Ricardo Martins de Sousa e Silva (Master in Human Rights by UMinho) 

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Once again in contemporary history, the far right occupies the centre of the European and world political scene. We see this in the growing popular support their political movements receive, in their growing ability to determine the themes of national and supranational political debates, as well as to influence the policies and way of doing politics of other political parties, and in their electoral growth, all over the world, but particularly in the Member States of the European Union (EU); either by becoming the main opposition parties, by becoming indispensable for the formation of governments, or by taking power, by forming governments themselves.[1] We also see this in the increase in politically motivated violence, whether it is symbolic violence, with the growth of hate speech[2] and the creation of an environment of insecurity for people on the political left and for ethnic, religious, sexual and gender minorities, or physical violence, with the increase in the number of attacks on members of those minorities. In these matters, Portugal is no exception.[3]

Several Member States have mechanisms in their legal systems to deal with these organisations, ranging from the refusal to grant public funding[4] and tax benefits to their illegalisation[5] and the prosecution of their leaders. They do so because there is an incompatibility between the structuring principles of their juridical-political systems and the values and strategies of political action of these movements. With the European Parliament elections approaching, and considering that the indicators available to us at the moment point to the far right as the big winner of these elections,[6] this article will seek to discuss not the merits of the introduction, at the EU level, of the different legal and political mechanisms that States use to deal with these phenomena, but the relationship of far right organisations with the structuring principles of the EU’s legal-political system.

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Before we go any further, it is necessary to characterise, however briefly, the contemporary far right – or to be more precise, the far right that has reached the political mainstream. Firstly, although they no longer oppose democracy in its purely formal-procedural sense, as their predecessors did, organisations of the contemporary far right call into question the elements that allow this democracy to be described as liberal[7] – fundamental rights, with particular emphasis on the fundamental rights of people belonging to social groups that can be qualified as minorities, pluralism and the separation of powers – and propose a break with the current political order, which they seek to destabilise.[8] In addition, in response to the multimodal crises that fuel their growth, for which they blame the political elites that they often point out as being under the influence of the political left,[9] they present projects for the regeneration of an original cultural identity – today, more than the national identity, the Western cultural identity[10] – marked 1) by authoritarianism, because they point to the need for a strong public power and an organisation of public space focused on security, so that society is kept in order,[11] and 2) by ultra-conservatism, because they argue that social organisation should be governed by the traditional values of respect and discipline, as well as by the values of the so-called traditional family.[12]

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Having characterised these political phenomena, we can return to the structuring principles of European integration. To this end, let us refer to Article 2 of the Treaty on European Union (hereinafter, TEU) as well as to the preamble to the Charter of Fundamental Rights of the European Union (hereinafter, CFREU). These principles are respect for human dignity, freedom, equality, solidarity, democracy, the rule of law and respect for fundamental rights. Let us dig deeper.

Since it is impossible to mention all the cases in which the actions of far-right organisations are responsible for the violation of some of these values/principles or, in the case of the violation of fundamental rights, all the fundamental rights whose protection is called into question, we will limit ourselves to some standard cases of the populist rhetoric of the contemporary far-right. First of all, a caveat: given that, today, the actions of political organizations, in particular political parties, are central to defining the way in which political debate develops and the way in which citizens perceive and categorise the world around them,[13] this article will only refer to the actions of the above-mentioned far-right organisations through their leaders, and not to the performance of the other individuals who identify with their discourse.

When they propose a punitive radicalisation of criminal law, that is, when they proscribe the perpetrators of crimes and advocate their harsh punishment with heavy prison sentences,[14] or, in some cases, with forced labour, physical punishment and compulsory medical treatment, or even, more exceptionally, with the death penalty,[15] the guarantees of the accused in criminal proceedings are called into question [see Article 48(2) CFREU], as well as the protection against disproportionate and arbitrary punishment, ultimately the right to liberty (Article 6 CFREU) and, in the case of the death penalty, the right to life itself [Article 2(2) CFREU]. When they advocate a return to traditional gender roles, with men’s lives linked to work and family leadership and women’s lives to caring for the home and motherhood,[16] they are flagrantly violating the principles of equality and non-discrimination, particularly on grounds of gender. When they persecute immigrants, especially Muslims, when they portray them as responsible for crime, as terrorists[17] or, by exploiting women’s rights, in which, as we have already shown, they do not see themselves, as “animalistic and hypersexual predators”,[18] and when they point out the inferiority of their culture[19] or associate certain derogatory characteristics with it, which is why they argue that these immigrants must submit to the culture of the country in which they live if they do not wish to be expelled from it,[20] they are violating not only the two principles that have just been mentioned, but also the right of these people to freely develop their personality, the right to the protection of the elements that make up their identity (these two rights can be traced back to Article 7 CFREU)[21] and, in certain cases, their freedom of religion, as referred to in the final part of Article 10(1) CFREU. All these principles and rights, except for freedom of religion, are also called into question when, for example, in relation to LGBTQIA+ rights, far-right organisations pathologise transgender existences, ridicule them and present them as corrupting and dangerous for young people.[22]

