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pasquale pasquino NYU July 2015 for Istvan Hont Festschrift Modern representative democracy: intellectual genealogy and drawbacks. This chapter/text has its origin in conversations I started more than 25 years ago with Istvan in Cambridge about Hobbes and Sieyes, the modern state, representative government, and contemporary democracy. It discusses, at least in part, parallel issues with the object of Chapter 7 of his Jealousy of Trade. My greatest regret is that it is now too late to talk about my ideas with him. I. Democracy, in the sense we use this term nowadays from a descriptive point of view, is a form of government (Herrschaftsform), a hierarchic organization of social life, where, under specific conditions, an elite exercises political authority and the citizens obey the commandments enacted by that elite H. Heller, “Politische Demokratie und soziale Homogenität”, in Gesammelte Schriften, Leiden, Sijthoff, 1971, vol. 2, p. 426. Modern democracy is a political system established in its original form – representative government – in some few countries between the 18th and the 20th century (and in many more only after World War Two). Notably, in a variety of forms and institutional structures, in the United States, France and the United Kingdom (but also in some British colonies, Switzerland, Belgium, the Netherlands and Scandinavian countries) During World War Two, Britain, the United States, Australia, New Zealand, and Canada were allies that had democratic regimes. Ireland, Iceland, Sweden, and Switzerland were neutral democracies. While they were occupied during the war, France, Belgium, the Netherlands, Denmark, and Norway were democracies before and after occupation. Latin America experienced different versions of democratic regime already in the 19th century. But they have been more or less unstable and I have not the competence to discuss them. A systematic analysis should necessarily consider them. See for the contemporary situation http://www.un-ngls.org/orf/democracy-undp-publication.htm For a limited historical perspective see: Eduardo Posada-Carbo, Elections before Democracy: The History of Elections in Europe and Latin America, New York: St. Martin’s Press, 1996. Moreover: Adam Przeworski, “The Mechanics of Regime Instability in Latin America”, in Journal of Politics in Latin America 01/2009; 1(1), p. 5-36. . Specifically: as a federal and presidential system in the United States; a centralized/unitary parliamentary republic in France – stabilized starting from 1870: the beginning of the Third Republic The 5th French Republic is, instead, a bicameral but “semi-presidential” political system. – and a constitutional monarchy (which was at the origin a mixed government, the one of the so-called Old English Constitution) becoming slowly a parliamentary democracy in the United Kingdom. This original form is different from the one existing nowadays in most of the representative governments, which can be qualified as constitutional democracies. By this expression, I mean a government that is not characterized by parliamentary sovereignty, but by a structure of divided power between elected and non-elected organs, both exercising political authority, hence the power of enacting binding legal norms. I believe nonetheless that parliamentary and constitutional democracy are two species of the same genus, of which this text analyzes the common genealogy. As is well known, these regimes had originally a different name; they were called mostly republics in America and gouvernement représentatif in France. On the history of the term “democracy” there is now quite a rich literature As to France see: Philip J. Costopoulos and Pierre Rosanvallon “The History of the Word ‘Democracy’ in France”, Journal of Democracy, Volume 6, Number 4, October 1995 pp. 140-154. For the United States: S. Wilentz, The Rise of American Democracy: Jefferson to Lincoln, Norton and C., New York, 2005 and Gordon Wood, Empire of Liberty: A History of the Early Republic, 1789–1815, Oxford University Press, New York, NY, 2010. . The object of the first part of these remarks is the intellectual/ideological foundations of representative government We speak now mostly of “representative democracy”. , which is the original core of the political system that, following the American usage See the book by S. Wilentz, quoted at FN 5. and Tocqueville, we ended up calling democracy tout court. Modern representative government - this is the first claim I want to posit - has its intellectual roots in the conception of political equality that is the core of the Hobbesian conceptual revolution. Hobbes’ human equality It is not possible to discuss in the context of this contribution the details of how Hobbes conceives of and justifies human equality; I shall nonetheless present some textual evidence supporting my interpretation. In the Elements of Law, Natural, and Politic (II.20.19), we read: “For by nature men have equal right; this inequality [between those who command and those who have to obey] therefore must proceed from the power of the commonwealth [through authorization]. He therefore that doth any act lawfully by his own authority, which another may not, doth it by the power of the commonwealth in himself” Moreover: Leviathan, XIII.2 : “I find yet a greater equality amongst men than that of strength”; Leviathan , XV.21; The Elements of Law I.14.13, I.14.14; De Cive I.11, I.15; and Leviathan, XIV.18; see also the entry “equality” in The Bloomsbury Companion to Hobbes, ed. by S. Lloyd, Bloomsbury, London, 2013, p. 171-75. . In the perspective of this article, the crucial passage is Leviathan, XV. 21: “The question who is the better man has no place in the condition of mere nature, where (as has been shown before) all men are equal. The inequality that now is has been introduced by the laws civil. I know that Aristotle in the first book of his Politics, for a foundation of his doctrine, maketh men by nature, some more worthy to command, meaning the wiser sort, such as he thought himself to be for his philosophy; others to serve, meaning those that had strong bodies, but were not philosophers as he; as master and servant were not introduced by consent of men, but by difference of wit: which is not only against reason, but also against experience” (italics mines). Hierarchy in the political society is an artifact and result of delegation; this is Hobbes’s crucial claim. Hobbes’ presentation of Aristotle’s political doctrine is not really fair. But this is not my topic here. Christianity, to be true, introduced into western culture some basic idea of equality, but its impact on political theory (until John Locke) was almost nil. See M.B. Bertman, “Equality in Hobbes, with reference to Aristotle”, The Review of Politics, Vol. 38, No. 4, Oct., 1976, p. 534-544. In a recent important article, Kinch Hoekstra “Hobbesian Equality”, in Hobbes Today, ed. by S.A. Lloyd, Cambridge University Press, 2013, p. 76-112. claims that the idea of equality is not original at all in Hobbes. He offers an important list of texts where it is claimed that men are equal, but Hoekstra overlooks the circumstance that most of these quotes, coming from the Christian tradition, do not draw any significant consequence for political theory from their conception of equality. The text from the Digest, on the other hand, has to be quoted in its entirety to understand its limited scope: Ulpian, Institutes, Book 1: “Manumissions