International Law and the Rise of Populism

Abstract

Contemporary legal scholarship seeks to diagnose populist antagonism towards national and international law and warn about the challenges it poses to the cooperation needed to respond to global threats. What this scholarship overlooks, however, is the role that major shifts in international legal normativity and conceptions of global governance have themselves played in incubating the conditions for the rise of populism. Against the prevailing literature, this Article argues that the key to unlocking this puzzle is to recognize that populism, rather than constituting an external social pathology, is a mode of politics arising internal to the intellectual history and practice of liberal constitutional democracy.

The Article argues that populism is grounded in an account of political authority and legal normativity that stands in deep tension with an opposing account of law as immanent moral order and which understands legal normativity not ultimately as a matter not of sovereign will, but of universal reason. Viewing rights in both national and international law in a relation of “dual positivization” against the background of a global moral order has paradoxically deeply eroded the political authority of the nation state and undermined the legitimacy of popular sovereignty as a source of law.

This insight suggests at least three challenges to our contemporary understanding of international law: first, regarding the linkages between human rights values and the ascendancy of neoliberalism as the defining feature of international order; second, regarding the diminution of collective national, religious and cultural values in liberal accounts of international law; and third, regarding the rise of a distinct form of secular legal rationality and technocratic expertise in both the operation and reach of modern global governance regimes.

Keywords: international law, populism, liberal democracy, sovereignty, human rights