Lawless Legality: The Populist Attack on the Rule of Law
In liberal democracies across the world, illiberal populists are gaining ascendancy, bringing with them contempt for legal norms and for the rule of law itself. From infant democracies like Hungary to established democracies like the United Kingdom, populists have denigrated their legislatures, sought to castrate their courts, and regularly scapegoat minorities, all in the name of “the people”. My project will analyse how authoritarian populism has taken root, and with it, the increase in antagonism towards the judiciary. I will argue that in liberal democracies, the judiciary's authority is not rooted in the people, but is found in the rule of law, an independent fundamental element of liberal democratic systems. It will advocate for a potent role for the judiciary in checking the excesses of both the executive and the legislature. In particular, it will challenge Carl Schmitt's theory of “sovereign” executive power, which is now embraced by Boris Johnson, Donald Trump and other populists. I will show how judicial authority is being undermined and how judicial passivity in reaction to this is necessary for the courts' power to be effectively diminished. I will conclude by arguing that for liberal democracies to survive, the courts must openly challenge executive overreach.