     The citizenship of the EU is a citizenship of rights.[23] And citizenship precisely implies the establishment of a link between the citizens of the Member States and the Union, independent of that which unites them to the State of which they are nationals (see Article 9 TEU). It implies, therefore, belonging to and participation in the construction of a community project. If, as Jürgen Habermas states, the legitimacy of this political integration is to be found in dialogue, which, in turn, presupposes intersubjectivity, that is, the ability of each one to put oneself in the position of the other,[24] then, a fortiori, this paradigm must be transposed to the status that arises from that integration, i.e., European citizenship. We are, therefore, faced with a community whose existence and development depends on the individual and collective capacity to see in the Other, in the neighbour, in the foreigner, in the one who is different from us in everything, a subject with rights that deserve, like our own, the utmost respect.[25] For all that has been recognised so far, it is with this community project that the far right is incompatible.

Moreover, in many cases, the violation of these fundamental rights affects their essential core, [26] the set of basic human interests that these rights protect and, ultimately, respect for the value inherent in every human being simply because they are human – the dignity of the human person. Laid down in Article 1 CFREU, this principle is the foundation of the EU’s system of protection of rights, but it is also the first of the values on which the Union itself is founded, so that the activity of its institutions is ultimately subordinated to the fulfilment of human beings.[27] If, following Jeremy Waldron,[28] one sees in the dignity of the human being, on the one hand, a legal and moral status that allows everyone, with awareness of themselves, their identity and their past, to self-determine, which requires creating the conditions and removing the obstacles to this free development, and, on the other hand, the expression of the mutual recognition mentioned above, which requires respect and recognition of this equal dignity on the part of all, then we understand how the actions of the extreme right-wing organizations – which consist in the non-recognition and disrespect of the specifically human quality, or the value as persons, of their habitual victims, as well as in the creation of an environment in which such non-recognition and disrespect are facilitated and encouraged – are incompatible with the EU’s genetic-legal code, as they undermine its ultimate purpose.

            In addition, the protection of fundamental rights corresponds to the substantive dimension of the principle of the rule of law[29] – in this case, the principle of the “Union of law” – with the result that, in this way, that principle is also called into question by the contemporary far right in an organised form.

We are left with the democratic principle. On this matter, there are some comments to be made. First of all, it must be pointed out that the principle of the “Union of law” and the democratic principle are inseparable, it is very difficult to conceive of one without the other:[30] how can popular sovereignty, in the form of the will of the majority, be achieved without being bound by and guided by procedures laid down by law? Moreover, how can citizens participate freely and on equal terms in the exercise of political power if their fundamental rights are not guaranteed? In short, although it is not opposed to the democratic principle, the contemporary far right calls into question elements of the principle (that of the “Union of Law”) that guarantees, in practice, the operation of the former. This is where an opposition between the democratic principle and the activity of the above-mentioned organisations begins to be revealed. We recall that these organisations also coexist badly with pluralism, another presupposition and, at the same time, a consequence of democracy.

Secondly, from an analysis of Articles 9 to 12 of the TEU, it seems to follow that the EU adopts above all a formal-procedural conception of democracy, according to which the formation and exercise of political power takes place in accordance with the decision of the majority – that is, according to this conception, democracy would only establish the rules according to which the democratic game takes place, the way in which power can be exercised by the people. However, the principles laid down in Article 2 TEU are the defining and guiding elements of European integration, they form the axiological foundation for the construction of this common path.[31] For this reason, and also because the principles in question must be understood as a whole, [32] since they are deeply interconnected, it seems difficult to accept that, in the context of the EU, the democratic principle plays the role of a mere rule of thumb, and that material considerations are indifferent to it. In the light of this axiology, it does not seem acceptable, for example, that policies defined by a given majority can violate a set of fundamental citizens’ rights.

