Referenda are important instruments of democratic politics. They have been used since the late eighteenth century in various circumstances of political life, most often in relation to constitutional change or issues of self-determination. In contemporary democratic societies, there is pressure to submit contested political questions to popular vote, in order to reduce tensions between popular will and governance. Even democratic governments which are not constitutionally obliged to do so now feel compelled to consult the people directly.
Brexit, the UK’s referendum on whether to stay in the EU, reflects this tendency. It is not the first referendum on EU matters. And yet, there is novelty here: the people were deciding directly whether to leave an organization of democratic states, ostensibly to regain sovereignty. Without a doubt, Brexit will lead to more calls for referenda on EU membership, especially from ever-stronger right-wing parties and populist movements.[i] We have to ask what sorts of normative principles matter in this type of plebiscitary politics, and what sorts of democratic considerations ought to count if we do not want these instruments to actually undermine democracy.
The assessment of referenda from the point of view of democratic theory is thus of utmost relevance. Instead of an unambiguous endorsement of referenda as more democratically legitimate expressions of the “will of the people,” or criticism of them as mechanisms for introducing the tyranny of the majority, democratic theory should offer a nuanced analysis of direct democracy or plebiscitary politics, especially with a view to voting on EU membership. After all, democratic theory should critically challenge populism, nationalism, and the politics of exclusion, disengagement, and division.
The Democratic Ethos of Referenda on Constitutional Change
Contemporary democratic theory, regrettably, has not had much to say about the ethics of direct democracy. Many proponents of plebiscitary politics seem to have accepted Carl Schmitt’s insistence that expressions of sovereignty are originary and groundless, and not subject to any ethical limits which may compromise the autonomy of the sovereign will.[ii] To illuminate the normative issues surrounding plebiscitary politics, it is thus better to turn to modern history and political practice.
There are two paradigmatic circumstances of modern politics which involve direct democracy: processes of constitutional change and struggles for self-determination. In both cases, direct democracy grounds the legitimacy of profound political change.
Constitutional changes are often necessary and desirable because constitutions must be adapted to changing social conditions. At the same time, constitutions need to be protected against hastily approved changes, or changes aimed at the destruction of democracy and even constitutionalism itself. In most constitutional systems, it is much harder to make constitutional changes than to enact laws through an ordinary legislative process.
Several mechanisms have been used in the practice of amending and revising constitutions: legislative supermajorities,[iii] double-decisions,[iv] consent of federal or quasi-federal units,[v] and referenda. Referenda have their place in constitutional politics because in moments of constitutional transformation, the people in a democratic polity should be activated as a whole — this “higher lawmaking,” as Bruce Ackerman calls it, requires broader deliberation, involving the people’s direct sanctioning of the proposed change.[vi]
There is a set of implicit ethical principles involved in constitutional politics: changes must be adopted in the name of the public good, arise from a robust deliberative process, and be supported by a broad consensus. They cannot serve narrow self-interest or cater to short-term partisan motives, and they cannot be motivated by negative or potentially destructive goals. Changes extending tenure of power are considered unacceptable, and so are changes aimed at marginalizing of minorities or limiting basic rights, as they weaken and undermine democracy. Constitutional changes are justifiable when they extend rights and reinforce, renew or redesign the balance of power and limits to power.
It is important to bear in mind that referenda are tools to provide more checks and balances in the decision-making process and to enhance the democratic legitimacy of proposed constitutional changes. That’s why constitutional amendments are usually first passed by the legislature before being submitted to the people.[vii] Constitutionalism itself — that is, the delineation and division of powers, the use of checks and balances, and the protection of individual rights — thus provides a set of limits on the exercise of direct democracy in constitutional politics.
The direct democratic ethos involved in constitutional change is a deliberative process. The people invoked in the process of “higher lawmaking” are not a demos understood as a substantive pre-constitutional unity, but an already constitutionalized body reshaping its constitutional norms. In its most genuine form, the exercise of direct democracy is an extended, inclusive, and consensus-oriented deliberation by the citizens, who expand their own constitutionalization to reflect their growing plurality and new demands of social justice.
In most constitutions which require referenda for constitutional amendments, design questions and procedural issues are carefully considered — voter turnout thresholds, vote result thresholds (more than a simple majority), support at both the national level and within each federal unit, time delays for implementation with intervening general elections, etc.[viii]
The Democratic Ethos of Referenda on Sovereignty
There is another specific circumstance of political life in which referenda have frequently been used: the exercise of the right to self-determination, the pursuit of sovereignty and independence, and state creation. Direct democracy played a prominent role in the processes of nation-building after WWI, decolonization and state-building in the aftermath of WWII, and democratic transition in the aftermath of the disintegration of Soviet Union and Yugoslav federation. Referenda were considered essential by political actors during those movements as instruments for resolving existential issues of sovereignty and political identity.
