Abstract
AbstractWhat role do public law and liberal constitutionalism play in an era of political populism? This article approaches this question by exploring the concept of constituent power in the light of recent constitutional developments in countries with populist governments. It attempts to outline and contrast conceptions of constituent power as inherent in liberal constitutionalist and populist thinking, respectively. While constitutionalists draw heavily upon Kelsenian normativism in framing the way political power is generated, populists juxtapose this with a concept of constituent power that is inspired by Carl Schmitt’s ‘decisionist’ view. The complacency of legality inherent in liberal constitutionalist thinking is susceptible to a populist challenge that draws attention to the necessity for the social embeddedness of any legal order. Populism, it is argued, exposes a core tension inherent in constitutionalism: How do constitutionalists reconcile their democratic aspirations with the simultaneous preclusion of certain political choices from the democratic realm? Populists can attack constitutionalism also because of the deficient conception of constituent power that underlies the latter. The article concludes that, where challenged by populists, public law can at some point no longer rely on its own force to defend itself. Its authority needs to be re-established from an extra-legal, pre-positive perspective. In an era of political populism, constitutionalist public law becomes a discourse that can challenge populism by means of the powerful reasons that inhere in the former.
Highlights
What role do public law and liberal constitutionalism play in an era of political populism? This article approaches this question by exploring the concept of constituent power in the light of recent constitutional developments in countries with populist governments
While constitutionalists draw heavily upon Kelsenian normativism in framing the way political power is generated, populists juxtapose this with a concept of constituent power that is inspired by Carl Schmitt’s ‘decisionist’ view
It is argued, exposes a core tension inherent in constitutionalism: How do constitutionalists reconcile their democratic aspirations with the simultaneous preclusion of certain political choices from the democratic realm? Populists can attack constitutionalism because of the deficient conception of constituent power that underlies the latter
Summary
Populism is a political concept and must be defined politically. A prominent definition characterizes populism as:. Are under attack from a global elite that allegedly attempts to undermine their national and cultural identity through immigration, Europeanization and globalization. They advocate political platforms that pursue the curtailment of rights like freedom of religion, the right to asylum, and minority rights. Constitutionalist public law scrutinizes political power through the exercise of practical reasoning and checks on political action to ensure conformity with constitutionally entrenched rights. Stopping at this shallow answer, forgoes the question entirely because such an answer only addresses the particular far-right host ideology, rather than populism itself. There is a much deeper sense in which populism stands fundamentally at odds with constitutionalist public law
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