Community building and direct democracy

Excerpted and adapted from: https://www.cgdev.org/blog/8-principles-direct-democracy

Basically, two main types of direct democratic tools prevail: the popular initiative and the referendum (we do not discuss the recall election here, which leads to the removal of an elected official). Both come in different designs and may be applied to revisions of the constitution or simple acts. They are generally legally binding, but can be of political force only… While we are simplifying the universe of direct democracy here, we acknowledge the variety of implementations across jurisdictions.

Initiative and referendum guide and halt the political legislative process. An initiative works like a ‘steering wheel.’ It ‘guides’ the direction that laws have to take in the future typically upon the collection of a sufficient amount of signatures to request the new law to qualify for the ballot. A referendum works like a ‘brake,’ meant to stop a law drafted by the legislative body from being implemented...

Direct democracy affects the legislative in two ways. First, initiatives and referenda can override politicians’ decisions. Second, the threat of citizens taking up a ballot proposition disciplines the politicians to enact laws in the interest of the people (indirect effect). It is a way to break politicians and parties’ coalitions directed against the common interest of the voters, and a way to hedge against excessive politics by elected representatives, since extreme proposals are at risk to be sacked by the voters. It can be seen as a correction mechanism of representative democracy.

Direct democracy changes the relation of citizens to political authorities. It has been shown to increase citizens’ knowledge and satisfaction with the political process. In a study of former communist countries, referendums are linked to higher tax morale by counteracting the vicious cycle between low trust in the state and tax evasion. And in an experiment involving 49 Indonesian villages, local participation in the decision process on development projects through popular votes resulted in dramatically higher satisfaction among villagers; it also increased knowledge about the projects and led to greater perceived benefits and a higher reported willingness to contribute.

Controversially debated is the risk of a voting majority undermining the rights of a minority, with diverse evidence for same sex-marriage in US states, ethnic minorities in California, and naturalization in Switzerland. Notably, after a period of no conspicuous conflict of initiatives and civil rights, Switzerland experienced a surge in initiatives that threatened to undermine basic rights; this period seems to have come to end, in part as a consequence of civil society organizations raising awareness among the voters.

Referenda have often been used, both by democratic and autocratic regimes, to confirm newly written constitutions by what many constitutions regard as the ultimate sovereign—the people. Well-known examples are the 1958 French constitutional referendum and subsequent 1969 referenda that led to the resignation of President de Gaulle, the 1992 South African Apartheid referendum, the 1993 Malawian democracy referendum, or most recently, the 2019 Cuban constitutional referendum. In contrast to referenda, initiatives are employed on a regular basis mainly in a few developed countries. In the Philippines, for instance, it was included in the constitutional amendments of 1987, but has not since led to any amendments.

Direct democracy is not a substitute for representative democracy, but—in the ideal case—a reasoned complement. For direct democracy to work properly, we propose three sets of principles. The first set is concerned with the proceedings underlying direct democratic decision-making. The second set of principles describes the importance for a citizen to express their will in an unbiased and unaltered way. The third set of principles addresses concerns about the tyranny of the majority over minorities.

Principles of Direct Democracy – Set 1

Questions of proceedings: the choice of the right proceedings to enact direct democratic decision is crucial for the legitimacy and credibility of a popular decision.

1. Bottom up, not top down

Since direct democracy is a check on representative democracy, the call for a vote either through an initiative or a referendum should be initiated within the population and not with the government or parliament. Citizens may exercise the option through the collection of a predetermined number of signatures within a specific time span. In the context of vertical division of power, an initiative may also be sponsored by governments of lower units of that (federal) structure to request changes to legislation at the higher government level.

Ultimate sovereign power in a democracy lies either with legislature/parliament or the voting population (e.g. Switzerland). In countries where parliament is sovereign, there is no point in calling the citizens to vote on a matter, because their voice is explicitly delegated to parliament. If the voting population is sovereign, then citizens should also be sovereign to decide on what matters to call a vote and when and how often. (SEE AFTER THIS PIECE: ARTICLES/EXCERPTS ON POPULAR SOVERIGNTY AND CONSENT OF THE GOVERNED)

Top-down referendums called by the executive or legislative body, give ruling politicians additional power over citizens. The fact that such plebiscites are often not legally binding but rather consultative underscores the asymmetry of this type of popular vote and enhances the risk of political maneuvers. It is no surprise hence that more autocratic regimes use plebiscites to salvage changes in legislation that often reinforce the power of the ruling elite, as recently in the case of constitutional amendments in Turkey. Complements to the bottom-up nature of direct democracy are mandatory referendums that are automatically triggered over the introduction of specified legislation such as constitutional amendments or specific international treaties. Like with bottom-up referenda and initiatives, it is beyond the decision of the executive or the legislative branch of government to call a vote.

