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Theme Three: Sub-, extra- and para- constitutional responses to oligarchic democracy.

The notion that we face an economic crisis of neo-liberalism and a political crisis of representative liberal-democracy, and that these crises may be linked in some way, while still debatable, is no longer outside the mainstream. It is not altogether clear, however, that this is necessarily a constitutional crisis – a crisis to which constitutional change is an applicable answer. An underlying assumption of this project is that institutions in general, and constitutions in particular, do matter. That is to say, firstly, that the problems of economic inequality, economic marginalization and poverty – whatever their other causes may be – are in many cases a product of policy decisions arising from institutional and constitutional mechanisms that give the rich too much, and the non-rich too little, power. Secondly, we do not see this as a mere accident, but as a logical and perhaps necessary consequence of the prevailing constitutional forms of contemporary democracies, meaning that any deep and lasting solution must address the constitutional root of oligarchy.

However, these basic assumptions need to be challenged. It may be that the solution to oligarchic democracy does not need new constitutional thinking, but only responses worked out at sub-constitutional, para-constitutional, or extra-constitutional levels.

By sub-constitutional, we mean the laws, regulations, or administrative practices, which have been or could be adopted under existing constitutional forms. While leaving constitutions essentially unchanged, these could perhaps transform the nature and practice of existing institutions in ways that restrain oligarchy and empower the non-rich, for example through the regulation of political donations and expenditures, the public funding of political parties, and the equitable regulation of public service broadcasting.

Although we anticipate some of the shortcomings and limitations of such sub-constitutional approaches (because the lack of constitutional entrenchment enables incumbent majorities, in principle, to amend the rules for their own advantage) we are nevertheless interested in exploring situations where this approach has been adopted, to see under what conditions it is likely to work. Perhaps (although this is speculative) sub-constitutional approach work if there is a board consensus amongst the political parties to the effect that the rules and procedures restraining oligarchic power are legitimate and important, giving them a quasi-constitutional character which informally protects them from partisan amendment.

We are also interested in the limits of this approach. For example, while limits on campaign spending, public funding for political parties, disclosure requirements, and equitable access to public broadcasting, could be in principle regulated at the sub-constitutional level, courts may nevertheless frustrate such legislative efforts unless there is a suitable constitutional foundation for them, perhaps in the form of a permissive provision enabling the legislature to regulate such matters. More radical changes, for example, altering the composition of legislatures through the establishment of quota systems or reserved seats for economically excluded groups, are unlikely to be successful unless grounded in constitutional provisions.

By para-constitutional institutions and practices, we refer to all those mechanisms and processes, some experimental, existing within and alongside our current constitutional models, that can augment and complement existing models of representative democracy with various forms of inclusive and participatory decision-making (Smith, 2009; Escobar, 2014; Fishkin, 2011). These may include, but are not limited to: (i) primary elections, which have increasingly been used to select party leaders in parliamentary democracies, and other means of promoting internal party democracy; (ii) ‘quasi-direct democracy’, by which candidates for elective office pledge to vote as determined by their constituents in on-line polls; (iii) citizens’ juries or ‘mini-publics’, established to discuss and advise on particular policy decisions; (iv) participatory budgeting processes. For the most part, where these institutions or processes exist, they do so at a sub-constitutional level. We are keen to receive comparative case studies and analytical reports on the effectiveness of the various mechanisms of participatory democracy that have been experimented with in various countries. We especially encourage the submission of papers that evaluate these participatory institutions and practices: (i) from a specifically anti-oligarchic perspective, focusing on the ways in which they may reduce (or fail to reduce) political inequalities between the rich and the non-rich; and (ii) from a specifically constitutional perspective, which examines the consequences, advantages, and disadvantages of placing these institutions, which now exist para-constitutionally, on a clearer constitutional basis.

