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In recent years political movements of a decidedly ‘anti-establishment’ character have taken many countries by storm, and many observers by surprise. Among the characteristics these movements share is that they, and more particularly their leaders, claim uniquely to represent the true, real people of the country, a claim that does not depend upon, but frequently can boast confirmation in, electoral victory. For unlike standard-issue coup-ists and putsch-ists, communists and fascists (also anti-establishmentarian until they become established), these movements are not shy of elections. They feed off them.
Around the world, populist parties have sprung up in formerly and formally liberal-democratic polities, challenging their existing political parties and leaders, and frequently overwhelming them. These challenges and successes were rarely predicted, arriving so soon after the wave of liberal democratic and constitutional enthusiasms, proclamations and institution-building which peaked in the 1990s. Bringing together scholars from law, political science and philosophy, this collection explores the character of contemporary populisms and their relationships to constitutional democracy. With contributors from around the world, it offers a diverse range of nuanced perspectives on populism as a global phenomenon. Using comparative and multi-disciplinary techniques, this book considers the specifics and similarities of populisms, and raises general questions about their nature and potential futures.
This chapter explicates, explores, and commends Patrick Glenn’s choice to recognize and emphasize the significance of tradition, his master concept for understanding law, in the workings of all legal orders. However, it does not share the evangelical enthusiasm that Glenn suggests should flow from this recognition. That enthusiasm is based, I argue, on a quite idiosyncratic and contestable conception of what traditions ‘truly’ involve, absent contingency or corruption. Glenn believes that recognizing the traditionality of legal orders allows us to see them as open to greater mutual recognition, tolerance, conciliatory living together, than we commonly recognize when we speak in other terms, say, of legal systems, cultures, families, and so forth. Without his excessively sunny conception of the nature of tradition as its foundation, however, a lot of the ‘conciliatory’ hopefulness so winning in Glenn’s writings seems to rest on shifting and uncertain ground. We should acknowledge that law is typically founded on and in traditions, that complex legal orders indeed typically are traditions, simply because these are facts, and important ones. I fear, however, that such acknowledgment will of itself do little to advance the mutual accommodations among legal and social orders that Glenn admirably favours.
On reading Philip Selznick's “Sociology and Natural Law” (1961), Philippe Nonet wrote him to ask if he could come from Belgium to UC Berkeley to study with him. He went on to become for a long time his closest collaborator. Nonet (2002, 50) later observed, somewhat Delphically but insightfully, that “those who look to Philip's work for contributions to this or that ‘field’— ‘sociology of organization,’ ‘industrial sociology,’ ‘sociology of law’— will doubtless find something, indeed a great deal, but they will miss all that matters.” This observation, perhaps overheated but in the right direction, resonated with me since I too have long thought that much that was most distinctive and distinguished about Selznick's thought is not well captured within conventional frames or characterizations. I have speculated about what is missed ever since I heard Nonet's remark. I have several candidates but here will focus on matters of sensibility.
In Philip Selznick: Ideals in the World, I claimed that
beyond his many particular insights into the nature and quality of institutional, legal, and social life and development, there is his cast of mind; ways of thinking, animating concerns and values, and a distinctive sensibility, that fuse humanist and scientific concerns, analytic and normative ones, without either embarrassment or false showmanship. These ways of thinking, concerns, values, and sensibility, this cast of mind are the primary subjects of this book. (Krygier 2012, 8–9)
In the main, in that book and other essays (e.g., Krygier 2002d), I approached these matters indirectly, interstitially, and implicitly, as they appeared in Selznick's treatments of the particular subjects of his published writings. I am here interested in the sensibility that shaped, framed, and infused those works and gave them their distinctive contours and tones.
In a way, this chapter serves, and not only by its placement, as the other bookend to Paul van Seters's introduction, between which the other chapters discuss Selznick's treatment of particular subjects.
Democracy and the rule of law are both “essentially contested concepts” in common use; indeed both are hurrah terms to which virtually everyone these days seeks to lay claim. In this brief chapter, rather than survey contestants I opt for stipulation. My stipulations are intended to be fairly undemanding, indeed deliberately unoriginal. They might well exclude legitimate contenders and not be uncontroversial, but they are intended to reflect not only my own preferences but central themes in long traditions of thought about these matters.1
Institutionalisation – Populism – Rule of law – Poland – Hungary – Post-communist reformers more given to emulation, adoption and installation, than institutionalisation – Institutionalised traditions as resources and sources of recalcitrance – New populists as institutionalisers of anti-rule of law values, de-institutionalisers of independent institutions – ‘Abusive constitutionalists’, who erode and subvert the kinds of institutionalisation necessary to temper power