Populism and the Politics of Rights: The Dual Attack on Representative Democracy

Abstract

In Canada as elsewhere, representative democracy is under attack by both populists and rights advocates. The populist challenge comes mainly from Preston Manning's wing of the Reform party. The rights-based challenge is grounded on the Canadian Charter of Rights and Freedoms. These two challenges are different in obvious ways, but from the point of view of representative government—and ultimately of liberal democratic constitutionalism—what they have in common outweighs their differences. What they have in common is the appeal to a mystical being or icon beyond ordinary politics. In effect, the People or Rights become what God was to pre-liberal theocratic politics: a transpolitical trump on ordinary political division, a way of placing opponents “beyond the pale,” a demand for unattainable purity in public life and policy. While bills of rights and populism appear to flow, respectively, from the liberalism and the democracy of liberal democracy, they are, in fact, vehicles for precisely the kind of politics liberal democracy was designed to overcome. Representative government, not populism or entrenched rights, was at the heart of the “new science of politics” designed to make liberal democracy possible. Representative institutions, properly arranged in a system of checks and balances, were a way of blending liberalism with democracy, giving each its due, but indirectly, so that neither would be taken to self-destructive extremes. Populism and the judicialized politics of rights threaten to dissolve this salutary blend, at the cost of liberal democratic constitutionalism.

Entre mobilisations et institutions

“…Conscient de cette difficulté, Scheingold insiste sur la nécessité de combiner « les tactiques juridiques [...] avec d'autres modes d'action politique » (Scheingold, 1974, p. 85). Dans une toute autre perspective, certains théoriciens dénoncent le fait que les mouvements se détournent de la compétition politique -et tout particulièrement électorale -pour remporter leurs batailles, l'épreuve du droit venant remplacer celle de la majorité (Knopff, 1998). D'autre part, ce « moment droits » transforme sur le long terme l'identité des mouvements sociaux.…”

Charter Creep: Creeping Precommitment and the Threat to Liberal Republicanism

“…Rather than temper the socially disintegrative effects of faction, it heightens them, building antagonism, resentment and distrust and undermining the sense of common purpose constitutive of a working liberal republic. Marrying factionalism to the winner-take-all process embodied by judicial policy making, in other words, does nothing to militate against what Knopff (1998: 686) perceives as factions' inherent vulnerability to “theocratic temptation.”…”

Terms of Entitlement: Is there a Distinctly Canadian “Rights Talk”?

“…Morton and Rainer Knopff contend that, as part of the institutional transfer of power to the courts, the “moral inflation of rights claiming” transforms “reasonable disagreement into uncompromising rights talk” (2000: 157). Elsewhere, Knopff writes that courtroom rights talk “implies permanent winners and losers, painting one side as angelic and the other as satanic” (1998: 705). This “encourages participants to speak the language of extremism both in and out of the courtroom” (Knopff, 1998: 702).…”

“…Elsewhere, Knopff writes that courtroom rights talk “implies permanent winners and losers, painting one side as angelic and the other as satanic” (1998: 705). This “encourages participants to speak the language of extremism both in and out of the courtroom” (Knopff, 1998: 702).…”

“…They may agree that equality is a fundamental right—one that prohibits, say, slavery—while disagreeing profoundly, but legitimately, about whether this right protects only equality of opportunity or also equality of result…. The courtroom politics of rights, however, rhetorically gives these second-level disagreements the colour of truly fundamental ones.(1998: 700)…”