2. Popular decisions should be reversible with an equally legitimate decision and (possibly) held regularly

If the voting population is sovereign, then it should also be able to reverse a decision or just make an updated decision at any point of time. As Habermas observes, “A political vote is not final, but rather an interim result of an on-going process of deliberation.” If voters may not reconsider or update their decision, then the legitimacy of popular votes are undermined by an element of randomness. The gain in popular participation in political decisions remains delusive. Repeated referenda are not a weakness of direct democracy, but an indication of a lively political process. In that sense, the popular vote should never be a “one-shot game.”

3. Implement first at the local government level, rather than at the national government level (in federal states)

Direct democracy is a political tool that citizens have to grow into. Civil society organizations and political parties need to incorporate this additional political check of the populace into their strategies. To reduce the risk of misuse and to allow citizens to acquaint with this political instrument, direct democratic instruments are best first implemented at the subnational government level. That could be town, municipality, local government, state, or provincial-level government.

Introducing direct democratic instruments at the subnational level has another crucial advantage: it allows for a comparison and even competition of different instruments across jurisdictions. Instruments may be adjusted according to the most successful and acceptable practice.

4. Fundamentals of the Referendum Law or Initiative Law should not be open to amendment prior to a popular vote in order to secure the stability of direct democracy

Legislation on direct democratic instruments should be written in the constitution or at a level superior to the ordinary law. By writing the fundamental aspects of referendums and initiatives in a constitutional document, the risk of short-term manipulation through amendments that would favour a certain interest group is reduced.

Set 2

Questions of an unbiased and unadulterated voting: for direct democracy to be credible and legitimate, voters should be able to voice their opinion and make decisions in a genuine and unaffected way.

5. An initiative requires the single-subject rule (unity of the matter)

The single-subject rule in popular votes stipulates that the proposed legislation should deal with one subject only to allow the voter to form and express their opinion freely and genuinely. This principle is also known as the unity of subject matter.

In other words, if a proposed legislation includes several substantive questions, the voter may not have a free choice.

A popular vote is also violating the single subject rule if it is simultaneously a vote of no confidence on the executive government—either de jure or de facto. A so-called plebiscitary referendum does not allow the voter to express their opinion unbiasedly (see principle 1).

Set 3

How to prevent the tyranny of the majority: a main concern of a popular vote is the majority forcing its will onto minorities. As this concern is no less pressing in representative democracies, institutions need to be constructed to protect human rights, especially those of minorities.

The “people” who exercise the power are not always the same people with those over whom it is exercised; and the “self-government” spoken of is not the government of each by himself, but of each by all the rest. (…) The people (…) consequently may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power.

– John Stuart Mill, On Liberty, 1859.

6. Conflicts with existing basic rights have to be explicitly declared prior to the vote

One of the fundamental concerns of direct democracy—as indeed of any political system—is the tyranny of the majority over the minority. If the voting population is sovereign, then it is sovereign to change any rule, including the most fundamental ones. Importantly though, newly proposed legislation may be in contradiction to existing basic laws and human rights protected by the constitution or by international law. The voters should be made aware of such conflicts between existing and newly proposed legislation.

The easiest way to obtain this is that direct democracies may include a rebuttable presumption that assumes that newly formulated initiatives intend to respect existing fundamental rights (discussed in German, here and here). If an initiative committee aims to erode the protection of any fundamental right to any given group of people, this goal needs to be explicitly stated in an initiative. If a committee does not put down any conflicts, it is assumed that such conflicts were intended to be resolved in favour of the pre-existing fundamental rights. The presumption assumes that the voting population does not want to erode basic rights, unless explicitly stated otherwise. A proposition that is nonetheless conflicting with basic law would remain dead letter to the extent that it cannot be applied in a manner that is compatible with fundamental rights.

7. The validity of a proposition is a legal matter and should be decided by a legal body, not a political body

A legal body should conduct the validation of a proposition before it is put to the people. An initiative may be declared as valid if it does not violate the unity of the matter discussed under principle 5.

