There is an increasingly common scene in Western democracies. A political leader is under judicial investigation and, even before the proceedings advance, the country is already divided into two incompatible certainties. For part of society, the mere investigation proves guilt. For the other, any judicial action automatically constitutes a political operation. The verdict, when it arrives, barely modifies the preexisting positions.
That is exactly what is happening in Spain around the figure of José Luis Rodríguez Zapatero. And although the Spanish debate tends to interpret it as an exceptionally grave episode or as an unequivocal sign of democratic degradation, perhaps it is useful to view the phenomenon from a perspective that is not so dramatic and more useful.
We are not witnessing the collapse of liberal democracy. Instead, we are witnessing the consolidation of a new political phase that may not be to everyone’s taste and is characterized by much higher levels of mistrust, polarization and permanent conflict.
“The result is not necessarily less democracy. Could it be simply another form of democracy?”
The European politics at the end of the 20th century trained Western societies to a very concrete idea of democratic stability: large, relatively predictable parties, media with enormous capacity to intermediate, judges perceived as broadly neutral authorities, and a public sphere where there was still a basic consensus about the facts. However, that world is beginning to disappear. Social networks, the fragmentation of the media system, the extreme personalization of political leadership and the erosion of trust in institutions have entirely transformed how Western democracies function. The result is not necessarily less democracy. Could it be simply another form of democracy? Something more emotional, but also distrustful, immediate and more conflict-ridden.
The Zapatero case’s problem goes beyond the legal and political sphere. In fact, it reveals to what extent contemporary societies have ceased to share a common framework of institutional legitimacy.
For a segment of the Spanish right, the former president has represented for years more than a former socialist leader. He embodies a sweeping interpretation of Spain’s political deterioration: the man who allegedly took power away from them “unjustly” after the 11-M attacks, territorial renegotiations, the questioning of the 1978 consensus, the relationship with Latin American governments, or the institutional weakening associated later with the Sánchez era. In that mental framework, the judicial investigation is the belated confirmation of a prior suspicion.
But in broad swaths of the left, the inverse phenomenon occurs. Cualquier actuación judicial relacionada con figuras simbólicas del espacio progresista is interpreted automatically under the logic of lawfare: political use of judges, biased leaks, media campaigns, or attempts to fix in courts what cannot be resolved at the ballot box.
The verdict ceases to be the center of the process, something that could be read as another consequence of the already known affective polarization. Citizens no longer organize themselves solely around rational ideological differences because politics has progressively become an emotional and cultural identity. The adversary ceases to be simply someone mistaken and becomes someone morally suspect or even illegitimate.
“Mistrust would not be a dysfunction of the democratic system, but rather a structural part of its contemporary functioning”
That explains why tests, investigations or judicial rulings have ever less capacity to modify entrenched political opinions. And perhaps we are mistaken if we read this phenomenon as something that can be resolved by restoring an old institutional consensus. The historian and political philosopher Pierre Rosanvallon, in The Counter-Democracy, argues that contemporary democracies operate less through positive adhesion and more through surveillance, control and suspicion. Under this premise, mistrust would not be a dysfunction of the democratic system, but rather a structural part of its contemporary operation.
Spain added another singular element: the enormous political and social consensus built during the Transition. That balance produced for years the perception that democratic institutions possessed relatively solid legitimacy. However, that period was probably more exceptional than it seemed.
The political scientist Ran Hirschl explains how contemporary democracies shift increasingly political conflicts toward the courts. In this sense, issues that previously were resolved in Parliament, in party negotiations or in ideological debates are reinterpreted in judicial terms.
Spain offers numerous examples of this dynamic: the Catalan procés, the battle around the General Council of the Judiciary, debates about amnesty or investigations related to top political leaders. Courts no longer appear solely as legal institutions. They have become central stages of political struggle. In fact, the judiciary has lost public support and is increasingly seen as biased.
That does not necessarily mean that judges act in a partisan way. It means that contemporary societies interpret institutions more and more through identity and emotional lenses. Absolute neutrality begins to be seen as a fiction. And probably it has always been partly so.
What used to happen was that there were sufficiently strong intermediary structures to contain those contradictions and produce a general sense of stability. But today, the mediation system is greatly weakened. Traditional media have lost the power to monopolize the public narrative, while social networks accelerate the emotional circulation of any political scandal. Moreover, that digital conversation demands immediate reaction, punishes complexity and makes it seem that everything must be resolved quickly: guilty or innocent, victim or conspirator, hero or corrupt.
“The slowness of the rule of law thus remains in constant tension with the speed of the contemporary media ecosystem”
Habermas warned decades ago about the importance of a shared public space for the survival of liberal democracy. His concern was that communicative fragmentation could ultimately destroy the possibility of rational deliberation in common.
Something like that is happening. But even here it is wise to avoid excessive drama. The public sphere was never entirely rational nor neutral, since it was also shaped by ideology, economic power and political emotions. The difference is that now these tensions are much more visible and immediate.
The relevant question, therefore, may not be how to restore a lost consensus, but how to democratically manage societies that are far more politically tense and distrustful than those of the late 20th century.
Because, despite everything, Western democracies continue to function. Elections are still held. Governments change. Courts keep operating. The media continue to investigate. Political alternation remains open. Even in contexts of enormous polarization, institutions retain a considerable capacity to adapt. Perhaps the democracy of the 21st century will resemble less the tranquil democracy of the decades after 1989 and more a democracy of permanent conflict, ongoing suspicion and contested legitimacy.
Returning to conflict, it is not necessarily incompatible with democracy. In fact, conflict is an inevitable element of any pluralist society. The problem, then, is not the existence of antagonism but the fact that it ceases to recognize the rival as a legitimate actor within the democratic system.
There lies perhaps the true European challenge. Artificially reconstructing a culture of consensus will get us nowhere, because it is unlikely to return under current technological and social conditions. What is urgent is to maintain minimal shared rules within a political environment that is much more emotional and fragmented.
Ultimately, to accept that contemporary democracies perhaps function like this: with citizens deeply mistrustful, with judges under constant political interpretation, and with media integrated into ongoing polarization dynamics. And to understand that this does not necessarily spell the end of liberal democracy. It may simply mean the end of one of its most stable historical phases.
