Fifteenth Global Studies Conference

Abstract

The paper discusses the populist attack to liberal democratic legal systems. Focussing on the intersections of political theory and jurisprudence, the paper argues that populism aims to reconstruct the democratic rule of recognition (i.e. the ultimate test of legal validity in any legal system, according to Hart) according to the populist set of ideas. In liberal democratic legal systems, the rule of recognition envisages compliance with (a thick version of) the rule of law as a precondition for legal validity, with a qualified version of popular sovereignty and the protection of fundamental human rights (often placing the sovereign will of the people within limits) being mutually constitutive of the system. Conversely, populism proposes a rule of recognition whose ultimate condition of legal validity would be an absolute version of popular sovereignty. By claiming that the will of the people should be unlimited, populism is at best indifferent for the compliance of this will with integral features of the rule of law, such as certainty and predictability, judicial independence or the protection of the rights of minorities. The rule of recognition - as a social rule - depends its existence on its acceptance by citizens and its application by judges and state officials. The advancement of the populist set of ideas, undermines the social acceptance of the rule and breaches the consensus as to its content. This may put the rule of law under pressure, placing it on the margins of the legal landscape and of the societal system of values.