The twilight of democracy

by Modulus on November 21, 2013

There’s a certain story that can be told about popular participation in government. It begins with Athens, glorious and bright, yet outnumbered and besieged by the sinister forces of oriental despotism. It continues with Rome, a mixed constitution where power was achieved through merit and the rule of law. Then, a tragic period of darkness and ignorance–add here a dash of anticatholic prejudice if desired–transitioning into several forms of revolution whereby monarchs shared power with the popular classes, shaking the yoke of aristocracy and the church. Finally, the monarchical principle is made either purely symbolic or anulled altogether, resulting in liberal democracies led through universal–at first, sadly, male–suffrage. There are two fundamental problems with this story: the first one, of course, is that it is scarcely true; the second, that it leads us to think that democratic participation is an unalterable reality, a conquest already in the past. I will attempt to make the case that, contrary to this view, democracy has not fully been attained, and, inasmuch as it has, we find ourselves at serious danger of losing much of its scope.

To find out quite where we are, it is inevitable to first review how we got here, and the best place to begin would be the two bourgeois revolutions that, to a large extent, shaped the modern world: those of the US and France.

The revolution in the US came from a particular tradition of British thought which had been limiting and questioning monarchical prerogatives since, at least, the glorious revolution. It grounded itself on any number of foundational myths, such as the purported natural freedom of Englishmen, and it sought, through Parliament,1 to restrain the absolute and arbitrary power to which monarchy had been raised elsewhere in the continent. Another component of this tradition was Locke’s blueprint of a commonwealth, grounded on the unrestrained right to private property, asserting as its justification, the mixture of those unowned things in nature with human labour.2 Such was supposed to be one way to avoid the tragedy of the commons, although as Marx observes on Capital, volume 1, chapter 27, the true tragedy of the commons consisted of their destruction through enclosure and clearing. This Lockean influence served as a conservative counterweight to the republican and egalitarian impulses of the revolution in the US, bearing in mind that the protection of private property arose as a central concern, the notion of democracy becoming associated with dangerous and unlawful popular urges that needed to be checked.

France, on the other hand, had a rather different history. As the paradigmatic absolutist monarchical state, its institutions were characterised by a much higher degree of systematicity, totalisation and centralisation. Hence, the revolutionary thought which arose therefrom, bearing a bourgeois liberal imprint as it did, was considerably more sceptical about property and individuality, understanding the role of the social contract with a far lesser degree of mystification. While there were tensions between individualist and collectivist readings of the revolutionary moment, we can state with certainty that the French experience led to a much more limited commitment to the idea of imprescriptible property rights and individualism. While the right of equality didn’t appear as a substantive matter on the Declaration of the Rights of Man and of the Citizen (1789), beyond a reference to equal treatment under the law and equal access to public office, it emphatically did on the Declaration of 1793, as well as on the revolutionary mottoLiberty, Equality, Fraternity. The revolution wasn’t carried out with singleness of purpose, and it grew more radical over time, attempting the abolition of all distinction between active and passive citizens, as well as of slavery, and gaining a commitment to popular control of the state.

Now, popular control of the state is what we might call democracy. It is certainly what many would call it today. The problem is defining precisely the scope of the state, the form of its control, and the involvement of the people in it. Democracy can’t be simply identified with elections; otherwise the papacy is democratic while ancient Athens only very loosely so. We could, formally, define the amount of democracy in a system as the responsiveness that systemic policy has to the will of the people affected by such a system. Hence, the most perfect form of democracy would consist of an assembly which would only pass measures by simple majority of all interested citizens, while the least democratic possible system consists of one which takes random decisions. There are many points bound by such a spectrum, including demarchy–or sortition–, imperative or representative mandate, representation with or without right to recall, greater or lesser electoral periodicity, constraints in financing campaigns, requirements for franchise, and so on. This is why it is perhaps best to refer to quantity of democracy, than to the presence or absence of it.

Resulting from these two different approaches, we find that the notions of liberty that arise in the US and France are very different, and in fact almost contradictory. In the US, liberty is perceived as absence of state involvement: one is free when one has an unrestrained scope for action within one’s property. In France, however, freedom is understood more concretely. Given that society demands a certain degree of coordination, freedom is rather identified with the harmony between individual and collective will. This position, hence, identifies freedom with law, not the absence of law, and very specifically with law as opposed to contract, which constitutes a mere harmonisation of some individual wills. Such a view results in a strong notion of exclusivity or preeminence of the State as a nexus where the collective will is formed, to the point that all old corporate bodies are abolished and the right to combination is not recognised.

