A Game-theoretical Model of Penal Populism and Judicial Culture

In this paper, we study the penal populism through a game-theoretical model. We assume the public choice hypothesis of criminal system bureaucrats being budget-maximizers agents, and the government as a principal intending to reduce the impacts of crime on public opinion. The government might decide to fight crime in two fronts: first by using legislation and intelligence investment to reduce crime financing; second, it might increase street level imprisonment to satisfy local demands. It is possible to show that if the crime organizations are difficult enough to fight using intelligence (or if electors do not reward these crime-fighting activities), then a punitive penal culture will emerge from the interaction between politicians and the decision of non-ideological rational judges. As a consequence, the penal populism from politicians and judges must be framed in a much broader concept of punitivism as an element of civic culture, not only in a legal or political scheme.

Populist Politics and Democracy: Rediscovering Inherent Democratic Quality of Self-Defence

Recent political developments around the globe demonstrate strong capacity of populist political movements to mobilise voters, gain their support and access to power. Public law should remain on guard to protect democracy from its potential enemies. This paper argues militant democracy is an inherent quality of democracy and offers valuable theoretical and practical tool to address this new challenge to democracies and their existence. The paper analyses the role of public international law and international organisations to argue there are strong signs public international law favours a substantive view of democracy and moves towards considering states as having an obligation to preserve and guard democracy and its institutions from attacks within. Public international law grants capacity to international organisations to exercise militant democracy measures in relation to Member States that disrespect and ignore major democratic principles and rules.

Shifting constitutional imaginaries

Taken-for-granted notions of the political, regarding representative democracy, the rule of law, and constitutionalism, are being put to an existential test. The longue durée of modern democracy has arrived at a turning point. This turning point calls for a profound analysis, which is able to identify fields of tensions and important shifts in meaning. In-depth analysis ought to be based on a historical perspective grounded in the idea of social and political imaginaries. Strictly tied up with the emergence of the political imaginary of modern democracy are constitutional imaginaries, in particular a dual imaginary of order and self-government. The paper will, first, elaborate the notion of imaginaries. Second, it will explore the idea of constitutional imaginaries. Third, the paper will discuss contemporary shifts in (the hold of) political and constitutional imaginaries, engaging in particular with what could be identified as a ‘populist imaginary’ of constitutionalism.

The possible links between citizen participation and populism

At least two aspects are worth mentioning in the relation between citizen participation & populism. Firstly, the latter is aware of the current participatory gap. In this aspect it is similar to “innovative” theories such as participatory and deliberative democracy. Nevertheless, solutions are different. I will explain to what extent it is such a difference. A second relation is that populism has a distinctive conception of citizen participation. Even when populist movements tend to reject constitutional structures, once in power, populist governments tend to instrumentalize constitutions for their own good. “Populist constitutionalism” serves us to understand that ambivalence. As a theory, populist constitutionalism places itself between popular and authoritarian constitutionalism. I argue that a “participatory” criterion is useful in defining its closeness to one of these poles. The cases of Andean and Hungarian populist constitutionalism serves to exemplify this idea