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In light of contemporary debates surrounding the condition of democratic-liberal regimes, the relationship between populism and the rule of law can be interpreted in three ways. First, populist governments are blamed for abusing the power granted by the people and using it to disdainfully treat the law and its institutions. Second, the perspective may be reversed, and then populists are seen as commendable guardians of order, opposing the arbitrariness of the "judicial caste" and the political activity of the courts. In this perspective, judges, instead of guarding the letter and spirit of the law, engage in politics, which by definition lies beyond their competencies and legitimacy. There is a third possible interpretation that emphasizes the close interdependence of both elements and the resulting consequences. This approach points out that populism as a political phenomenon is a reaction to attempts to impose a certain vision of constitutionalism on the functioning political community. Hence, tensions along the populism-rule of law line often occur in systems that have undergone a regime transformation, resulting in the need to constitutionally regulate public life anew (Loughlin, 2022). In this framework, we are dealing with a clash of alternative value blocks, and the understanding of constitutionalism extends far beyond what is contained in the constitution.

It is therefore worth emphasizing that we may be dealing with a situation where constitutionalism is understood on the one hand as a set of values, expressed for example in civil liberties, respect for the right of individuals to determine their own fate. On the other hand, constitutionalism can consist of a kind of mechanism, a purely formal regulation of the legal framework for the functioning of society. In this context, the ideal of the rule of law has no necessary connection with promoting specific values, but with creating formal conditions for the peaceful coexistence of individuals in society. It is worth recalling at this point that the rule of law understood in this way does not necessarily have to go hand in hand with a democratic regime (Raz, 1979). What regime guarantees the functioning of the rule of law seems to be a secondary issue.

The rule of law, by its nature, should serve to limit arbitrariness, and thus dependence on the will and whims of individual political decision-makers. Populists, on the other hand, would like to be the expressers of the people's will in its purest, most spontaneous form. The confrontation of these two approaches seems inevitable and is reflected on several levels. For example, it is noted that the constitution is not only a written text that seals the social contract, but also a kind of institution that should co-create the democratic political order. According to this assumption, it should not be resistant to changes articulated by a democratically constituted society (Hutchinson, 2021). The ideal of the rule of law must assume predictability as its main advantage and value, while in a democratic regime, the essence of governance is the change of reality. A political party that would go to elections with a slogan advocating leaving everything as it is would likely achieve rather dubious success.

The next level that emerges in this context is the temporal level. It seems that the judiciary, which safeguards the rule of law and adherence to constitutional provisions, is oriented towards a certain timeless perspective. Law, by its very nature, cannot be entirely dependent on social context and individual cases. The legal system is created to abstract from specific circumstances of social life. It consists of more or less detailed regulations that stem from general principles and norms. When the law is meant to guarantee individual freedoms, we refer to the freedoms of all persons who may potentially find themselves in a situation where the protection of their rights will be necessary. We do not mean the protection of the rights and interests of specific individuals named or characterized by other features. This abstract and timeless perspective of the rule of law contradicts the political perspective, in which democratic parties represent the interests of their voters. These interests, according to the logic of elections and political competition, should be realized with particular consideration of the temporal preferences of various social groups interested in achieving their own goals. A leader or political party cannot adopt a timeless and abstract perspective, but rather a perspective oriented towards the circumstances of time and place of specific public matters. Therefore, it can be stated that when we speak of the rule of law and populism, we are discussing different types of power arising from different temporal horizons (Kojève, 2014). An example that clearly confirms this is found in German constitutionalism, where there are references to "eternity clauses" (Ewigkeitsklausel), which prevent changes to selected elements of the constitution primarily related to the structure of the state and civil rights (Suteu, 2021). Notably, in the case of Germany, the institution tasked with responding to undesirable political fluctuations manifested recently by the rise of extreme movements is called the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz). It serves as an instrument for safeguarding constitutional order against uncontrolled political changes.

An inseparable element of the liberal-democratic order is the concept of the separation of powers. However, it should be noted that today the dichotomy between the legislature and the judiciary seems to clearly determine the functioning of political systems. Increasingly, it is being said that the separation of powers, although declaratively included in the constitutional order, does not describe the real balance of power. As can be read in the commentary on European Union law, due to the evolution of the political system, we are dealing with a dual division, within which the executive power together with the legislative power constitutes a political authority opposed to the judiciary, which is focused on implementing the rule of law (Leszczyński, 2019). It is becoming increasingly evident that, as noted by former judge of the Court of Justice of the European Union Marek Safjan, the judiciary, especially at the European level, is taking on functions related to guaranteeing political stability, and a characteristic of modern law is its dynamism and flexibility conditioned by the circumstances of democratic societies (Safjan, 2007). The populist response to this state of affairs is the controversies surrounding attempts to limit the power of the courts.

The rule of law and populism cannot operate together, as this is conditioned by their fundamentally opposing directions of functioning. At this point, both factions cannot be right at the same time, nor can they be wrong simultaneously. However, it should be noted that their coexistence is not accidental. In my opinion, it stems from a strategy to control political stability. When courts fight against populists, it is mainly because they enter the domain belonging to politics – the domain of flexibility, dynamic law responding to the needs of the moment. When populists fight against judicial elites, they abandon a common-sense approach to law and politics in favor of a return to a "normal state," to traditionalist attitudes unburdened by the content of any particular tradition, to the golden age of the people's rule over the elites, which never occurred. From the citizen's perspective, the differences and scopes of both approaches are blurred. The domains belonging to the rule of law and politics merge into a single image of chaos, in which only personal rivalries remain tangible, serving more as an imitation for the audience than a reflection of reality.

Perlikowski, Ł. (2025). The rule of law and populism interdependencies: the perspective of political stability. Studia Politica. Romanian Political Science Review, 24(2).https://journals.unibuc.ro/index.php/sprps/article/view/808

Sources:

Hutchinson, A. C. (2021). Democracy and Constitutions. Putting Citizens First. Toronto: University of Toronto Press.; Kojève, A. (2014). The notion of authority: a brief presentation. London: Verso.; Leszczyński, L. (ed.) (2019). Interpretation of European Union Law. Warsaw: C. H. Beck Publishing.; Loughlin, M. (2022). Against Constitutionalism. Cambridge, MA: Harvard University Press.; Raz, J. (1979). The Authority of Law: Essays on Law and Morality. Oxford: Oxford University Press.; Safjan, M. (2007). Challenges for the Rule of Law. Warsaw: Wolters Kluwer.; Suteu, S. (2021). Eternity Clauses in Democratic Constitutionalism. Oxford: Oxford University Press.

#1 Ł. Perlikowski (29.07.2025). The Rule of Law and Populism – Why it (Doesn't) Work Together?, https://lukaszperlikowski.pl/blog

The rule of law and populism - why does it (not) work together?