Category Archives: Democracy

Social Democracy and the Rule of Law

Earlier this year in the Financial Times (12/13 January 2019) Gideon Rachman wrote an op-ed about Carl Schmitt. As he writes, “Liberalism’s most brilliant enemy is back in vogue”: Chinese legal scholars, Russian nationalists, the far-right in the USA and Germany, plus the far-left in Britain and France, are reading the “premier legal theorist of Nazi Germany”.

Schmitt is not really back in vogue; he has never been out of vogue. It may be that some on the extreme right have recently discovered his reputation and have attached their own fantasies to it. The account that Rachman gives would suggest this: emphasis is given to Schmitt’s scurrilous reputation as a legal apologist for early Nazi atrocities such as the 1934 “Night of the Long Knives”, asserting the pre-eminence of the SS over the SA by murdering scores of the latter, and including for good measure a former German Chancellor. Integrity and consistency are not personal qualities that one can associate with Schmitt; and since these are qualities that lend legitimacy to democratic political order, his personal values and the career shaped out of them are repugnant.

But his liberal and social democratic contemporaries did not not dismiss him for his reputation, as routinely happens today. Before he was the “Crown Jurist for the Third Reich”, he was the most consistent legal critic of the Weimar Republic. By defining sovereignty as “he who decides on the state of exception” – referring to Presidential powers in the Weimar Constitution – and combining this with a definition of politics in terms of “friend” and “foe”, Schmitt articulated basic political principles for arguments about modern democracies and the rule of law. Constitutional and democratic order were during the 1920s argued out in Germany in legal terms by theorists like Hermann Heller, Franz Neumann and Otto Kirchheimer, who sought to rebut Schmitt with legal and constitutional arguments. Both Neumann and Kirchheimer died as Professors of Public Law and Government at Columbia University, in 1954 and 1965 respectively.

During the 1980s I read the work of Neumann mainly in connection with his pioneering analysis of National Socialism, published as Behemoth in 1942/1944; I included an essay on this work in my Strategies of Economic Order (1995/2007). However, in 1987 I also published a collection of the legal writings of Neumann and Kirchheimer under the title Social Democracy and the Rule of Law, posing the problem: how can objectives of social justice and democratic order be given a constitutional basis? Here the German conception of Rechtstaatlichkeit is important – the principles informing the rule of law. Today, when as Gideon Rachman so rightly says, democratic principles are under attack, good arguments are needed in their defence. The Brexit saga has demonstrated at tedious length the lamentable ignorance of politicians, both in government and opposition, of what Rechtstaatlichkeit is, and why its principles are central to the defence of democratic order. As ever in Britain, the myth that “there is no British Constitution” is used as an excuse for a refusal to think about political and legal institutions at all.

And Carl Schmitt helps us here. The personal positions he later adopted are repugnant, but the questions that he asked about political order during the 1920s of the first German Republic challenged those seeking to create a secure legal foundation for democratic order. This was all swept away by the Nazis, a minority movement helped into power by an informal coalition formed of right-wing politicians and the KPD. Schmitt forced Neumann and Kirchheimer to focus upon the legal foundations of democratic order; the arguments they made in its defence remain of relevance today. And so I am very glad that my 1987 book has now been reissued by Routledge.

Democracy in Action?

In recent days much has been written and said about the election of Jeremy Corbyn, a Labour MP with no known experience of running anything at all beyond his own life, as leader of Britain’s Labour Party. He was elected through a process that was intended to be “more democratic” than the last democratic election process, but which seems to have produced a result at odds with the wishes of most active members of the Labour Party and almost all its MPs.  The new process permitted all kinds of people who had not even voted Labour in the recent general election to “have their say”.  Matters were not helped by the fact that Corbyn had so little support among Labour MPs that he only gained sufficient nominations to put himself forward as a candidate through nominations from MPs who wished the field to be “representative”.  This alone shows the poverty of imagination of those rightly dubbed “morons”, since the point of having a threshold is to exclude candidates who lack broad support.

It is not yet clear how things will turn out.  The only certain thing is that current punditry is well off the mark: the Labour Party of today is the same Labour Party of last week, except that it has a new leader.  Quite what this new leader will, or can, do with his unexpected elevation is unclear.  Anthony King, in Who Governs Britain?, has plausibly argued that the British Prime Minister has very limited power, and much the same is true of the Leader of the Opposition.  Quite what counts as “strong” or “weak” leadership should always be treated with scepticism.  Media preoccupation with “strong” leadership in politics, business and academia is generally linked to poor understanding of what leadership involves, and a focus on “words” over “actions”.  Max Weber wrote the book on all this during 1918-1919, and what he wrote then still stands as the most insightful assessment of politics in a modern parliamentary democracy.

