Coordinators: Jernej Letnar Černič (Graduate School of Government and European Studies), Matej Avbelj (Graduate School of Government and European Studies)
Description of the meeting
For some time now the European societies have been marked by extreme movements from all ideological poles who directly assault the values of democracy and the rule of law. Liberal democracies are therefore faced with challenges of how to respond to the rise of radical movements from different parts of the philosophical poles. Are European states justified to prohibit the exercise of freedom of assembly and of association, expression and religion, all with the aim of protecting the democratic and liberal order, or would be such measures disproportionate and excessive? Some argue that measures of militant democracy, as they have been known, themselves undermine the rule of law and democracy as they directly interfere with the values of pluralism, human dignity, freedom and equality. On the other hand, others argue that it is indispensable to counter the populist movements with constitutional individual actions arising from civilizational heritage of European liberal democracies. The concept of rule of law includes how a society proceeds and functions on the basis and through law. Genuine respect for rule of law is one of the key prerequisites for the functioning of a free and democratic society, as it enables and secures the exchange of different opinions, attitudes and views. Its normative protections are reflected in the provision on civil-political and socio-economic rights. The European Convention on the Protection of Human Rights and Fundamental Freedoms only specifically refers to the rule of law in the preamble, where it notes that ‘as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’.
The topic first of all addresses hard conceptual issues. The central concepts of the workshop: the rule of law, populism and militant democracy tend to figure as essentially contested concepts. To avoid speaking past each other the workshop will strive toward an incompletely theorized agreement about the shared meaning of these concept. Having passed this theoretical conceptual threshold, the concepts will applied and studied in several case-studies in national and supranational contexts. So far the questions of the rule of law, illiberal movements etc. have been addressed predominantly, if not exclusively, within the context of the nation state, either unitary or federal. The EU is neither. As a specific constitutional structure of a post-statist union it posses specific epistemic, explanatory and normative challenges of addressing and responding to the conflicts between the rule of law, populism and militant democracy.
The specific challenges, different as has typically been the case, should be addressed just through the judicial lens, but also through the lens of a legislative branch, administrative authorities, and least but not last, the civil society. The prevailing formalist approach to the rule of law should be complemented by the sociological approach that has interestingly been lacking in the legal writings about the rule of law and democracy.
Against this background, the proposed workshop will first dissect the current state of the rule of law, populism and militant democracy in Europe and, second, demonstrate how the liberally democratic states, based on the rule of law, should respond to the contemporary threats to themselves without denying their own very values.
Our experience in Oñati
A group of legal scholars mostly from Europe, but from the United States and Australia too, met in the beautiful town of Oñati, on 12 and 13 April 2018, at the International Institute for the Sociology of Law, for a workshop on the global problem of populism as a threat to the rule of law and democracy in various countries. The coordinators of the group were Professors Jernej Letnar Černič and Matej Avbelj of the Graduate School of Government and European Studies engaged in a research project supported by the Slovene Research Agency on reforming the rule of law and the democratic state in Slovenia. In these two days we discussed European problems of the rule of law and democracy and touched upon developments in the region such as the Polish and Hungarian crisis, constitutional and many other types of emerging populisms, the refugee crisis, the issue of Brexit, re-examined the concept of the rule of law within the EU, and dealt with my other similar topics. From many different perspectives we reflected on the current situation of the rule of law in Europe, as well as dared predictions for a future to come. We had a privileged to discussed the matters in an ancient academic thought provoking, and spiritually inspiring environment of this old town. We are very thankful to the Institute for their hospitality and excellent organization.