Response to “Public law and populism”

Paul Blokker

doi:10.1017/glj.2019.17

Abstract

AbstractThe populist challenge to constitutional democracy—and constitutionalism as its modus operandi—is significant and raises deep questions regarding the nature of modern democracy. A crucial question pertains to the challenge that our existing (but eroding) democratic systems faces. The way we perceive this challenge is essential for our descriptive and prescriptive contributions. The first, perhaps most widely embraced view, is to perceive populism as a ‘disease’, ‘deviation’, or ‘pathology’ of existing democracy. A second view understands contemporary ‘neo-populisms’ rather as one particular instance of a rather profound, complex, and long-term set of transformations of democracy. Where we stand on this matter is of great importance, as the feasibility and potential success of our responses and solutions depend on our description of the problem. Many of the contributions to this special issue clearly go beyond the current state-of-the-art, in which populism and constitutionalism are often seen as mutually exclusive categories. The special issue provides ample reflection on intrinsic problems in constitutional democracy itself, and, taken as a whole, stimulates a self-reflexive and historically informed scrutiny of the modern projects of liberal democracy and constitutionalism, so as to provide due acknowledgement of the political and conflictive origins of the project, as well as of its current deficits.

Highlights

The populist challenge to constitutional democracy—and constitutionalism as its modus operandi—is significant and raises deep questions regarding the nature of modern democracy, a political regime which, not too long ago, was understood as living its ultimate triumph; a historical victory of the unique and singular political regime of liberal, representative democracy
The contemporary challenge to this distinct political regime provokes a whole range of intractable questions, concerning not merely scholarly research and reflection, but clearly and much more prominently so, the predicament of ‘really existing liberal democracies’
I would like to single out three prominent issues, which most, if not all, the contributions reflect on, and which seem to me crucial for further investigations on the relation between populism and public law

Summary

The diagnosis of the challenge to constitutional democracy

A crucial question pertains to our existing (but eroding) democratic systems. How is the challenge produced by populism to be understood? The way we perceive this challenge is essential for our descriptive and prescriptive contributions. If our position is that things are in flux, that modern democracies have gone and are going through significant processes of change (including those of judicialization and transnationalization) and are exposed to rather incisive forms of societal change and acceleration (“high-speed society”) (including rapid technological change, the impact of digital media, the fragmentation and polarization of society), populism might be rather understood as a distinctive expression of deep-seated problems within existing democratic regimes, in their capacity to deal with change. Erik Longo points to the classical problem of democracy on the transnational level, the “democratic deficit” of the European institutions In his reading, we implicitly sense the idea that populism is a pathological consequence of a democratization process, started with Maastricht, gone awry. This modernist narrative understands democracy—and constitutionalism’s role within it—as part of a broader telos of the pacification of society, but fails to include society into the project

The legitimacy of modern democratic systems

Solutions for or responses to the global challenge of populism