Judicial Populism: the Rule of the People against the Rule of Law

There is a modest but growing scholarly interest in populism in relation to the law and to judicial issues, but until now this interest remains largely confined to legal studies, in particular studies in constitutional law (cf. Blokker 2019; Corrias 2016; Martinico 2018; Halmai 2017; Landau 2018; Scheppele 2018; Sadurski 2019; 2020) and recently also international law (Koskenniemi 2019; Krieger 2019). Few studies in the highly prolific political science studies on populism address matters of public law. When they do, the focus equally tends to be on the constitutional dimension as a core element of democratic political systems and as a significant element in populist projects (cf. Arato 2019; Kaltwasser 2013; Mudde 2013; Müller 2017). This special issue builds on the existing - but still modest set of - scholarly reflections on the relation between law and populism, making a strong case for the need for more extensive, systematic, comparative, and fine-grained analyses. Our argument is that there is a plethora of interesting and significant dimensions to populism and law that have been largely ignored in current studies on populism. In even stronger terms, it can be argued that the legal and constitutional dimensions are crucial to populism as a political project. Much of the current literature understands populism as an important threat or challenge to constitutional democracy (Müller 2016), human rights (cf. Alston 2017), and the rule of law (Kelemen and Pech 2018), but tends to take a normative and simplistic view in that it pre-empirically postulates a stark contrast or dichotomy, which reduces populism to the antithesis of constitutionalism and the rule of law. In this pejorative, largely binary approach, important dimensions of constitutionalism an