Program Description: Liberal democracy has sought to enable ordinary democratic politics—and to discipline it by putting certain domains beyond its reach. Among those domains, in the traditional understanding, are constitutions and the rule of law; markets and private orderings; civil society institutions, especially the family; more controversially perhaps and for different reasons, independent institutions such central banks or universities. In institutional practice, those somewhat artificial lines have always been blurry, and one can reasonably ask whether they can hold under conditions of a modern democracy. Still, the general sense has been that that there must remain some viable distinction between public and private, between “the state” and society. Not everything can and should be politics.
Is this still true? Constitutional and rule-of-law constraints are treated rather cavalierly these days. Dire warnings of an ascendant “neoliberalism” notwithstanding, the most humdrum economic transactions have become subject to pervasive regulation. The same appears to be true of civil society institutions. Paradoxically, though, enormously important decisions over public affairs have been entrusted to bureaucratic institutions and courts that are effectively and deliberately placed beyond democratic controls. Politics, it seems, is not quiteeverywhere. It is just in all the wrong places, and goes missing where it belongs. And both the rise and the demise of politics cut against liberty and the rule of law—no?
At the Transatlantic Law Forum’s Ninth Annual Conference, leading jurists, social scientists, and opinion leaders from both sides of the Atlantic discussed “Liberalism, Populism, and the Politicization of Everything” in its many dimensions and in a comparative perspective. The conference featured a reception, dinner, and keynote address by former Professor Udo di Fabio, former Justice on Germany’s Federal Constitutional Court