Liberal Democracy

The Second Klaus Kinkel-Lecture in Karlsruhe

In today's world, liberal democracies grapple with enormous challenges of populism and the rise of illiberal regimes. Recent events across Europe and beyond have shown systematic efforts to undermine the rule of law, erode checks and balances, and stifle judicial independence and freedom of speech.

To address these critical issues, on 6 October 2023, the Friedrich Naumann Foundation for Freedom, with the support of the Association of Liberal Jurists, organized the second biennial Klaus Kinkel-Lecture in Karlsruhe.

In opening remarks, Michael Theurer, Parliamentary State Secretary to the Federal Minister of Digital Affairs and Transport and Chairman of the Free Democratic Party (FDP) in Baden-Württemberg, emphasized that Russia's aggressive invasion of Ukraine is not only a violation of Ukraine's sovereignty, but also a direct attack on liberal democracy within the European Union.

This year’s event featured a distinguished guest speaker, Judge Siniša Rodin, Judge at the European Court of Justice, who delivered an enlightening lecture. This was followed by a lively panel discussion with Ms. Sabine Leutheusser-Schnarrenberger, Deputy of the Board of Directors at the Friedrich Naumann Foundation and Germany's former Minister of Justice. Together, they shed light on the preservation of the essence of liberal democracy in the face of evolving political dynamics and the imperative measures required to protect democratic principles on an international scale. At the outset of the lecture, Michael Theuerer, Secretary of State and Head of the Liberal Democratic Party (FDP) in Baden-Württemberg, emphasized that Russia's aggressive invasion of Ukraine is not merely an assault on Ukraine's sovereignty but a direct attack on liberal democracy within the European Union. Central to the lecture and subsequent discussion were the following issues. 

Identity Politics and Attacks on Liberal Democracies

At the core of liberal philosophy is the pursuit of a good life without infringing on the lives of others. These principles extend into political and constitutional fabrics, characterized by government constrained by the rule of law, a separation of powers, freedom of speech, and the protection of individual rights. Indeed, these principles of liberal democracies are under assault, primarily from the right. They use misinformation among other to manipulate people and erode democratic values.

Populists often exploit identity politics, which can erode the constitutional foundations of liberal democracies. Liberal democracies are fundamentally centered on individual rights; and when individuals identify too closely with certain groups and seek to place their rights above the rights of others, this weakens the essential architecture of the democratic framework and the rule of law. During times of crisis, such as Covid-19, the risk of populism escalates, particularly from the right, as it seeks to mobilize people with simplistic, often unworkable solutions, compounded by anti-Semitism, neglect of minority rights, and other divisive tactics. The recent developments show that populist factions thrive when citizens fail to comprehend the decisions made by their political leaders. To counter this assault, liberal democracies must resist the temptations to severely restrict individual rights and focus on political education.

The Weaponization of Liberal Institutions

Courts are often wielded as instruments and not as independent institutions in populist regimes. In modern times, the highest courts play a significant role in shaping cultural norms, as seen in the decisions of the German Federal Constitutional Court. These decisions create a narrative that helps citizens understand the law's purpose and relevance. Independent judiciaries are vital for safeguarding fundamental rights and protecting marginalized segments of society. However, when courts become tools for populist regimes such as in Poland and Hungary, both their independence and impartiality are compromised, so that they are no longer able to defend minority rights.

Court while remaining independent should not be neutral. This ensures they can effectively defend liberal democracy against populist regimes. The European Court of Human Rights (ECtHR) is a prime example of the above. However, it is concerning that its decisions are partially not implemented at the national level, especially regarding reforms of the national judiciary. Instrumentality of the judiciary thus often comes at the hands of governments that exert influence over national judiciaries.

Common Responsibility of Liberal Democracies

Navigating the complexities of populism's challenges necessitates a thorough exploration of the options available to protect liberal democratic values. Jurists, judges, and lawyers are crucial in this defense, as they must be aware of the threats to the constitutional order and be prepared to defend it. Populism is not a path that Europe, and especially the European Union, desires. All member states voluntarily embrace European values, making it their obligation under European law.

Moreover, to restore the legitimacy of liberal institutions, liberal democracies must rebuild trust in these institutions, which has been eroded by populism. This is a collective responsibility, aimed at countering autocratic regimes and safeguarding liberal democracy. Moreover, the civil society must remain vigilant, preventing the erosion of pluralistic values. Likewise, the best approach for the courts is to diligently carry out their duties, bolster institutional legitimacy, and remain accessible to those in need of protection. This, in turn, strengthens public confidence in the institutions responsible for upholding the principles of liberal democracy.

To effectively combat populism, a clear rule based vision for the future must be first established. It is imperative to uphold tolerance and respect for the rights of others, a principle often disregarded by populist regimes.