Democracies live by a fundamental promise: political power arises from free elections, but its exercise remains bound by law and the constitution. This balance between popular sovereignty and the rule of law long seemed a given in Western democracies. Today it is increasingly under pressure. Not because courts are expanding their powers, but because political actors are increasingly interpreting judicial decisions as attacks on the will of the people.
The debates around Marine Le Pen in France or Nigel Farage in the United Kingdom show how a dangerous narrative is taking hold: here the people, there the judges. Here democratic legitimacy, there allegedly political justice. This juxtaposition is highly explosive—precisely because it appears plausible at first glance.
The question is by no means new. The early theorists of liberal democracy already knew that majorities alone are no guarantee of freedom. Democracy does not consist solely in the majority deciding. It also consists in limiting power. Independent courts are therefore not an alternative to democracy, but one of its supporting pillars.
It is precisely this principle that is increasingly being called into question today.
The Popular Will as a Political Weapon
Populist movements understand democracy above all as the direct expression of majority will. Those who win elections or can point to a referendum often claim from that a nearly unrestricted mandate for political action. Institutions that set limits on this claim quickly appear to be obstacles.
Marine Le Pen has been using this argument for years. Criminal investigations into her party or into her personally she interprets not as an expression of rule-of-law oversight, but as an attempt by the political establishment to sideline an unwelcome opposition leader. Whether these allegations are justified often plays only a secondary role for their political effect. What matters is the narrative itself: it is not the judiciary that defends the law, but the system that defends itself against the will of the people.
A similar development occurred in the United Kingdom during Brexit. Nigel Farage himself was not the target of comparable court proceedings, but the confrontation with the British courts followed the same logic. When the Supreme Court ruled that Parliament had to be involved in activating the withdrawal process, parts of the Brexit movement understood this as sabotage of the referendum. Suddenly judges no longer appeared as neutral guardians of the constitution, but as opponents of a democratic mandate.
From this emerged a narrative now found in many Western democracies: those who slow down the popular will are declared political enemies.
The Rule of Law Is Not Concerned With Election Results
Courts, however, possess a different legitimacy than parliaments. They are not elected precisely because their task is to apply the law independently of electoral cycles and political majorities.
A constitutional state functions only because each state power is checked. Parliaments control governments. Governments are subject to parliamentary accountability. Courts, in turn, review whether laws and state action are compatible with the constitution and applicable law. This system of mutual limitation is not a vote of no confidence in the people, but a protective mechanism against the abuse of power.
Populist parties in particular often appeal to democratic legitimacy as soon as courts limit their political scope. They overlook that democratically elected majorities can also act unlawfully. History and the present provide numerous examples. Liberal democracy is distinguished precisely by the fact that it secures individual rights and rule-of-law procedures even against current majorities.
Those who therefore denounce judges wholesale as political actors ultimately call into question the core of the constitutional state.
The Judiciary Also Depends on Trust
That does not mean, however, that courts are above criticism. Judges make decisions with far-reaching political consequences. They therefore depend on public acceptance.
In many European countries it is not only trust in politics that is eroding, but trust in state institutions as a whole. Complex proceedings, lengthy trials, or hard-to-follow rulings foster the impression of a remote judiciary. Where transparency is lacking, mistrust and conspiracy narratives arise.
Added to this is the fact that judicial decisions in politically charged cases are inevitably interpreted along party lines. Even legally well-founded judgments thus come under pressure to be legitimized. The judiciary cannot entirely escape this tension.
Precisely for this reason restraint is required on both sides: judges must not see themselves as political actors. Politicians, in turn, should not reflexively discredit rule-of-law decisions as partisan attacks.
Europe’s Democracies Face a Test
The real challenge goes far beyond individual proceedings against prominent politicians. It concerns the self-understanding of liberal democracies.
If every judicial check is portrayed as an attack on the popular will, rule-of-law institutions will gradually lose their authority. If, conversely, courts give the impression of wanting to decide political conflicts themselves, they will lose their societal acceptance. Both developments endanger the same democratic basic consensus.
Europe is currently experiencing a phase of growing polarization. Parties at the political extremes are gaining support, traditional catch-all parties are losing their binding power, and social media accelerate the delegitimization of state institutions. In this climate every conflict between politics and the judiciary becomes a symbol of a larger systemic struggle.
The temptation to offer simple answers is great: either the people decide or the judges. In fact, the stability of liberal democracies rests precisely on the fact that no institution alone has the final word. Elections confer power. The law limits it. Together both make up the liberal constitutional state.
Those who abandon this balance in favor of an allegedly direct popular sovereignty risk in the long run precisely what they claim to defend: the democratic order itself.
Andreas M. Brucker