also belong to the jus gentium. Manumission means sending out of one's hand, that is, granting of freedom. For whereas one who is in slavery is subjected to the hand (manus) and power of another, on being sent out of hand he is freed of that power. All of which originated from the jus gentium, since, of course, everyone would be born free by the natural law, and manumission would not be known when slavery was unknown. But after slavery came in by the jus gentium, there followed the boon (beneficium) of manumission. And thenceforth, we all being called by the one natural name "men," in the jus gentium there came to be three classes: free men, and set against those slaves and the third class, freedmen, that is, those who had stopped being slaves”. Watson, Alan (Ed.). Digest of Justinian, Vol. 1; Philadelphia: University of Pennsylvania Press, 2009. p 73. http://site.ebrary.com/lib/nyulibrary/Doc?id=10491902&ppg=73 The Latin text (Ulpianus, Dig. 1, 1, 4 reads) : “Manumissiones quoque iuris gentium sunt. est autem manumissio de manu missio, id est datio libertatis: nam quamdiu quis in servitute est, manui et potestati suppositus est, manumissus liberatur potestate. quae res a iure gentium originem sumpsit, utpote cum iure naturali omnes liberi nascerentur nec esset nota manumissio, cum servitus esset incognita: sed posteaquam iure gentium servitus invasit, secutum est beneficium manumissionis”. See also: Maria B. Cocco, Servi e liberti nella Sardegna romana alla luce della documentazione epigrafica, Tesi di dottorato Sassari, 2010, p. 26, who observes, rightly so: “per Ulpiano la schiavitù non era più sancita per legge di natura, ma l’uomo, libero in base allo ius naturale, poteva divenire schiavo di un altro uomo a causa del risultato di processi storici e convenzioni sociali, anche se universalmente accettate” (http://eprints.uniss.it/4914/1/Cocco_MB_Servi_liberti_Sardegna_romana.pdf ) Hobbes distinguishes between slaves and servants in his Leviathan Ch. XX (paragraphs 10 and 11, in the context of the discussion of despotic dominion). One can contract to be a servant, but slaves have no obligation at all to those holding them because no covenant has passed between them and their masters. The discussion in Ch. XXI of the true liberties of subjects confirms that one cannot contract away one's right of resisting death, wounds, chain or imprisonment. It is Locke, by the way, in Ch. 5, section 24 of the Second Treatise, who explicitly argues that people may contract into servitude but not slavery. By the expression: political equality, I mean with the author of the Leviathan (1651) that in a given society nobody has a “natural authority,” allowing him/them to govern the members of the body politics and hence to make and impose upon them binding collective decisions. In Hobbes’ conception, the government of the polity has to have, and in its entirety, “Although elections were used in ancient Athens, in Rome, and in the selection of popes and Holy Roman emperors, the origins of elections in the contemporary world lie in the gradual emergence of representative government in Europe and North America beginning in the 17th century” (Encyclopedia Britannica, sub voce election: http://www.britannica.com/EBchecked/topic/182308/election#toc229014 ) only a special foundation: citizens’ authorization. To be true, in many other, past and present, political regimes a section of the governmental structure was/is elected: notably many magistrates in Rome See: Th. Mommsen, Römisches Staatsrecht, Vol. 1, Leipzig, Hirzel, 1876., the House of Commons in the Old English Constitution and in some of the German ständische Verfassungen – but with Hobbes citizens’ authorization become the only source of legitimacy of political power, which by the way, according to him (a point on which I agree), has to pre-exist in order to be authorized; this is why we can speak of a de facto theory of authorization. Modern elections, so I argue in this text, presuppose an empty seat of political power See: S. Landshut, “Empirische Forschung und Grundlageforschung in der Politiscen Wissenschaft”, 1964, in Kritik der Soziologie und andere Schriften zur Politik, Luchterhand, Neuwied – Berlin, 1969, p. 315-316. , since only the names of those who shall occupy that seat are decided, up to a point (candidacies are often controlled by political parties), by the voters. It is possible to say (with John Dunn See J. Dunn’s contribution in the book Democracy in a Russian Mirror ed. by A. Przeworski, Cambridge University Press, 2015, p. 97-109. ) that the basic principle of representative government is “others-authorization” – the others being here those who are supposed to obey the commandments of the few people exercising political authority. If the members of a given society It is out of the scope of this paper to consider the complex questions connected with borders and rules of inclusion/exclusion of individuals into a political society (on the concept of “people” see notably J.A. Schumpeter, Capitalism, Socialism and Democracy, 1942, chapter XX, #4, p. 243-249). The “people” in a democracy is from a legal point of view a “constituted power” (the electoral power). The list of the voters is established by some authority not by the citizens themselves. are politically equal – i.e. if they consider themselves equals or are considered formally as such by the elite(s) – those who govern need an authorization in order to exercise that function (of command). Political power being not natural – in the absence of a natural, meaning ontologically based and socially accepted hierarchy between the members of the community – has the nature of an artifact. Authorization is the mechanism by which the artifact of legitimate power is established, meaning recognized and stabilized by those who have to obey political power and who, by/through the mechanism of authorization, become the authors of the power itself. This is the language used famously by Th. Hobbes, who in chapter XVI of his masterwork introduces the term/concept of representative Richard Tuck brought to my attention years ago that the term representation first appeared in the French translation by Samuel Sorbière of the original Latin version of De Cive: “D'où l'on peut voir la différence que je mets entre cette multitude que je nomme le peuple, qui se gouverne régulièrement par l'autorité du magistrat, qui compose une personne civile, qui nous représente tout le corps du public, la ville, ou l'État, et à qui je ne donne qu'une volonté; et cette autre multitude qui ne garde point d'ordre, qui est comme une hydre à cent têtes, et qui doit ne prétendre dans la république qu'à la gloire de l’obéissance.” http://classiques.uqac.ca/classiques/hobbes_thomas/le_citoyen/le_citoyen.html p. 81: Remarque. (see De Cive Ch. VI. I, remark: multitude). This text seems missing in the Latin version of the same work published in Amsterdam in 1647. The French translation of 1649 was prepared by Samuel Sorbière jointly with Hobbes. to qualify the institution of the government in a society where there is no natural hierarchy between its members; and where the subjects are qualified as authors (those who authorize) and the government as a persona ficta, the “actor”, speaking for the subjects, and as their representative. A consequence of this equalitarian conception of the of the members of the political community is that the government, i.e. those who occupy that position, do not exercise power any more sui iuris, but by