5 Key 2022 Books: Rule of Law

Oliver Garner

Martin Krygier, Adam Czarnota, and Wojciech Sadurski (eds), Anti-Constitutional Populism (Cambridge University Press, 2022).

Writing for RevDem in September 2022, Guiseppe Martinico concluded that this “crafted gem” of a volume is “the best in its field at reflecting the variety of positions existing in the current debate”. The book concerns itself with the relationships between populism and constitutionalism. Particular focus is placed upon “the impact of populism in power on constitutionalism” (p.495). Its 15 chapters are divided into five parts analysing “Populisms”, “Courts”, “Anti-Constitutionalism After Post-Communism”, “EU responses”, and “Concluding Reflections”. The last 2 years may have seen the high water-mark for populist authoritarianism, following electoral defeats for key “strong-men” such as Donald Trump in the U.S.A. and Jair Bolsonaro in Brazil, and the diminished reputation of Vladimir Putin following Russia’s invasion of Ukraine. If this trend continues, then Krygier, Czarnota, and Sadurski’s contribution to the field may come to be regarded as a key retrospective on the phenomenon of anti-constitutional populism in the years to come.

Guiseppe Martinico, Filtering Populist Claims to Fight Populism: The Italian Case in Comparative Perspective (Cambridge University Press, 2021)

Published in November 2021, and reviewed for RevDem by Julian Scholtes in April 2022, Martinico’s own contribution to the literature on constitutionalism and populism roots itself in the particular country case study of Italy. The election of a coalition government led by the far-right Fratelli d’Italia since the book’s publication may be regarded as bucking the trend of electoral defeat for those who challenge liberal democratic values such as the Rule of Law. The original contribution of the monograph, as outlined by Scholtes, is that “it provides us with an insight into a populist movement that first and foremost devotes its attention to reforming and reshaping the legislature – a political dimension of populism”. This stands in contrast to the predominant focus on the impacts of populism upon the judiciary in the pre-existing literature (an example of which is found in part 2 of Krygier, Czarnota, and Sadurski’s volume). The present parliamentary session in Italy under the far-right coalition may function as a litmus test for the argument advanced by Martinico that populists engage in both “mimesis” and “parasitism” in relation to their instrumental use of the language and methods of constitutionalism.

Signe Rehling Larsen, The Constitutional Theory of the Federation and the European Union (Oxford University Press, 2021)

The European Union has been in self-reflective mood in the last two years following the conclusion of the ‘Conference on the Future of Europe’ in the midst of the ongoing exogenous challenges of armed conflict returning to its doorstep, and the endogenous challenge of the values crisis in certain Member States. Signe Rehling Larsen’s contribution – published in February 2021 and discussed in a RevDem podcast in March 2022 –  to the debate on the nature of this supranational entity seeks to challenge the prevailing consensus that European integration is a historically unprecedented “sui generis” phenomenon.Instead, Larsen draws upon the rich historical vein of examples of “federations” – as distinct from the dominant political forms of the last centuries of  “states” and “empires” –  to argue that this is the appropriate model for conceptualising the Union. Her observations upon how the crises of the European Union can be regarded through this lens may provide important lessons for Europe as it stands once again on the precipice of reconstruction in 2023.

Paolo Sandro, The Making of Constitutional Democracy: From Creation to Application of Law (Bloomsbury, 2022).

Paolo Sandro’s monograph seeks to make a more abstract theoretical contribution to debates concerning the Rule of Law and other constitutional principles than the first two entries in this list. The crucial claim, as stated in a RevDem podcast interview in October 2022, is that “if one cannot distinguish between the activities of making the law and applying the law then the idea of democracy itself cannot exist”. Sandro engages in an impressive synthesis of literature from both the Anglo-American analytical legal theory traditional and continental European contributions to the object of study. His observations can be applied to a wide range of real-world phenomenon, as demonstrated by the wide-ranging topics of conversation in the podcast: from the quotidian business of speed-limits in Manchester, England to the highest matters of state with regard to the consequences of the death of Queen Elizabeth II for constitutional monarchy, and the legitimacy of the role of the Italian President in the appointment of Government ministers.

Adis Merdzanovic and Kalypso Nicolaidis, A Citizen’s Guide to the Rule of Law: Why We Need to Fight for the Most Precious Human Invention of All Time (ididem Press, 2021)

By contrast to the other four entries, the target audience of this book is specifically citizens – the end-users of the law and beneficiaries of the Rule of Law – rather than fellow academics. Nevertheless, the monograph still contributes to academic debates on the failure of conditionality for candidate Member States, and advances towards policy contributions through recommendations for how to strengthen the Rule of Law in Europe and beyond. The mission statement of informing engaged citizens on both current affairs developments affecting values such as the Rule of Law and democracy, and advocacy on why these principles matter for society, is one shared by RevDem, and one that we will continue to pursue in 2023.

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