Wednesday, June 18, 2008

Democracy Part X: In Which Vote Counting is Merely a Factor in the Production of Governance

I have written much recently about the foibles of democracy as expressed in its 21st century form as part of this "Law at the End of the Day" series. Larry Catá Backer, Democracy Part I (November 11, 2007), Democracy Part II (November 16, 2007); Democracy Part III (November 22, 2007); Democracy Part IV (November 25, 2007); Democracy Part V (November 30, 2007); Democracy Part VI (December 2, 2007); Democracy Part VII (December 9, 2007); Democracy Part VIII (December 30, 2007); and Democracy Part IX (January 28, 2008). I have been impressed by the way in which, as Aristotle suggested millenia ago, republics can so easily transform themselves into democracies that degenerate into something else--something less laudable. See Aristotle, Politics (Benjamin Jowett, trans, 350 BC). I am also a believer in the reality of the two century long devolution of power from a small group of men to an undifferentiated population. For good or ill, even federal republics have become the captive of popular democracies in which majorities rule, such rule is based on vote counting, and the resort tp vote casting serves increasingly as a means of ratifying the most egregious anti-democratic actions of either the masses or the elites who seek to lead them to particular objectives. Thus reduced, individuals become cogs in increasingly large vote counting machineries in which identity politics, ethnic, gender, religious and other communal allegiances are manipulated as necessary for the production of appropriate voting. And that manipulation can include vote buying through judiciously deployed legislative action. Thus the ironies and perversities of democracy.

And so it is with the European Union. Which is a strange thing--since the European Union is itself, according it its own internal psycho-drama, in the midst of a search for the real meaning of democratic expression to reduce or avoid its much debated democratic deficit. That democratic deficit, which the European media and those others "in the know" have insisted has hobbled the legitimate functioning of this supra national and international law based constitutional system, might be reduced with a greater participation of the peoples of Europe. Unless, it appears, it is the Irish people, and the issue touches on a matter that the democracy loving elites have a large stake in seeing approved--irrespective of the niceties of democratic expression.

And so it is with the recent Irish no vote on the Treaty of Lisbon, a proposed enactment that was itself an intergovernmental version of a substantial portion of the previously rejected Constitutional Treaty for Europe. But no matter, one is told, Europe will plod on as if the Irish haven't spoken. Perhaps these people are channeling English elites of the 17th and 18th century, who tended to show much the same sensitivity to Irish dignity and expression. It seems that the imperialist turn is as easily expressed inward to the neo-colonized Member States of the Union as it once was exported to the benighted peoples of Africa, Asia and the Americas. It is good to know that patterns are hard to break. Now that is the expression of good old fashioned values by the most progressive elements of Europe. After all--the answer to the criticism that the European Union is little more (that itself is an astonishing perspective with not well hidden agendas) than a "Europe of merchants" is not necessarily that this is insufficient and that political union must follow or 350 million people will hold their heads in shame for merely having created an dynamic and integrated market structure that appears to be working well enough. See, e.g., Beatriz Navarro, El fin de Europa como coartada, La Vanguardia, June 16, 2008 ("El no irlandés es 'un golpe muy duro a la integración' que demuestra, a su juicio, 'a qué noslleva nombre de sus ciudadanos en la integración política del continente como complemento a la unión económica y monetaria, a la criticada Europa de los mercadores. Decir Europa ya no basta" Id., quoting in part Alberto Navarro, the former secretary of European affairs). For the political clases it is hard to fathom how it is that their will has not been confirmed by the docile masses. As Alberto Navarro lamented, "Nos enfrntamos a un gran divorcio de la calle con la clase politica." (Id., "We are meet with a great divorce between the people on the street and the political class").

Well, what is a divorce or two among friends? Clearly, ignorance may be at the root of some of the Irish vote--after all the unschooled Irish masses might have been better trained in their duty and in their comfort with whatever is placed before them in referenda by their betters. So, José Manuel Durao Barroso, the President of the European Commission tells us. (Id., "El voto no en Irlanda no es necesariamente un voto contra Europa. . . . Hay gente que está en favor de Europa que ha votado contra el tratado de Lisboa porque no lo entendía o porque piensa que están bien con la situación actual." (The no vote in Ireland is not necessarily a vote against Europe. . . There are people who are in favor of Europe who voted against the Treaty of Lisbon because they didn't understand it or because they thought that they were happy with the current situation. "). One has to laugh at both the presumption and the condescension. But that is the way it is.

