What is Democracy? (51): Representatives as Actors and Authors

Sorry for this very long post, but I think this is important. During the discussions about healthcare reform in the U.S., opponents frequently mentioned the unpopularity of the proposed Bill (although now, after the Bill has been accepted and turned into law, it seems that its popularity has gone up). I don’t wish to engage in a discussion about the accuracy of the opinion polls that measure the popularity of healthcare reform (it’s obvious that extremely negative political propaganda has played a role, as well as lack of knowledge about the actual proposals).

What I want to do here is look at the deeper discussion about the problems arising from a representative body voting laws that are unpopular (or seem to be). One of the more eloquent dismissals of unpopular legislation, especially the healthcare legislation, comes from Megan McArdle:

Are we now in a world where there is absolutely no recourse to the tyranny of the majority? Republicans and other opponents of the bill did their job on this; they persuaded the country that they didn’t want this bill. And that mattered basically not at all. If you don’t find that terrifying, let me suggest that you are a Democrat who has not yet contemplated what Republicans might do under similar circumstances. Farewell, Social Security! Au revoir, Medicare! … Oh, wait–suddenly it doesn’t seem quite fair that Republicans could just ignore the will of their constituents that way, does it? … What I hope is that the Democrats take a beating at the ballot box and rethink their contempt for those mouth-breathing illiterates in the electorate. (source)

Apart from the fact that we usually mean something else by “tyranny of the majority” (i.e. majority approved and popular decisions violating the rights of minorities), she and others like her seem to have a valid point, but only at first glance. While I don’t believe that they advocate getting rid of the whole notion of elections and just leave decisions up to opinion polls, they certainly want to give opinion polls much greater weight and turn them into some sort of check on parliamentary majorities (however, it’s not clear how that is supposed to work).

I want to argue against this. It’s true that a democracy is all about electing leaders who are supposed to execute the will of the people by way of laws and policies (if we sidestep the important issue of direct participation). The people don’t vote laws and don’t decide and pursue policies themselves. They decide what can and cannot be viewed as the will of the people, but then they give someone else the power to execute this will in their name and to frame the laws and policies necessary for the execution of this will.

That’s because it’s practically very difficult to allow all people to participate in all decisions. In a representative system, the people can influence the laws and the policies of the government only indirectly. They elect those representatives who they think are likely to vote laws and implement policies in accordance with their wishes, and if, afterwards, the people find out that they elected the wrong representatives, they replace them. The desire to hold on to power, forces the representatives to act in accordance with the wishes of the people.

This means that representatives do not necessarily follow their own personal judgment or their own conscience. The people instruct them and tell them, in a general way perhaps, what kinds of laws or policies to implement, or at least they tell them which values should be promoted by laws and policies. In all their actions, the representatives must never forget whence they came, who elected them and for what reason. They are the servants of the people whom they represent and whose wishes they are supposed to realize with the help of laws and policies. If their own wishes and opinions collide with those of the people, then they should either set them aside or resign from their posts.

In other words, representatives are actors and not authors. The people are the authors and the representatives act out the words of the authors instead of their own words (although of course their own words may coincide with those of the people). This guarantees the congruence of power and society. The political actors speak and act the words owned by those whom they represent (the authors) and, if necessary, leave their own personality behind while doing their work. Their official personality must be the sum of the opinions of the electors who, for this reason, recognize themselves in the representatives. The representatives act with authority (a word related to the word “author”) and are likely to remain in office as long as this recognition lasts and as long as the representatives act in the way they were authorized to do. The difference between rulers and ruled is hereby eliminated, notwithstanding the fact that the representatives and the represented are not the same persons. They are not the same persons but they share the same personality (notice also the etymological origin of the word “person”, namely a mask worn by actors). Not only the election results, but also the laws and the government policies must be the reflection of the will of the people. Representatives do not only have authority on the basis of an election result, but also on the basis of their performance in office.

All that would vindicate the position of McArdle and other opponents of the healthcare bill. However, things are not as simple as this. Representation is more than just a convenient tool for self-government in large communities. It has certain other advantages.

[L]imitation to a small and chosen body of citizens … [is] to serve as the great purifier of both interest and opinion, to guard ‘against the confusion of a multitude'”. Hannah Arendt in On Revolution.

It’s not always easy for a representative to know what the people think, if they think something at all. It often happens that a representative guides, purifies or clarifies the thoughts of the people by presenting his own thoughts in a clear and concise way. At the next election, the people are of course free to express acceptance or rejection of these thoughts and to vote for or against the person defending them.

So it’s clear that the definition of the representative as an actor is a simplification. Representatives should be more than mere errand boys faithfully executing the will of their masters and speaking, not with their own voice, but with the voice of the voters. They are more than robots or parrots doing deeds and saying words that are not their own. Of course, a representative of the people “re-presents” someone, makes someone else present in parliament or in an executive function. He plays a part. He represents something that is pre-existent.

However, this is not always the case. What is represented often arises after and through the act of representation. By presenting his ideas in a clear and convincing way, the representative can convince the people to adopt his ideas. He can also try to add a certain clarity, direction, consistency and unity to the opinions of the voters. In the case of contradicting desires for example, he can establish a certain priority and favor one desire while putting another one temporarily aside. He decides an issue in the name of the undecided electorate torn between two conflicting desires (for example employment and limiting the arms trade) and defends this decision by giving clear arguments to the voters.