If the examination of a proposition regarding the unity of the matter—which is a legal question—is put to a political body, then it is likely that the decision is taken with a political rationale rather than coherent to a judicial practice.

8. The validity of the proposed popular vote should be confirmed prior to a vote

In general, proposed legislation is valid if it abides by the unity of the matter (see principle 5). Confirming or disapproving the validity of a proposed legislation in hindsight of a popular vote puts tremendous pressure on the respective legal body. Ruling against the majority of the voting population is considerably more serious than before a popular vote has taken place.

Many scholars, experts, and politicians are biased against the use of popular initiatives and referenda. To leave fundamental decisions of coexistence to the people allegedly seems to be an act vulnerable to populism or a danger to democracy. Yet indeed, political and economic power is still highly concentrated in our executive and legislative branches of government that have no incentive to devolve authority, with disastrous consequences at times.

Direct democracy should neither be seen as panacea for all political problems, nor should it be denounced as inherently populist. A discussion on direct democracy calls for the question of what sovereignty is and where it lies. When it does indeed lie with the voting population, then the demos—the people—have the ultimate kratos—the power or sovereignty. If consensus over the value of checks and balances and of constitutional rights erodes among the people, no institutional design will be able to protect these achievements in the long run. As Judge Learned Hand said:

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.

– Learned Hand (U.S. Judge, Central Park, New York City, 21 May 1944)

This might well be the single most important quality of direct democracy. It is a constant reminder that all the legitimacy of political power emanates from the people and that achievements of liberal democracy cannot be upheld in the long run if we neglect to win consensus over its value time and time again, referendum for referendum, generation for generation. It is a safeguard against the intellectual laziness that takes the value of human rights and of checks and balances as given and self-evident. It is a constant reminder that the institutions of open societies are built on thin ice.

It is therefore important to understand the implications and pitfalls of direct democratic decision making and how this powerful tool can be implemented in a safe and useful way to benefit countries as a whole. Instead of fearing discussions over political decision-making and destructive political power, we should keep on questioning and discussing our political institutions.

Popular Sovereignty and Consent of the Governed

Excerpt: https://en.wikipedia.org/wiki/Popular_sovereignty_in_the_United_States

The concept of popular sovereignty (from which the consent of the governed derives its importance) did not originate in North America; its intellectual roots can be traced back to 17th- and 18th-century European political philosophy.[1] The American contribution was the translation of these ideas into a formal structure of government. Before the American Revolution, there were few examples of a people creating their own government. Most had experienced government as an inheritance—as monarchies or other expressions of power.[2] The American Revolution resulted in a government based on popular sovereignty, the first large-scale establishment of this concept (although it had been discussed and experimented in European contexts). The early Americans supported the contention that governments were legitimate only if they were based on popular sovereignty.[3] The concept unified and divided post-Revolutionary American thinking about government and the basis of the Union.[4] Questions were raised over its precise meaning, permissible actions and the will of a collective sovereign. In 18th-century European political thought, “the people” excluded most of the population; suffrage was denied to women, slaves, indentured servants, those lacking sufficient property, indigenous people and the young.[5] The early American republic similarly disenfranchised women and those lacking sufficient property, also denying citizenship to slaves and other non-whites. According to historian Ronald Formisano, “Assertions of the peoples’ sovereignty over time contained an unintended dynamic of raising popular expectations for a greater degree of popular participation and that the peoples’ will be satisfied.”[6]

Allowing parliament or government to decide on what matters citizens should have a say is hence inconsistent with the notion of a sovereign people, therefore also inconsistent with direct democracy. It almost necessarily leads to problematic manoeuvres.

If confidence in the executive government depended on approval of a proposition by the voters, often called plebiscites, referenda are likely to be used as a political tool. Plebiscitary referenda ask two separate questions: 1) do you support proposal X? 2) do you support the current government? These questions may be answered differently by some voters but they can only be answered with a single yes or no. Plebiscitary votes are therefore also problematic because they do not allow voters to express their true and unadulterated will (see principle 5).