other-authorization or delegation; they are, as we say today, with some exaggeration, agents of a principal. One (political community) and two (logically distinct actors): sovereign and multitude. This distinction is graphically visible in the original frontispiece of the Leviathan. The political body cannot survive without the sovereign representative, but Leviathan, the government does not exist without the authorization of the subjects. Simul stabunt, in the commonwealth, or simul cadunt, falling in the state of nature! The Hobbesian conceptual revolution is the beginning of the end of a long lasting political philosophy based on an anatomy of society where instead of equal individuals (from the political point of view, the point of view of command and obedience), the body politic was made up by mere tes poleos, substantive and unequal parts of the city/society. See P. Pasquino, “Machiavelli and Aristotle: The Anatomies of the City”, History of European Ideas, Volume 35, Issue 4, 2009, p. 397-407. *** The next question I need to discuss concerns the form or the concrete modality of “authorization”. Which one is exactly the mechanism by which the subjects authorize the artifact we call government? This question is crucial to understanding the nature of representative (authorized) government. Hobbes, like most contractarians (the authors of the modern social contract school) – notably Samuel Pufendorf, very prominent in the sense of the best well-known and influential figure of that school in the 17th and 18th century See notably his De statu hominum naturali, 1678; the English translation of this text has been published, annotated, and introduced by Michael Seidler, Lewiston [N.Y.] : E. Mellen Press, 1990. – claimed that the mechanism of authorization was the fact itself of rational obedience to the commandments of the government. As Baruch Spinoza, certainly the most profound and original follower of Hobbes, put forth: oboedientia facit imperantem Quoted by Herman Heller, Die Souveränität: Ein Beitrag zur Theorie des Staats-und Völkerrechts, in Gesammelte Schriften, 1971, vol. 2, p. 57 fn. 123., meaning that voluntary obedience by the citizens is the true basis of political power (notably in societies where there was no powerful standing army and where the government did not control the terrifying military power that it can exercise in contemporary political systems). Hobbes’s intellectual enterprise consisted of giving mundane and theological arguments In this sense the important books on Hobbes by D. Johnston, The Rhetoric of Leviathan:Thomas Hobbes and the Politics of Cultural Transformation, Princeton University Press, 1989 and S. Lloyd, Ideals as Interests in Hobbes's Leviathan, Cambridge University Press, 1992. in favor of obedience/authorization to a government, by the way with a crucial caveat, the one that makes the radical difference between the sheer fact of obedience – which may have a variety of reasons, including fear and coercion – and that which makes obedience rational by imposing duties and factual obligations upon the government, not only upon the citizens. Citizens’ obedience is for Hobbes rational, justified and becomes authorization, only if political authority is able to guarantee citizens’ right to “life and limbs” (and eternal salvation – as he tried to show in the third and fourth parts of his Leviathan). I do not need to enter here into the analysis of his arguments I presented some of them in three articles : “Thomas Hobbes: la condition naturelle de l'humanité”, Revue Française de Science Politique; 44, n° 2, April 1994, p. 294-307 ; “Thomas Hobbes: la condition légale dans le Commonwealth”, Cahiers de Philosophie de l’Université de Caen, n. 34, 2000, p. 147-164 ; “Hobbes, Religion and Rational Choice”, Pacific Philosophical Quarterly, vol. 82, 2001, p. 406-41. ; what I want to stress and focus on here is the circumstance that only the citizens’ authorization (which goes under the quite misleading name of social contract) On the epistemic nature of the “contract”, see E. Cassirer, The Myth of the State, Yale University Press, 1946, p. 174. to a government, able to fulfill that ‘protective function’ On the authorization to a de facto existing power, I follow Fr. Maitland, A Historical Sketch of Liberty and Equality as Ideals of English Political Philosophy from the Time of Hobbes to the Time of Coleridge (1875), republished in The Collected Papers of Frederic W. Maitland, ed. by H.A.L. Fisher, vol. I, Cambridge University Press, 1911, p. 1 ff. , justifies the authority of power as well as citizens’ political obligation to obey the civil law, the commands of the sovereign. The crucial step in this story and its starting point is that there exists no natural hierarchy among the members of a society, no natural authority (like the one that exists between parents and their minor children or between the king and his subjects in a traditional society – in the Weberian language a traditional legitimacy). So, political power (the power exercised by some few individuals in a given society over all its members) needs a non-naturalistic justification of hierarchy in order to be considered legitimate and its legitimacy is now connected with the fact of authorization. The contrast between the Aristotelian and classical typology of forms of government is worth a few words. Aristotle distinguished good from bad politeiai, but the criterion of goodness was not the existence of a mechanism of authorization, but the goal of the government: the public interest by opposition to the interest of the (one-few-many) governing people. The entire political work of Thomas Hobbes is a fundamental and successful effort to produce arguments in favor of the authorization of political authority - independently from the number of those who govern -, a long chain of rational arguments supporting the idea of political power as an artifact. *** With the American and French constitutions at the end of the 18th century, the general As we know, there where partial exceptions to the electoral authorization in both the American and in the first French revolutionary constitution. Nonetheless, the hereditary king of the 1791 chart, which lasted by the way only few months, was a public official and drew his legitimacy from the Constitution not from a special superior nature of the kingship. As to the American federal judiciary, based on the English model, it was not electorally accountable, but considered somehow “indirectly” elected by the voters who choose the representatives appointing the judges. Thee justification of this exception in the Federalist Papers is not entirely clear and persuasive. Elsewhere I try to offer what seems to me a more satisfactory justification of this important exception, which again has Hobbesian roots (see P. Pasquino, “A Political Theory of Constitutional Democracy” Straus Working Papers 4/2013, http://www.law.nyu.edu/institutelawjustice http://www.law.nyu.edu/sites/default/files/siwp/WP4Pasquino.pdf ). mechanism of authorization took the form of the popular choice of representatives: the popular election (pro tempore). Notice that the Pope, too, is elected but his appointment being for life, he is not accountable to the cardinals, technically his (human) constituency, for a renewal of his position as head of the Catholic Church. In the second part of this text, I shall come back to the nature and property of this mechanism that was traditionally considered typical of the “aristocratic” regimes The “aristocratic” character of elections has been explored by B. Manin in The Principles of Representative Government, Cambridge University Press, 1997.. For now, I want to focus on the fact that authorization and election became synonyms in the theory of the modern (post-social contract) representative government. The French case is, from a conceptual point of view, particularly enlightening. The Founding Fathers of the French Constitution of 1789-91 were fighting against the power of the King in the Ancien Regime and its ideology and justification. They had to offer an alternative to the traditional idea of the superior nature of the King of France, authorized by God, through the sacre of Reims Giesey, Ralph E. (1990). "Inaugural Aspects of French Royal Ceremonials", in Bak, János M. Coronations: Medieval and Early Modern Monarchic Ritual. Berkeley: University of California Press.,- the ceremony of unction that took place in the cathedral of the city of Reims. To do so, the idea was suggested, in the words of the abbé Sieyes, that “since all the citizens have to obey the laws – the commandments of the public authority – all of them have to participate somehow in the production and the enactment of the laws” Speech at the National Assembly, September 7th, 1789 (Archives Parlementaires, VIII, p.594). Women were excluded from active citizenship since equated at that time to children (sic!), whose obedience was assured respectively by the parents and husbands.. Moreover, as direct participation was not possible in a commercial society based on the division of labor In his manuscripts Sieyes contrasted often the Athenian democracy with the representative government of the contemporary commercial society and spoke positively of Hobbes; on this last point see the manuscript at the National Archives: 284 AP 2 dossier 3(1), reproduced in my book Sieyes et l’invention de la constitution en France, Paris, Odile Jacob, 1998 p. 165-166, and M. Forsyth, Reason and revolution : the political thought of the Abbé Sieyes, New York, Leicester University Press,1987)., citizen’s participation had to take the form of popular election of representatives and government. Election pro tempore (we speak of free and repeated elections) became the form of the modern authorization and legitimation of political power, in a society where there was no belief in a natural hierarchy among the citizens, a society and a set of beliefs that could be characterized as the Hobbesian moment. A type of political culture that started to be revised and transformed in Europe only after World War Two, when parliamentary sovereignty was challenged by the introduction of non-elected, non-accountable organs able to contrast the monopoly of the elected legislative state organs in the process of law-making. Notice by the way that the concept of “people” – meaning those who authorize the government, i.e. those who have political rights – designates in turn an artificial body; they did not coincide with the totality of the inhabitants of a political community and were defined by artificial/civil laws. It took more than a century, in the three countries I am considering, to realize what we call “universal suffrage” Woman s suffrage was established in 1920 in the US, 1928 in Britain, 1944 in France (1918 in Germany and 1990 in Switzerland)., with the inclusion in the “people” of all the adult What “adult” means depends again on the positive laws of each given society. It may go from 16 years (Austria) to 25 (the active voters for the Italian Senate) members of a society without distinction of race, gender, religion, etc. It has to be observed, moreover, that the word people designates in the vocabulary of modern representative government two distinct and supposed overlapping political actors. On one side, the collection of citizens-voters, those who authorize the representatives through election. Sieyes used the expression pouvoir commettant to qualify this popular function. In his language, this is a constituted power, since the number of the voters and the modalities of the elections – the electoral law – are established by positive law (the constitution or, more frequently by ordinary statutory legislation). On the other side, the “people” was also supposed to exercise the so-called pouvoir constituant. This one is presented as the origin and source of any governmental power itself (like in the case of the social contract), and as having the function of establishing through the constitution the empty seat (the position of government) that the pouvoir commettant will fill up with names through the concrete mechanism of authorization: elections. See my article “Constitution et pouvoir constituant : le double corps du peuple” ; in Figures de Sieyes, Paris, Presses Universitaires de la Sorbonne, 2008, p. 13-23. Pufendorf distinguished famously between pactum unionis and pactum subiectionis (See: R. Derathé, Jean-Jacques Rousseau et la science politique de son temps, Paris, P.U.F., 1950 , p. 209-216). The doctrine of the pouvoir constituant On its “liberal” character, I presented arguments in my book on Sieyes (FN 31). can in turn be connected to the political egalitarianism of the social contract tradition. Only if there is no natural hierarchical structure justifying political authority, this one has to be conceived of as the result of a popular decision/authorization, and as a limited power, functional to the guarantee of equal citizens’ rights. In Sieyes’ doctrine, elections fulfill a variety of functions: they are at the same time 1. the legal, repeated form of authorization of public authority, 2. the mechanism for choosing the name of those who govern (which is not the case for the concept of authorization in Hobbes, which seems to presuppose both the authority and someone exercising it At least in the case of the commonwealth by acquisition, which seems the most common form of Leviathan. – the authorization giving it stability in exchange of protection, and only in this case), 3. the exclusive foundation of the representative legislative power Hence Sieyes’ rejection of any King’s veto power, the King being a non-elected official. and 4. the true rationale of the political obligation for the citizens to obey the positive law. It is worth noticing that there is in Sieyes’ doctrine no consciousness any more of the possibly dangerous divisive consequences of the elections to which Francesco Guicciardini, among many others, drew attention in his work (Discorso di Logrogno; 1512) – nowadays one can think of the effect of elections in a country like Egypt. The reason for it is probably not only the slightly utopian/hyper-optimistic conception of the French Founding Fathers but also, at least in the case of Sieyes, the idea that the people, the nation, the third estate, was a homogeneous body with essentially the same interests, since the others – the nobility and the king – were excluded from citizenship. Radical pluralism and competitive elections do not seem to live well together. Only a limited pluralism is compatible with a mechanism of authorization that produces winners and losers. See on this question: P. Pasquino, Politische Einheit, Demokratie und Pluralismus, in Staatslehre in der Weimarer Republik: Hermann Heller zu ehren, I. Staff and Ch. Müller (eds.), Frankfurt am M., 1985, 114-127. *** On the other side of the Atlantic, the American constitution established the principle that the government has to be “republican” in the sense