At the next election, the voters can always disavow the choices of the representatives, but then at least they are forced to decide what is their point of view, to make up their minds, to focus on one of their conflicting views and to end an internal conflict.

Politics should not always focus on every wish or follow every erratic movement in the opinions of the people. It should also try to guide these wishes by offering and forcing a clear choice. This means that it’s quite all right for a representative to follow his own judgment now and then instead of simply saying what his electors instructed him to say. This kind of independence is of course limited. It cannot be applied to fundamental opinions. For example, a representative chosen on a ticket of anti-racism cannot express racist ideas or execute racist policies while in office.

The simple model of democracy—the people making up their minds beforehand and choosing representatives who will faithfully implement their opinions—is sometimes a simplification of reality. The politician is often the midwife of the truth of society, in the words of Guéhenno, and shapes the will of the people. Politicians necessarily take over characteristics of the people and start to resemble the people, otherwise they cannot represent the people and the people will never support the politicians. However, the opposite is also true. The people often start to resemble the politicians because the politicians clarify the sometimes vague and contradictory opinions of the people.

If the representatives were only allowed to follow the instructions of the electorate, then the affairs of parliament would be no more than an exercise in arithmetic, a sum of opinions. Representatives in parliament could not and should not discuss, deliberate and convince each other. If a representative changes his opinions as a consequence of discussion and argumentation in parliament—and this happens very often, because otherwise discussion and argumentation would be useless—then his opinions are no longer those that won him the election and he no longer represents the people who elected him. If representatives must follow the instructions of the electorate in every case, then parliament cannot be a place where different opinions are juxtaposed and discussed and where people try to come to a common opinion based on argumentation rather than the coincidence of identical opinions.

Parliament is not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates; but Parliament is a deliberative assembly of one nation, with one interest, that of the whole—where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. Edmund Burke

More posts in this blog series.

What Are Human Rights? (15): Constitutionally Universal

The theme of this post is the often difficult relationship between citizenship and human rights. This relationship is difficult because human rights, which are explicitly rights for all people everywhere, without distinctions of any kind, seem to require citizenship, and hence a distinction between groups of somehow differentiated people, for their protection. Without citizenship, it is argued, human rights remain a wish rather than a reality, potential rather than effective. Indeed, we often see that non-citizens such as refugees, asylum-seekers or stateless people suffer more rights violations than the citizens of the countries in which they happen to find themselves, even if these countries are comparatively well functioning democracies.

I want to argue that there are no legal reasons to consider citizenship as some kind of necessary condition for the protection of the rights of people within the territory of a state. Or, to put it negatively, that there are no legal reasons to treat the rights of non-citizens with less respect than the rights of citizens, or to accept violations of the rights of non-citizens with more ease than violations of the rights of citizens. There has to be, in other words, equality of protection between citizens and non-citizens. Citizenship therefore should be irrelevant for the protection of the human rights of the people within a given state territory. The state should be blind in this respect and treat non-citizens as if they were citizens. Non-citizens should have the same legal, judicial and other means to stand up for their rights.

The legal argument is based on Article 2, paragraph 1 of The International Covenant on Civil and Political Rights, which states the following:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

The widely held but mistaken belief that the rights of non-citizens residing in a state are, perhaps inevitably, more precarious than the rights of the citizens living beside them, goes back to the historically important role of citizenship in the practice of protecting human rights. Theoretically, citizenship is irrelevant to human rights. These rights are the equal rights of all human beings, equally and unconditionally. It is not justified to say that one should be white, male, citizen or whatever to be able to enjoy the protection of these rights. Universality, equality and unconditionality are perhaps the main characteristics of human rights. That is where they got their name. They would not be called human rights if this were not the case.

Although theoretically these rights come with no conditions attached, in reality and in practice there are many necessary conditions for their effective protection: a well functioning judiciary, a separation of powers, a certain mentality, certain economic conditions etc. Too many to name them all, unfortunately. But the one we should name and explain is citizenship. Historically, it was because people were citizens of a state that they could use and improve the institutions and judicial instruments of the state, including the executive powers, to enforce their rights. It is this historical contingency, the fact that people have always found their citizenship very useful for their human rights, which has led many to believe that there is some kind of special link between citizenship and human rights which makes it possible and acceptable to treat the rights of non-citizens with less respect. That rights are only accessible to citizens. That the rights of man have often been the “rights of an Englishman” in the words of Burke.

“The survivors of the extermination camps, the inmates of concentration and internment camps, and even the comparatively happy stateless people could see … that the abstract nakedness of being nothing but human was their greatest danger” (Hannah Arendt, The Origins of Totalitarianism).

The state, although it does not grant rights, has to recognize them and make them real, but not only for citizens. The constitution, the main instrument for recognizing human rights, should and nowadays often does explicitly guarantee rights for humans, and not merely rights for citizens. Everybody within the territory of the state, not only the citizens of the state, can then enjoy the human rights protected by the constitution. Citizens as well as non-citizens can then go to court and challenge unjust laws or acts of state. Both categories of people have legal personality. This is often called the constitutional universality of rights.

The protection of the economic rights of non-citizens is an even more contentious matter. Should non-citizens have the same healthcare protection, social security, education etc.? In principle yes, but some countries may have such a large number of non-citizens in their territory that the economic viability of their social security system comes under threat. The tax payers ability to fund the system is limited, and non-citizens normally don’t pay taxes.