     Finally, and in a certain way still in defence of a materiality underlying the democratic principle, but extending the reasoning to all the principles that we have called up so far, we invoke Norberto Bobbio, who teaches us that tolerance is not, nor can it or should be, unlimited to the point of encompassing all possible ideas.[33] This is not a reflection on the well-known and often cited paradox of tolerance; what matters here is the structure of thought behind the statement. Let us concretise it. It could be argued, against what has been stated so far, that when they verbally attack a certain social group that has a history of being silenced, disadvantaged or persecuted, the leaders of far-right political organisations are exercising their political rights and freedoms – even if, in this way, they are creating an intimidating environment for people who fit into that social group and, consequently, hindering the exercise of some of these people’s political rights and freedoms. But the fundamental rights and legal principles that make up the legal and political system of the EU are not mere abstractions, they have been signed into law because it is intended that citizens feel protected by them and that the political institutions to which they are linked are governed by them. In the same way that the results of the majority decision cannot be indifferent to the democratic principle, European integration cannot ignore the effects that the application of the principles by which it is governed has on the lives of its citizens. That is why quoting Bobbio is relevant: like tolerance, these principles cannot encompass their content and, at the same time, their opposite, they cannot be understood so broadly as to be able to self-destruct. These, and no other, are the principles that the Member States have chosen to govern European integration, and they must therefore be a reality in the day-to-day running of that integration – this is the only way to explain their consecration.

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     In conclusion, Theodor Adorno explains that the far right is born from the cracks of a democracy that is yet to be fully realised,[34] and that it feeds on the environment of social catastrophe that this non-realisation causes.[35] The next European elections will therefore serve, through the greater or lesser electoral victory of the far right, as a seismograph of the degree to which this crisis has deepened. If the EU wishes to fulfil the historic role it claims in the preambles to its founding treaties and the CFREU, it will have to devise a strategy of political action to deal with the growth of the far right, which will necessarily involve dealing with its social and political assumptions. An in-depth understanding of the incompatibility between the actions of those political movements and the principles that the EU claims to be structuring its integration project could be a good starting point for these principles to shape the EU’s political activity to the fullest extent and become a reality in the lives of the citizens who make that integration a reality on a daily basis.

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[1] Cas Mudde, O regresso da ultradireita/Da direita radical à direita extremista, trans. Teresa Toldy and Marian Toldy (Lisbon: Editorial Presença, 2020), 31-33.

[2] See “Hate speech on social media platforms rising, new EU report finds”, Euronews, 29 November 2023, available at https://www.euronews.com/next/2023/11/29/rise-in-hate-speech-on-social-media-platforms-new-eu-report-finds.

[3] At the beginning of May, in the city of Porto, a group of armed men associated with the far right invaded a house where immigrants live, beating them, insulting them with racist words and destroying the interior of the house – see “Grupo racista invade casa e agride imigrantes durante meia-hora no Porto. Uma das vítimas optou por saltar do 1.º andar”, CNN Portugal, 4 May 2024, available at https://cnnportugal.iol.pt/racismo/imigrantes/grupo-racista-invade-casa-e-agride-imigrantes-durante-meia-hora-no-porto-uma-da-vitimas-optou-por-saltar-do-1-andar/20240504/66360d79d34e049892206f40, and “Agressões no Porto contra imigrantes terão ligações a grupo de extrema-direita”, RTP, 6 May 2024, available at https://www.rtp.pt/noticias/pais/agressoes-no-porto-contra-imigrantes-terao-ligacoes-a-grupo-de-extrema-direita_a1569448.

Also recently, a well-known neo-Nazi was convicted of calling on the internet for the forced prostitution of left-wing women, targeting in particular the leader of a political party – see “Mário Machado condenado a dois anos e 10 meses de prisão com pena efetiva”, Expresso, 7 May 2024, available at https://expresso.pt/sociedade/justica/2024-05-07-mario-machado-condenado-a-dois-anos-e-10-meses-de-prisao-com-pena-efetiva-348df078.

[4] See “Germany’s top court rules far-right party’s ideology makes it ineligible for funding”, Euronews, 23 January 2024, available at https://www.euronews.com/2024/01/23/germanys-top-court-rules-far-right-partys-ideology-makes-it-ineligible-for-funding.

[5] For example, Article 46(4) of the Portuguese Constitution prohibits fascist organisations.

[6] See “EPP leads European vote polls as far right grows dramatically with liberals in free fall”, Euronews, 23 May 2024, available at https://www.euronews.com/2024/05/23/epp-leads-eu-vote-polls-while-far-right-grows-dramatically-with-liberals-in-free-fall.

