The liberal principles of democratic constitutionalism are under attack around the world, at a seemingly accelerating pace and in a wide variety of national contexts and legal cultures. An important dimension of this broader phenomenon is the changing relationship between law and democracy. Illiberal regimes seek to reconceptualize the rule of law to their own advantage, and populist leaders push the boundaries of legality to achieve political victories. However, the polarization of societies is also creating new ways of using law as an extension of politics, stretching the categories of the liberal tripartite division of power. Law is being politicized and politics is being juridified in ways that are difficult to categorize with the traditional analytical tools of political science, jurisprudence, or legal history.
The current trajectory has not come out of the blue: throughout the centuries the relationship between law and democracy has been fraught with tension. It is no exaggeration to say that historically it has been common among legal scientists and jurists to perceive plebeian power with skepticism and as a potentially troublesome phenomenon – as ‘dangerous democracy’. On the other hand, the incongruence between law and social justice has been the fuel and focus of popular movements since at least the birth of the nation-state.
This workshop will focus on the ongoing challenge to liberal democracy from the perspective of legal history concentrating on different histories and variations of the relationship between law, justice, and society. The workshop will address blind spots in the historical narrative of the joint triumph of liberal constitutional democracy and the rule of law, and the assumption that the two are codependent universal virtues bound to cherish and strengthen one another. For example, we look at situations where intentions to strengthen the rule of law have in fact undermined the basic principles of democratic society, or how populist movements use the alleged discrepancy between historical justice and the rule of law to revamp the status quos between political power and legal systems.
In practice, the workshop scrutinizes examples of
- how law has been used in attempts to challenge and undermine institutions of constitutional democracy,
- how autocratic regimes have consolidated their rule with the means of law,
- how claims to historical justice have defied the principles of the rule of law and the other way around,
- how the past has been used as a justification for renewing the balance between law and political power across time and cultures.
Organized by the Stanford Center for Law and History (SCLH), in collaboration with the Sally B. and William H. Neukom Center for the Rule of Law, and EuroStorie-Centre of Excellence at the University of Helsinki. The Workshop gathers scholars from a variety of disciplines to discuss the legal genealogy of the contemporary crisis of law and democracy. Rather than further deconstructing the foundations of liberal democracy and the rule of law, we aim at a more complete understanding of the current crisis, from its historical context to its relation to other global trajectories of law and society.