Document Type : Original Article
Highlights
Constitutionalism today faces the challenge that, the power of government must be established with the consent of the people and such power must be limited to concepts such as separation of powers, Judicial review, and the rule of law to maintain its continuity. Populism is one of the concepts that has emerged from this challenge in representative systems in recent decades. Explaining the relationship between populism and the rule of law will clarify the dimensions of this paradox. simply explaining the ratio between populism and the concept of the rule of law will not be very accurate, it's necessary to examine the relationship between the Conceptions of the rule of law and populism. the relationship between populism and the rule of law is not necessarily based on a contrasting relationship, but populism differs only in its essential conception of the rule of law, and the compatibility of a formal conception of the rule of law with populism is not impossible. An analysis of the ratio between populism and the substantive conception of the rule of law makes it very clear that populism, contrary to the claim to protect the sovereignty of the people results in the mere superiority of the majority, not the people; Analysis of this relationship shows that populism is not related to the first statement of the mentioned paradox.
As stated, in this paper, the aim was to analyze this challenging concept for the political and legal system from a legal and fundamental point of view. The political and sociological study of populism in recent decades and the legal studies of this phenomenon in recent years in the world are fascinating and controversial at the same time, and the purpose of this article is to follow this theory in the sense of "people" and "reliance on people's opinions". It has been to examine how reliance on the will of the people and the sovereignty of the people leads to complete authoritarianism by merging with this theory, and what role it can play against the rule of law, and it was analyzed whether the sovereignty of the people alone can counteract this phenomenon. And from this perspective, the phenomena were analyzed from the perspective of administrative law.
We started with the analysis of populism, and the analysis presented of the definition of populism shows that this concept consists of three important elements: the people, the elite, and the public will. In other words, the three characteristics of populism are the fundamental irreconcilable relationship between the people and the elite, the attempt to restore power to the people and the sovereignty of the people, the people as a whole and homogeneous whole; Thus, by definition, populism is a narrow ideology that advocates the rule of the people as a homogeneous whole; By definition, then, populists aspire to what can be called "totalitarianism": the idea that political society should no longer be divided into several factions, and the idea that one can work to unite people and have them all as one true representative; Therefore, the main claim of populism is a moralized form of anti-pluralism. In other words, it is not enough to simply oppose the established institution and the elites, but populism is not only anti-elitism but also anti-pluralism. This holistic and core monistic view of the universal will can lead to the support of authoritarian tendencies. Thus, unlike the rational process that is constructed through the public sphere, the populist conception of the public will is based on the concept of common sense. In short, because populism implies that the universal will is not only transparent but also absolute, it can legitimize authoritarianism and illiberal attacks on anyone thought to threaten the homogeneity of the people. In fact, in populist thought, political society is thought of as a homogeneous political group with a single and universal will, in which only the charismatic leader speaks and expresses the voice of the people, and all individuals and groups that do not belong to this homogeneous group (true people) The corrupt elites, minorities, foreigners, immigrants, are considered enemies by the populists and others and can be rejected.
In the face of this phenomenon, the rule of law can play a very important role. Of course, it is not possible to speak simply about the relationship between the rule of law and populism, but rather the relationship between the perceptions of the rule of law and populism; Therefore, in analyzing the relationship between populism and the rule of law, we analyzed the relationship between populism and perceptions of the rule of law. With the characteristics listed for the substantive perception, it is clear that this perception is completely at odds with populism because the populists, with the monopoly they hold for their thinking, believe that it is their correct interpretation of the will of the people and try to put pressure on other institutions. To rule their interpretation and believe that the laws enacted by them are "the orders of the people as rulers" and given the populists' view of the rule of the people as a whole and homogeneous, they have no right to others who can be elites and others. Some people do not fall into this category (such as immigrants and minorities) and do not believe in it, while according to the essential understanding of the rule of law, public forces are obliged within the limits set by law, in accordance with fundamental rights and under the control of independent courts. To act impartially, in other words, in this sense, It based on protecting the rights of citizens. On the other hand, according to what was specially stated in the opinion of Joseph Rose, in both forms of perception, there is a possibility of overlap and interaction with populism, and formality is not necessarily contrary to populism. As noted, populists believe that the correct interpretation of the will of the people belongs to them and try to impose their interpretation by exerting pressure on other institutions in society, and believe that the laws enacted by them Are the ruling title. In this sense, government action is legitimized when it is based on obedience to the (populist) law, and obedience to the populist law is considered necessary for the continuation of the rule of the people, and any restrictions on it are attacked. From this perspective, as stated in the analysis of formal perceptions, populism does not necessarily reject formal perceptions and may even use these tools to achieve these goals. For example, to enact a law that does not retroactively, to be made public, to be completely transparent; Therefore, legal and political systems mustn't consider the concept of rule of law as a simple concept and in determining the mechanisms, pay attention to the differences in perceptions in this regard and consider that the mechanism of the legal system is more based on supporting the substantive understanding of rule of law. Consequently, the monopolies of populism in that system will be curbed through the rule of law with a more justifiable justification. In other words, it can be said that populism is one of the most important challenges for the sovereignty of the people by claiming to support the sovereignty of the people.
