Posts Tagged ‘democracy’

Macron, the Yellow Vests and the Redemptive face of politics

On November 17th, 2018 large crowds began blockading roads around France dressed in the high-visibility yellow jackets that all French cars must store. Their initial demands focused on stopping a new fuel levy introduced to reduce carbon emissions and raise money for investments in renewables. However, this has not been the French government’s only problem: a recent survey has suggested the French are the most pessimistic people in Europe seeing little hope in the future either for themselves or the country, hate crime has risen dramatically, and, remnants of the Yellow Vests continue to organize violent demonstrations around the country. ...

Richard Ekins: Reflections on Democracy’s Foundations

This is part of a series of posts in which Richard Ekins reflects upon Lord Sumption’s Reith Lectures. You can find the first posts here, here and here.

In his fifth and final Reith lecture, broadcast yesterday morning and entitled “Shifting the Foundations”, Jonathan Sumption brings to a conclusion his reflections on “the decline of politics and the rise of law to fill the void”.  The lecture encourages us to resist calls for a written constitution, calls which, Sumption says, “mark the extreme point” of “our persistent habit of looking for legal solutions to what are really political problems”.  He makes the case instead for the merits of our historic constitution and for efforts to shore up the political foundations of our democracy.

Sumption notes that a written constitution would almost certainly expand the constitutional role of judges and that the point of every scheme for such has been to cut down legislative power.  He reiterates his scepticism “about claims that our system of government can be improved by injecting a larger legal element into it”.  I share the scepticism.  Of course, not all legal changes are made equal.  The devolutionary settlements, which the lecture goes on to praise, involve change to constitutional law, and expand the jurisdiction of the courts in important ways, but do not transform the constitutional balance between political and legal authorities.  The key question, as Sumption implies, is whether legal changes disable or dilute legislative power and parliamentary democracy.

The British constitution is centred on “the sovereignty of Parliament”, which Sumption rightly says “is the foundation of our democracy”.  Parliament is limited not by law but by conventions, which “derive their force from shared political sentiment”.  The government takes a central place within Parliament, which “is not just a legislative or deliberative body but an instrument of government”.  This scheme is very different to the constitutions of other states (New Zealand aside), but Sumption cautions the need to understand how it arose before looking for alternatives.  The distinctiveness of our constitution, he says, is no vice as it is a result of our unique history.  “For more than three centuries”, Britain “has been fortunate, or perhaps unfortunate, in having experienced none of the catastrophes that have called for new beginnings elsewhere.” And in practice, the political constitution has proved its worth, enabling “the British state to adapt to major changes in our national life which would have overwhelmed much more formal arrangements”.  He takes devolution as his main example, contrasting the UK’s capacity to accommodate Scottish and Welsh nationalism with Spain’s difficulty with Catalan nationalism, a difficulty compounded by the rigidity of the Spanish constitution.

I agree that our constitution has proved its worth over time, enabling major political changes while maintaining continuity with our political and legal history.  The openness of the Westminster constitution to radical political change is a virtue.  This radical capacity is subject to the self-tempering discipline that today’s majority may be tomorrow’s minority: long-term, stable change requires widespread public support.  Responsible government and parliamentary democracy are oriented towards the common good and make self-government possible.  They form part of a shared constitutional tradition and their political foundation is the joint commitment of the people of the United Kingdom to be governed by way of these arrangements, which unite them in common action.  The devolutionary settlements were introduced and have been extended in this way.  The risk of the experiment, which Sumption perhaps should have noted (but see his outstanding lecture “The Disunited Kingdom”), is that devolution may end up eroding the common feeling that supports the constitution.  That is, the United Kingdom may cease to be a single (if complex) political community.

Sumption’s intention is to persuade his audience “that we ought to be looking at more fundamental causes of the current diseases of our body politic than the peculiarities of our constitution.”  Recalling his second lecture, Sumption argues that the real problem is public disengagement with politics, a phenomenon evident in declining party membership, falling electoral turnout, and widely shared contempt for politicians.  The phenomenon is seen across the West and its causes, Sumption argues, “are inherent in the democratic process itself”.  Echoing his first lecture, he notes that democracy generates expectations that are inevitably disappointed, undermining public confidence, a dynamic which is especially pronounced in hard times, when growth falters and inequality rises.  Relatedly, “the perceived remoteness of politicians” is a problem, yet representative politics inevitably produces a political class, distinguished by ambition, zeal and knowledge.  Modern ideas of representation, Sumption says, require representatives not just to act for the people but to be like them, which is always unlikely.  And in the UK, the rejection of political elites has had a particularly significant consequence, which is to surrender political parties to extremists, making parties less capable of, or even interested in, compromise and responsible government.