So this post is not about the end of the Labour Party as we know it, nor about the triumph of the popular will, nor about the rhetoric about the “hard left”, “centre” and “the right”.  I want to focus attention on the sheer poverty in public discussion of “democracy” and “leadership”.  For Corbyn’s election is not an isolated event in this context; this year we have seen the confrontation of EU officials and member states with Greece, a Scottish referendum, a Greek referendum, and the election of a new British Government.  Discussion of all of these has involved much muddled-thinking about “democracy” – principally, the illusion that there is such a simple and self-evident thing as “Democracy” that produces “popular results”.

“Democracy” is rule by the people; but who are “the people”?  For the Greeks who invented the idea, during a period around 400 BC political and judicial decisions were made by a collection of adult males who happened to attend on one day.  All debate and votes took place on the same day; women were excluded; slaves were excluded; all aliens were excluded; all children and young adults were excluded; all those free adult males who did not attend were excluded.  How those present made up their minds to vote this way or that was not really a matter of rational debate; this was always subject to the fluency of orators and their scriptwriters.  But it worked for a while; and some kind of “democratic process” has always worked better than the alternatives, because it creates a basic legitimacy and, very importantly, creates a system for changing the people who make the rules and make the decisions without resort to murder and civil war.  The importance of all this was presented in extenso four hundred years ago in Shakespeare’s History plays.  It remains an issue in the world today.  The downside is always that the process of democracy is messy, argumentative and a massive waste of everyone’s time; but those who deplore the windbaggery of the European Parliament and yearn for “strong leadership” should be careful what they wish for.

Democracy is not so much about “the popular will” (since the Greeks already demonstrated how indistinct that was) as about institutions and process.  As a student I was taught by Jean Blondel, whose Voters, Parties and Leaders (1963) had drawn attention to the way that democratic decision-making was generally dominated by a minority; that what looked like a “majority vote” was usually the outcome of a shift, for whatever reason, in the opinions of a very small number of people.  This gave birth to the idea of the “swing voter”, again, another poorly understood phenomenon since here statistical probability and random phenomena intersect.  When the opinion polls judged the Scottish Referendum “too close to call”, commentators forgot that this only ever means a range, and that 45/55 as it did turn out was in the circumstances predictable, especially since Glasgow and Dundee, in the only pro-independence results, had the lowest turnouts.  As with the Greeks above: if you do not turn up, you have no vote.

Another example is that of the current British government, which commands a majority of seats in parliament having won 36.9% of the votes actually cast, “trouncing” a Labour Party which won 30.4%.  Since one-third of those registered to vote did not do so, this would give the present Government the express support of about a quarter of all qualified voters.  In part this is the product of the electoral system, but there is no prospect of change to this since any reform would have to be implemented by a government whose majority was owed to the mechanics of the first-past-the-post system.  And there are many variants of proportional representation, and no perfect statistical system for matching voters to constituencies and parties, as US Congressional elections demonstrate.

Another aspect of the first-past-the-post system is the way that it randomly punishes and rewards small parties.  In the current UK Parliament, the SNP won 4.7% of the vote, and has 56 seats; the Liberal Democrats gained 7.9% of the vote, and have 8 seats.  UKIP, whose core vote seems always until recently to have been around 15% of the electorate, has yet to secure one seat through its own efforts (their one MP defected with his constituency from the Tory party).  it is arguable that thresholds for small parties, as with the German 5% of the total vote, are “more democratic”; but the basic arithmetic generated by the British electoral system is unlikely to change.

Which brings me back to a point no-one seems to have noticed about the Corbyn election.  If he does prove unsuitable as a leader, in whatever way, how could he be replaced by someone more centrist, given that he is the (unanticipated) product of the new rules?  He is a product of the rules, not of the Party.  Arguably, the Labour Party should elect its leaders in a process that involves the Party as a whole ranking candidates in an election, from which the Parliamentary Party then chooses the leader most likely to lead the Party with competence from among, say, the top five.  They will have a better idea of who would make a good leader than the electorate at large; but this thought is probably “undemocratic”.  What might this mean?