Enrico CARLONI

Full professor of administrative law at the University of Perugia, where he directs the Legality and Participation Research Centre

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”: the discourse on the fundamental characteristics, on the values of a democratic society, can start from here, from the statement contained in article 2 of the Treaty on European Union, and from the role that the guarantee of the rule of law plays within it.

The rule of law is one of the pillars supporting democratic states, and the European Union as well, which monitors compliance with it. Although the European construction still is excessively oriented towards market issues, the monetary system and the economy, there is a clear awareness of the fact that compliance with a set of ‘rules of the game’ is a fundamental prerequisite for all freedoms, including economic liberties. 

The arduous centuries-long construction, from the Age of Enlightenment, over the French Revolution, the achievements of the bourgeois revolutions of the 19th century, and, matured through the traumas of the first half of the 20th century, to the modern constitutions, is anything but a secondary aspect in the life of contemporary democracies. Although the EU member states have different national identities and traditions, the essential meaning of the rule of law is the same and can be defined based on a series of principles, among which the effective judicial protection by independent and impartial courts, with effective judicial review, including concerning respect for fundamental rights; legality, which implies a transparent, accountable, democratic and pluralistic legislative process; legal certainty; the prohibition of abuse of power; and the separation of powers.

The rule of law is thus an established but demanding value that qualifies democracy’s very meaning. Indeed, however much JD Vance’s speech in Munich tried to convince us otherwise, there is no democracy without the rule of law. 

The popular vote and the consent of citizens are inalienable components, but they do not exhaust the complexity of the construct we call the democratic rule of law. As the German Chancellor Olaf Scholz recalled in his response to the US vice-president, the glorious and tragic history of Europe is a reminder that without the protection of human rights, without the defence of pluralism, without full recognition of the dignity of every person, there can be no democracy. 

Given that democracy lives on commitments and doubts and less on certainties and absolute truths, it is nonetheless useful to reflect on the criticism coming from across the Atlantic because it is perhaps true that too many policies in the European Union have been developed with excessive doses of paternalism and elitism. But this is a different matter from what deserves to be focused on now: the attacks – from the inside and the outside of the EU – on the rule of law.

From the outside, as questioning the principles of democracy has reached stabilised democracies as the United States, which still sees itself as the supreme guarantor of democracy worldwide, while providing an image of it that is too simplistic and dangerous, because it is built solely around the freedom of individuals and their consent to a leader who expresses their will. From the inside, there are numerous cracks in the rule of law in the EU member states, in founding countries, as well as in those who joined more recently. These cracks need to be examined in detail.

The list of cracks is long, and keeps growing: increasingly recurrent attacks on the judiciary and independent powers, intolerance towards the freedom of the press, attempts at reform that go in the direction of concentrating more and more powers on the executive, the rejection of the logic of debate and mediation, the corruption of the public sphere, with the subjugation of state decisions to private interests: we are increasingly witnessing an erosion of the pillars of the rule of law, carried out using legal methods. This is a gradual but clear shift towards rejecting the values of pluralism and the role of neutral powers, which are all the more viewed with hostility when called upon to apply European law and thus assert the primacy of European rules over national political decisions. In April 2024, the European Parliament adopted a resolution complaining of ‘persistent, systematic and deliberate’ violations of the rule of law in Hungary. The Commission’s report on the Rule of Law in Europe of July of the same year points to widespread criticism in Slovakia, but the situation in Italy is also a cause for concern here.

The political attacks against the rule of law in Italy are multiple, and precisely the sum of them reveals a pattern in the chaos. The protection of independent and impartial judges is called into question by systematic attacks on the independence of the judiciary. These attacks are carried out through public statements by government representatives, but above all through attempts at reform. The ability of the judiciary to operate to protect people’s rights is often challenged when decisions conflict with the political will of the government: democratic legitimacy is brandished to challenge judicial decisions, without even checking whether the decision is correct or not.

The strategy of weakening independent powers also encompasses reforms of the judicial system promoted by Minister of Justice Carlo Nordio. The retouches to legislation are constant and all conceived to weaken the role of the judiciary, accused of operating as an opposition force, especially when it applies the law and imposes it over the executive power. In Italy, the legislative process is in the hands of the government. This has been the case for years. However, recently, the role of parliament has been increasingly emptied to the benefit of the executive. The role of lobbies remains unregulated, a shortcoming that is not new to Italy.

Legal certainty is often a mirage in a country with extraordinary regulatory complexity and in which, above all, the rule is the exception. Only in Italy, I believe, is there a system based on constant extensions to legislation and on constant changes to even fundamental laws (just think of the public contracts code, subject to constant tampering). A recent law substantially denies the prohibition of abuse of power. This law has made abuse of office no longer a crime: following these recent amendments to the Italian penal code, prevarication, clientelism and abuse of public power are no longer crimes. Abuse of power has been effectively legalised in Italy. 

Although the separation of powers has disappeared in the areas of legislative and executive powers, it remains, but it is weaker, in the relationship with the judiciary. There is a widespread disaffection of politics toward the rule of law, an infatuation that has long run through the right and the left towards the strong leader, and a diffuse criticism of neutral powers and the application of the law as a limit to executive power. We will now have to pay the price for these and other flaws. Care and maintenance have lacked when it would have been possible to apply them, and now the rule of law arrives fragile at the moment of its test. The rule of law is, therefore, weak and vulnerable in Italy, but even Europe does not effectively perform the role of control and monitoring that should be among its missions. 

The rule of law is weak not only in Italy: regaining awareness of its value, of the importance of the mechanisms that make it something other than a mere abstract principle, is decisive for Europe. The EU must find a renewed sense of purpose in values such as pluralist democracy, founded on the role of citizens within the framework of rights and guarantees, which is, precisely, the rule of law. If the rule of law is momentarily disregarded on the other side of the Atlantic, it is Europe’s specific task to take up the role of its standard-bearer with conviction. It is necessary to keep this precious flame burning, to carry it towards more favourable times, to give deep meaning to a European construction that must be more than the extraordinarily complex building of a large internal market.

Photo credits: Shutterstock.com/Oleg Senkov