Across the West, Sumption argues, political community is under strain and democracy has become ever less stable.  “The United States has for the moment ceased to be a political community, because neither side of the major political divide respects the legitimacy of policy positions that they disagree with.”  The same, he says, is true in Britain in relation to Brexit.  This is an overstatement, it seems to me, but it is true that democracy requires us to recognise one another as fellow citizens, to jointly seek our common good, and to accept the legitimacy of decisions we make together.  Representative politics requires political elites, but representation badly misfires not only when the masses have contempt for elites but also when elites disparage or disengage from the masses.  In a powerful lecture earlier this year, Richard Tuck noted that the sociological foundations for democracy in the past included industrialisation, where national prosperity required mass action, and the age of citizen armies, where national defence required shared military service.  Democracy is in trouble when elites and masses no longer understand themselves to share a common good, including when elites begin to identify more closely with a transnational or supranational community than with their own.

Having reviewed “our current problems of political legitimacy”, Sumption concludes that adopting a written constitution would “not make any difference”.  For all it would do would be to shift “power from an elective and removable aristocracy of knowledge, to a corps of judges which is just as remote, less representative, and neither elective nor removable.” This is an understatement.  Parliamentarians may be remote, but they are nothing like as remote as senior judges.  They are exposed to public criticism and opinion in a way from which judges are, rightly, largely insulated.  Investing judges with responsibility for political choice would sharply worsen the problem of political legitimacy.  It would also compromise the judicial capacity to contribute to the rule of law and would institute a mode of government that is not well-placed to secure the common good.

Rather than toying with a written constitution, Sumption encourages his audience to consider electoral reform, which would open the space for minor parties and force the main parties to broaden their appeal beyond a narrow base.  The site for compromise would thus be between parties rather than within them, which might mean weaker, less stable government.  But, Sumption reasons, this would “be a price worth paying if it boosted public engagement with politics” and enabled compromise to be forged.  Electoral reform is certainly worth considering – New Zealand’s abandonment of first past the post in the 1990s seems broadly successful, even if not without its cost in terms of transparency and responsibility.  And one might consider more particular reform of political parties, limiting the risk, on display in recent years, that the membership outside Parliament will foist a leader on the parliamentary caucus who then lacks the confidence of his or her colleagues.

The lecture concludes by prophesying that democracy will not end with a bang, but will simply fade away, with our “institutions imperceptibly drained of everything that once made them democratic.”  It is a chilling warning and a fitting end to the series but it does invite some wider thoughts about these Reith lectures.  Sumption often assumes that law has risen to fill a void left by the decline of politics.  But the relationship between the two is dynamic, as these lectures in part confirm.  The rise of law, itself fuelled by the hostility of many lawyers towards parliamentary democracy, serves to oust politics and partly causes its decline.  The adoption of supra-national legal restraints, enforceable by domestic and European judges, is the extreme case and clearly weakens national democracy (see further Peter Mair and Helen Thompson).  The analogous trend in domestic courts is also important, even if political authorities strictly have a greater capacity to resist judicial usurpation at home.

The Reith lectures argue that turning to the law will not solve our problems of political legitimacy.  This is a point rightly made but it risks understating, as I say, the contribution that “law’s expanding empire” has made to those problems.  It may also at times take for granted a shared commitment to democratic legitimacy, whereas in fact it is the thinness of elite commitment to political legitimacy that is a main reason to fear for democracy’s future.  The calls for a written constitution, or for supra-national law and adjudication, or for domestic litigation to discipline our political authorities – these may not be misguided attempts to shore up democracy’s foundations, but rather attempts to tie an unruly people down.  Sumption is, as I have said, no radical democrat; his call for greater public engagement in politics is limited by his choice to frame representative politics as a restraint on popular majorities.  But he rightly sees, I suggest, that a political strategy of demobilising the people, of relying on law to restrain politics, is not only unjust but also unstable and hence imprudent.

Richard Ekins is Associate Professor, University of Oxford, Head of Policy Exchange’s Judicial Power Project, and editor (with N. W. Barber and P. Yowell) of Lord Sumption and the Limits of the Law (Hart Publishing, Oxford, 2016).

(Suggested citations: R. Ekins, ‘Reflections on Democracy’s Foundations’, U.K. Const. Blog (19th Jun. 2019) (available at https://ukconstitutionallaw.org/))

Remain, revolt, reform: the EU needs policies that tame capitalism and a politics conducive to socialism

The fight for Europe cannot just be a fight against how certain things are done, but also a fight for how they should be done, writes Lea Ypi. This requires changing power relations and power structures, both within states and between them.

The one conclusion on which many seemed to agree after the European elections was that: ‘it’s complicated‘. The far right did what it promised, it increased its vote share, but not to the extent one feared. The left lost ground, except for a few places.

That the scale of the defeat was not quite as spectacular as expected is no reason to be optimistic. It may be more revealing of how much we have normalised the discourse of the right – for example, being told that migrants in need should be left to drown. The centre left is mostly in retreat, and the advances of solidly pro-European parties like the Greens in Germany or like the anti-austerity socialists of Portugal and Spain may be too ephemeral to give us reason to cheer. In the United Kingdom, Labour is at a cross-road: urged to embrace the cause of ‘remain and reform’ or condemn itself to irrelevance for many years to come.