Thirdly, there are questions concerning changes to the extra-constitutional political conditions that may help increase the power of the non-rich in society in general. We particularly welcome submissions on the constitutional role of trade unions (which have historically been a major counter-weight to the power of the rich) and on the rise of pro-poor neo-populist parties and new anti-oligarchic social movements. In many jurisdictions, trade unions were able, during the period from the late 19th to the mid-20th centuries, to establish themselves as ‘social partners’ whose views had to be taken into consideration by governments. Sometimes, they even had ‘tribunate’ functions, since they were effectively able to veto policies, at least within the sphere of economic policy and industrial relations. Trade unions were able to use this position, working together with allied political parties, to extract concessions from the economic elites, which helped to improve the living and working conditions of the working class as a whole. Policy changes, technological changes, and changes to working patterns, have widely diminished the political power of unions, leaving working people without a champion or defender who can act for them as a class in the political sphere. Is it possible to replace the influence of trade unions with new forms of social and political mobilisation amongst the non-rich? Are new parties and new social movements – such as Podemos in Spain, the Five Star movement in Italy, and the Pirate Party in Iceland, a sign that ordinary mechanisms of representative liberal-democracy can be self-correcting, and can provide platforms for non-rich citizens to challenge the power of rich elites, or is neo-populism itself a threat to liberal-democracy?

As well as trade unions and political parties, churches once provided hubs for public mobilization as well as places for the exercise of social solidarity across classes. Does the secularisation of society in many established democracies, which have falling rates of religious attendance and observance, have some connection to the rise of oligarchy: does that lack of a public space at the heart of local communities, which transcends class and socio-economic differences, make it more difficult to mobilize people against the capture of the state by economic elites – and, if so, can this be overcome through new forms of ethically-rooted social solidarity?

Finally, there are questions of public ethics. Perhaps the difference between a healthy, civic, liberal-democracy (a system of government in which responsible representative leaders respond to the real needs, interests and informed opinions of the public in order to hold power and use it for the public good, subject to on-going public scrutiny and debate) and a populist oligarchy (a system in which  unscrupulous greedy professional politicians manipulate the fears, prejudices and baser instincts of the people in order to hold power and use it for the benefit of a very rich ruling class, subject to deals done with corporate lobbyists and media barons) is not, at root, a constitutional issue, or even an institutional issue at the sub- or para- constitutional level, but an extra-constitutional issue, which depends on the wider political landscape. This wider landscape includes questions of leadership and political ethics. The difference between these two visions is that, in the former, the political class governs with a sense of responsibility for the public good, whilst in the latter the political class is willing to treat the public sphere as if it were a tradable commodity. If so, instead of constitutional tinkering, ought we to be putting our energies into the moral formation of a political class who will take their duties and responsibilities to the public more seriously? In the words of John Milbank (2012):

 

‘[A]n egalitarian democracy actually requires a hierarchy both of values and of persons of excellence. Otherwise, money and sophistry co-conspire to destroy it, as they have in recent years. Democracy can only be sustained when there is a parallel, non-democratic concern with paideia—the formation of good character—which links talent to virtue and both to positions of appropriate social influence. Without the extra-democratic inculcation of character, democracy cannot enter into the debate about the good, which is the only legitimate and non-corrupt debate that can be held.

 

 

 

Possible Questions to Consider:

 

  • Can effective responses to oligarchic tendencies can be found without needing constitutional change?
  • What are the limitations and shortcomings of reliance on statutory and administrative reforms (for example to campaign financing, public broadcasting, lobbying rules, etc) rather than relying on constitutional reform?
  • What specific mechanisms for public participation alongside representative process and between elections (e.g. mini-publics) are most effective for reducing the power of oligarchy?
  • How effectively are new civic and social movements or political parties responding to the challenge of oligarchic democracy within existing institutional and constitutional structures?
  • What lessons have been learnt, and how transferable are these findings to other contexts?
  • What can replace the role of trade unions, traditional mass-membership parties, and churches in providing a popular counter-balance to the power of ‘big money’? Can sub-constitutional responses, such as the organisation of a new unionism for post-industrial workers, achieve this?
  • What is the role of leadership, character, values and ethics in sustaining the reliance of democracy and protecting it from oligarchic tendencies?

 

Find other thematic areas of investigation:

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