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VOL. 78 PART 4 JULY 2020
wide appear to flout these processes, constraints and understandings—or
alternatively they harness them to their ends, attempting to cement, in constitutional
form, their policies and their ability to rule. In response, critics
accuse populists of undermining liberal democracy. Often, these arguments
focus on the role of the courts in relation to the popularly elected
branches of government. Are courts frustrating the will of the people? Are
judges overstepping their role?
These arguments therefore echo the longstanding debates in legal and
political theory over the justification and limits of judicial review—over
what Bickel called the counter-majoritarian difficulty1—but now voiced with
much greater force, as though constitutional democracy itself were at stake.
The conference revisited that debate, now in the light of populist politics. It
did so especially in relation to two countries at the heart of the rise of populism
(Hungary and Poland) but with comparisons to other countries in
which populism is gaining a foothold. We especially paid attention to populism
on the left of the political spectrum in order to make sure we were not
simply relabelling “populist” what amounts to right-wing authoritarianism.
Above all, the symposium explored what we should mean by “populism”
and what, if anything, is wrong with it. Why isn’t populism simply democracy?
The meeting brought together legal academics, political scientists,
and legal and political theorists. It explored the consequences of populism
for the theory and practice of a truly democratic constitutionalism. Here are
some of the insights that emerged.
First, on “populism”: we did not attempt a comprehensive definition of
the concept. Indeed, there was consensus (as there is in the theoretical literature)
that “populism” is a classic example of what have come to be called
“essentially contested concepts”.2 These are concepts that do not have an
agreed definition—indeed, their very definition is often fiercely disputed—
yet it is precisely the argument over the meaning of the concept that is most
fruitful. Democracy and the rule of law, two terms at the very centre of the
debate over populism, would be classic examples. Their contested character
does not mean, however, that there is nothing useful that can be said, and
a discussion paper drafted in advance of the conference, drawing upon
workshops with and submissions by scholars and graduate students, suggested
that populisms of both right and left were typified by the interaction
of the following primary elements.
First, (obviously) populist movements claim to speak for the people.
Along with that claim comes a tendency, perhaps universal among populisms,
to project a narrow “us-and-them” definition of who are “the people”.
Populists portray their opponents as the people’s opponents, often damning