Referenda on independence represent the paradigmatic case of using direct democracy in relation to sovereignty.[ix] The democratic pursuit of sovereignty is justified by the right to collective self-determination and to independent statehood, which in the modern world are the only available remedies for the long-term injustices of colonialism, hegemony, and domination (the violation of territorial integrity, military occupation, appropriation of natural resources, etc.). Direct democracy provides a unique channel for a one-time exercise of the right to self-determination.
The ethos of direct democracy involved in sovereignty is, however, strictly decisionistic and nationalistic. The people are assumed to be a unified demos pursuing international recognition and constitutionalization of their distinct political identity (which usually corresponds to an ethnic, national, or religious identity) and capable of expressing their collective will in a one-time sovereign decision about the political and constitutional identity of the state. The democratic legitimacy of such a decision is not primarily derived from a deliberative consensus but from a mere majoritarian consent.
The direct democracy of sovereignty referenda is the opposite of the ideal of direct democracy invoked in processes of constitutional change: consent to being subject to a new political power versus a deliberative process of input; the people as a substantive national unity versus rights-bearing (individual) citizens; Schmittean decision versus democratic deliberation. However, with both types of referenda, there is a potential danger that direct democracy will sanction something undemocratic, illiberal, or unjust. Amendment referenda potentially involve removal of limits on power, minority discrimination, decline of individual rights, or removal of checks and balances. Sovereignty referenda potentially involve infringing on the rights of residents, or injustices in relation to the distribution of resources and assets.
In terms of design, a set of difficult questions arises regarding sovereignty referenda: the delineation of the political body: its boundaries and its members (here questions of citizenship, nationality, and residency are crucial); clarity and unequivocality of the ballot question and minimum voter turnout (quorum). It has been accepted recently that an enhanced majority is important in securing the legitimacy of the referendum’s result and in avoiding division and injustice.[x]
EU Exit Referenda and the Ethos of Pluralistic, Postnational Democracy
Let us try to asses Brexit — and other potential EU exit referenda — in light of the three dimension of analysis above: justification, democratic ethos (i.e. possible limits on direct expressions of popular will) and “design” requirements.
First of all, let us clarify what kind of an extraordinary circumstance is at stake. Obviously, leaving the EU is not a typical case of constitutional change. Even less so, however, it is a case of independence or sovereignty. The EU is a supranational legal-political entity with features of both an international organization and those of a federal state. Its members are constitutional democracies, and the EU itself is a heavily constitutionalized entity. Albeit still insufficiently democratic, it has a complex system of checks and balances, tight constraints on EU policy-making, and indirect democratic control via national governments.
The EU does not create conditions similar to colonialism, hegemony, or domination which traditionally mobilized and justified pursuing sovereignty. Not does it undermine or suppress the political identity of its member states.[xi] The EU does pose challenges relating to executive leadership, administrative and bureaucratic regulation, and technocracy, which are issues of modern democratic governance in every modern state.[xii] It has also struggled to maintain its carefully crafted constitutional balance in the aftermath of the Euro crisis.[xiii] The EU, let us not forget, provides enormous benefits to its members — a single market, which has a number of economic benefits; freedom to travel, study, work, or live in any member country; funding for deprived regions; and mechanisms for protection of human rights. It still leaves a large space for national autonomy in areas such as social policy.
Leaving the EU is a matter of constitutional right. It might be possible to argue, as some liberal and plebiscitary theories of secession have done, that if a majority of the population wants to leave a state then they have a unilateral right to do so in the absence of any injustice, merely on the basis of the intrinsic value of collective self-determination.[xiv] However, is it possible to justify this procedural right on democratic grounds? And if so, does it need to directly involve the people in such a decision? If so, what are the relevant considerations and what are the appropriate limits?
Today’s European societies are immigrant, pluralistic, diversified, and some of them highly decentralized. Their economies and political structures are embedded within a complex system of transnational and global governance. These new political, legal, social, and economic contexts need to have an impact on how we conceptualize democratic practice and its ethos, including ways in which governments can attain democratic ends, and the nature, the scale and membership in democratic communities. Two contemporary conditions stand out as particularly important.
