Note: I am mostly thinking about Europe and North America and I would like to hear about studies/articles concerning any of these states

In the last years, EU have faced several cases of countries with judicial independence issues and I am wondering if there is a connection between party in power ideology and judicial independence/rule of law issues.

Poland: Main party in power is Law and Justice whose ideology includes Polish nationalism, National conservatism and economic nationalism.

According to this article "there is a clear risk of a serious breach of the rule of law in Poland."

Hungary: Fidesz is the party in power whose ideology includes Hungarian nationalism, National conservatism and economic nationalism.

Judicial independence seems to suffer in Hungary according to this source:

the purpose of the modification is to fast-track judicial appointments for individuals close to the government — even if they have no experience with the judiciary

Romania: According to this article, Romania also has serious issues to ensure judicial independence:

The European Union on Wednesday urged the Romanian parliament to reconsider recent judicial reforms, which critics say weaken judicial independence.

The main party in power are Social-Democrats who have a significant nationalist/conservatism part within their ideology (or at least their political actions show this):

The Social Democrats may be a part of the European Socialists, but on identity politics (especially on nationalism, LGBT, migration and church-state relations) they have been solidly conservatism, catering to the country’s prevailing authoritarian social values.

Question: Is there a correlation between nationalism/conservatism and (the tendency of) lack of judicial independence / rule of law issues?

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    Of course, the fact that the countries in your examples share a lot of common history (e.g. they became democracies a relatively short time ago) and other social aspects means that the correlation that you observe could be caused by one or several hidden variables. – SJuan76 Apr 5 '18 at 12:32
  • There is likely correlation between nationalism and dislike of judicial independence, but I believe the more pertinent question here is related to the post-soviet nature of these states (including history, demographics, etc.) as opposed to the stated political ideals of their ruling parties – Gramatik Apr 5 '18 at 15:39
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    In many countries of North America and Europe, democracy and rule-of-law/judicial indepence have been in place for a long time, so the conservative position (i.e. protecting tradition) would be to protect democracy and rule of law/judicial independence. In America, democracy/rule-of-law is an important part of American identity, so nationalism in America is very defensive of democracy/rule-of-law. If you have other meanings for nationalism/rule-of-law in mind you'll need to clarify them for your question to make sense. – Readin Jun 11 '18 at 2:02

First, allow me to make a distinction between terms that are often conflated:

  • A state is a political unit that controls a more or less well-defined physical territory, such that all the people who live there are subject to the laws set out by the state, and all the resources of that territory are 'owned' by the state (and by extension, the citizens and subjects of that state).
  • A nation is a political group defined by cultural cohesion — shared language, shared principles, shared values, shared heritage, etc. — such that all the people who belong to that nation are subject to (more or less) the same cultural constraints.

The two terms are often used interchangeably in colloquial language, but it is perfectly possible for a state to claim multiple different 'nations' of people as its subjects (e.g., the US or the British commonwealth), or for a nation to exist without or across the territorial borders of a state (e.g., the Kurds, or the Jews during the diaspora). There are a few entities that can legitimately be called 'nation-states' because they mainly contain a single national identity-group within the territory they hold political control over. But most modern states have diverse multi-national populations within their borders, and are only properly considered 'nations' to the extent that some shared elements of political culture are widely spread through their population.

With that in mind, one of the core principles of nationalism is national sovereignty: the idea that the nation (by which I mean the cultural identity-group) should have complete independence and control over what happens within the borders of the respective state. It demands that their given national identity group is synonymous with the state as a whole, and that all power within that state should lie with that nationalist identity-group. A nationalist movement that has achieved political power of any sort within a given state is likely to object to any controls or restrictions being placed on their actions, because nationalists will see such as a negation of their (absolute) group sovereignty, and a stain on their reputation as a nation (group).

Nationalists (definitionally, if we follow Orwell) are hungry for power and prestige. Obedience to anything outside their group — be it an external source such as international laws or treaties, or an internal source such as separate branches of government — is perceived as a form of submissiveness that they find inherently offensive. So within distributed power structures nationalists will inevitably try to

  1. place partisans, sympathizers, or patsies in positions of power on every part the political structure, and/or...
  2. disrupt, delegitimize, or disempower any political position they do not control

This ensures that they have the hegemonic dominance needed to act without meaningful oversight or opposition from anyone outside their identity-group. Virtues like rule-of-law, democratic institutions, constitutional provision, and the like, are often simultaneously lionized (when seen as a as a privilege of their own group), and opposed and subverted as illicit (when seen as giving power to any other group). Establishing a partisan judiciary is a typical nationalist tactic.