Hence, the US version of freedom is inherently conservative: the preservation of natural individual liberties from the action of the state, whether this state represents the unrestrained tyranny of a monarch, an elite caste, or the “mob”. The French version thereof, however, requires a sort of permanent revolution a la bourgeois, ever deepening the scope for state action wherever the general will has coalesced into something worth harmonising. Thus, the different views on the roles of assemblies.

The pre-revolutionary role for assemblies was enmeshed with the historical understanding of the monarchical principle. Without doing a complete survey on the history of European law, we can say that the first power of monarchs was the power to judge. Laws, under the Roman scheme, were at first a manifestation of the supremacy of the will of the people (maiestas) and later, at least formally, a pact between the popular assemblies and imperial power. The successor states to the Roman Empire regarded themselves, at first, as incapable of establishing legal innovations. The role of the monarch, therefore, was primarily that of a judge. This situation changed, especially with the crisis of the dual system of Pope and Emperor, and monarchs arrogated to themselves the power to legislate, though this power often required them, in theory or practice, to do so under certain constraints: in agreement with assemblies (curiae), respecting the customs of the realm, with the council of nobles and the Church, etc. This is the source of institutions like the British Parliament or the States General, or innumerable other assemblies, diets, councils, senates, and so on.

This understanding of assemblies resulted in a sort of de facto separation of powers, whereby the king had the power to judge and hence institute judges, the power to issue lawful orders to his subordinates, to administrate the kingdom as a sort of trust, but not to legislate alone. Still, such a separation of powers was more of a theoretical artifact than a reality, during the existence of the patrimonial state (the monarch nominally owned the kingdom as a title of private law), and kings often legislated through the use of so-called pragmatics, edicts, decrees, etc. This is the embryo of the separation between the power to legislate and the power to govern, which the revolutionary bourgeoisie would deepen.

With liberalism, these two sources of power became identified with antagonistic principles: the assembly with a popular, rationalising principle of harmonisation of the popular will through codified law grounded on purportedly universal ideas; and the power to govern, the executive, with the use of prerogative, more or less arbitrary power, ad-hoc decisions, and, in sum, with the ancien regime. This ideological construction results in a very strong aversion to the executive, with administrative acts and dispositions being perceived as inherently prone to tyranny. Thus, where the monarchical principle was abolished altogether, the governing organs were thought of as a mere committee established by the assembly, accountable and subordinated to it.

The US took a slightly different route. Though it also established a similar separation of powers, rather than abolishing the monarchical principle, it settled for subjecting it to the discipline of periodic election. Hence, what we have in the president as chief of state is an elected monarch for a limited term. From the legitimacy arising from its direct accountability to the people, the executive’s role was not as ideologically suspicious in the US as it became in continental systems.

These differences, together with the different appraisals of democracy, developed into diverging models of governance. In the European continent, a strong, independent, theoretically neutral civil service, constrained by law, realised administrative action under the control of a weak executive beholden to Parliament. In the US, the desire to avoid excessive concentrations of power led to differentiated foci of control in the form of congressional appointments, executive agencies, and elected roles in the judicial power, prosecutorial organs, and so on, resulting in a sort of patchwork of microdemocracies devised to be at constant war with itself.

Due to the increasingly complex role of the state as a platform of economic facilitation and clearing, these two systems, each following their own logic, came to crisis. The European paradigm for this situation is the Weimar Republic, which constitution assured a very significant quota of popular participation in government, but which turned out to prove highly unstable. I don’t know US history in quite enough detail, but my impression is that the role of the US state was forced to change due to the increasing power of monopolies and the economic crisis of 1929. In any event, the lessons learned by the ruling class were essentially the same: democracy must be curtailed, popular participation is inherently destabilising, governance must be rationalised, and so on.

The European effects of this are clearly seen in the new post-war constitutionalism with highly “rationalised”–by which the legal community means unresponsive–systems of separation of powers. They tend to limit representation through the use of thresholds (like the 5% minimum in the German Bundestag), to require “constructive” motions of censure in order to remove a government, they may forbid untimely dissolution of Parliament, or dissolution on its own initiative, and so on. This, together with an ever increasing role for the executive and the administrative machinery that it controls through the issuing of delegated legislation, internal regulations, emergency decrees, derogations from constitutional or legal protection through the theory of political acts as beyond judicial control, the state of exception or siege, often used to curtail organised labour and reimpose labour discipline, and so on.