that James Madison gives to this polysemic word See for a collection of Madison’s quotes on this concept: http://www.outsidethebeltway.com/madisons-defintions-of-republic/ .: In Federalist # 10 we read: “A republic, by which I mean a government in which the scheme of representation takes place…” to which he adds interestingly: “The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.” And in Federalist # 39: “…we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified…[italics mine]”. This text would require a long commentary but it is clear that here too, in the American constitutional doctrine, we see that elections (pro tempore) become the fundamental instrument of authorization of political power. Elections started to be considered in France, likewise in the United States, the basic principle of authorization and hence of legitimacy of the government in a society of equals, where this word means the absence of a natural hierarchy as to governmental power, not less but also no more than that. Economic or other forms of equality are not part of the genetic structure of modern representative government. I can sum up what I have been saying so far. In a representative government (vulgo democracy), political power is artificial (versus natural) and exercised by a small number of citizens, who need to be authorized through periodical elections in order to claim the legitimacy of giving commands (laws). To the question: “Who made you King?” (“Who gave you the right to give me orders – laws – since we are naturally equal in the body politic, meaning as citizens”), those who govern can easily answer: “You citizens, through periodical elections. This means that my power comes from your authorization and this free authorization is also the reason why you have to obey my laws (which are in a sense your laws since I’m your representative) This argument is already present in Hobbes, when he claims that civil laws are not “external obstacles”, they do not limit citizens’ freedom (see Q. Skinner, Thomas Hobbes and the proper signification of liberty, Transactions of the Royal Historical Society, Vol. 40 (1990), pp. 121-151 and my article on Hobbes and civil condition, quoted at the FN 23), since the civil power speaks for them, or more exactly the citizens speak through the representative. This is why in Hobbes there is no explicit agency problem; but only the natural right and the conatus to resist de facto political power, if it doesn’t fulfill its constitutive function of guaranteeing the natural right to “life and limbs” of the subjects. ”. “You citizen” is evidently one of the numerous rhetorical expressions used by the modern political language since it covers up a double synecdoche. Synecdoche is a figure of speech in which a term for a part of something is used to refer to the whole something. Actually, the popular authorization, the choice through elections of the parties and individuals who are going to exercise political power, is the name we gave to the adding together of individual options of a segment of the citizenry, in general its plurality (the largest minority, as it is more evident in the systems that use majoritarian electoral laws) – so that the “people” is identified with a section of it, its majority or plurality. We actually call “people” a subset of the citizen voters and will of the people the one of a section of representatives: the majority of the members of the elected assembly (notably in the parliamentary systems); this is why we have to speak of double synecdoche in representative democracies. The will of the majority of the Parliament is equated with the will of this institution, and moreover the will of the voters, that through the algorithm of electoral law produces a majority in the parliament, is identified with the popular will. In the United States and in the post-parliamentary, constitutional democracy, which exist almost everywhere in the world today, elections are, by the way, not the exclusive mechanism producing legitimacy of governmental institutions making important binding decisions for the body politic This is also true in the United Kingdom, where the House of Lords is not elected and not accountable to the voters and still exercises some legislative power; not to speak of the new Supreme Court. . Constitutional/Supreme Courts and central banks, without speaking of supranational/international organizations and global financial markets, play a crucial role in the life of citizens of societies we still call, for absence of a better name, “demo-cratic”. Citizens not only do not govern themselves – which has never been the case, at least in modern representative governments – but it is also difficult to claim that electoral authorization and accountability, that we now normally connect with repeated elections, are the unique and paramount foundation of the legitimacy of contemporary political authority, as the classical doctrine of representative government pretended. Here I want to focus in any event on the electoral mechanism, its properties, and normative qualities. *** In the first part of this paper I try to show that elections have a strong connection with the idea introduced by Thomas Hobbes that the members of a given community are politically equal, since there is no natural hierarchy justifying that some specific people can give orders, i.e. govern the other members of the community. So political authority needs authorization, and with the French Revolution and the American constitution at the end of the 18th century, popular elections became the essential mechanism to authorize and legitimize political power. I argue that the idea of equality, as absence of natural hierarchy among members of a given society, is the starting point of modern representative democracy, which is a system where political authority has to be justified, and the only possible justification is authorization by the many, citizens, to the few, in government. This authorization takes the form at the beginning, with Hobbes, of voluntary, rational (justified, self-serving) obedience, or de facto consensus to the power of the sovereign able to protect and guarantee fundamental rights. Later on, authorization became free elections, so that if the citizens (the majority of them) are not happy – for whatever reason – with what the government did, they can always replace, at the end of the mandate, those who govern with some other people. In the last section of this paper, I want to speak of modern competitive elections and consider some of their downsides. *** Contemporary democracy is often identified (notably in American political science via Anthony Downs’ partial reading of the political theory of the Austrian economist On a more accurate reading of Schumpeter’s political theory, see A. Pizzorno, “On the Rationality of Democratic Choice”, Telos, 1985 no. 63, pp. 41-69. ) with what Schumpeter called the “democratic method”, the mechanism through which political elites in competition ask voters to make the choice among them in order to occupy governmental positions. Famously (or perhaps not), Schumpeter was identifying democracy in 1942 with the Westminster model In absence of a majoritarian electoral law and a two party system, the thesis should be partially rephrased claiming that elections assign seats in parliament proportionally to the distribution of the popular vote among political parties present in the competition. The composition of the government is the result after the election of coalitions among political parties willing to support an executive in the Parliament. . Think of the interesting circumstance that his examples illustrating democratic system are drawn, almost all of them, from British political history (even more remarkable considering that Schumpeter was living in the United States when he wrote his book). Let me repeat, before going ahead, that his remarkable analysis does not exhaust either the description of RED, the real existing democracies (mostly constitutional democracies), or the normative idea of a good government – in my opinion a government able to protect fundamental rights. II. What is the function of elections and what is good or bad about them? This is the question I want to start discussing in the next pages. 