First, there are global and transnational forms of legal, political, and economic authority now in place, the most obvious examples being the UN, WTO, IMF, and EU. They engage in rule- and policy-making which sometimes clash with domestic preferences and place power in the hands of actors who are not directly elected by, or related to the societies in which those decisions are implemented. These governance networks stretch across territorial borders and challenge conventional channels of representation and accountability. There is, however, no way of escaping from their reach and their power. Populations cannot simply reject their influence via referendum. The only solution is to participate in them and exert collective pressure for their transformation towards constitutionalization, democratic representation, transparency and public accountability. Attempting to reinscribe politics within a fully self-determining unit like a state, and believing that by doing so one can better resist or domesticate oppressive forces of globalization, is misplaced.
Second, in contemporary diversified and pluralistic democratic societies, a rapid social, cultural, and moral development has had a profound impact on what is considered just. Western societies have moved from an emphasis on basic liberal values (civil liberties, political rights), to an emphasis on democratic values of participation, deliberation, and distributive equality, and, recently, to contemporary egalitarian politics of rights and recognition.[xv] Today, various groups (LGBT groups, women, economic migrants, Muslim minorities, blacks, indigenous groups) call for substantive political, economic, social, and cultural equality — inclusion, non-discrimination, voice, and the recognition of their distinctiveness. This radically egalitarian politics of rights and recognition has a distinctly inclusivist and universalist core. It is hard to maintain that some groups – migrants, refugees and others who may not be citizens — can be excluded; that rights and recognition can be circumscribed by the exclusionary logic of nationality.
These developments ought to bear on normative democratic theory and conceptions of who is a constituency, what democratic legitimacy and representation require, what the form and the scope of political participation and deliberation ought to be, and also what goods, rights, and market regulations states ought to provide. These empirical shifts require that we expand the scope of whose rights have to be guaranteed, what duties a state needs to perform, and what welfare functions it needs to secure. They compel us to redefine the notion of democratic legitimacy in terms of all-affected principle[xvi] and an egalitarian and inclusive standard of justice. They certainly challenge the idea of a national, self-determining collectivity which excludes some claimants from its egalitarian ethos, or the unambiguously democratic legitimacy of simple majoritarian expressions of popular will.
In the debate leading up to Brexit, it was repeatedly argued that leaving the EU was the only way to regain sovereignty. Two sets of rights and immunities gave content to the sovereignty quest — and they will likely dominate “sovereigntist” campaigns in other countries. On the one hand, there was the control of borders and immigration, including the refusal of free movement of workers and of refugee quotas; on the other hand, there was market autonomy and the refusal of “onerous” EU market regulations. These include, let us not forget, environmental and labor regulations, product standards, limits on working time, rights for temporary workers, capping of bankers’ bonuses, regulation of hedge funds, provisions for recycling waste electrical equipment, targets for green power generation, food safety standards, etc.
The debate on sovereignty issues was framed almost exclusively in economic terms.[xvii] More importantly, however, we must assess things from the point of view of democracy — and both of those “sovereign” prerogatives undermine the substantive and multi-dimensional egalitarianism required for today’s democratic society, because they are aimed at stripping workers, residents, labor migrants, and other potential claimants such as refugees of their rights as guaranteed by the EU.
The Grammar of Direct Democracy
If referenda are to remain a useful instrument in democratic politics, they must reflect the realities of, and normative shifts within, contemporary democratic societies. The key question is whether they are a preferable device for the resolution of divisive issues. It is well-known that referenda about sovereignty have the potential to significantly deepen existing cleavages, exacerbate extremism, and aggravate hostility and uncivility.
If it is possible to democratically justify exit referenda at all, they must be modeled after constitutional amendment referenda, with their deliberative spirit and their emphasis on checks and balances, rather than on sovereignty referenda, with their decisionistic and nationalistic ethos. Exit referenda must engage with the question of how to construct the people and how to reflect existing pluralities and differences so that they do not turn into deep divisions. This is why the “design” (enhanced majorities, double decisions, clear phrasing of the referendum question) is important.
Moreover, the sole and simple majoritarian expression of popular consent or dissent can hardly be considered the only source of democratic legitimacy for a decision. Referenda cannot be seen as conclusive devices which detect the will of the people or let the people decide a contested issue. If they are used, it should be as a complimentary tool within a more complex and constitutionally balanced process of decision-making. Intervening elections, double majorities, delayed implementation, or second votes are available design possibilities.
