An analysis of the phenomenon of the judicialization of politics is proposed, addressing its different meanings, the association of the phenomenon with the judicial process and with the quality of democracy. To advance the possibilities of empirical observation, a typology of expressions of judicialization of politics is proposed, which is later contrasted with paradigmatic cases from Latin America, where this phenomenon has acquired a particularly serious dimension.
The panoply of EU instruments to deal with actual or potential rule of law breaches in member states is really large. Yet, the EU has been unable to secure compliance. I argue that beyond factors associated with the institutional design for enforcing compliance, the EU relies on a premise that creates a compliance dilemma: being a “community of law”, why authorities that precisely challenge the authority of law would comply with it? I will also explore some of the implications of this dilemma and discuss some of the challenges that poses in terms of future EU constitutional development.
Social protest has been a common way for expressing demands in Latin America. The institutional weakness to respond to social needs through formal channels has made informal politics a more effective alternative to influence power. However, in recent years, states have, on the one hand, reinforced mechanisms to control dissent and, on the other, have left protesters unprotected. In a context characterized by the health and economic crisis caused by the pandemic, inequality and the lack of political hegemony at the regional level, it is urgent to ask about the quality of democracy and the guarantees of activists and social movements. This presentation seeks to answer this question and identify the causal factors that explain the criminalization of protest in Latin America.
Rule of law is the base in which citizen can assert all rights acquired by legal means against the executive branch. This leads to the institutionalization of contentious-administrative jurisdiction as a way to eliminate immunities from power or to the establishment of government formulas for the judiciary that today in Spain require reflection. The judicialization of the State finds the assumption of its possibility in the existence of general norms, and that the independence and power of the judge depend on the validity and existence of the Law as a general norm established in advance by the legislature. There would be no judicial rulings but political decisions, and the fact of transferring political disputes to the sphere of justice would entail a dangerous politicization of it. Tension between the specific legal-normative element of the Rule of Law and the political element of the State as a political unit is intuited.
The expression “Copenhagen dilemma” has become a commonplace among EU scholars. This dilemma refers to the following paradox. The EU imposes very strict conditions regarding respect for fundamental rights and the rule of law to candidate countries but, on the other hand, the Union has very few instruments at disposal to guarantee the same respect for fundamental rights and the rule of law once this candidate country has become a Member State. This idea can be clearly illustrated with the examples of the so called “illiberal” regimes in Hungary and Poland. It is true that the “political” instruments (article 7 Treaty on the European Union, Rule of Law Framework) have been (so far) quite ineffective. But it is also true that the role played by the CJEU in interpreting and applying Article 19 TEU to the Polish controversial judicial reform has opened new perspectives in the safeguard of the European Union Rule of Law.
Over the last year and a half the COVID19 has marked the political agenda worldwide. In the European case, but not only, this situation has led to a paradigmatic situation in which nation states have been forced, over the circumstances, to cut off temporarily some fundamental rights as well as govern decret-drive way. In established democracies this might be controlled through the check and balance game, but in lesser-established ones this may led to a most worst danger which is the so-called electoral authoritarianism or iliberal democracies depending of the authors selected. This paper will adress how european democracies have been affected by the pandemic situation as well as the risk linked to fundamental rights limitation and its potential irreversebility.