  • But aren't the examples in question about internal judicial independence? I.e. a country's judiciary should be able to act independently, without taking orders from its executive? Or does your answer consider one's own judiciary as an external power (as viewed by a nationalist executive branch)? If so, you may want to say more explicitly that nationalist movements tend to favor a powerful executive (if that is indeed true, I'm not an expert on that). ;) – JJJ Apr 1 at 18:07
  • @JJJ: Ah, you're right. I got misled by the reference to the EU in the first paragraph. Same principle applies, so I'll revise in a bit. – Ted Wrigley Apr 1 at 18:16
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    @JJJ: I've revised and expanded, but I'm not entirely satisfied with it... – Ted Wrigley Apr 2 at 3:58

Is there a correlation between nationalism/conservatism and lack of judicial independence/rule of law?

For this purpose, there is not a single nationalism/conservatism ideology, and determining how to classify an ideology gets harder as one gets more removed from a specific historical context. It has a pretty clear answer in the context of particular historical political movements, but is not universal in all times and places.

Many of the nationalist revolutions of the 18th and 19th centuries sought to replace monarchies in which the person of the monarch, rather than a "people" making up a "nation" represented through an institution that is an organization, sought to replace absolutism rooted in the divine right of kings who ruled unbound by the law, with a national government organization subject to the rule of law as enforced by an independent judiciary.

This would be a fair characterization of the American Revolution, several stages of the French Revolutions, most of the first rounds of Latin American wars of independence, the movement for Independence in India from the United Kingdom, the Irish struggle for independence, the first stage of the Russian Revolution, and the Finnish nationalist movements, for example.

It would not be unfair to characterize the efforts of the Southern states in the U.S. Civil War as a conservative nationalist movement, and in that conflict, neither the North nor the South was really opposed to the concepts of an independent judiciary or the rule of law, the sides simply disagreed over what the laws should be, what definition of "nation" should be adopted, and who should participate.

In tbe later stages of the Russian Revolution in 1917, and in the second half of the 20th century independence movements in Africa and Asia, the movements often had significant nationalist components, but also often sought either initially or not long after an initial stage of an independence movement, to adopt one party systems with a communist ideology, abrogating legal rights of the previous capitalist/colonial regimes (see, e.g. Land Reform in Zimbabwe and the Communist Chinese Revolution and the Cambodian regime). These one party states were often authoritarian, did not have independent judiciaries, did not place a premium on rule of law (without being entirely lawless either), and were economically radically liberal rather than being conservative.

Political movements happen in waves. In 21st century Europe, for example, I think it is fair to state that nationalist/conservative political forces seek to weaken the independence of the judiciary and the rule of law. On the other hand, in the Middle East and North Africa, nationalist/conservative political forces are often coalitions of the military, senior civil servants, and former revolutionaries who moderated themselves after victory was secured in wars of independence, who see themselves as political forces resisting religious political movements that seek to make their rules supreme over secular authority without independent courts. But the religious movements are often more socially conservative, seek to reduce judicial independence in concert with a desire to root out pervasive corruption in secular courts, and while not nationalist per se (favoring a larger religious sect identity) attract followers by arguing they they can be more true to religious law than corrupt secular authorities are to secular laws, whose adoption in the legislative process can seem tainted relative to the putatively eternal and unchanging religious laws.

So called "Maoist" revolutionaries in India are another ambiguous case. Basically, they want land reform, which at first blush seems like an anti-rule of law position. But they want it to replace a society in which large land owners who derived their holdings from aristocratic families of the fairly distant colonial and pre-colonial past, and rule their domains like autocrats through the ruse of seemingly secular Western style democratic and political institutions are replaced by a more egalitarian regime in which the powerful are held accountable by the a democratically constituted state, where the masses have effective practical remedies to obtain fair treatment in society, and whether the community and its peoples have primacy over individual notable affluent families. Where does that fit in your taxonomy?

In much of modern Africa and Europe, nationalist movements often seek to dismember states that are either multi-ethnic, or have arbitrary boundaries that don't reflect the underlying ethnic distributions of the people in those countries, often because the boundaries were drawn arbitrarily by colonial powers. To the extent that they want big changes, they can't be truly called "conservative" even if the backers (e.g. of Northern Italian independence, Basque independence, Catalan independence) are economically affluent anti-socialist subcultures within the society where they are part of a state. But, in Japan or Korea, for example, nationalism is a movement seeking to prevent the dilution of an extreme ethnically homogeneous nation-state who strongly support the existing state and are conservative in a more traditional sense, but perhaps not as instinctively "anti-socialist" economically.

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