Populist Rhetoric, False Mirroring, and the Courts

International Journal of Constitutional Law, Vol. 18, No. 3, 2020

20 Pages Posted: 5 Feb 2021 Last revised: 13 May 2021

See all articles by Alon Harel

Alon Harel

Hebrew University of Jerusalem - Faculty of Law

Noam Kolt

University of Toronto

Date Written: December 24, 2019

Abstract

The rise of populist political rhetoric signals a departure from accepted models of democratic representation. Nowadays, in Israel and in other democratic countries, many elected officials purport to give effect to the raw convictions of their constituents. We contend that calls for elected officials to mirror popular views undermine democratic representation. In addition to the theoretical challenges it faces, the narrative of mirroring public sentiment has the potential to disguise what might be the underlying intent of populist politicians—to actively manipulate the political agenda and reshape popular preferences, while passing these off as reflecting the public’s authentic convictions. We call this “false mirroring.” Populist rhetoric has also spilled over into the judiciary. Some judges embrace public opinion, incorporate it into their decision-making and, in doing so, generate populist courts. This article examines Israeli case studies in order to expose the unsettling role of populist rhetoric in both political and judicial contexts. Judges, we suggest, must continue developing tools to resist judicial populism and maintain robust and independent courts.

Keywords: Populism, Political Rhetoric, Democratic Representation, Judicial Populism

Suggested Citation

Harel, Alon and Kolt, Noam, Populist Rhetoric, False Mirroring, and the Courts (December 24, 2019). International Journal of Constitutional Law, Vol. 18, No. 3, 2020, Available at SSRN: https://ssrn.com/abstract=3755180 or http://dx.doi.org/10.2139/ssrn.3755180

Alon Harel (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel
97 22 588 2582 (Phone)
97 22 582 3042 (Fax)

Noam Kolt

University of Toronto

Toronto, Ontario M5S 3G8
Canada

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