Public Law L6 - Jo Murkens PDF

Preview

Summary

Jo Murkens...

Description

Public Law – L6 Democracy and Representation Plato = thought democracy undermined necessary skills that were necessary to govern society – democracy played into hands of those who could win elections, charismatic, popular – this came at cost of skills you actually needed to govern society = most people don’t possess these skills – in order to get elected politicians must appeal to a persons sense of what is right/wrong not what is actually right/wrong Leads to state being governed by those who are expertise in mass manipulation – and won’t be governed properly – no moral backbone – this was the orthodoxy for the next 2000 years until French/American revolutions Democracy not followed in Rome – Representation is the step we need to take: Thomas Hobbes  Sovereign power lies entirely with ‘the office of the soveraign  Representative’ which exists for ‘the procuration of the safety of the  People’.  Commonwealth < social contract < agreement amongst individuals to be  Represented.  The ‘people’ only exist once a sovereign power is established. o ‘a people is a single entity, with a single will; you can attribute an act to it. None of this can be said of a crowd.’ o Saying: Pre-legal factual unit is a crowd, mass of people – through the act of constituting themselves through social contract that they become a single entity  You still have 100% of population – cant exist as a decision making unit too big – have to draw distinctions through citizenships and voting rights, other forms to reduce numbers 1. Pre-legal people 2. Then people as a legal categorty – too big e.g. prisoners cant vote, have to be 18 3. Get rid of people on margins – electorate (still large but more managlabe)

Who are the people? Abb@ Si@yAs (1748-1836): 1. pouvoir constituant Pre-legal, constitutional function of the people 2. pouvoir constitu@ Democratic function of the people: citizenship, right to vote Aka: ‘the electorate’ 3. “the nation” is the constituent power; but it cannot govern - Government is precondition for individual freedom; No identity of rulers and ruled.

  

What you need for gov. is representation, gov. is widely seen in modern democracies as pre-condition for individual freedom Only the people can give themselves a new constitution Every election/referendum is not a revolution, not of people, it is an act of electorate, in every western democracy all decisions subject to scrutiny, control and amendment o Parliamentary sovereignty (Westminster has final say) o Constitutional sovereignty (courts have final say) o Popular sovereignty?

o These controls are necessary otherwise democracy can abolish itself: to prevent, need counter majoritarian, extra parliamentary checks on people = this may be undemocratic, but maybe it is a modern feature of democracy that is necessary Representation fundamental to modern gov. Representation...  A mechanism to ensure all citizens can be heard  A superior form of government (effective conflict management)! – The source of political power (direct democracy is inefficient) …as a process of exclusion  Citizenship  Voting rights  The problem of representation is not quantitative (number of votes), but qualitative (fairness of procedure) James Madison – the will of the unrefined people, needs to pass through these wise, chosen citizens, this elite body truly know the interests of the country – this is an early example of representation – slightly elites but also accurate Democracy  Democracy is a contested concept, not a fact.  Historically conceived as mob rule/threat to society

 

Churchill: ‘Democracy is the worst form of government except for all those others that have been tried’. ‘The best argument against democracy is a five-minute conversation with the average voter’. • G.B. Shaw: Democracy is ‘the substitution of election by the incompetent many for appointment by the corrupt few’. (either aristocratic corrupt few – or the people incompetent many) • C. Attlee: ‘Democracy means government by discussion, but it is only effective if you can stop people talking’

Greek: Demos = people, Kratein = power / rule   

Q: Rule of the people; rule of the many; rule of an assembly? Thomas Paine/Abraham Lincoln: ‘government of the people, government by the people and for the people’.

French revolution was not fought on basis of democracy, nor does American constitution mention democracy – idea of republic which is the concept that frames politics – way into the 19th c was a word that was not actively used – this change with widening participation (franchise is reformed 1832/1867) – still conceived as mob to rule/threat to society (leaves people in charge but more people get to choose them) Recall formal v substantive rule of law (content free – rights-based conception of rule of law – equality principle – all still very basic and poses problems for PS)

Democracies are not just free/fair elections – autocracies run this – open and accountable gov. is quite demanding requirement for democracies Democracy as political concept – people try to measure this e.g. through corruption, press freedom

 

Of the people: participatory vs. elite democracy Of the will of the people: direct vs. representative democracy

Direct: participation in policy formation and policy decision (e.g. binding referenda).  

Of decision-making: majoritarian vs. consensus democracy Of application: formal vs. material democracy

UK democratic: free and fair elections, produce majority governments, rights are protected, ECHR freedom of speech

  

   



Problem from democracy perspective No gov. since 1945 has had a 50% majority – 50% share of the vote – surely this has to be the minimum? Two party system? 80% of electorate voted for two parties – Tories or Labour Over one million voters who are not represented – it punishes the smaller parties – they voted for smaller parties are where not represented e.g. Green Party has one MP in Brighton Does this look so democratic anymore? Until 2010, no British government had been elected with even a bare majority of votes cast since 1945. Exception: May 2010 general election – Coalition: 59% of votes, 56% of seats (363) – the one time the gov. had majority and it wasn’t seen as legitimate as it was a coalition The Conservatives’ best result in terms of seats was 1983 when they won 397. Correspondingly this was Labour’s worst result in terms of both seats, 209, and share, 27.6%. The Conservatives’ highest share of the vote was in 1955 when they polled 49.7%. Labour’s 418 seats won in 1997 is their highest ever while their highest share was 48.8% in 1951, an election that they lost. The lowest Conservative share was 30.6% in 1997.

Is the UK a democracy?

   

 

The British constitution ‘knows nothing of the people’ Bogdanor, Power and the People (1997) GK Chesterton: ‘We are the people of England that never have spoken yet’. Government by the representatives of a majority of the people? Government by the single largest minority of those who vote. ‘manufactured majorities’ and ‘pluralitarian democracy’ UK variant: ‘democracy by consent and not by delegation, of government of the people, for the people, with, but not by the people’: L.S. Amery, Thoughts on the Constitution (1947) – slightly paternalistic? People are legally irrelevant Parliament: House, Lords, Monarch – intrinsically historic, not intrinsically democratic – only one part is democratically elected Gov. by the single largest minority of those who vote – not a majority democracy - pluralitarian democracy’

Westminster model – power hoarding

 

After WWII US and UK were dominant models of democracy. Characteristics = Parliamentary majority - Party competition - Individual liberalism



1688/9: Glorious Revolution: absolute power wrestled from King and gradually transferred to Parliament. Thomas Hobbes/John Locke: individual liberalism (free and autonomous pursuit of self-interest) => If everyone is equal, majority rule is practical and unproblematic.

 

Characteristics:  A majoritarian electoral system  A two-party system  Bare-majority governments  Fusion of executive and legislative powers (Bagehot)  Competition between government and opposition  Weak bicameralism

Consensus Model emerged – power sharing – decentralism   

Late 1960s/early ’70s Smaller countries (CH, NL, BE) challenged legitimacy and primacy of majority rule Characteristics: – Different linguistic/religious groups – Majority rule not acceptable/practicable – Political stability through negotiation/compromise – Governance through coalition of parties

Questions  



What is the most efficient way to represent interests? Is it also the most democratic? Do you think direct democracy is more democratic (by welcoming new voices into debates), or does it drown out minority voices and place overwhelming power in the hands of the majority and rich individuals who could finance referendums? What political form best describes the UK? – Parliamentary government? – Parliamentary democracy? – Constitutional monarchy?

A ‘presidential system minus the president? 

What are the (dis-)advantages of the two models of democracy?...