Public lecture on Populism, Constitutionalism and the Rule of Law (Oxford FLJS)

Constitutional expert asks: Can populism coexist with constitutional principles?, in FLJS Webinar streamed globally

22 June 2020

Can populism happily coexist with constitutional principles and practices? This is the provocative question posed by political scientist and constitutional expert Professor Daniel Smilov in the latest FLJS webinar, broadcast live to a global audience last week.

Professor Emeritus of Socio-Legal Studies Denis Galligan introduced the lecture, entitled Populism, Constitutionalism, and the Rule of Law, in which Prof Smilov gave an account of the impact of rise of populism on constitutionalism and the rule of law in countries across the world, with a focus on his own region of Eastern Europe, where democracies in Hungary and Poland have been particularly influenced by populist leaders.

Prof Smilov, Associate Professor in Political Science at the University of Sofia, Bulgaria, began by setting out the basic concepts of populism: that there is a set of ‘good people’ vs. a corrupt elite, and that the so-called ‘will of the people’ should be followed at all cost.

He confronted the consensus view that constitutionalism is, by definition, in conflict with populism, since constitutionalism is essentially an ideology of limited political power, whereas the populist model relies on strongmen leaders acting in defiance of state institutions and civil society.

Professor Smilov noted, however, that constitutionalism and liberalism are both the product of Enlightenment thinking, which has anti-paternalism as an essential element – i.e., the belief that the people should decide for themselves, and their preferences should be respected – and that in this respect at least, populism fits well with aspects of liberalism and constitutionalism.

Differences emerge in respect of other facets of Enlightenment thought, which Prof Smilov termed ‘the responsibilities of freedom’:

• Solidarity
• Empathy/Sympathy
• Self-education

Turning to the resurgence of populist leaders in Eastern Europe, Prof Smilov observed that even here, institutions have stood up well to attempts to overrule their place in public decision-making:

 

In countries like Hungary, Poland, or Bulgaria, the rise of populism has been spectacular in the last 10 years, but even in those countries it is an exaggeration to say that their democracies have collapsed into authoritarianism.

 

He did concede that populism in Hungary was strengthened by the COVID crisis, when Viktor Orbán passed an emergency decree that effectively suspended parliament as a lawmaking body, and yet, just the day prior to Prof Smilov’s lecture, this decree was abolished and the lawmaking powers of the Hungarian Parliament was restored. Given that Hungary remains part of the EU and other institutions that can restrain executive power, it remains a long way from the authoritarianism evident in Central Asian regimes or even Russia or Turkey.

 

He noted that, even if the independence of the judiciary has been compromised in some countries, including Hungary and Poland:

 

Interestingly, the rise of populism has not led to the softening of constitutions and the adoption of procedures that do away with constitutional constraints.

 

Returning to the bigger picture of the ideologies and strategies of contemporary populists, Prof Smilov identified a deliberate move by populists to subvert the traditional ideas of a political party to better serve their ideology, and to overcome the widespread lack of trust by the public in political parties, fostered largely by their own populist rhetoric.

The new method of populists is to sell themselves as authentic and direct transmitters of public preferences rather than as educators of the public – and as a result, we lose this important role of political parties in the process.

He went on to critique the attack on rights that characterizes populist politics, whereby rights are framed as part of a ‘liberal ideology’, especially the rights of ethnic, religious, and sexual minorities. These characteristic policies expose populism as intrinsically divisive, and undermine our ideas regarding non-discrimination and rights as embedded in our constitutions.

Populism also represents a direct threat to supranational constitutionalism, Prof Smilov warned, citing the many grievances against the EU which are frequently used to motivate populist voters, including attacks on the Council of Europe – and of course Brexit perhaps serves as the paradigm example of recent times.

Professor Smilov concluded by observing that the rise of populism has left us with weakened but still functional institutions, and it is this rule of law without self-restraint which undermines the Republican principle of constitutionalism as an ideology designed to represent society as a whole.

The webinar was the latest in a series of free public events that we are now offering to a global audience through our live broadcasts on the Zoom webinar platform and simultaneous livestreams on our Facebook Livechannel, where it has already been viewed several hundred times.

Videos of all our webinars, along with previous filmed events such as the Putney Debates, are available to view and download on our Video pages.

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