Populists in Court: Wager, Match, and Chance Considered as Generic Forms of Playful Legalities

Abstract

A principal element of law is the unpredictable outcome of its proceedings. This unpredictability has fueled the hopes of many and the fears of equally as many. In recent years populists and other political mavericks have become highly capable at exploiting the element of chance in law, aiming not so much to prove guilt or maintain innocence, but rather to reconfigure the judiciary affectively as a game of winners and losers. Populists’ legal and luysory tactics make it urgent to reconsider the relation between the fields of law and the humanities. By paying more attention to the genres and media of play and game we can better assess the ways in which contemporary actors are playing with law and exploring the limits of the rules of the game. Here, the plurality that characterizes culturally and medially determined forms of legality, as Greta Olson calls it, has a counterpart in an equally culturally inspired and mediatized form of totalitarianism. In analyzing the populist play with law, my guide will be Johan Huizinga’s Homo Ludens, in which he considers law’s origin in play and chance. For Huizinga, play is serious, as is the law. The populist play with law is equally serious, since it may have serious consequences for the Rechtsgefühle of citizens.