and, consequently, to the rule of law and fundamental rights. To understand the scope of the transformations that we have experienced in the first quarter of the 21st century – transformations which continue to 2 Cf. F. Balaguer Callejón, “The algorithm replaces the process: from the rule of law to the rule of the algorithm”, in press (Routledge). 3 Cf. F. Balaguer Callejón, “El final de una época dorada. Una reflexión sobre la crisis económica y el declive del Derecho constitucional nacional”, in Estudos em Homenagem ao Professor Doutor José Joaquim Gomes Canotilho , Vol. II, Constituição e Estado: entre Teoria e Dogmática , Coimbra Editora, Coimbra, 2012, pp. 99-122. 4 Cf., F. Balaguer Callejón „Constitutional interpretation and populism in contemporary Spain“, in Gárdos-Orosz, F., & Szente, Z. (Eds.) Populist Challenges to Constitutional Interpretation in Europe and Beyond , Routledge, London and New York, 2021. Cf. also, F. Balaguer Callejòn, “Interpretación constitucional y populismo”, Revista de Derecho Constitucional Europeo , n. 33, Enero-Junio de 2020.

56