Countering authoritarian populists’ legal theory

Abstract How should legal academics respond to authoritarian populists? What shape should their public interventions take? To address these questions, this article reframes the activism of legal scholars against populism as a struggle over competing legal theories. It is well documented that authoritarian populists make opportunistic use of democratic institutions, in particular constitutional reform and lawmaking by an elected legislature. This article distills a particular populist conception of law embedded in the arguments put forward by populists to defend and legitimate their uses of law. The populists’ legal theory views law as a pure expression of popular will, with two corollaries. First, it completely collapses law into politics. Second, it adopts an extreme form of legal positivism. One way to counter the constitutional and legal changes advanced by populists is to challenge their legal theory, a task that seems appropriate for legal academics. Through a discussion of the mobilization in 2023 by legal academics in Israel, this article argues that countering authoritarian populists’ legal theory is fraught with tensions. Though Israeli legal academics did not claim to operate at the level of legal theory, their arguments against the Israeli government’s legal proposals implicitly challenged the government’s jurisprudential approach. We show that doing so required reclaiming some autonomy for law from politics, but that this was in tension with the task of countering the government’s positivism—since the latter required appealing to values. In addition, the organization of legal academics into activists aiming to mobilize public opinion stood in tension with the claim of legal expertise distinct from politics. We conclude tentatively that while legal scholars have unique contributions to make to the struggle against authoritarian populism, these contributions are necessarily embedded in a moral-political outlook—one that should generally be acknowledged and actively defended in the political arena as well.