With the upcoming presidential elections in the United States, fears that Donald Trump may return to the White House have reinforced the ongoing academic debate about the possible dangers of populism. Given the enormous amount of scholarly literature on the topic, however, it may not always be clear what the distinctive contribution of constitutional lawyers and theorists may or should be. So far, contributions have mostly focused on the question for the compatibility or relationship between populism and either (i) constitutionalism, democracy, or liberalism as such, or (ii) a combination of these all-encompassing ideals, such as ‘constitutional democracy’ or ‘liberal constitutionalism’. This is not surprising, as populism is considered to put at risk many of the values that are generally associated with these ideals, such as the limitation of the authority of government through law or the representation of a plurality of interests through the institutions and procedures of the state. Despite how intuitive the focus on this question may be, though, there is still broad disagreement on its possible answers. This is of course due to the widespread dissent on the meaning of populism, on the one hand, and the requirements of ‘constitutional liberalism’ or ‘liberal democracy’, on the other.

Consider populism to begin with. Contemporary discussions of populism may be divided into four categories: (i) those that analyse its recurrent ideological themes (left-wing populism’s commitment to social welfare v right-wing populism’s ethnonationalism), (ii) those that examine its rhetorical style of politics (the opposition between the ‘corrupt elites’ and the ‘pure people’), (iii) those that investigate its leaders’ strategies to exercise power (the concentration of lawmaking power in the executive and the rejection of checks and balances), and (iv) those that study its relationship with constitutionalism, democracy, or liberalism (whether populism is compatible with the institutions and procedures that characterise constitutional democracy or liberal constitutionalism). Even if we leave aside the ideological and rhetorical aspects of populism and focus on the strategies of populist leaders to exercise power, we may still find it difficult to determine the precise sense in which populism is incompatible with constitutional liberalism or liberal democracy.

This is because the concentration of policymaking power in the executive and the rejection of at least some instantiations of the doctrine of separation of powers are not necessarily antagonistic to the defining features of constitutionalism, democracy, or liberalism. In the case of the concentration of executive power, for example, it could be seen as an inevitable consequence of the ‘modern administrative state’, in which new economic, political, and social challenges have forced legislators to delegate a massive amount of lawmaking power to the executive. Such delegation is not necessarily unconstitutional or antidemocratic, as long as it is done through the appropriate institutions and procedures. The same could be said about the rejection of ‘veto points’. As long as it is not absolute (in the sense that there are still some checks on the executive), there is no reason why it should be seen as antithetical to liberalism or constitutionalism.

This, of course, depends on our account of these ideals. If we accept a thick approach to constitutional liberalism, then it will be proportionately more likely that populism, however we conceive of it, is incompatible with it. Indeed, if our interpretation of liberal democracy includes substantive values such as a commitment to social welfare or a ban on discrimination on the basis of ethnicity, nationality, or religion, then it is clear that a right-wing populist leader who advocates the elimination of social security services or the prohibition of immigration from Muslim countries will be violating these values. There are, however, clear disadvantages with endorsing a thick understanding of constitutionalism such as this. The first disadvantage is that the thicker our account, the more likely it will be that a reasonable person may disagree with it. After all, a reasonable person may argue that there is nothing inherent in the nature of democracy (or liberalism) that requires the assurance of social welfare or the suppression of discrimination beyond those necessary to ensure free and fair elections. Another disadvantage is that, as Joseph Raz rightly warned about the rule of law, a thick approach to any of these ideals renders them meaningless, as they become interchangeable and unhelpful to characterise different virtues “that a legal and political system may possess and by which it may be judged”.

That said, even if we accept a thin conception of these ideals such as that of Mark Tushnet & Bojan Bugarič, according to which a legal and political system is constitutional (or democratic, or liberal) if (i) collective decisions are made by majority rule, (ii) some rights and structures for making decisions are entrenched in the constitution, (iii) judges are independent from direct political control, and (iv) politicians are organised in political parties that seek the support of people through political programmes, it may still be difficult to determine the precise sense in which populism is incompatible with these requirements. This is because at least some of the populist leaders who have become known in the Western world (Jair Bolsonaro, Hugo Chávez, Rodrigo Duterte, Boris Johnson, Jarosław Kaczyński, Nicolás Maduro, Javier Milei, Narendra Modi, Viktor Orbán, and Donald Trump) have not only gotten there democratically, but have also often complied with the decision-making procedures established in their constitutions to advance their political programmes. Take Bolsonaro, for instance, who began his presidency by initiating a constitutional amendment process that modified the pension system and issuing an executive order that transferred the right to define indigenous lands from the Justice Ministry to the Agriculture Ministry. These measures were only possible due to the majoritarian support of the Brazilian Congress and the executive powers granted to the President by the Brazilian Constitution, of which Bolsonaro took advantage. Of course, the same could not be said about his attempt to overturn the result of the presidential elections of 2022 through a military coup d’état, or his use of official government channels to illegally promote himself as presidential candidate.

