– Paul Yowell, Associate Professor of Law at Oxford
FLJS co-founder examines constitutional fall-out from populist surge, in 2018 Max Watson Lecture
Professor Denis Galligan, Emeritus Professor of Socio-Legal Studies, delivered the 2018 Max Watson Annual Lecture at Wolfson College last week, on the constitutional consequences of the rise in populist movements around the world.
In the lecture, entitled The Post-Populist Constitution: Reassessing the Place of the People, Professor Galligan examined the changing role of the citizenry within constitutional orders of representative government, in which the people – the many – are called upon to submit to the will of the few who govern.
He identified the purpose of the constitution as to define relations between peoples and government, and sought to explore the reasons for the rise of hardline populists such as Erdogan in Turkey, Trump in the US, Orbán in Hungary, and Bolsonaro in Brazil.
The following day a workshop was convened to further explore the themes raised, with a particular focus on the constitutional implications of populist currents in Italy, Eastern Europe and the United States.
Francesco Bilancia, Professor of Constitutional Law at the Università degli studi G. D'Annunzio di Chieti e Pescara, described the constitutional reform attempts in Italy in 2006 and 2016 by Presidents Berlusconi and Renzi, and the more recent attacks on the independence of the judiciary.
He argued for reform of the EU political system, a reduction in the number of MPs, and a strengthening of the capacity of citizens to initiate legislation, in order to arrive at a "reciprocal legitimizing relationship between the people and the constitution" and to protect respect for minority rights.
Daniel Smilov, Associate Professor at the University of Sofia, outlined the challenges of a particular kind of "agonistic, confrontational politics" presented by populist movements in parts of Eastern Europe including Hungary and Bulgaria. He identified the inherent tension between populism and constitutionalism which results in the use of the Constitution as a weapon, whereby it is instrumentalized by populist leaders preaching radical politics and flouting the idea that self-restraint is a virtue.
He foresaw that the effects of President Orban's populist rule in Hungary would be long-lasting, since the populist government has implemented constitutional changes to give power to a range of independent counter-majoritarian institutions, in which they entrench their influence and insulate themselves against future political change. This would result in:
– an increase in social polarization and the radicalization of political debate by extreme factions/’tribes’;
– the demise of traditional ideologies – social democracy and Christian democracy – those which provide a safety net for the worst off and a framework for the coexistence of different peoples;
– Christian identity being corrupted by populists as a marker of exclusion rather than inclusion.
Looking to possible solutions, he identified greater efforts at political education – from the media, in universities, and in schools – as the primary goal.
Bogdan Iancu, Associate Professor of the University of Bucharest, developed this focus on Eastern Europe through the lens of what he termed 'the Rashomon effect', in which each party – in this case Poland and Romania on one hand and the EU on the other – have completely different perspectives on the populist moves within these countries.
He described the court packing and unconstitutionally elected judges by the ruling Law and Justice Party in Poland and other erosions of judicial independence and the rule of law, and contrasted this with what he characterized as an excessive post-EU accession conditionality imposed on Romania to combat corruption, but which has been extended indefinitely, leading to a dramatic increase in national security warrants, wiretaps, and the apparatus of the security state.
Paul Yowell, Associate Professor of Law at Oxford, opened his comments with a statistic from the 2017 US Election Exit poll – in which 25 per cent of the electorate said the appointment of the Supreme Court Justice was the most important factor in their voting decision, and that this section of the electorate may have given President Trump his crucial majority.
Prof Yowell interpreted this as a Conservative populist backlash against a previously liberal-leaning Court, and attempted to divine its future direction following Justice Kavanaugh’s controversial appointment, given his adoption of the same originalism that Justice Thomas subscribed to.
Paul Blokker, Associate Professor in Sociology at the European University Institute, examined the relation between populist constitutionalism and popular sovereignty and engagement, and argued that populists challenge constitutionalism most successfully when the constitution is weakly embedded in society.
Prof Blokker outlined the many ways that citizens can be involved in constitutional reform – through referenda, legislative initiative, constitutional complaints such as action popularis in Hungary, constituent assemblies in Latin America, and ad hoc reform processes such as were held in Iceland and Ireland – and asked how we can best embed constitutional norms among the populace, through commitment to the rule of law and civic empowerment.
Nicholas Friedman, Research Fellow in Law at Oxford, noted in his comments that despite their anti-elite rhetoric, populist movements have not resulted in a flattening of the social structure but an entrenchment of elites. He characterized populists as by nature pragmatic, rather than idealistic, adaptable enough to support whatever prevailing ideology bolsters their aims.
Courts do not enjoy the mandate of popular support, and are institutionally weak, with no power of purse or sword – so must be critically concerned with shoring up their power by other means – bolstering their popularity and legitimacy by making decisions that track the public’s prevailing mood at the time.
He cited evidence for this so-called 'strategic behaviour hypothesis' in the US, and predicted that it could lead to courts reinforcing rather than leading us away from the trend toward populism, in the short-term at least. Looking ahead, he predicted that value-based judgments of courts on decisions relating to controversial public policy issues such as abortion and equal marriage might be made more public, and therefore open to greater scrutiny.
A series of Policy Briefs are planned to emerge from the workshop, to be published over the coming months.