In the US, after a period in the 1950s and 1960s where the post-war environment resulted in dramatic increases of popular participation, the ruling class articulated a consensus that democracy had gone too far and needed to be curtailed. This democratic surge, or “democratic distemper”, as it’s been called, is well described by a report on the governability of democracy to the Trilateral Commission. Its conclusions are those of any ruling class in a period of crisis, fuelled by its lack of legitimacy and fear of the erosion of its privileges, serving as an excellent demonstration of an elite mobilisation against democracy. I will quote two paragraphs from this report’s conclusions on the situation in the United States:

[…]First, democracy is only one way of constituting authority, and it is not necessarily a universally applicable one. In many situations the claims of expertise, seniority, experience, and special talents may override the claims of democracy as a way of constituting authority. During the surge of the 1960s, however, the democratic principle was extended to many institutions where it can, in the long run, only frustrate the purposes of those institutions. A university where teaching appointments are subject to approval by students may be a more democratic university but it is not likely to be a better university. In similar fashion, armies in which the commands of officers have been subject to veto by the collective wisdom of their subordinates have almost invariably come to disaster on the battlefield. The arenas where democratic procedures are appropriate are, in short, limited.

Claims of expertise, seniority, experience and special talents are the enduring basis to this day on which the right constructs its discourse of fitness to rule. Expertise in the shape of a captured academic establishment, very particularly in regards to economic sciences; experience as an attribute which makes businessmen and private bureaucrats more capable to govern; seniority as a counterpoise to the demands of the young; and special talents as a form of legitimation through exceptionalism, be these talents from a spiritual–such as the case presents itself in the US Christian right all too often–or temporal source–as the case for Merkel is today in Europe. Such a discourse, particularly suited to technocratic forms of rule, has served the effective institutionalisation of the Washington Consensus, the Maastricht criteria, or the NATO system, while serving as a justifying pillar for the progressive depoliticisation of increasing areas of public life, through the granting of bureaucratic autonomy–so-called independence–to institutions such as central banks, stock exchange commissions, media regulators, intelligence apparatuses and so on, as well as by introducing an increasing role which significantly exceeds the advisory for purported “civil society” organisations–constituted as vehicles for the formation and promotion of ruling class opinion–, an expanding role for private bureaucracies such as ratings agencies, telecommunication companies or insurers, and an identification of self-regulation as efficient and free in contrast to the dead hand of the state.

Second, the effective operation of a democratic political system usually requires some measure of apathy and noninvolvement on the part of some individuals and groups. In the past, every democratic society has had a marginal population, of greater or lesser size, which has not actively participated in politics. In itself, this marginality on the part of some groups is inherently undemocratic, but it has also been one of the factors which has enabled democracy to function effectively. Marginal social groups, as in the case of the blacks, are now becoming full participants in the political system. Yet the danger of overloading the political system with demands which extend its functions and undermine its authority still remains. Less marginality on the part of some groups thus needs to be replaced by more self-restraint on the part of all groups.

The essence of this position, is, in the end, a restatement of the traditional monarchical argument: the people are many and fragmented, and if you do not impose decisions on them they will keep talking forever and society will disintegrate. As much as anything, it is a denial of the essential postulate that people can and should self-govern. This view, antithetical to the possibility of effective public deliberation, results in the inevitable conclusion that democracy must attenuate itself lest it dies from its own success. Hence, and although to this day the US maintains a much more significant democratic element within its political constitution–elected judges and prosecutors, binding popular legislative initiatives, recall referenda…–a similar process of “rationalisation” took place, recovering large amounts of executive preeminence and deference.

Much of the justification for these changes in Europe comes, paradoxically, from the post-war social-democratic settlement and the arising of an economically activist social state. This necessitates, so would jurists hold, a fundamentally administrative, not legislative, state. Such a state must be agile and flexible, which is difficult or impossible to combine with genuine parliamentary deliberation and control, and hence functions flee into the executive, where decisions can be taken more quickly. Lenin had a similar view about the ideal function of the Soviet state–or semi-state, if we are to be sympathetic to his dubious construction in S&R–upholding the need for a combined executive and legislative power, while, oddly, decrying the heavy civil services of the continental bureaucracies. Of course, there is much in this view that is self-serving. It’s hard to understand precisely why, even if we are to admit the need for a preeminently administrative state, this state must escape the effective control of popular sovereignty, which however distortedly manifests in the European model of governance through parliamentary institutions.

