A Positivist Foundation of the Legal System: Popular Sovereignty as a Social Convention or Social Rule

Populism and the Rule of Recognition

Populism ◽

10.1163/25888072-bja10016 ◽

2021 ◽

pp. 1-24

Author(s):

Vasileios Adamidis

Keyword(s):

Rule Of Law ◽

Legal Positivism ◽

Popular Sovereignty ◽

Social Rule ◽

The Rule Of Law ◽

Legal Validity ◽

The People ◽

Concept Of Law

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.

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The Challenge of Reconciling Constitutional Eternity Clauses with Popular Sovereignty: Toward Three-Track Democracy in Israel as a Universal Holistic Constitutional System and Theory

Israel Law Review ◽

10.1017/s0021223700018136 ◽

2011 ◽

Vol 44 (3) ◽

pp. 449-497 ◽

Cited By ~ 6

Author(s):

Sharon Weintal

Keyword(s):

Decision Making ◽

Legal System ◽

Evolutionary Process ◽

Popular Sovereignty ◽

Constitutional Amendment ◽

Constitutional Theory ◽

Jewish State ◽

Modern Democracy ◽

Democratic State ◽

Constitutional System

Since the concept of democracy made its premiere, popular sovereignty has always been one of its fundamental characteristics. Nevertheless, many democracies have adopted eternity clauses (non-amendable constitutional provisions) as well as the unconstitutional constitutional amendment doctrine (the judicial power to strike down amendments to the constitution on substantive grounds), seemingly betraying the established democratic tradition. Including eternity clauses in a constitution certainly poses a challenge to any democracy, namely that of resolving the tension between their freezing effect on the legal system and the democratic notion of popular sovereignty. The intuitive question is why bother? Why address this challenge in the first place rather than uprooting eternity clauses from the constitutional system altogether, thereby resolving the inner tension they generate? One answer is that eternity clauses are presumably here to stay. More to the point, however, is that their presence in a legal system is desirable, since their absence would leave a modern democracy vulnerable to irresponsible normative acts by an incompetent body of representatives. Although Israel's Basic Laws do not include formal eternity clauses, its legal system tends to limit the scope of amending power where the Zionist project is concerned, thereby freezing the imperfect founding formula of the Jewish state. As a result, Israel as a Jewish democratic state faces the same challenge of resolving the tension between the freezing effect and popular sovereignty. This article argues that this challenge can be successfully met as soon as eternity clauses are integrated within a three-track democracy—a holistic constitutional system and theory. As a constitutional system, it distinguishes between three decision-making tracks and identifies the basic norm of the legal system with a nation's collective will or dynamic founding narrative. As a constitutional theory, it justifies constitutionalism and judicial review mainly for the purpose of regulating a nation's evolution. Eternity clauses play a pivotal role in three-track democracies by blocking the first decision-making two tracks in order to force revolutionary movements to engage in the consensual third track. This protects society from a unilaterally-imposed revolution—an act liable to be detrimental to the delicate evolutionary process.

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