The Rule of the Courts

The algorithm that pronounces the words of the law

European institutions. Although the European Union was not initially demo cratic and is still not comparable to the democratic systems of its member states, supranational integration has the capacity to establish a new level of separation of powers. This allows for the control of internal power within states and is already happening, for example, through the rule of law mech anism, in the annual Rule of Law Reports 39 . The European dimension is essential for controlling potentially unlimited State power in the event of populist governments coming to power that do not submit to constitutional limits. We are right to say that this antibody has not yielded the desired result in Hungary (it has in Poland, largely because there was a change of government there). However, we should also consider what would have become of Hungary if it were not in the European Union, how much greater democratic backsliding it would have suffered, and how much further rights would have been undermined by a populist system lacking the counterbalance of the European Union. Therefore, that function is being developed here, albeit in a deficient manner. The third antibody, which is the most important from a constitutional perspective, is the jurisdiction. Whether ordinary or constitutional, the juris diction is responsible for guaranteeing the rule of law and the rights enshrined in the constitution. Where the judiciary has not already been controlled by populist governments, it is the key factor in active resistance against populism. Populist movements also target the judiciary when they do not control it, generating constant tension with the courts. We have also witnessed a significant evolution in the role of the courts, shifting from the Legal to the Constitutional State. In the Legal State, the guarantee of the legal system resided in the parliamentary law itself; now, however, it largely depends on 39 Although that mechanism has both advantages and disadvantages from a constitutional point of view. Cf. F. Balaguer Callejón, “Democracia y Estado de Derecho en Europa”, La cittadinanza europea , n. 2, 2020. Cf. also F. Balaguer Callejón, “Lo Stato di diritto in Spagna. una declinazione assente nell’Unione Europea” in T.E. Frosini (a cura di), Rule of law come costituzionalismo , Il Mulino, Bologna, 2023; F. Balaguer Callejón, “Democracy and rule of law in the European Union”, in F. Balaguer Callejón and M. Azpitarte Sánchez, (ed.) Democracy and rule of law in the European Union , Revista de Derecho Constitucional Europeo , número especial 1, 2024 and F. Balaguer Callejón, “Democrazia e Stato di diritto nell’Unione europea”, Rassegna di diritto pubblico europeo , 1/2025.

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