Perhaps the earliest utterance of consent of the governed appears in the writings of Scottish Catholic priest and Franciscan friar Duns Scotus, who proposed this in his work Ordinatio in the 1290s. Scotus’s lengthy writing in theology have largely overshadowed this notable contribution that he made to early political theory. It is believed these writings influenced Declaration of Arbroath in 1320 [1]

In his 1937 book A History of Political Theory, George Sabine collected the views of many political theorists on consent of the governed. He notes the idea mentioned in 1433 by Nicholas of Cusa in De Concordantia Catholica. In 1579 an influential Huguenot tract Vindiciae contra tyrannos was published which Sabine paraphrases: “The people lay down the conditions which the king is bound to fulfill. Hence they are bound to obedience only conditionally, namely, upon receiving the protection of just and lawful government…the power of the ruler is delegated by the people and continues only with their consent.”[2]: 381  In England, the Levellers also held to this principle of government.

John Milton wrote

The power of kings and magistrates is nothing else, but what is only derivative, transferred and committed to them in trust from the people, to the common good of them all, in whom the power yet remains fundamentally, and cannot be taken from them, without a violation of their natural birthright.[2]: 510 [3]

Similarly, Sabine notes the position of John Locke in Essay concerning Human Understanding:

[Civic power] can have no right except as this is derived from the individual right of each man to protect himself and his property. The legislative and executive power used by government to protect property is nothing except the natural power of each man resigned into the hands of the community…and it is justified merely because it is a better way of protecting natural right than the self-help to which each man is naturally entitled.[2]: 532 

However, with David Hume a contrary voice is heard. Sabine interprets Hume’s skepticism by noting

The political world over, absolute governments which do not even do lip-service to the fiction of consent are more common than free governments, and their subjects rarely question their right except when tyranny becomes too oppressive.[2]: 603 

Sabine revived the concept from its status as a political myth after Hume, by referring to Thomas Hill Green. Green wrote that government required “will not force” for administration. As put by Sabine,[2]: 731 

Even the most powerful and the most despotic government cannot hold a society together by sheer force; to that extent there was a limited truth to the old belief that governments are produced by consent.

Consent of the governed, within the social liberalism of T. H. Green, was also described by Paul Harris:

The conditions for the existence of a political society have less to do with force and fear of coercion than with the members’ mutual recognition of a good common to themselves and others, although it may not be consciously expressed as such. Thus for the conditions for any civil combination to disappear through resistance to a despotic government or disobedience to law would require such a disastrous upheaval as to be unlikely in all but the most extreme circumstances in which we might agree with Green that the price would be too high to pay, yet sufficiently rare to allow us to acknowledge that there would ordinarily be a moral duty to act to overthrow any state that did not pursue the common good.[4]

In the United States of America[edit]

“Consent of the governed” is a phrase found in the United States Declaration of Independence.

Using thinking similar to that of John Locke, the founders of the United States believed in a state built upon the consent of “free and equal” citizens; a state otherwise conceived would lack legitimacy and Rational-legal authority. This was expressed, among other places, in the 2nd paragraph of the Declaration of Independence (emphasis added):[5]

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

And in the earlier Virginia Declaration of Rights, especially Section 6, quoted below, founding father George Mason wrote:

That elections of members to serve as representatives of the people, in assembly, ought to be free; and that all men, having sufficient evidence of permanent common interest with, the attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses without their own consent, or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good.”[6]

Although the Continental Congress at the outset of the American Revolution had no explicit legal authority to govern,[7] it was delegated by the states with all the functions of a national government, such as appointing ambassadors, signing treaties, raising armies, appointing generals, obtaining loans from Europe, issuing paper money (i.e. continentals), and disbursing funds. The Congress had no authority to levy taxes, and was required to request money, supplies, and troops from the states to support the war effort. Individual states frequently ignored these requests. According to the Cyclopædia of Political Science. New York: Maynard, Merrill, and Co., 1899, commenting on the source of the Congress’ power:

The appointment of the delegates to both these congresses was generally by popular conventions, though in some instances by state assemblies. But in neither case can the appointing body be considered the original depositary of the power by which the delegates acted; for the conventions were either self-appointed “committees of safety” or hastily assembled popular gatherings, including but a small fraction of the population to be represented, and the state assemblies had no right to surrender to another body one atom of the power which had been granted to them, or to create a new power which should govern the people without their will. The source of the powers of congress is to be sought solely in the acquiescence of the people, without which every congressional resolution, with or without the benediction of popular conventions or state legislatures, would have been a mere brutum fulmen; and, as the congress unquestionably exercised national powers, operating over the whole country, the conclusion is inevitable that the will of the whole people is the source of national government in the United States, even from its first imperfect appearance in the second continental congress…