1. [Selecting elites] The classical theory, the origins of which can be found notably in Aristotle References to the terms in the Index of E. Barker’s translation of Aristotle, Politics, sub voce ‘election’ (αιρεσις, αιρεισθαι) and in the Index of the excellent French translation by Pierre Pellegrin. (and which is discussed at length by B. Manin in his book Principles of Representative Government), states that elections are a mechanism to select the elite, the best citizens, those who are better fit to govern the country. This dimension becomes immediately clear if we contrast election with lotteries as a mechanism to select those who are apt to govern the city. A democratic conception of strict equality (the one opposed by Montesquieu Montesquieu speaks notably of égalité extrême : « Le principe de la démocratie se corrompt, non seulement lorsqu’on perd l’esprit d’égalité, mais encore quand on prend l’esprit d’égalité extrême, et que chacun veut être égal à ceux qu’il choisit pour lui commander. Pour lors, le peuple, ne pouvant souffrir le pouvoir même qu’il confie, veut tout faire par lui-même, délibérer pour le sénat, exécuter pour les magistrats, et dépouiller tous les juges » (De l’Esprit de lois, Livre VIII, chap. II, Garnier Flammarion, Paris, 1979, p. 234). and accepted by the Athenians in a historically completely different context) – where strict equality means equal ability to govern the city – justify lotteries These were very important for selecting the dikastai (the jurors) and the nomothetai (the “legislators”, to use an anachronistic term); the ekklesia instead was simply open to the Athenian citizens. And the magistracies (the archontes), sorted by lotteries, did not play at all a particularly important role in the city government (they were incomparable with the Roman republican magistrates cum imperio). As is well known, the strategoi, (the generals) were, instead, elected each year. and makes useless a mechanism for selecting the best citizens. That elections would have been the device to select the elites and the experts is likely what Madison and Sieyes still used to believe, with some realism. At their time, salient The introduction of this concept is in my opinion the most relevant and original contribution of Manin’s book concerning contemporary elections. The term salience in this context has in reality nothing to do with the classical Aristotelian/Madisonian idea of elections as mechanism able to select the people more gifted to govern in the general interest – a sort of objective aristocracy. Nowadays elections produce and reproduce a sort of oligarchical pro tempore government made up by individuals, who for whatever reason are more salient (visible) than others. On the last page of his book Manin writes, “ L’élection sélectionne nécessairement des élites, mais il appartient aux citoyens ordinaires de définir ce qui constitue une élite et qui y appartient” (Principes du gouvernement représentatif, Paris, Calmann-Lévy, 1995, p.308). These individuals may be media people, salient just because well-known and visible, not at all because of their ability or experience of government. candidates, the only ones who could be selected (in the absence of modern political parties), were probably members of the intellectual elite – one may even say with Carl Schmitt: members of the social class characterized by (some) Besitz (wealth) and (good) Bildung (education). This is not true anymore, since money (so Besitz more than Bildung) and media visibility are nowadays much more relevant in order to be salient. Alternatively, depending on the electoral system and on the structure of the political offer, citizens often vote for parties and their visible leaders rather than for single candidates whom sometimes (notably in electoral systems with long lists of candidates chosen by the parties, or in the case of election to the European Parliament) voters may not know at all. Denying the role of salience for the candidates (and of partisan choice for the voters) would mean to believe that the idea of political equality, rather than in the meaning specified in this text, should be understood instead in the strict Athenian equalitarian sense, making elections pointless. It made some good sense to avoid them in the ancient democracy (where all the citizens were politically active and somehow experts). Rejecting elections would just be a form of disqualification of the role of competence in the contemporary world based on the division of labor and on the increasing complexity of governmental functions. Nonetheless, in contemporary society, elections select mostly salient candidates (or at least political leaders) rather than the best or fittest citizens to govern a country. 2. [Making right decisions] A more extravagant theory (sometimes vaguely deduced from some of Condorcet’s ideas I discuss briefly the ideas of Condorcet about voting in “Majority rules in constitutional democracies”, in S. Novak and J. Elster (eds.), Majority Decisions, Cambridge University Press, 2014, p. 219-235. On Condorcet and collective decisions mechanisms, a remarkable analysis has been produced by Antoine Houlou-Garcia, « Le théorème du jury : de la décision collective à la mesure collective », Mémoire de recherche en sciences sociales (Paris, EHESS, 2015); I hope that his work will soon be published in English. ) claims that the elections based on majority rule are a good mechanism to apprehend/reveal the general will – which is supposed to be right. In this hypothesis, there is a variety of implicit assumptions that have to be discussed and I guess refuted. A) the equation of the will of the majority with the popular will – as already hinted (speaking of the double synecdoche); B) the identification of the plurality (the largest minority, which is in general the number of popular votes sufficient to produce a majority of seats in the legislative assembly) with the majority; C) the conflating of the will of the majority of the representatives with the will of their voters (known as “agency problem”). It is evident, to begin with, that these assumptions do not pass any rational scrutiny. Consider, for instance a political system where there are more than two parties, a majoritarian electoral law and no party with more than 50% of the popular vote, then the winner gets the majority of parliamentary seats without the majority of the popular vote A rich collection of data supporting the claim in the text can be found in: Jean-Claude Colliard, Cahiers du Conseil constitutionnel, n° 13 (Dossier : La sincérité du scrutin) - January 2003 : http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/nouveaux-cahiers-du-conseil/cahier-n-13/les-systemes-electoraux-dans-les-constitutions-des-pays-de-l-union-europeenne.52036.html. Here