The Rule of the Courts

Francisco Balaguer Callejón

work. By breaking the connection between democracy and the rule of law as defined in the Constitutional State, they concentrate their efforts on weakening constitutional guarantees, especially those relating to jurisdiction, to advocate for a democracy that ignores the rule of law – a concept of democracy that cannot be maintained within a Constitutional State. The extent of the civilisational regression represented by populism is evident in its attempt to weaken all the antibodies that had been generated against fascism since the end of World War II. These antibodies are essentially three: globalisation, supranational integration, and the jurisdictional guarantees of the constitution. They are so important that when we want to determine whether a movement is populist or not, it suffices to see if it attempts to weaken these antibodies: if it opposes globalization, supranational inte gration, and constitutional guarantees, there is no doubt that it is a populist movement. The first of the antibodies mentioned, however paradoxical it may seem, is globalisation, because it weakens the power of the State and thus makes it more difficult for the State to exercise totalitarian power over its citizens. In other words, it hinders the transformation of democratic systems into totalitarian ones – a process that occurred in strong nation States such as those in Europe in interwar period. This antibody is not as effective as it once was because the nature of globalisation is changing and becoming fragmented 38 . Furthermore, in the face of these antibodies, 21st-century populism (a successor to 20th-century fascism) acts like a mutant virus requiring the development of new techniques to generate antibodies. But, for the moment, the antibody exists, albeit to a lesser extent due to the frag mentation of globalisation. Indeed, the system of interrelations and depen dencies generated by globalisation means that States have less power and can exercise less power internally over their citizens. Populist movements do this too, but without reaching totalitarianism. The second antibody is essentially European: European integration. As Friedrich Germelmann just explained at this Congress, supranational integration makes it possible to control power within member states through

69

38 V. supra , footnote 11.