By Roger Cotterrell, Queen Mary University of London

Popular legal consciousness seems a straightforward idea: it refers to popular perceptions of law, usually grounded in people’s personal experiences or observations in a particular environment. But populist? Populist legal consciousness can be coined as a term to mean the projection of these popular perceptions into direct demands made on the state for action. So populism says ‘there ought to be a law about…’, or ‘the law should be our law’, or ‘the law ought to recognise our experience and reflect it’. Reduced to a simple slogan it can come down to the familiar mantra of ‘take back control’.

What does that mean legally? In the Brexit context it means ‘control our own borders’, ‘make our own laws’, ‘have only British judges to enforce them’, ‘set our own trade rules’, ‘be masters of our own budget.’[1] And who are ‘we’ who will take back control? At first glance the answer would seem to be Parliament and the judges implementing Parliament’s sovereign will. But Parliament and judges are quickly seen as enemies of ‘taking back control’ if they interpose legal procedures that might slow it down or prevent it. So Parliament and judges do not appear, in what might be called Brexit legal consciousness, as ultimate repositories of control. Taking back control means direct control by ‘the people’ which, through the operation of direct democracy by referendum, is constructed to mean the whole country; in Rousseau’s sense, the ‘general will’. Populist legal consciousness seeks to have its thinking expressed comprehensively in the law of the land – the law that will apply to everyone. So it tends towards the idea that there is a single, universal policy viewpoint to be embodied in law for all.

Long-recognised issues of direct democracy arise. Those who cannot see the path to freedom through implementation of the general will are, in Rousseau’s phrase, to be ‘forced to be free’. The totalitarian implications, long recognised as present in Rousseau’s idea of democracy, easily lead to identifying ‘enemies of the people’, even including judges. But attempts to construct popular legal consciousness as monolithic so that it can be directly projected into state action are problematic. Populist legal consciousness is a tiger which politicians and lawmakers ride at their peril because it risks enfeebling complex policy formation processes.

Populism emphasises and expresses sentiments and ultimate values (i.e. those held absolutely without compromise) whereas most law making in complex modern societies seems inevitably pragmatic and full of trade-offs. Max Weber saw modern law as having lost its ‘metaphysical dignity’ in the sense of having become merely the compromising of conflicting interests. This does not mean it is empty of reference to ultimate values; only that responsible government requires responsible balancing of competing interests, rather than the legal enactment of ideology. In Weber’s terms, the ethic of responsibility in politics has to dominate (but does not cancel out) the ethic of conviction.

We see especially clearly in criminal justice what happens when populism is imported into (and manipulated in) legal policy-making. Penal populism inspires the ‘punitive obsession’ that fills prisons to overflowing and has provoked amazement beyond the Anglo-American contexts in which it thrives. Where does the problem lie? Governments can have many reasons to fan popular sentiments, thus making them seem more universal than they are (or might otherwise be without manipulation). A tight symbiosis can sometimes exist between government interests and populist legal consciousness. At the same time, this consciousness can make demands on lawmakers that cannot realistically be fulfilled. The formation of law and policy usually entails complexities and technicalities that populist legal consciousness does not recognise or may treat as merely obfuscation, prevarication or mystification wrapped up in lawyers’ tricks or politicians’ deceit.

More fundamentally, because populist legal consciousness elevated into a kind of general will can seriously hamper responsible law making, it provokes fundamental questions about the kind of democracy that is compatible with modern law. Many states have experience of direct democracy in the form of referenda, plebiscites or other structures that minimise the moral distance between rulers and ruled – that is, the remoteness of the former from the latter and the legitimacy and efficiency problems than can arise from this. Reduction of moral distance is surely a good thing. But it can only go so far. Referenda usually require the simplification of political choices to simple either/or decisions. Mass plebiscite systems such as those of Avaaz or other online campaigning organisations typically invite voters to support or reject particular policies, to agree/disagree with simply stated opinions or positions, or to rank listed priorities. These and similar mechanisms are very useful ways of canvassing mass opinion and trying to bring popular pressure to bear on governments and policy-makers. Their proliferation is to be welcomed. But they are necessarily crude interventions in political complexity. As forms of digital direct democracy they can, at least for the present, hardly replace deliberative representative government and the technicalities of law making.

Populist legal consciousness expressing itself through direct democracy is obviously powerful. It possesses apparently unchallengeable legitimacy if accepted as a proclaimed Rousseauian ‘general will’. But the very idea of such a general will should be discarded, and with it any idea that popular legal consciousness can be uniform or universal. Popular legal consciousness itself is a useful concept, especially in studying moral distance between lawmakers and the populations they regulate. The idea becomes dangerous only when the inevitable complex diversity and contradictions it implies are ignored and so it becomes available to drive populist legal policies whose seemingly obvious democratic legitimacy obscures too many issues about how democracy can and should work.

[1] As summarised in Paul Taylor, ‘Brexit — When taking back control means giving up control’ (Sept 12, 2017).