we read : “Toute représentation, parce qu'elle consiste par essence à réduire la diversité qui caractérise plusieurs millions d'électeurs à celle, forcément moins élevée, qui sera incarnée par quelques centaines de représentants, emporte une déformation de l'opinion », In electoral systems based on proportional representation, it can be easily shown that there is a different form of dis-proportionality of the vote, which is pretty well known to anyone who is familiar with a country using that type of electoral law: a very small party in a pivotal position for building up a majority in the Parliament has a “coalitional power” disproportionate vis-à-vis its real weight in the popular vote. . Even more problematic is the assumption that the voters make wise decisions. There is plenty of historical evidence that this is not the case (the crucial elections in Prussia in 1932, the American elections in 2000 and 2004, most of the Italian elections in the last 20 years, just to give a few relatively uncontroversial examples). Moreover, the reductio of popular will to the (supposed) will of the majority is justifiable only in a utilitarian maximizing approach or in a holistic one. Kelsen produced in the 1920s probably the best analytical assessment of the mechanism of majority rule, of which he was a very severe critic. Rather than offering here my interpretation of an often misread text, I invite the reader to consider the following passage from this major work on democratic theory, at the end of Kelsen’s analysis of majority rule: “The transformation in the concept of freedom, from the notion of the individual's freedom from state rule to the notion of the individual's participation in state rule, also signifies democracy's detachment from liberalism. Because the demand for democracy is considered met to the extent that those subject to the state order participate in its creation, the ideal of democracy is independent of the extent to which the state order affects the individuals who create it—that is, independent of the degree to which it interferes with their “freedom.” As long as state authority emanates from the individuals subject to it, democracy is possible even in the case of unlimited expansion of the state order over the individual—that is, complete annihilation of individual ‘freedom’ and negation of the liberal ideal. And history shows that democratic state authority does not tend less towards expansion than autocratic state authority. Given the unavoidable distance between the will of the individual and the state order—the individual will, which forms the starting point of the demand for freedom, while the state order confronts the individual as an alien will, even in a democracy, where this distance is reduced to a minimum—a further transformation occurs in the notion of political freedom. The fundamentally impossible freedom of the individual gradually fades into the background, and the freedom of the social collective comes to the fore. The protest against being ruled by equals is as unavoidable in a democracy as its consequence: the shift in political consciousness to construction of the anonymous person of the state as ruling subject. From it, and not from externally visible persons, authority may emanate. A mysterious general will and an almost mystical general person are detached from the wills and personalities of the individuals. This fictional isolation occurs not so much with regard to the will of the subjects as with regard to the will of those who rule in fact, and who now appear to be nothing more than organs of a hypostasized ruling subject. In an autocracy, a man made of flesh and blood is considered the ruler, even if he is raised to the status of a god. In a democracy, the state as such becomes the ruling subject. Here the personification of the state hides the fact that man rules over man, unbearable to democratic sensibilities. The personification of the state, now fundamental to the theory of the law of the state, doubtlessly also has its roots in this ideology of democracy.” The quote is from Wesen und Wert der Demokratie (1929), the English translation is available on line: http://publishing.cdlib.org/ucpressebooks/view?docId=kt209nc4v2&chunk.id=ss1.17&toc.depth=1&toc.id=ch01&brand=ucpress , p. 88. The idea that the majority is right is a very problematic extension of Condorcet’s jury theorem, which by the way, and independently from the quite restrictive assumption made by this author See my article quoted at the FN 48., makes sense if people decide about facts (is Mr. X guilty of the crime z), and facts are only one element of political decisions. So it is highly unpersuasive that elections speak the truth or justice, whatever these terms may mean. 3. [Defusing societal conflicts] A less extravagant theory defends the idea that elections – here “competitive” elections – are a mechanism to avoid violent conflicts among political elites. Historical evidence shows, though, that there may be here yet another argumentative fallacy: conflating the cause with the effects. It is not enough to introduce free elections to avoid violent conflicts. Contemporary Iraq, Egypt, Bangladesh and Pakistan are quite eloquent examples that rather than pacifying the society, elections can ignite violence and produce disruptive conflicts. So specific conditions have to pre-exist in order to have at the same time electoral competition and social peace. Schumpeter, in the disregarded fundamental chapter XXIII of his book on Capitalism, Socialism and Democracy, presented a number of interesting remarks on what he called the conditions of success of the “democratic method”, meaning the mechanism of competitive elections to select the government. His preconditions concern essentially and importantly so, the quality of the political and bureaucratic elite, which by the way is not enough, next to the elite, voters play, indeed, an important role in representative governments, since elected officials are accountable to their constituencies. 4. [Accountability] Competitive elections are considered the essential instrument to make a government accountable to the voters (a term by which, as we saw, is designated in general the plurality of them). Accountability is a tricky polysemic term. In its less problematic and strict meaning – we speak now also of vertical accountability – it means that a public official elected pro tempore, in order to get his mandate renewed, has to go back to the electoral body and possibly be re-elected. Accountability is the opposite of tenure and the opposite of sovereignty, in the classical sense of the term: the sovereign is not electorally accountable (since the most powerful section of the British Parliament is electorally accountable, I never understood clearly the British idea of parliamentary sovereignty An accountable sovereign seems a contradictio in adjecto; still thanks to a better definition, one can try to escape contradictions. May be the British Parliament as an institution is sovereign, but the members of it are not, since they can lose their job (in the Commons). ). Accountability seems to guarantee a form of limited power based on popular control. Now repeating that popular control is a synecdoche for control by the majority/plurality of the voters, and recognizing that this control (the possibility to vote the government out) does exist Schumpeter, Capitalism, Socialism and Democracy, p. 