This is a crucial time for the development of an alternative vision of Europe. The old coalitions in the European parliament are broken, and unless the progressive left comes up with a genuinely transformative agenda, that vision will be shaped by the far right. What Europe will be in the future depends on what we say and do about it now. Yet ‘remain and reform’ may be too vague to persuade those who voted for Brexit for a reason in 2016, and arguably voted for the Brexit Party for the same reason in 2019. These reasons are not reducible to a new cosmopolitan versus communitarian cleavage: there is probably more solidarity amongst cleaners of different nationalities than there is amongst bankers. Nor is it about class versus culture. The composition of the working class has changed in recent years but to say that the working classes are now all in places like Wigan just shows you never took the bus to Harlesden. It is also to maintain, implicitly, that the poor can only be ignorant and racist, or that cosmopolitanism makes you outward looking and altruistic. Both claims are plainly false.

Remain versus Leave is not a political cleavage that the progressive left can do anything with: this may explain the dilemma of the Labour Party. But what Brexit offers, and what unites that offer to the project of the nativist right all across Europe is the promise of political agency, the promise of being empowered after decades of political and economic disenfranchisement. One can only be empowered if one knows where power lies. In a world of nation-states, power is coupled with the idea of popular sovereignty. Taking back control means a return to popular sovereignty, to the site where power struggles can be fought and, with sufficiently strong political movements, won. What makes Brexit and the nativist idea of Europe attractive from a left-wing perspective is the promise of restoring sovereignty to the nation-state, thereby also turning it to a site in which even vulnerable people can exercise democratic control, for example by voting against what the establishment is perceived to want.

There are shortcomings to these propositions. One is that we still have not been told what to do about capitalism. But the trouble with the pro-European, critical left is that it abounds in diagnosis and lacks in prescription. A credible progressive movement for remain and reform needs to articulate what ‘reform’ would look like, starting with the obstacles to it in the current structure of the EU. It would also need to indicate a feasible path for how to get from here to there.

This is where it gets properly tricky. ‘Remain and reform’ or the manifesto for Social Europe have been the rallying call of European social democrats for a few years now. There are structural reasons why they have failed, not all reducible to the centre left embrace of capitalism with a human face.

In the nation-state, popular sovereignty may be an ideal but at least we know where power lies. The combination of its executive, judicial, and administrative structures gives us a target and a structure for the fight. In the case of the European Union we have no clue what popular sovereignty consists of, not even in its ideal form.

Plato says in the Republic that democracy is like a constitutional bazaar. People in it have so much freedom that they can choose any other form of rule as the foundation of the state: rule by the people (democracy), rule by the rich (oligarchy), rule by the best (aristocracy) and, when democracy deteriorates, rule by tyrants.

The European Union may not be democratic in the sense in which it aspires to be, indeed the topic of its ‘democratic deficit’ has concerned eurocrats in theory before it began to concern the wider public in practice. Yet the EU comes close to Plato’s definition of a democracy when one looks at its institutional configuration. If you focus on the European Parliament, you have something akin to rule by the people. If you focus on the powers of the European Central Bank you have something resembling rule by the rich. If you focus on the powers of the Commission and of the European Court of Justice you get rule by the best (or in this case, the experts). And if you focus on the powers of the Council you have a cocktail of all of these.

This combination of elements makes the progressive agenda for reforming the EU a particularly challenging one. In the case of the nation-state, the fact that there is sovereignty (at least nominally) makes it possible to locate the site of political power and challenge any particular balance of power relations through the usual democratic channels of political will-formation (elections, the authorisation of representatives, referenda, protests, boycotts, strikes). In the case of the EU, by the very nature of its institutions, none of this is sufficiently entrenched. The only credible way forward is to elaborate progressive policies: a green new deal for Europe, a common European migration policy, a progressive taxation scheme, and so on. But policies without politics, is still politics focused on outcomes at the expense of processes. Agency is still marginalised in favour of structure. Democracy in theory is still likely to lead to tyranny in practice.

This is why it is not enough for the left to have policy ideas if it lacks a movement that fights for those ideas, a collective agent that can own these ideas and a mechanism of democratic will-formation that can be expressive of that agency. It is also why particular proposals for reform will not be enough unless there is an overall European movement that shapes the day-to-day struggles of those who are failed by capitalism (in both its cosmopolitan and nationalistic versions) and that articulates the conflicts they experience within a transformative, left-wing, vision of Europe.

The fight for Europe cannot just be a fight against how certain things are done, but also a fight for how they should be done, not just for policies taming capitalism but for a politics conducive to socialism. Yet fighting for socialism in Europe requires changing both power relations and power structures, both at the level of nation-states and between them. Europe is up for grabs. But given the shape of its institutions, what begins as a mission to ‘remain and reform’ may well end up as ‘remain and revolution’. This is a heroic task. No wonder the left is not ready for it.

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Note: a version of the above also appeared in the New Statesman.

About the Author

Lea Ypi (@lea_ypi) is Professor of Political Theory at the London School of Economics and Political Science and co-author of The Meaning of Partisanship.

 

 

 

All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science. Featured image: Pixabay.

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