Trump, Clinton and the essence of a representative democracy

by: in Law

Legitimacy in the political sense can be defined as an inquiry into the justification for the exercise of public authority. Or put differently: it is the reason why I, being part of society, should accept laws and regulations that bind me.

Classically, there are two views on why state action is considered legitimate (described by such thinkers as Fritz Scharpf):

  • Input legitimacy reflects the idea that laws and policy are legitimate insofar they correspond to the preferences of those governed.
  • Output legitimacy reflects the idea that laws and policy are legitimate where they present effective solutions to problems and challenges common to those governed.

The question of legitimacy is thus intimately bound up with government. A democratic system of government is usually based on the idea of representative democracy. Much simplified this is the idea that at periodic intervals persons are elected to sit in parliament with a view to make law and check the executive. The question remains, however, what the fundamental mission of those representatives is.

A first view would argue that – in line with the input legitimacy view – these lawmakers should reflect on, translate and carry out the preferences of the voters who elected them. In this way, parliament would simply be the voice of the people, an agent so to speak. Elections are there to make sure that agents do not deviate from what the people want.

A second view would argue that elected representatives are not bound to follow voter preferences. As Edmund Burke noted: ´Parliament is not a congress of ambassadors from different and hostile interests; (…)but parliament is a deliberative assembly of one nation, with oneinterest (…).’ In this view, parliamentarians act or should act as trustees: acting with the best interest of the trustor in mind when making their decisions. It is about what the people, the nation, needs. The periodic elections are there to either renew that trust, or where voters feel their interests have not been adequately represented.

These two views are, of course, extremes. In practice a representative democracy will always oscillate between the two views. The ‘first view’ is subject to the criticism that the ‘voice of the people’ may be swayed by uninformed, easily swayed by emotion or misinformation, or manipulated by interest groupings. The ‘second view’ may be criticised as ‘elitist’ or paternalist: the idea that someone else should better know ‘what is best’ for you, better than you yourself. It denies – or so critics would argue – a degree of emancipation and autonomy usually associated with reaching adulthood and the right to vote.

So, in asking the question what is the essence of representative democracy, the question revolves around which of the two guises a representative should primarily adopt. The rise of populist movements across Europe and the United States shows an overall dissatisfaction with idea of a representative democracy whereby parliamentarians are trustees.

This disillusion or distrust was confirmed by two events. First, the referendum in favour of a Brexit, in which a major selling point for the Brexiteers was the greater possibility for self-government without interference from EU technocrats.

Secondly, the US election results of the 8th of November. Here we had two candidates. One generally considered competent, in possession of a law degree and with strong experience in the political machinery, including acting as Secretary of State. Someone you might think could be trusted to make well-considered, informed decisions. The other, a flamboyant outsider who, whatever his (many) faults, was seen as giving voice to a large section of the population which felt disenfranchised in a modern (globalised) society. Someone who was seemingly not afraid to take on the political establishment and act as an agent of the voters, reflecting what they wanted rather than what the establishment thought they needed.

And the citizens of the US picked the latter. It is a victory for the representative as being simply the voice of the people. Trustees are no longer trusted to make decisions that correspond to the voter’s best interest, or are at least failing to adequately explain and justify their decisions to the electorate. Indeed, Hillary Clinton, was seen as untrustworthy one of the two candidates – primarily because she came from, and belonged to, ‘the system’.

Perhaps this upset is a good wake up call for political systems. But consider that the voice of the people can easily become the voice of tyranny – as Alexis de Tocqueville already remarked after the French revolution. The rise of populist movement also brought the rise of fear of the real or imagined ‘other’ (often the migrant), rise of hate crimes and the questioning of principles imbued in constitutions meant to protect fundamental rights (including the right not to be discriminated against). Moreover, the Dutch referendum on the Association Agreement between the EU and the Ukraine showed that interest groupings can easily hijack the public opinion for their own purposes: the organisers of referendum had explicitly and publicly indicated that they did not actually care about the agreement to be signed. Rather, they sought a way to obstruct the EU. And the people followed. Good reasons, therefore, to be concerned with this recent turn of events.

  • A. Hoogenboom

    Alexander Hoogenboom holds a Bachelor of Laws (Maastricht University, cum laude; awarded prize for belonging to the top five students), a Master of Laws (Maastricht University, cum laude) and a Master of Science (London School of Economics, merit). For his master at the LSE, he obtained the Huygens Top Talent scholarship from the Dutch government.

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