272 wrote explicitly assessing the characters of his definition of the democratic method : “Sixth, it should be observed that in making it the primary function of the electorate to produce a government (directly or through an intermediate body) I intended to include in this phrase also the function of evicting it [italics mine]. The one means simply the acceptance of a leader or a group of leaders, the other means simply the withdrawal of this acceptance. This takes care of an element the reader may have missed. He may have thought that the electorate controls as well as installs. But since electorates normally do not control their political leaders in any way except by refusing to reelect them or the parliamentary majorities that support them, it seems well to reduce our ideas about this control in the way indicated by our definition”. , we can raise, as already hinted, some doubts about the wisdom and rationality of such a controller. My point is simple and in a sense well known, but not always taken seriously because of the dominant democratic ideology. The elected official, let me call him the incumbent, is rationally (in order to be re-elected) biased toward political myopia/short-run perspective (the possibility of being confirmed in his mandate at the next election; politicians think normally of the next election and mostly are not interested in the long term) and partiality (the interests of his constituency) Recently Jürgen Habermas in an interview to the Guardian (16/7/2015) speaking of the European Union drove the attention to a different not less disturbing bias, the one between the European integration and the national democracies of the member states of the Union: “Only the government leaders assembled in the European Council are in the position to act, but precisely they are the ones who are unable to act in the interest of a joint European community because they think mainly of their national electorate”. . What accountable elections guarantee is that, if for whatever reason the majority/plurality of voters doesn’t like the policies enacted by the incumbent, they can force him to leave the governmental position. What is good about that is not very clear, except that the more are stronger than the less. This idea seems to be connected with a radical relativism that most of the supporters of democracy deny or are not aware of. Kelsen, as I discussed above, was aware of it and explicitly associated democracy based only on majority rule with relativism in the last chapter of his book on democracy The title of the section is Demokratie und Weltanschauung. . Dworkin, because of a similar implicit understanding, rejected majoritarian democracy, since it is in conflict with his strong anti-relativism See for instance the Introduction: The Moral Reading and the Majoritarian Premise to his Freedom’s Law, Harvard University Press, 1996, p. 1-38. . Alternatively, the same idea of majoritarian democracy is connected, as I said, with the utilitarian perspective consisting in satisfying the largest number of preferences (independently, paradoxically, from their content – which seems again another form of relativism) I do not mention here the so called epistemic theories of democracy, which in my opinion are based on unrealistic assumptions and serious misreading of Condorcet (see FN 45). . To put the argument presented in a slightly different way one could say that competitive elections have the quality of being a mechanism of power control – a form of limitation of power alternative to the classical one of mixed government, where, in a pre-Hobbesian universe, different parts of the city controlled each other, through sharing the exercise of political authority. It is a control in a minimalist form: in a political system where there are competitive elections, the incumbent knows that he can lose the election and that he has a reason to avoid abusing power – which boils down to not displeasing his constituency. This is what I have been thinking for a long time. Still, after more serious consideration – trying to understand why modern democracy is good and not why it is better than communism (a political regime that with the exception of North Korea has disappeared), this argument started to seem to me pretty weak. It is apparent that elections can produce civil war rather than moderation; that the incumbent has an incentive to do whatever is needed to please his constituency (those who voted for him) in order to be reelected and that introduces a partiality in favor of a section of the voters. And that speaking of “control” is an ideological exaggeration. We should at most speak of “approval/disapproval”. My general claim is that democracy is certainly a better system compared to countries like Saudi Arabia or to the Soviet regime. But the Soviet regime doesn't exist anymore and Saudi Arabia is not considered as a model by any sensible person, except I guess the local elites. So what is good about democracy remains a serious open question, to which in my opinion we have no clear satisfactory answer. To answer: “competitive election”, which for sure implies freedom of political criticism and of association, seems not enough. One should not forget, by the way, that western political systems are mostly constitutional democracies. By which I mean that a significant number of collective binding decision are taken away from the power of elected officials and attributed to institutions manned by people who are not electorally accountable. Constitutional/Supreme Courts, Central Banks, Independent Administrative Agencies are very important actors of contemporary political By “political” I mean here decisions that affect the life of the members of the community. decision-making in real existing democracies. This point is rarely highlighted in democratic theories, which shows that they are mostly archaic, incomplete or just wrong At least outside the United Kingdom, which is still essentially a pure parliamentary democracy. . Before trying to change the reality, we may need to change the theory. 5. [Legitimacy] Elections may be considered to fulfill a different function: to provide/confer “legitimacy” to at least part of those – the elected officials – who govern us members of a given political community. This seems to me the most promising perspective to make sense of why at least political elites are interested in this mechanism of authorization. By this, I am coming back to the starting point of my remarks. This is the reason why I needed to start with the modern concept of political authority. In the absence of the idea of political equality (re-introduced after Athens and in a more limited version by Thomas Hobbes), political/governmental authority is exercised by those citizens who are naturally superior and fit to govern. When, with modern contractarianism the natural character of the government disappeared and political authority started to be considered an “artifact,” the idea that some people could give orders to the members of the community (without being naturally superior) needed a justification. Authorization became at the same time the key and justification of authority. In this perspective, elections assume a significant role: as the modern mechanism of authorization, or, with a more usual term, as the mechanism conferring legitimacy to the government. Which is good definitely, when it works, for those who govern. I am suggesting that it may not be good enough for those who are governed. PAGE 1