The process of European construction, as well as privatisations and “modernisations” of state organs, have emptied the power of the executive from many of the attributions it won from the legislator. From Parliament to the cabinet, and from the cabinet to the stock exchange, the capability for people to have a genuine input into public life and particularly economic decisions has shrunk and continues to decrease, fed by the crisis and the need to subject all things to the discipline of ideologically reliable pro-market independent actors. Then, social democrats and conservatives alike cry crocodile tears on the impotence of politics; an impotence they have done their best to cause.

This crisis, just as the 70s produced the Trilateral report, has produced a similar viewpoint which was published on a J P Morgan report on the state of the European conjuncture. The suggested illness and its treatment seem to have changed little:

“Political systems around the periphery typically display several of the following features: weak executives; weak central states relative to regions; constitutional protection of labour rights; consensus building systems which foster political clientelism; and the right to protest if unwelcome changes are made to the political status quo.

It doesn’t take ruling class articulation to lose many of the democratic provisions we now enjoy, though. In different European countries we see the following changes: increased use of delegated legislation, emergency decrees, or dubious legal loopholes to avoid substantive debate;3 constitutionalisation or rigidification of economic constraints to take them out of the ordinary political process;4 use of coercive force (police, military, private violence) against strikers, protestors, squatters, etc; violations of the ILO’s treaty on forced labour through militarisation of public services or legal compulsions to work;5 a progressive unravelling of protections for collective bargaining; mechanisms of collective responsibility for welfare recipients oriented towards their pacification as a radical force in the streets; resorting to the drafting and negotiations of secret international treaties with unaccountable systems of enforcement; the use of pardons to limit the responsibility of state actors such as police, politicians, and non-state actors such as bankers;6 the development of measures that escape the normal division of powers and arrogate for the administration functions typically reserved for the judiciary;7

The situation is significant enough some thinkers have come up with the notion of constitutional dictatorship: a means of governance where pluralistic elections still take place, but where these elections are less and less significant in real terms, and all forms of non-electoral popular participation in public life are quashed.

Some on the left believe that bourgeois democracy is so significantly distorted by the material and ideological hegemony of capital that it is completely unusable for our purposes; or useless enough that a conquest of Parliament would be an empty victory. I would propose that, whatever comrades think about the authenticity of current forms of popular representation, it is absolutely crucial to demand their preservation and, whenever possible, to enlarge their scope. We find ourselves at a point at which much of the nodal power of the state is being sublated into European or supranational institutions, or outright privatised. While in the long run all progress depends on a successful capture of Europe and an increased focus on genuine European construction for a European working class, and on the build-up of economic capacity in the productive units of the economy, in the short term these changes are emptying popular representation of its already weakened power. Its maintenance is indispensable for our scope of action to remain, and must stand for the foreseeable future as an unconditional demand.

  1. The Westminster Parliament wasn’t particularly special within the European context. There were similar organs of representation (diets, states general…) going as a category by the Latin name of curiae, which attempted to curtail the monarch’s power very particularly through limiting taxation.  
  2. Though this does not explain quite how African slaves as well as Indian ones became deprived of their liberty to become owned things, under Locke’s own participation in the settlement of Carolina.  
  3. Of these, perhaps the most blatantly fraudulent one was the approval of the memorandum package in Greece as a single-article law, avoiding the need to debate each article separately.  
  4. Such as the approval of the reform of article 135 of the Spanish constitution, establishing the primacy of foreign debt over all other state obligations, and passed over the summer when the Parliament was not in session from one day to the next without public debate.  
  5. Particularly worrying in Greece, though the Spanish air traffic control case was also notable.  
  6. A particular disgusting case took place in Spain, where the state pardoned police agents who had been convicted for torture; and after the first pardon which only decreased their sentence length, when the judiciary insisted they actually go to jail, they pardoned them again, this time completely.  
  7. Such as British so-called anti-social behaviour orders and terrorism investigation and prevention measures.  

Originally published at Spirit of Contradiction

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