The Rule of the Courts

Francisco Balaguer Callejón

the judiciary’s capacity to protect the constitution, even against parliamentary law, when the will of the majority contradicts the constitution. The courts’ function of guaranteeing the rule of law makes them a target of special attention from populist movements. Populist movements want as much power as possible and, to achieve this, they try to change the rules of the game by challenging the institutions responsible for preserving them, such as the courts. To concentrate power, they appeal to pre-constitutional concepts and attempt to undermine the foundations of the constitutional order without abolishing the constitution itself. Ultimately, they use the constitution to distort it, employing different strategies to fascist movements because they do not seek direct confrontation with the democratic and consti tutional system, but rather attempt to empty of its meaning. To understand the challenge that populism poses to democracy, we can start by looking at a speech delivered by Norberto Bobbio on 2 June 1976, the thirtieth anniversary of the proclamation of the Italian Republic. This previously unpublished speech was released posthumously in 2021 in the newspaper La Repubblica. In the text, titled “Now and Always Antifascists” 40 , Bobbio asserts that there is a fundamental distinction between democratic and totalitarian systems. A democratic system enables errors to be corrected through democratic processes without altering the system itself – something that is impossible in a dictatorship. This can be observed in any democracy: if the mistake is made of electing a leader who mismanages the country, that error can be corrected in the next election. In contrast, totalitarian regimes do not allow for the correction of errors and must therefore be overthrown. In my opinion, what characterises populism is that it occupies a border zone between democracy and dictatorship, enabling it to exploit the advantages offered by both regimes for its own purposes. It uses the democratic system, emptying it of substance, to perpetuate in power, but doesn’t establish a dictatorship capable of generating strong opposition to overthrow it 41 . This

40 N. Bobbio, “Ora e sempre antifascisti”, 1976, partially published in La Repubblica , 1/6/2021. 41 Cf. F. Balaguer Callejón, “Europa como sociedad abierta en el contexto global”, in M. D’Amico, B. Liberali, A. Pérez Miras, E.C. Raffiotta, S. Romboli y G.M. Teruel Lozano

71