Liberalism, Majoritarianism, Jurisprudence, and the Risks of Democratic Slide: Observations on Popper, Rawls, and Aharon Barak

We explore the idea that contemporary theoretical and juristic conceptions of liberalism increasingly adopt a post-majoritarian orientation, illustrated through a case study from Israel. Located at a junction of disagreement about the point where democracy slides into authoritarianism, post-majoritarianism can be understood as both a democratic fortification and a danger to the very ideational core of democracy. Post-majoritarianism, as we define it, describes a condition in which collective decisions are deemed legitimate only if they conform to predetermined normative standards. Majorities retain the formal power to decide, yet their legitimacy is granted externally—by principles or institutions that precede popular choice. In philosophical terms, this orientation draws on major currents in liberal thought, notably in the works of Popper and Rawls. Despite their distinct vocabularies, both thinkers argue that the essence of democracy lies not merely in registering citizens’ preferences but in constraining power through norms capable of public justification. Democracy, in this sense, is legitimate insofar as it governs within a framework of rights and reason rather than the mere will of the majority. Focusing on Aharon Barak, Israel’s former Chief Justice and credited initiator of the country’s legal reforms since the 1990s, we interpret him as articulating a theory of democratic authority manifested through judicial reasoning. His emphases on doctrines such as proportionality and reasonableness represent the operational heart of post-majoritarianism. These principles relocate legitimacy from the act of vote aggregation to the process of justification, granting courts a central role in evaluating when and how majoritarian power may rightfully be exercised. Judicial review thus becomes not only a mechanism of oversight but a philosophical statement about where authority ultimately resides within a liberal order. This interpretation carries both analytic and political implications. Analytically, it reframes constitutional adjudication: rather than a contest over judicial activism, it becomes a theoretical inquiry into the nature and sources of legitimate authority. The court’s task is not merely to interpret law, but to articulate the moral boundaries that enable collective self-rule to remain justifiable. Politically, this framework illuminates the rise of populism and its antagonism toward judicial institutions. Populist movements can then be understood not simply as anti-liberal, but as reactions to liberalism’s internal shift from majoritarian to juristic foundations of legitimacy. Their challenge, in effect, contests the relocation of democratic authority away from popular decision-making and toward courts and constitutional norms. If this account is correct, post-majoritarianism is neither a deviation nor a judicial accident. It follows logically from liberalism’s own commitment to rights-based justification. Once legitimacy is defined primarily by compliance with pre-political norms, democracy itself becomes conditional—governed by standards that transcend majority will while claiming to preserve its moral legitimacy.