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Law, Democracy and Populism: The Rise and Fall of Constitutional Democracy

Module description

More than thirty years after Francis Fukuyama’s famous claim in 1989 that the triumph of Western liberal democracy marks the “end of history”, constitutional democracy is now said to be in a state of “crisis”. Amongst the main drivers of the perceived threats to constitutional democracy is the rise of authoritarian populism across the world, from Hungary, Poland and Turkey to Venezuela, Brazil, the Philippines and elsewhere.

In this module, you will learn – and critically reflect on – the main tenets of constitutional (liberal) democracy, as well as the defining features of one its main critiques, contemporary populism. The module is divided in two parts. The first part examines the key, theoretical components of both constitutional democracy and populism. In the second part, we turn to identify and discuss the main ramifications of contemporary populism, particularly as they relate to important legal and constitutional institutions (from legislatures to courts and “fourth branch” institutions) and instruments (from executive orders to legislation and referendums).

Module aims - intentions of the module

The main aims of this module are twofold. The first is to provide you with the opportunity to identify, understand and assess, from a legal and interdisciplinary perspective, the key components of constitutional democracy. The second, interrelated aim is to give you the tools to critically understand and analyse the defining features of contemporary populism and their implications on constitutional democracy. As such, the module will enable you to explore the relationship between constitutional democracy, populism and legal instruments and institutions, taken broadly, including constitutions and courts. In the same vein, the module will encourage you to reflect on the role of – and consequences of – populism on the exercise of public power in contemporary society. Focusing on the development of independent student research, a final aim of the module is to inculcate analytical, research and presentational skills.

The module is research-led and research-based: it will introduce you to undergraduate-level research and allow you to develop your own research, writing and presentational abilities as key transferable/employment skills. The research-inspired approach is reflected in the teaching and assessment methods. As such, it is a module designed for self-motivating students who enjoy the challenge of independent research, reading and participation in class discussions.

Intended Learning Outcomes (ILOs)

ILO: Module-specific skills

On successfully completing the module you will be able to...

• 1. Identify, explain and critically comprehend and assess the key components of constitutional democracy.
• 2. Demonstrate a critical understanding of contemporary populism as a legal phenomenon; and critically identify, comprehend and assess the main constitutional and legal implications of contemporary populism.

ILO: Discipline-specific skills

On successfully completing the module you will be able to...

• 3. Demonstrate a critical understanding of the role(s) of constitutions, courts and other legal instruments and institutions in a constitutional democracy.
• 4. Demonstrate a critical understanding of the relationship between populism and legal institutions through a legal and interdisciplinary lens.

ILO: Personal and key skills

On successfully completing the module you will be able to...

• 5. Research doctrine and (if applicable) case law; and select, integrate and present coherently, reflectively and succinctly, in writing, relevant concepts and arguments.
• 6. Prepare analytically compelling work that relies on diverse primary and secondary sources, employs appropriate interpretative techniques and presents a nuanced line of argument.
• 7. Engage in debate effectively and develop complex arguments and opinions with some guidance.

Syllabus plan

Whilst the module’s precise content may vary from year to year, it is envisaged that the syllabus will cover some or all of the following topics:

I. Theory

• Law, Constitutions and Constitutionalism
• The Rule of Law and the Idea of Constitutional Democracy
• The Rise of Constitutional Democracy and the “End of History”
• The Populist Critique of the “Liberal” Component of Constitutional Democracy: Populism, “the People” and Popular Sovereignty

II. From Theory to Practice

• The Legal Implications of Contemporary Populism (I): Populism as a Constitutional Project
• The Legal Implications of Contemporary Populism (II): Populism and Courts
• Democratic Backsliding: The Hollowing Out / Fall of Constitutional Democracy?
• Rejuvenating Constitutional Democracy?

Learning activities and teaching methods (given in hours of study time)

Details of learning activities and teaching methods

Formative assessment

Summative assessment (% of credit)

Details of summative assessment

Details of re-assessment (where required by referral or deferral)

Indicative learning resources - Basic reading

• Francis Fukuyama, “The End of History?” (1989) 16 The National Interest (Summer 1989) 3-18
• Yascha Mounk, “The End of History Revisited” 31(1) Journal of Democracy 22-35
• Aziz Huq and Tom Ginsburg, “How to Lose a Constitutional Democracy” (2018) 65 UCLA Law Review 78-169
• Samuel Issacharoff, “The Corruption of Popular Sovereignty” (2020) 18(4) International Journal of Constitutional Law 1109-1135
• Cas Mudde, “The Populist Zeitgeist” (2004) 39(4) Government and Opposition 541-563
• Jan-Werner Müller, “’The People Must be Extracted from Within the People’: Reflections on Populism” (2014) 21(4) Constellations 483-493
• Margaret Canovan, “Trust the People! Populism and the Two Faces of Democracy” (1999) 47(1) Political Studies 2-16
• Nadia Urbinati, “Political Theory of Populism” 22 (2019) Annual Review of Political Science 111-127
• Luigi Corrias, “Populism in a Constitutional Key: Constituent Power, Popular Sovereignty and Constitutional Identity” (2016) 12(1) European Constitutional Law Review 6-26
• Gábor Halmai, “Populism, Authoritarianism and Constitutionalism” (2019) 20(3) German Law Journal 296-313
• Kim Lane Scheppele, “The Opportunism of Populists and the Defense of Constitutional Liberalism” (2019) 20(3) German Law Journal 314-331
• Paul Blokker, “Populism as a Constitutional Project” (2019) 17(2) International Journal of Constitutional Law 536-553
• Bojan Bugaric, “Could Populism Be Good for Constitutional Democracy?” (2019) 15 Annual Review of Law and Social Science 41-58
• Steven Levitsky and Lucan A. Way, “The Rise of Competitive Authoritarianism” (2002) 13(2) Journal of Democracy 51-65
• Nancy Bermeo, “On Democratic Backsliding” (2016) 27(1) Journal of Democracy 5-19
• Ming-Sung Kuo, “Against Instantaneous Democracy” (2019) 17(2) International Journal of Constitutional Law 554
• Martin Loughlin, “The Contemporary Crisis of Constitutional Democracy” (2019) 39(2) Oxford Journal of Legal Studies 435-454
• Tarunabh Khaitan, “Executive Aggrandizement in Established Democracies: A Crisis of Liberal Democratic Constitutionalism” (2019) 17(1) International Journal of Constitutional Law 342-356

Indicative learning resources - Web based and electronic resources

• ELE – https://vle.exeter.ac.uk/course/view.php?id=13570

Key words search

Law, Democracy, Populism, Constitutional Democracy, Constitutionalism, Constitutional Law, Comparative Constitutional Law, Constitutional Theory, Rule of Law, Democratic Backsliding, Authoritarianism