There are numerous ways in which we can tend to characterize law’s normativity. Law can be more or less prescriptive – that is, it can be more or less ‘interventionist’, ‘command and control’ as opposed to ‘flexible’ or ‘reflexive’. What these understandings of law’s normativity have in common is that their starting point for analysis is law itself – not scrutinizing critically, I argue, the constitutive power of the law’s outside: that is the ‘reality’ (be it nature, economy, technology, family, or society) toward which this legal normativity is directed. In this paper I intend to take this ‘outside reality’ of law seriously and ask how do the ways in which we imagine and represent reality shape law’s capacity to do its normative labour. I will argue that what matters for the understanding of law’s normativity, and its transformations over time – more than the quantity of law, or how prescriptive it is – is the way in which we construe the reality on which law should intervene.
The modern constitutional imaginary is grounded in contradictory representations of what constitutes society, or ‘social imaginary significations’. The two key imaginary significations regard order and autonomy. The orderly function, as exemplified by liberal constitutionalism, has been predominant in the post-1945 Europe, resulting in ‘embedded constitutional democracy’ and international (legal) interdependence and integration. The modern constitutional imaginary which constitutes this form of society is facing erosion. It faces a significant loss of meaning, which indicates considerable forms of disconnect between formal, legal institutions and wider society, and widespread sensations of powerlessness and exclusion. The emergence of a populist imaginary of the law is both a result of and a contribution to the erosion of the modern constitutional imaginary and consists in an attempt to correct the legalist one-sidedness of ‘embedded constitutional democracy’ in the name of autonomy.
Populist arguments draw on the Romantic distinction between the alienating powers of society and the authentic community entrenched in the people's collective will. This call for authenticity is common to all populists irrespective of their ideological differences. The sociological distinction between society and community thus gets its globalised populist form in the systems of both law and politics. Sociologists, such as Zygmunt Bauman, speak of populism as a communitarian response to the global nomadism which leads to the constitution of 'explosive communities' and tribalism filling the void of meaning created by globalisation. This paper addresses the legal and political constitution of explosive communities within and beyond the nation state.