[7] Cas Mudde, O regresso da ultradireita…, 19.

[8] Manuel Loff, “Não são mesmo (neo)fascistas? O lugar da extrema-direita no assalto à democracia”, in Novas e Velhas Extremas-Direitas, ed. Cecília Honório and João Mineiro (Lisbon: Edições Parsifal), 50-51.

[9] See Cas Mudde, O regresso da ultradireita…, 47.

[10] Manuel Loff, “Não são mesmo (neo)fascistas?…”, 50.

[11] Manuel Loff, “Não são mesmo (neo)fascistas?…”, 50; Cas Mudde, O regresso da ultradireita…, 39.

[12] See Cas Mudde, O regresso da ultradireita…, 45.

[13] See Gur Bligh, “Defending democracy: a new understanding of the party-banning phenomenon”, Vanderbilt Journal of Transnational Law, vol. 46, no. 5 (2013): 1358, available at https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1273&context=vjtl.

[14] See Cas Mudde, O regresso da ultradireita…, 39.

[15] See Cas Mudde, O regresso da ultradireita…, 45.

[16] Cas Mudde, O regresso da ultradireita…, 155-156.

[17] Cas Mudde, O regresso da ultradireita…, 46.

[18] Cas Mudde, O regresso da ultradireita…, 158.

[19] Cas Mudde, O regresso da ultradireita…, 43.

[20] Cas Mudde, O regresso da ultradireita…, 38-39.

[21] See Sophie Perez Fernandes, “Comentário ao Artigo 7.º”, in Carta dos Direitos Fundamentais da União Europeia/Comentada, ed. Alessandra Silveira and Mariana Canotilho (Coimbra: Edições Almedina, 2013), 103-104.

[22] Patrik Hermansson, et al., The international alt-right/Fascism for the 21st Century? (Abingdon, Oxon, and New York: Routledge, 2020), 197.

[23] As is clear from the case law of the Court of Justice of the European Union (CJEU): see Alessandra Silveira, Princípios de Direito da União Europeia/Doutrina e Jurisprudência (Lisbon: Quid Juris), 87-89.

[24] See Alessandra Silveira, “Intersubjetividade, interdemocraticidade e interconstitucionalidade”, in Pensar radicalmente a Humanidade/Ensaios em Homenagem ao Prof. Doutor Acílio da Silva Estanqueiro Rocha, ed. João Cardoso Rosas and Vítor Moura (Vila Nova de Famalicão: Edições Húmus, 2011), 13-14.

[25] Paul Ricœur, for example, presents in his philosophy a reformulation of politics and law based on this perspective: see his Oneself as Another.

[26] José Luís da Cruz Vilaça, “Comentário ao Artigo 7.º”, in Carta dos Direitos Fundamentais da União Europeia Comentada, ed. Alessandra Silveira and Mariana Canotilho (Coimbra: Edições Almedina, 2013), 33.

[27] José Luís da Cruz Vilaça, “Comentário ao Artigo 7.º”, 33-34.

[28] Apud Jorge Reis Novais, A dignidade da pessoa humana/Volume II/Dignidade e inconstitucionalidade (Coimbra: Edições Almedina, 2016), 95.

[29] See Alessandra Silveira, Princípios de Direito da União Europeia…, 29-30.

[30] See Jürgen Habermas, “Lutas pelo reconhecimento no Estado democrático constitucional”, in Multiculturalismo/Examinando a política de reconhecimento, Charles Taylor, et al., trans. Marta Machado (Lisboa: Instituto Piaget, 1998), 139-140.

[31] Marcelo Rebelo de Sousa, “Anotação ao Artigo 2.º do Tratado da União Europeia”, in Tratado de Lisboa/Anotado e comentado, ed. Manuel Lopes Porto and Gonçalo Anastácio (Coimbra: Edições Almedina, 2012), 27-28.

[32] Marcelo Rebelo de Sousa, “Anotação ao Artigo 2.º do Tratado da União Europeia”, 28.

[33] Norberto Bobbio, El tiempo de los derechos, trans. Rafael de Asís Roig (Madrid: Editorial Sistema, 1991), 252.

[34] Theodor W. Adorno, Aspetos do Novo Radicalismo de Direita, trans. Marian Toldy and Teresa Toldy (Lisbon, Edições 70, 2020), 19.

[35] Theodor W. Adorno, Aspetos do Novo Radicalismo de Direita, 20.

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