Types of consent[edit]

Unanimous consent[edit]

A key question is whether the unanimous consent of the governed is required; if so, this would imply the right of secession for those who do not want to be governed by a particular collective. All democratic governments today allow decisions to be made even over the dissent of a minority of voters which, in some theorists’ view, calls into question whether said governments can rightfully claim, in all circumstances, to act with the consent of the governed.[8]

Hypothetical consent[edit]

The theory of hypothetical consent of the governed holds that one’s obligation to obey government depends on whether the government is such that one ought to consent to it, or whether the people, if placed in a state of nature without government, would agree to said government.[9] This theory has been rejected by some scholars[who?], who argue that since government itself can commit aggression, creating a government to safeguard the people from aggression would be similar to the people, if given the choice of what animals to be attacked by, trading “polecats and foxes for a lion”, a trade that they would not make.[10]

Overt versus tacit consent[edit]

Another division that is sometimes made is between overt consent and tacit consent. Overt consent, to be valid, would require voluntariness, a specific act on the part of the consenters, a particular act consented to, and specific agents who perform this action. Immigrating into a particular jurisdiction is sometimes regarded as an overt act indicating consent to be ruled by that jurisdiction’s government. Not all who are ruled by a particular government have immigrated to that jurisdiction, however; some were born there; however others argue that the power to emigrate from (i.e. leave) a jurisdiction implies such consent omission.

Engineered consent[edit]

According to the propagandist Edward Bernays when discussing public relations techniques that were described in his essay and book The Engineering of Consent (1955), the public may be manipulated by its subconscious desires to render votes to a political candidate. Consent thus obtained undermines the legitimacy of government. Bernays claimed that “the basic principle involved is simple but important: If the opinions of the public are to control the government, these opinions must not be controlled by the government.”[11]

Edward S. Herman and Noam Chomsky in their book, Manufacturing Consent (1988), advanced a propaganda model for the news media in the United States[12] in which coverage of current events was skewed by corporations and the state in order to manufacture the consent of the governed.

Literal consent[edit]

The theory of literal consent holds the logical position that valid consent must denote final authority belonging to the people, rather than elected officials, therefore this implies that the people have the absolute sovereign power to overrule their government at any time via popular vote (or as stated in the Declaration of Independence, “the right of the People to alter or abolish” their government). Without this unfettered power, theorists hold that true consent cannot exist and that any government is therefore despotism via governing the people by force without their actual consent.

See also[edit]

References[edit]

  1. ^ From the Arbroath declaration to Scottish enlightenment. University Press of America. 2004. pp. 206–207.
  2. ^ Jump up to:a b c d e George Sabine (1937) A History of Political Theory, Holt, Rinehart and Winston
  3. ^ John Milton Works V: 10
  4. ^ Paul Harris (1982) “Green’s theory of political obligation and disobedience”, pp 127 to 142 in The Philosophy of T. H. Green, Andrew Vincent editor, Gower Publishing, ISBN 0-566-05104-4
  5. ^http://www.ushistory.org/declaration/document/index.htm[full citation needed]
  6. ^ Virginia Declaration of Rights
  7. ^ Bancroft, Ch. 34, p.353 (online)
  8. ^ Cassinelli, C. W. (1959). “The ‘Consent’ of the Governed”. Political Research Quarterly. 12 (2): 391–409. doi:10.1177/106591295901200202. S2CID 154712817.
  9. ^ Pitkin, Hanna (1966). “Obligation and Consent—II”. The American Political Science Review. 60 (1): 39–52. doi:10.2307/1953805. JSTOR 1953805.
  10. ^ Bookman, John T. (1984). “Locke’s Contract: Would People consent to It?”. American Journal of Economics and Sociology. 43(3): 357–68. doi:10.1111/j.1536-7150.1984.tb01750.x.
  11. ^ John C. Livingston & Robert G. Thompson (1966) The Consent of the Governed, 2nd edition, page 457, Collier Macmillan
  12. ^ Edward S. Herman & Noam Chomsky (1988) Manufacturing Consent, Pantheon Books

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CGD blog posts reflect the views of the authors, drawing on prior research and experience in their areas of expertise. CGD is a nonpartisan, independent organization and does not take institutional positions.