And so we are back to our ideal--democracy. It is best taken, it seems, only when the outcome is certain. Systems ae not what they appear. They operate solely for the production of positive votes when such are desired and engineered by those in charge of such things. Thus, the Treaty of Lisbon was not to come into effect unless approved by all the Member States. The people of one Member State said no. The rest of Europe now says no to Ireland. The no vote merely serves to detach Ireland from a project in which it both had a large stake and in which, according to the rules, it like other Member States, had an equal dignity to participate and chart the course of union. But no. That only applies when France or Germany hiccups. And indeed, people ought to be slow to forget the strategic use of political tantrums effectively utilized by the government of Charles DeGaulle to get his way in the 1960s. Ah, but that is water under the bridge. . and these are the Irish; such a small and marginal nation. But thatis the point. The political system--federal, representative and democratic, preserves both the dignity of the individual and that fo the Member States. It is not for nothing that Europe has been successfully bult on a model of consensus democracy. It is true that the Irish are a small number of Europeans. It is also tre that their are larger and more "important" states. But all the same, as states, there is a sense that hierarchy is to be avoided. And this is important. Where states are refashioned inot a hierarchical relationship, then the return to empire is likely to follow. For that reason, it is both ironic and greatly symbolic that one of the states that has suffered most within a system of political hierarchy, under the "tutelege of the English crown for many centuries, ought to be the hand that reminds Europe that it works because it has, until now, acted well enough on its beliefs in the dignity of individuals and states. But rather than view the problem as originating with the measure--the elites blame those who would assert their obligations to scrutinize and vote.

Perhaps, as a reward, they ought to be detached from the Euro, so they might go their own way. Who knows, perhaps the Americans would want them. Even the Socialists have embraced this fair weather approach to democracy. Martin Schultz, leader of the Socialists in the European Parliament was quoted as suggesting that those interested in moving toward greater political union through the Treaty of Lisbon vehicle might pick up their toys and play amongst themselves. Id. That certainly is the view from unnamed diplomatic sources, who in their usual manner have babbled that "Si el problema se extiende, es probable que pronto se inicien conversaciones para que un grupo de países continúe avanzando en una Europa más politica." (Id. "If the problem continues its likely that conversations will commence so that a group of states can continue to advance in a more political Europe"). The posturing and framework is clear, if made less tasty by the sour grapes. Given this approach, it will be a curious thing to see how the problem of democratic deficits in the new and improved political Europe will find expression; at least one that means something more than a formalist posturing covering the realities of power and the desires of elites bent on pushing Europe in a particular direction. And the sad thing is that Europe might well be better off going, in its own way, in that direction. But this way?

For all that, there is a mob politics at play here. Not the simple minded sort most might extract from a surface analysis of these silly politics, but a much more subtle interplay between elites and electorate that lies at the heart of the perversities of democratic governance, in which the counting of votes is merely a factor in the production of governance. I once wrote that
Ironically, at its most benign level, the democratic-deficit debate evidences a full flowering of the power of an elites to shape discourse on the supra-national plane. Indeed, the democratic-deficit debate, when combined with the notions of illegitimacy and inauthenticity which form the heart of the 'elites without the people' characterizations of EU governance, itself serves to illuminate another elite B those who have attempted to seize authority to determine what passes muster as authentic and legitimate within the European political sphere, and what does not. Who speaks for the people here? The professorate? The English newspapers? Non-governmental organizations? All are elites within the fields of their competence. All seek to speak for an entirety, the people, to other portions of a society of cross cutting elites. The usual passivity of the people, and their amenability to manipulation, appears assumed -- the question then turns on which of the elites can exert the more persuasive force. Here, perhaps, is a darker and more culturally sensitive version of the well known Schumpeterian model of democracy as a battle by elites for control of the minds (and votes) of the general populace. Or perhaps this is action more in the style of the late Roman Republic where within an ostensibly republican political structure, either elites constantly sought the role of primi inter pares, or the mob served as the most effective source of direct popular opinion. Others have described the interaction as a mix of elite and demagogic politics. 'But however weighty the decisions fo electoral majorities, nothing is likely to get settled without the consent and the participation of corporate groups controlling key resources.'

Larry Catá Backer, "The Euro and the European Demos: A Reconstitution," 21 Yearbook of European Law (England) 13 (2002) (citing in part Stein Rokkan, State Formation, Nation Building, and Mass Politics in Europe: The Theory of Stein Rokkan 261 (Peter Flora, ed., Oxford, 1999). Indeed the Irish vote, and the reactions to it may evidence more the populist politics of the late Roman Republic than anything modern. The careers of P. Clodius Pulcher and T. Annius Milo provide an instructive example to a democracy of the mob. See Plutarch, The Life of Cicero, in PLUTARCH, FALL OF THE ROMAN REPUBLIC 311, 340-47 (Rex Warner, trans., Penguin Books, 1958) (before 120).
But there is more than irony at work here. There is a perverseness to the anti-democratic/conspiracy theory arguments against the creation of a closer union among the Member States of the EU. The perverseness rises from out of the unstated implications of these arguments so blithely and blindly targeted against Europe. It seems clear that the power directed against the EU by elites and other conspirators, and that the disregard for democratic principles from which these elites operate, work as efficiently at the level of the Member States of the EU as they do at the level of the institutions of the EU.
Backer, supra.

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