Populism and the rule of law

The resurgence of populism in Europe and North America is widely thought to have placed the rule of law under pressure. But how many of the relevant developments are indeed associated with populism? And is any such association a contingent or analytic matter: does populism inevitably threaten the rule of law, or do other conditions intervene to shape its impact? After setting out how I will understand the rule of law and populism, I examine the ways in which contemporary populist discourse has challenged the rule of law through a variety of mechanisms - notably agenda-setting, policy impact, influencing discretionary decisions and convention-trashing - considering the institutional and social conditions which conduce to strengthen or weaken these mechanisms in particular contexts. Finally, I consider the implications of the analysis for contemporary criminalisation, assessing how many of the factors producing ‘penal populism’ or ‘overcriminalization’ are truly a product of populism.