A sudden crisis of constitutionalism has developed in many corners of the democratic world. While some observers confuse the latter with a crisis of democracy, the situation can be better characterized as a clash between “naked” democracy and constitutionalism. If democracy is conceived as linked to constitutionalism and the rule of law, this clash won’t exist, but it might be fruitful to distinguish between popular self-determination and mechanisms that constrain the will of the majority for the sake of fundamental rights.
In my presentation I’ll identify how has this crisis unfold in Latin America, mapping the ways in which constitutionalism and the rule of law have come under attack. I’ll then analyze the different strategies that liberal democrats have developed to confront this scenario focusing on domestic/international strategies of defending constitutionalism and the rule of law, arguing that international strategies are ineffective without the contribution of domestic ones.
One of the most tricky challenge posed by identity politics to modern liberal democracies stems from the fact that constitutional theories, such as multiculturalism or supranationalism, do no longer seem to be capable of fixing the conflicts that arise in our pluralistic societies. Social groups increasingly believe that their identities—whether national, religious, ethnic, gender, etc.—are not receiving adequate recognition in the public square. Whenever these requests for identity’s recognition cannot find places and tools whereby make their voice heard, they may lead to forms of populism and nationalism.
The present paper, after a theoretical focus on the identity issue, aims to investigate the origin of populisms/nationalisms within the EU and to address the following questions: how can constitutionalism, especially European constitutionalism, face the challenges involved in the nexus between identity politics and populism? How can identity be used to unify and not to divide?
Populism uses people’s common sentiments and desires to gain votes. In a world threatened by international terrorism, what desire is more common than demand for security? And what equation is easier than the one between foreigners and terrorists? Hence, populist governments are (dangerously oversimplifying and) identifying aliens with national security threats, conflating immigration measures and counter-terrorism law.
Italy is a major example of this trend. Recently, a law even allowed public authorities to strip naturalized Italian citizens of their nationality if they commit terrorist crimes. Thus, the identification between non-citizens and terrorists is exacerbated.
The analysis of these measures and, more generally, of the overlap between immigration and counter-terrorism will lead us to ask ourselves whether some basic categories of constitutional law – people, citizenship – are changing, turning the traditionally unifying nature of constitutionalism into a foreclosing one.
The current clash between the various forms of populisms, on one hand, and constitutionalism and the rule of law, on the other, can be correctly described as a crisis of liberal democracy or as a clash between people’s common sense and some sort of best knowledge, embedded in traditional frameworks and institutions (elites), as shown by the French gilets jaunes crisis. Using this consideration as a starting point, the paper will focus on the criminal law doctrine, with its theoretical system and highly analytical adjudication method. In the last decades, this traditional legal framework has been stressed due to two agents of punitive populism: legislators and judges. On the other hand, the victims’ new role (victims are trying to “regain” its role in the criminal conflict) is stressing the whole criminal doctrine, not just from the outside, but from the inside (by scholars). The result is a mix of reasonable and dangerous proposals and attitudes, whose assessment is becoming urgent.
One of the striking features in the recent populist turn in different parts of the world is that countries with very different political histories and constitutional arrangements became vulnerable to populism. The paper suggests that there are patterns of thinking which characterise populism, and that those patterns are present in all recent examples of populist political speech. It argues that the main victim of populist ways of thinking and populist political speech is representation, and, specifically in the context of the constitutional architecture of liberal states, parliaments. Governance through parliament implies recognition of complexity and limitations. Populist rhetoric, irrespective of its ideological content, denies both complexity and limitations, extolling the virtues of the people as immediate decision-makers through mass politics. The “people” is,thus, presented as an omnipotent political actor which is beyond the limits imposed by the established constitutional order