Exceptio Popularis: Resisting Illiberal Legality

The chapter reflects on the relationship between human rights discourse and populism from a politico-philosophical and socio-legal position. In this perspective, human rights and politics are closely linked. These rights are vocalised in the political process and mediated by social institutions. Contemporary populism is founded on the moralistic imagination based on an axis of elite-population division that leads to the necessity of a social transformation within which power and social resources will be redistributed. At the same time, such political rhetoric and practice emphasise its democratic character, which distinguishes it from simple authoritarianism. This leads to populism acceptance, at least rhetorically, of the universalist human rights discourse with the simultaneous need to its content. The populist regime of Law and Justice (Prawo i Sprawiedliwość) in the years 2015–2023 in Poland provides a useful case study in this regard. Populism's attitude towards human rights is not explicit and does not consist of simple rejection. Populism instead redefines the relationship between the community and individual rights through rhetoric that violates minority rights and policies that strengthens social rights and distributes recognition based on national identity. As a result, populism pursues its own, different from (but grown out of) liberal, more republican politics of human rights.