27 May 2018


'The Legal Face of Populism: From the Classroom to the Courtroom' (Jean Monnet Working Paper 9/17) by Myriam Hunter-Henin comments
This article examines the normative-conceptual contrast between populism and radical democracy against the specific backdrop of two case-studies – the Fundamental British Values discourse in the UK and the French burqa ban. The goals of the article are twofold. First, to enrich the understanding of populism by analysing the interactions between populism, democracy and legal reasoning. Secondly, to offer ways of resisting a populist turn in legal reasoning. I will argue that law’s response to populism should embrace the ideals of radical democracy, namely deliberation and inclusiveness. In order to enhance deliberation and ensure its inclusiveness, I will submit that law should both retreat (from the classroom) and actively riposte against populism (in the courtroom). 
Hunter-Henin argues
Donald Trump’s victory in the US and the Brexit referendum in the UK have been praised or criticised as a populist turn. Both expressed the voices of those who feel let down by the so-called elites and think that the solution is an authoritarian figure strong enough not to care what a biased establishment thinks about him. Flamboyant and extreme, populism has attracted the attention of many scholars. For most, populism can best be approached in relation to what it rejects: populism has thus been described as anti-elitist, anti-constitutionalist, anti-institutional, antirepresentative and anti-democratic. A debate has ensued as to whether this hostile stance is inherently harmful or can act as a corrective to democracy, or at least as a useful barometer of democracy’s (ill) health. Despite the great divergence of approaches to capture populism, most scholars converge on one point: namely that populism is short-lived in its individual manifestations. Even if it is inherently hostile to democracy, ts damaging effects should not therefore, the argument goes, be exaggerated. Once in power, populist leaders would not be likely to change institutions and their policies would not outlive the populist leader. Moreover populist leaders, once in power, may struggle more than others to maintain their popularity. Amongst these reassuring authors, a notable exception is Jan-Werner Müller, whose work has demonstrated how populist leaders and parties may use the language of democratic values to deform democracy.
However, little attention has been paid thus far to the full implications of populism on law. Most recent scholarship has revealed that populism cannot be properly understood as a (mere) reaction against representative democracy and institutional constitutionalism. It is more positively an ideology which seeks to curtail pluralist political debate. Yet the broader definition of populism as an ideology, rather than as an anti-institutional stance, has so far had little impact on how the consequences of populism are assessed. The consequences of populism are still too often measured in light of their relative low impact on representative mechanisms and institutions. But if populism is, beyond representative politics, about conveying a monolithic discourse and muffling the voices of those who are characterized as “outsiders”, its consequences as I will argue, cannot merely be measured in institutional and representative terms. The assessment must include, more broadly, considerations of how populism might undermine access to and freedom of the political debate. As this article will demonstrate, the concept of populism (as well as its implications) is therefore best understood by contrast to a radical conception of democracy, which goes beyond majority rules and aggregation of interests, to include broader conditions of participation and deliberation. Against this background of radical democracy, it will be argued that if individual instances of populism can be short-lived, their implications are nevertheless likely to have long-lasting and damaging effects, both on law and democracy. By restraining its deliberative and inclusive characters, populism threatens both the very core of democracy and legal reasoning itself. 
The main aims of the article are twofold. First, it will seek to enrich the understanding of populism by analysing the interactions between populism, legal reasoning and democracy Secondly, having identified the full facets of populism, it will suggest ways of resistance. Scholarship thus far has paid little attention to the issue, either because populism has been seen as part of democracy itself or because fighting populism would paradoxically seem to be anti-democratic. When remedies have been sought, the focus has been on reforms to the electoral system. However, it will be argued that as populism manifests itself in a myriad of ways, well beyond issues of representation, a much broader reaction is required. A deliberative conception of democracy will be used to offer ways of reacting against populism and ensure that civil society and courts are more protective of the inclusiveness of the political landscape. The article will be structured as follows. In a first part, I will select two recent legal manifestations of populism in two distinct European countries: the rhetoric of “Fundamental British Values” in the UK and the French 2010 legislative ban on the full covering of the face in the public sphere. These examples have been selected because they deal with areas which are not immediately associated with populism: they do not relate to issues of political representativeness nor do they directly embody the antiimmigration agenda which has become symptomatic of populism in Europe. The Fundamental British Value (FBV) discourse indirectly relates to anti-terrorism (which the fight against extreme ideologies, through the teaching of FBV is supposed to bolster) and education (as schools, universities and nurseries are now under a duty to actively promote FBV). The French ban on the full covering of the face deals with religious freedom and an extensive conception of secularism. Through the broad spectrum of areas that they touch upon, and the distinct legal cultures and constitutional orders that they emanate from, these examples illustrate that populism can take many forms, across legal disciplines.
Having identified how these two examples can be characterized as instances of a populist turn of law and analysed their implications for law and democracy, I will then, in a second part, suggest ways of resistance, building on theories of deliberative democracy.