Populism and the Rule of Recognition

Abstract

Abstract By reference to legal positivism and Hart’s Concept of Law, the paper argues that populism targets and aims to reconstruct the democratic rule of recognition. In particular, populism exploits the ambiguities in the nature of this social rule, by advocating the extension of the group whose consensus determines the criteria of legal validity from the restricted sphere of judges and officials, to the people at large. Populism instrumentalises the functions of the rule of recognition, aiming to provoke uncertainty in the system in order to accomplish a shift and, thus, alter the content of the rule. Infiltrating concepts with meanings that suit its ends and reordering the criteria of legal validity, populism prioritises an absolute form of popular sovereignty over a thin, dubious version of the rule of law. Nevertheless, the latter’s ambiguity allows populism to claim that the rule of law still forms part of its rule of recognition.