The Rule of Law

In a context of economic crisis, political polarization and increasing institutional conflict, a far-right populist won the 2018 presidential election in Brazil. His victory is not a local incident. New populists and autocrats are arising around the world and follow a well-known script. To which extent the Brazilian case relates to this pattern, and how big of a threat is Bolsonaro to democracy? To address those questions, this paper investigated the President‘s performance in congress, as well as the way he employed executive decrees and other discretionary powers, during the first two years of his presidential mandate (2019-2020). Our findings show that Bolsonaro‘s method doesn‘t fit to Scheppele‘s concept of autocratic legalism, nor to Landau‘s abusive constitutionalism. His method, which we called “authoritarian infra-legalism“, applies a unique set of infra-legal tools to bypass the Legislature, weakening agencies that should take him to account and directly attacking rights.

This paper pays attention to a particular version of contemporary threats to the rule of law: the routinization of emergency powers. Although the global response to the pandemic since 2020 certainly epitomized the sudden infatuation with states of emergency (SOE), they have a longer history of becoming a “new model“ of government (Ferejohn & Pasquino, 2004). As it draws empirical lessons from the recent experiences of the SOE in France, this paper critically analyzes the unprecedented permanence of SOEs in contemporary paradigms of government. It argues that the theoretical frame of states of exception fails to provide with a relevant lens for analyzing contemporary SOEs, for rather than derogate to or suspend the legal order, contemporary SOEs are intensely juridical and indeed claim their full compatibility with rule of law standards. But as they borrow the forms and language of the rule of law, contemporary SOEs threaten to subvert the model‘s meaning and sense from the inside.

The objective of my paper is to reflect on the legalism of the projects of European integration through the EU and the ECHR in light of its rule of law crisis. I understand legalism as the belief that political conflicts can and ought to be resolved in accordance with legal rules and institutions. The paper makes a descriptive contribution: it sheds light on what the crisis tells us about the beliefs and attitudes of the actors involved in the crisis. It focuses both on the actions of Polish and Hungarian institutions and on the reactions of European institutions, from the ECtHR and CJEU to the Venice Commission, and what they can tell us about their attitudes and beliefs toward the law. The second part of the paper aims to take stock of the project of legalist governance in Europe. Is legalism capable of resisting democratic backsliding in Europe or does the crisis signal the exhaustion of legalism? And what does the rule of law crisis teach us about the state of legalism in Europe?

Until March 2020, Republic of North Macedonia had no experience with the implementation of the constitutional provisions regulating the issue about state of emergency. The spread of the covid-19 virus has imposed the need for a state of emergency. The overall procedure regarding the issue for declaring a state of emergency was realized in accordance with the constitutional provisions. At that moment there was no law (Act) that would regulate this matter in detail. In the multitude of problems, dilemmas and different views that the country faced in this period, there were also questions related to the Decrees with the force of law. One of the dilemmas the constitutional system faced, was the legal effect of this acts and their legal nature. Unfortunately, the decisions of the Constitutional Court did not help much in their resolution.

The paper traces the evolution of the constitutional thinking about EU law within supranational institutions and scholarship. The context of the inquiry is the recent crisis of independent institutions in the Member States. In this regard, the paper diagnoses the abdication of thinking (through concepts, reasoning and discourse) in terms of a pluralist constitutional order. This is in favour of thinking in terms of ‘emergency pragmatism‘. The latter focuses on facing the current challenges to the rule of law through the enforcement of values and crisis-solving strategies. The paper argues that ‘emergency pragmatism‘, promoting the licensed plurality rather than pluralism, is likely to affect the shape of EU law beyond the context of the rule of law crisis.