What Is to Be Done?

The previous discussion is meant to illustrate the difficulties in answering the question for the compatibility or relationship between populism and constitutionalism, democracy, or liberalism. Although I believe the answer to this question very much depends on our account of these ideals, I also think a much more nuanced analysis of the exercise of power by populist leaders is needed. A key area in which more refined reflection is required is in relation to the discretion exercised by populist leaders. Such discretion may take the form of, for example, delegated legislation, prerogative powers, executive decrees, executive vetoes, and so on.

As Denis Galligan defines it, discretion is the authority, freedom, or power to choose among alternative courses of action “in the absence of previously fixed, relatively clear, and binding legal standards”. With a few exceptions, it is broadly accepted that the exercise of discretion by political leaders is not only inevitable (due to the indeterminacy of the law), but also necessary to deal effectively with the daily concerns of the modern administrative state and the unanticipated challenges of crises and emergencies. The problem, however, is that the acceptance of discretion poses a challenge to the rule of law, which, among other things, requires that the exercise of power be governed by the law instead of being ruled by the will (or discretion) of any person (including the political leaders). Given that the rule of law is one of the very few elements that most reasonable people would see as a requirement of constitutional democracy or liberal constitutionalism, it would then seem that the exercise of discretion by political leaders (be them populist or not) is not only contrary to the rule of law, but also incompatible with these wider ideals.

As always, the solution to this apparent dilemma is not to reject all forms of discretion or to relinquish the rule of law as an unachievable doctrine, but rather to distinguish between arbitrary, excessive, or irrational forms of discretion and forms of discretion that are justifiable, legitimate, or reasonable by the terms of the law. This would allow us not only to preserve the rule of law as a meaningful and useful doctrine, but also to make space for the exercise of discretion by political leaders without necessarily inviting the exercise of arbitrary power. Ultimately, this would enable us to distinguish between forms of exercising power (by populist leaders and otherwise) that are consistent with (at least one of) the requirements of constitutional liberalism or liberal democracy and forms that are not, shedding light on the question for the compatibility between populism and these ideals. To make this distinction, however, it is first necessary to clarify the sense in which the exercise of arbitrary power by political leaders is incompatible with the rule of law.

Among the many possible approaches to the concept of arbitrariness, the best known is perhaps that of classic and civic republicans, who tend to associate it with the concept of domination (and oppose both to the concepts of political freedom and the rule of law). Philip Pettit, for instance, conceives of political liberty as “non-domination or independence from arbitrary or uncontrolled power”. He thus contrasts freedom with the subjection of citizens to the arbitrary will of their leaders, where ‘arbitrary will’ refers to a will that is not constrained to track the perceived ideas of people about their shared interests. Julian Sempill, by contrast, argues that power is exercised arbitrarily (and against the rule of law) when it is exercised without respect for moral equality. In other words, ‘arbitrariness’ is a failure to give due weight to genuinely respect-worthy things. This means that if an administrative or judicial official fails to give due weight to the genuinely respect-worthy rights, interests, and expectations of citizens, she acts arbitrarily (and thus contrary to the rule of law).

The problem with these and similar interpretations of arbitrariness, however, is that they commit us to a too demanding understanding of the rule of law. This is because they entail that a political system complies with the rule of law only if it either (i) tracks the interests of people according to their ideas or (ii) respects their moral equality. This is problematic, though, as it blurs the difference between the rule of law and other ideals, such as democracy, and identifies arbitrariness with almost any evil that may afflict a state, such as domination. Consider the claim that a political system complies with the rule of law only if it tracks the perceived ideas and shared interests of citizens. This claim fails to distinguish between the rule of law and democracy, whose purpose is precisely to track the ideas and interests of people through certain decision-making procedures and institutions. The same could be said about the claim that a political system complies with the rule of law only if it gives due weight to certain genuinely respect-worthy things. This claim conflates the rule of law with substantive values such as equality, fairness, and basic human rights, one of whose purposes is precisely to give an equal and fair weight to the genuinely respect-worthy rights, interests, and expectations of citizens.