The crisis unleashed by Brexit, a referendum with very few rules, illuminates the importance of these issues all too clearly. In the short term, Brexit caused the worst political crisis in decades. The prime minister resigned, the opposition collapsed, and both major parties remain in a leadership crisis. The divisions in British society between generations, regions, economic classes, and citizens versus residents or labor migrants are now deep and seem unbridgeable. There has been shocking increase in uncivilized and xenophobic behavior. In the longer run, as Emmanuel Guerisoli argues, Brexit will lead to a protracted constitutional crisis and economic downturn in the UK, as the UK will have to renegotiate its constitutional structure (federalism, parliamentary sovereignty, judicial power, etc.). It will also lead to profound changes in European integration which, as Andrew Arato argues, renders a closer and more democratic political union an all too optimistic scenario.
[i] Such calls for referenda by right-wing parties and populist movements are now heard from the Dutch Freedom Party, France’s Front National, Italy’s Northern League and Five Star Movement, Austria’s Freedom Party, Sweden’s Democrats, Germany’s AFD, the Danish People’s Party, and from the far-right People’s Party Our Slovakia.
[ii] See Chantal Mouffe, The Return of the Political (New York: Verso, 1993) or Sheldon Wolin’s notion of “fugitive democracy” in Democracy Incorporated: Managed Democracy and the Specter of Inverted Totalitarianism (Princeton: Princeton University Press, 2008).
[iii] In most constitutional amendment procedures, the legislature needs to pass an amendment with more than a simple majority (e.g. Luxembourg, Poland, India, Chile, Tunisia and more). Various degrees of a qualified majority are in place, most commonly three-fifths or two-thirds.
[iv] Some constitutions require that a proposed amendment be passed twice with a stated interval, usually three months (e.g. Estonia or Italy). In some countries, intervening elections are required. (In Finnland or Greece, draft amendments are put on hold until the next regular election; in Iceland or the Netherlands, the legislature is dissolved after adoption of an amendment.
[v] In Australia, for a constitutional change to be approved it must receive a double majority, consisting of a simple majority nationwide in addition to a majority in four out of the six states.
[vi] Bruce Ackerman, We the People (Cambridge, MA: Harvard University Press, 1993).
[vii] Not all constitutions, however, require referenda for constitutional amendments, and some countries require a referendum only if the most fundamental provisions are amended. For an overview, see: http://www.constitutionnet.org/files/constitutional_amendment_procedures.pdf
[ix] Examples from postcolonial history include Algeria; from the dissolution of Soviet Union: Armenia, Azerbaijan, Estonia, Latvia, Lithuania, Ukraine, Turkmenistan, and Uzbekistan. There were referenda in the aftermath of the dissolution of Yugoslavia. A special category are secession referenda in Quebec, Catalonia, and Scotland, and an attempted referendum in Basque Country.
[x] According to some, the supermajority requirement could enable minorities to block the democratic decision process. Indeed, the qualified majority requirement was common in sovereignty referendums in post-communist constitutions. The need for an enhanced majority for the approval of secession was also noted
by the Canadian Supreme Court in its decision on Quebec. The Court further coined the criterion of a “clear majority.”
[xi] Brexit can be interpreted as a sort of secession, but it is not a similar pursuit of independent statehood and full constitutionalization of political identity like in the case of Quebec, Catalonia, Scotland, and Basque Country.
[xii] I fully agree with Moravcsik on this. Andrew Moravcsik, “In Defence of the ‘Democratic Deficit’: Reassessing legitimacy in the European Union,” Journal of Common Market Studies 40, no. 4 (2002): 603-624.
[xiii] Mark Dawson and Floris de Witte, “Constitutional Balance in the EU after the Euro-Crisis,” Modern Law Review 76 (5) (2013): 817-844.
[xiv] See e.g. Christopher Heath Wellman, A Theory of Secession (Cambridge University Press, 2012). Closer to international practice, however, are “remedial right only” theories of secession which justify right to secession as a remedy for persistent injustice.
[xv] The trajectory is not strictly linear, and rights, redistribution, and recognition intersect. See Nancy Fraser and Axel Honneth, Redistribution or Recognition (London: Verso, 2003).
[xvi] According to an all-affected principle, the true meaning of democratic legitimacy is when all who are affected have a say in the decision-making process or deliberation.
[xvii] It is impossible to assess the economic “costs” of these EU rules and calculate something like a “net cost of Europe” and try to show that eliminating them will have an economic benefit. http://www.cer.org.uk/publications/archive/policy-brief/2016/brexit-and-eu-regulation-bonfire-vanities