Abstract How should legal theory address populist governance? This article assesses recent efforts to align populist legal theory with H.L.A. Hart’s positivism, particularly the claim that populists embrace a democratic version of the rule of recognition. It argues instead that the alliance is deceptive: Populists selectively rely on Hart, given that both endorse a static legal theory. It presents two arguments in support. The first, negative argument shows that populist aspirations to immediate popular sovereignty are at odds with Hartian grounds of legal authority. The second, positive argument draws on Hans Kelsen’s distinction between static and dynamic legal orders to reveal their deeper structural similarity: Populism and Hartian positivists likewise minimize official discretion and conceptualize law as a conduit for external political decisions. Clarifying this affinity exposes the risks of static legal theories in legitimating populist distortions and underscores the normative urgency of a dynamic understanding of legal order.
Meir H. Yarom (Tue,) studied this question.