This lack of conceptual clarity prevents us from being able to distinguish between arbitrariness (the opposite of the rule of law) and other forms of abuse of power (the disregard for the perceived ideas and shared interests of people, the tolerance of class, ethnic, gender, and religious inequalities, or the violation of fundamental human rights). Making this distinction is important, however, if we wish to explain why a political leader may avoid all these latter ways of abusing power and still exercise her power arbitrarily (and against the rule of law) if she exceeds the legitimate scope of her discretion.

Think of it this way. It is not uncommon for political leaders (and left-wing populists in particular) to promise all the goods one may possibly imagine during their political campaigns. In the case of populist leaders, the promise is normally accompanied by a pledge to, wherever possible, bypass the constitutional and legal constraints established by the ‘corrupt elites’ to prevent them from carrying out the will of the ‘pure people’. Now, if a populist leader acted on this promise and exercised her power in ways that, despite exceeding the legitimate scope of her discretion, enacted the will of the people, we may well say that she did not abuse her power in the sense of disregarding the ideas and interests of citizens. What we cannot say, however, is that she did not act arbitrarily (and thus contrary to the rule of law). After all, she ignored the decision-making procedures and institutions that were supposed to constrain her exercise of power. What this example illustrates is that accounts of arbitrariness as broad as those of classic and civic republicans fail to explain why even a benevolent political leader who tracked the perceived ideas and shared interests of people and respected their moral equality would nevertheless act arbitrarily if she exceeded the legitimate scope of her discretion.

What Is, Then, the Alternative?

But what is to exceed the legitimate scope of one’s discretion? And how can we distinguish between arbitrary or excessive forms of discretion and forms of discretion that are justifiable or legitimate? A good starting point is to say that, when talking about the rule of law, the object of our inquiry should be the actual law. This means that we should avoid forcing substantive values that are completely independent from the actual law into the concept of the rule of law. Otherwise, we may end up having to accept counterintuitive implications such as the idea that, to comply with the rule of law (which may require respect for the moral equality of citizens), it is necessary to overlook the actual law (which may ban homosexual marriage). To be clear, I am not saying that there are no occasions in which disobeying the law is the right thing to do. I am just saying that, in doing so, we are exceeding the legitimate scope of our discretion (and thus acting against the rule of law).

An alternative to the broad accounts of arbitrariness of classic and civic republicans is thus an approach such as that of Galligan or Timothy Endicott, who focus on the legal and political principles implicit in the legal system that may justify and legitimate the exercise of power by political leaders. The key is that the question of whether the exercise of discretion by political leaders is arbitrary or not should be answered not on the basis of whether such exercise is responsive to substantive values independent from the legal system, but rather on the basis of whether it is consistent with the reasons, purposes, and moral principles that sustain the legal system as a whole. This means that whether a political leader exceeds the legitimate scope of her discretion will ultimately depend on whether she complies with what Endicott calls ‘the reason of the law’. By this, Endicott refers to the requirement that (i) laws regulate what, from a legal point of view, ought to be regulated and (ii) judges and executive officials act according to the reasons that justify and legitimate those same laws. This law-based approach would help us distinguish between those cases in which a populist leader has exercised her power in ways that are consistent with the requirements of the rule of law and those cases in which she has not.

Given the centrality of the rule of law for any interpretation of constitutionalism, it would then seem that a populist leader who did not exceed the legitimate scope of her discretion would not be exercising her power in ways that are incompatible with this ideal. This is important, as it shows us that populism and constitutionalism can be compatible depending on how discretion is exercised. In the context of populist and post-populist governments (both in the United Kingdom and across the world), this is significant for our assessment of the dangers of populism, even if only from a constitutional perspective.

Sonia is a postdoctoral researcher and Graduate Teaching Assistant (GTA) Development Associate at King’s College London.

(Suggested citation: S. Dávila, ‘Between Arbitrary & Justifiable Discretion: What Does It Tell Us About the Constitutionality of Populism?’, U.K. Const. L. Blog (1st October 2024) (available at https://ukconstitutionallaw.org/)