The Rule of the Courts

The algorithm that pronounces the words of the law

This new conception of law will transform the role of judges within the legal system. When courts were limited to mechanically pronouncing the words of the law, the question of their legitimacy did not arise, as it derived from the law itself. However, now that judges must articulate pluralism and resolve the conflicts of a pluralistic society, it will be them that are in the foreground. They will have to earn legitimacy through their capacity for argumentation and persuasion. The legitimacy of the judiciary will now depend not only on the law, but also on its ability to reach social consensus based on the authority of its decisions – an authority that essentially depends on the reasoning behind those decisions 36 . In recent years, populist movements have challenged the authority of judges and courts, including those with constitutional jurisdiction. These movements seek to reinstate majority rule, a defining feature of the Legal State, by disrupting the spatial and temporal coordinates of the constitution and attempting to distort its normative content. They do this by challenging the dividing line between constituent power and constituted powers (which must succeed one another in time) and between sovereign power and limited powers (which cannot coexist in the same space), a line which is inherent to the very essence of a normative constitution 37 . In their ambition to seize power, populist movements distort the concept of popular sovereignty to manipulate the constitutional order and thereby undermine the constitutional system of powers and the constitutional frame 35 P. Häberle, „Die offene Gesellschaft der Verfassungsinterpreten“ (1975), in the compilation by the same author, Die Verfassung des Pluralismus , Athenäum, Königstein/Ts., 1980. Cf. also P. Häberle, “Methoden und Prinzipien der Verfassungsinterpretation ein Problemkatalog”, Spanish version by F. Balaguer Callejón, “Métodos y principios de interpretación constitucional. Un catálogo de problemas”, Revista de Derecho Constitucional Europeo , n. 13, enero-junio de 2010, pp. 379-411. 36 Cf. F. Balaguer Callejón, presentation of the book by G. Pupe, Jurisdição constitucional líquida e consequencialismo democrático , in press (Brasil). 37 Cf., F. Balaguer Callejón, „Constitutional interpretation and populism in contemporary Spain“ cit. and F. Balaguer Callejòn, “Interpretación constitucional y populismo”, cit. 4. The challenge of populism to the courts

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