Populism, law and the courts: space and time in an age of "constitutional impatience"

This thesis is an enquiry into the character and discourse of contemporary populism, the content of the populist constitutional project, as well as the institutional reaction or response, by judicial actors, to this very project – including the view that courts can act as democracy-enhancing institutional decelerators. In doing so, it uses a rarely-employed lens, that of spatiotemporality – namely, the conjunction of space and time. Its main contributions are twofold. First, the thesis contributes to the development of a theoretical framework that helps re-conceptualize contemporary populism as a serious and relatively coherent constitutional theory, and more specifically through the prism of spatiotemporality. Through its promise to re-establish a new form of democratic representation based on spatial proximity, authenticity and temporal efficiency, contemporary populism attempts, this thesis argues, to reorganize and redraw the spatiotemporal contours of liberal democracy. Second, this thesis brings nuance to the common view in the liberal-constitutionalist academic literature according to which courts have a key role to play in defending constitutionalism and constitutional liberal democracy, particularly against populist actors and their distrust of intermediaries and institutions. Through a contextual analysis of three case studies, the thesis suggests a differential impact of the tensions between populism and constitutionalism. The first case study, on Armenia in the aftermath of the 2018 “Velvet Revolution,” indicates a possible positive relationship between the two. The second, which focuses on Ecuador during the presidency of Rafael Correa (2007–2017), points to a more negative relationship. Finally, the third case study, on the United Kingdom (UK) in the period that followed the 2016 UK European Union membership (“Brexit”) referendum, suggests a rather mixed relationship between populism and constitutionalism. In specific institutional terms – and in relation to the judiciary, in particular – the three case studies highlight the various responses that courts have had to populism. More specifically, the thesis shows that courts, in the right circumstances, can indeed stabilize the system of constitutional governance against populist constitutional impatience and its spatiotemporal focus on proximity and speed. However, it also shows that, in other contexts, the judiciary can obstruct democratic reforms (rather than stabilize the system of constitutional governance), particularly in the context of a transition from an entrenched semi-authoritarian (or hybrid) regime to a constitutional liberal democracy; or even accelerate the populist flow of time by becoming active agents of illiberalism and (or) executive consolidation at the service of an impatient and increasingly authoritarian government.