Social & Legal Studies

This article introduces the special issue on Democratic Constitutionalism in a Populist Age.

The diversity of features attributed to populism - and, as a result, the variety of critiques leveled at it - are remarkable. It sometimes seems as though people are using the same terms to address very different phenomena. Is there any distinctive meaning to populism? Is populism inherently anti-democratic or, on the contrary, is it the epitome of democratic practice? What should an engagement with populist movements mean for the theory and practice of democracy? This paper seeks to map the discursive ecosystem that populism determines. It canvasses the phenomena often associated with populism, proposes an interrelated set of concerns that is distinctive to populism, suggests how populism intersects with propensities and affinities with which it is often associated, emphasises the role of growing economic inequality, and suggests responses to populist movements that are grounded in a truly democratic constitutionalism.

The core populist claim is that ‘the people’ have been unjustly neglected by government. This core claim, while unexceptionable on its face, tends to be associated with claims that would corrode liberal democratic institutions. It is important that political and legal theorists identify the claims made by citizens who may be attracted by populist political forms, lest they manifest themselves in political forms toxic to (broadly understood) liberal democratic norms and institutions. They must address these claims, even as they also consider ways in which to confront these political forms. An example of how this work might proceed can be gleaned from some recent democratic theory and practice, which has ‘democratized’ membership in political parties as well as the process of selection of the party leader. This apparent democratization both disserves the cause of democratic deliberation, and opens the door to the risk of populist takeover of traditional parties.

The article explains how populists have exploited the weaknesses of liberal constitutionalism and the public-private divide. It argues that populists have not rejected constitutionalism as a project but a negative version of it. In its place, they incorporated their vision of a government unrestricted by individual rights and entered the private sphere with their doctrines. The lesson from the victories of populism is therefore to move toward positive constitutionalism that ensures the well-being of all. Drawing on the concept of relational autonomy, the article explains what this shift consists of in the areas of reproductive rights and gender-based violence. The conclusions outline a shift in the operation of the basic principles of constitutionalism, focusing on the relational nature of rights understood not only as shields, but also as claims to positive state action.

This article analyses how right-wing populist actors claim to represent the “voice of the people” and express “popular sovereignty” as a mode of challenging the traditional constitutional foundation of liberal democracy. This hypothesis is illustrated by an investigation into the political discourse of the Alternative for Germany considering how this populist actor has developed a political strategy claiming to speak for the “people” in an authentic and immediate fashion. The analysis of this actor's political mobilization shows how the championed direct democratic representation is couched in a sovereigntist discourse that relies on divisive identity markers rather than genuine democratic participation. Drawing on Carl Schmitt's concept of the political, the article interprets right-wing populism as invoking a permanent “state of exception” that employs an emotionally charged friend–enemy distinction whose logic of representing the people has the potential of triggering radical political change as well as undermining the integrity of rule-based democracy.

What kind of challenge is right-wing populism for the European Union (EU)? The EU has been frequently criticized by populists and non-populists alike for being a remote technocracy that suffers from serious democratic defects. Democratization relies on popular (and system insider) feedback, to spell out where the shortcomings are, and how these can be rectified. Does populism play this role—is it capable of playing this role—in the EU today? I discuss that under three headings: (1) Is populism a democratizing challenge for the EU? (2) Is populism a democratic challenge for the EU? (3) Is populism an existential threat to the EU? The article finds that populists dismiss the prospects for EU democracy and espouse conceptions of people, community, and values that are out of synch with the EU. Today's populists appear less concerned with abolishing the EU and more bent on altering it to serve their ends.

This paper draws on theorists of jurisdiction to make visible how democratic self-government and the rule of law take effect in the modern administrative state. Through the lens of Caring Society v Canada, a Canadian human rights case about the funding of social services for Indigenous children, I explore an idea of jurisdictional justice that is inherently connected to the quality of democratic engagement and focuses attention on political, legal and human relationships. I argue that in the face of challenges posed by populist politics and the colonial administrative state, this relational understanding of jurisdiction provides resources for building a sense of legality that can sustain shared public meaning and promote practices of political accountability.

The UK's political constitution rests on the checking and balancing operations of a representative system in which parliament is sovereign. By contrast, referendums are often considered instances of popular sovereignty. Critics condemn them as populist appeals to a singular will of the people that risk majority tyranny, supporters believe they allow citizens to check and balance the elitism of politicians. Such arguments lay behind the criticism and praise of the Brexit referendum. This article argues that while the criticism is justified when referendums form an alternative to representative democracy, they can usefully supplement such a system provided they are embedded within and constrained by it. So conceived, the Brexit referendum can be regarded as consistent with political constitutionalism. Yet, this conception challenges claims that it represented the sovereign will of the people. The result remained subject to ratification by a sovereign parliament and could be legitimately overturned by that body.