Right-wing state | Opinion

Right-wing state | Opinion
Right-wing state | Opinion

The concept of the rule of law has always been a controversial reality, it has evolved throughout history and certain interpretations are currently reducing it to its coercive dimension. Being an achievement of democratic societies, hearing this expression in political combat foretells that something is going to be prohibited and that political creativity is going to be restricted within the framework of a legality understood in the most restrictive way. This semantic and narrative mutation is not exclusive to the so-called “illiberal democracies”; in a good part of those that do not deserve that name, disturbing phenomena are observed in this sense.

The current squabbles over the judiciary are part of a populist simplification of the idea of ​​the rule of law, a reinterpretation of the concept in terms of legality and public order that erodes its liberal dimension and has anti-democratic effects. The slogan “law and order”, the appeal to a heavy hand and severity, are part of a narrative that is thinking more about the police than the State, about the monopoly of legitimate violence than about popular sovereignty, about criminal law more than about social rights, about punishments more than about prevention.

At the heart of the liberal and democratic conception of the rule of law is not the State that orders or penalizes but the containment of state power, its limitations and the obligation to justify its decisions. But its current redefinition does not understand it as an instrument to protect us against powerful dominant interests but to legitimize the force of the State; it does not consist of weighing the correct measure of power as of ensuring that “all the weight” of power falls on the recipient of state action; the protection of minorities is not being considered but rather the protection of the majority from criminality; the rule of law is defended and the word rule seems to have more importance than law. This is the context that explains the fact that some members of the judiciary feel called to defend the State more than the law, the nation and not the people.

The reductionism of the rule of law also implies a shrinking of its authority, which is strong for some things (for example, those related to national identity) and not for others (such as intervention in the economy), which exaggerates some facts (very lightly classifies some claims or protests as sedition or terrorism), while resolving tax crimes through negotiation, which combines severity in domestic policy with laxity in relation to certain things that are done in the market.

An example of this regression is the way of understanding police and judicial action in relation to the exercise of the rights of demonstration and expression. The liberal rule of law was conceived as a framework to allow democratic contestation of authority and not to remove it from any questioning. Currently, on many occasions and in quite a few countries, crimes committed by the police are not examined from the liberal perspective of the rule of law but justified according to this security-based and reductive interpretation of guaranteeing public order. Let us think about the way in which the police have repressed some protests against the actions of the Netanyahu government in Gaza. The most banal way in which an illiberal mentality slips in is the fact that the refrain of trust in the security forces and bodies is heard many times more than the right of citizens to freely express their opinion. In this field, the review of the so-called gag law 2015 should be on the agenda for democratic regeneration.

Migration is the other major area in which this regressive turn has occurred, which begins on the discursive level by pointing out a crime (the actions of mafias), as if the fact that there are people who traffic in human beings reduced the whole issue to pursuing that crime and magically eliminated our duties towards those human beings. With this discursive strategy we deny them the protection of our rights. Those who seek asylum are not understood as possessors of rights, but as a risk for us. The risk of those who come in a boat seems much less than the one we would run if they arrived. It is not strange that the appeal to the rule of law, our rule of law, then serves to normalize certain racist discourses. The usual suspicion towards citizens with migrant origins shows that it is not so much a question of inappropriate behavior on the part of certain officials, but of something structural. At the European level, while Poland and Hungary are being pressured to respect certain values ​​of the rule of law, the European Union is ignoring these values ​​with its migration policies, which outsource migration control to countries where human rights are seriously violated.

A far from exemplary case of the extent to which the judiciary assumes functions that, at the very least, we should describe as illiberal, is the judicialisation of the Catalan conflict. Perhaps we are now suffering, in the form of resistance and even insubordination by some prosecutors, from having placed in the hands of the judges the resolution of a matter that required a political approach and that was handled in the key of a State of law that defends itself and not in the framework of a democracy that guarantees political pluralism, deliberates and negotiates. Certain powers of the State, in the judiciary and the police, have become militants who believe they have been left alone in the defence of the nation. Fortunately, in Europe a more liberal and guarantee-based conception of the law is maintained, as has been seen in the rejection of extradition or in opposing the classification of protests that took place at the height of the conflict as terrorist crimes. process

The fact that the Spanish Constitution describes the rule of law as “social and democratic” is not mere rhetoric. If we want to enforce it in all its dimensions, it is also necessary to combat those structural conditions that imply some form of domination, the elimination of which is also an objective of the laws. The concept of the rule of law demands the submission of the powerful to the law and, therefore, the protection of those who lack power. That is why it has been able to evolve from a mere defence of property to an instrument of democratisation and social progress. The current redefinition implies a reductionism that reverses this evolution. Instead of talking about entry permits for those seeking asylum, there is discussion about order at the borders; debates about police controls delegitimise criticism of the state apparatus; the causes of criminality are not addressed with political and social measures but exclusively with security criteria. This is fertile ground in which the extreme right moves freely. The best way to combat it is to reject its discursive framework and defend a “rule of law” that is also at the service of generating new rights, in the face of growing social pluralism or when addressing crises that were not foreseen in the legal system of the 19th century.

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