A B S T R A C T
"Democratic" constitutions often contain principles that are in contradiction to the actual political system which is supposedly based on the respective constitution. These "useful fictions" have to be exposed by the political philosopher as what they really are: instruments of legitimation of the exercise of power in the name of the people (but not by the people). The paper tries to demonstrate this in regard to basic concepts of representative and direct democracy such as people's sovereignty, representation, volonté générale etc. It explains that it is the task of political philosophy to analyze the hidden agenda of the legitimation discourse of any given polity. In the case of representative democracy, this agenda relates to the requirements of decision-making in an oligarchic framework. The paper pleads for a "realistic" approach towards democratic constitutions so as to eliminate fictitious concepts that only serve to hide the real power structure. For this reason, every political system before it is accorded legitimacy in the higher sense of morality and legal validity must be scrutinized in regard to the logical consistency of its principles, its normative credibility and practical applicability.
The discussion about a "new world order", as initiated at the end of the East-West-rivalry, has led to an uncritical "legitimation" of existing parliamentary systems. The "liberal democracy" of the West, the survivor of the power struggle of the Cold War, is seen as the ideal for any political system that aspires to respect the basic rights of its citizens and to create an institutional framework for their participation in the res publica.1)
The "discourse of legitimation" as exemplified in Francis Fukuyama's widely appraised essay about the "End of History"2) has reinforced and to a certain extent immunized the traditional Western dogma of the exercise of power through representation.3) "Democracy" is equated with a system of mere efficiency, i.e. with effective oligarchic mechanisms of decision-making. This political theory has been particularly influential in post-war Germany and Austria (based on the earlier writings of Carl Schmitt4) and on Gerhard Leibholz's doctrine of parliamentary representation5)).
The whole theory is based on the fictitious assumption that an individual citizen can ideally represent the whole of the society (the people) and thereby is authorized to make decisions on its behalf.6) As Hans Kelsen points out clearly, this theory is in no way compatible with the concept of popular sovereignty7), the fundamentum inconcussum of all democratic constitutions. (Apart from the false ideological assumptions contained in the doctrine of representation, one should, as a rule, always try to describe a given system in appropriate terms, not in a misleading manner. One should therefore reconsider the traditional terminology of "representative democracy".)
A theory of democracy based on the negation of the sovereign will of
the citizens (the people) is self-contradictory. Any such system relying
exclusively on the exercise of power through representation lacks the democratic
legitimacy which is required to make people subject themselves to the rule
of law.8) In such a system of representation
oligarchic tendencies will inevitably be strengthened and will finally
shape the political community as a whole. The threats posed to democratic
decision-making by various interest groups, powerful industrial lobbies
and by those who engage in party politics only for the sake of serving
their sponsors have been aptly described by many contemporary authors.9)
In virtually all the representative systems of the West which claim to
be "democratic", the "manufacture of consent" (Walter
Lippmann)10) has become the cornerstone of
an élitist system that is only formally - in regard to certain electoral
procedures - democratic.
Our analysis of the practice of constitutional representative democracy concentrates on this contradiction in the basic doctrine of democracy. A fundamentally inconsistent, even self-contradictory theory of democracy - as contained in numerous parliamentary constitutions - lies at the root of many incompatibilities between the principles of the respective constitution and political practice (Realpolitik).
The theory of the "free mandate" within the parliamentary
paradigm provides a striking example of this. The fictitious assumption
that a deputy exercises the free mandate is one of the pillars of the doctrine
of parliamentary representation. But under the conditions of the political
realities in a multi-party system it turns into a kind of imperative mandate
in favour of the political parties. (For this factual contradiction between
political theory and practice Austrian political discourse has created
the term Realverfassung [the real constitution as practiced in day-to-day
decision-making versus the written ideal constitution].) This theory pretends
that the deputy is solely responsible to his conscience and is not led
by any considerations alien to the common good (which in no way can be
defined or operationalized).
Such traces of party dictatorship in Austrian "constitutional reality" (Realverfassung) are justified - in the traditional discourse of political legitimation - as necessary requirements to guarantee the efficiency of the decision-making process! In accepting this negation of the free mandate we practically advocate the dictatorship of political parties (as a democratic maxim) for the sake of efficiency (expediency). Non-democratic power is exercised in the name of democracy as representation of the people (but not by the people). This makes a mockery of the constitution's slogan of "popular sovereignty" as we find it in all parliamentary Charters of the West.
The power of political parties furthermore renders obsolete the constitution's stipulation of the separation of powers as prerequisite for the rule of law characteristic of any democratic system. The checks and balances between the legislative and the executive branches of power as envisaged by the constitution are totally meaningless in the face of a factual identity of interests between the deputy in parliament and the holder of executive power. As party functionaries of the same party, for example, both are loyal to the same economic pressure groups that sponsor their own party. (This refers, of course, to the majority or majority coalition in parliament and its relation to the respective one-party or coalition government.) Control over the executive branch by the legislative branch cannot be exercised under such a constellation of representation through party structures. (In many instances control is exercised in the opposite direction: the executive branch as the foremost agent of the ruling parties [or party] imposes its decisions on the respective party associates in parliament.)
The real decision-makers, however, are the lobbies and interest groups that are sponsoring the respective political parties. There is a "real" though hidden government behind and above the executive and the legislative branches. Austrian political newspeak has created the euphemistic term Sozialpartnerschaft (social partnership) to describe this un-constitutional exercise of power and power-sharing by the lobbies - outside and above parliamentary procedures.
All this indicates a gradual erosion of the basic meaning of democracy - as the rule of the people by the people. The term "democracy" has served to legitimize a non-democratic exercise of power in an exclusively representative system. As early as 1922, Walter Lippmann characterized this contradiction: "The stereotype of democracy controlled the visible government ... It was only the words of the law, the speeches of politicians, ... and the formal machinery of administration that have had to conform to the pristine image of democracy." (Lippmann Walter 1991, p. 287)10) Lippmann aptly described the intricate mechanism of "creating consent" in the framework of representation. This mechanism should make the citizens subject themselves "freely" to the game rules of the respective oligarchy that organizes itself along the lines of a multi-party system.
In such a framework where the effective exercise of power dominates, the text of the constitution is just a façade; far more important is the Realverfassung (real or effective constitution) - even when it contradicts the written constitution's basic principles.
Similar examples of inconsistencies and contradictions between the constitution and political reality can be given in regard to an alternative system of direct democracy. (We do not intend to idealize such a system just because of the lack of legitimacy of the rival model of representative democracy.) The model of direct democracy is based on the fiction of the truly - not only normatively - sovereign, well-informed, community-oriented citizen. The basic fiction in this concept is that of the volonté générale (Rousseau). In its structure it is similar to the concept of the "representation of the totality of the people" in parliamentary theories, particularly to the assumption of a "hypothetical popular will".
The decision made by general referendum is democratically meaningless in a society where the sources of information (the media) are overwhelmingly controlled by private interest groups. (This is one of the basic problems of the Swiss political system, the only Western system with certain institutionalized elements of direct democracy.) Walter Lippmann prophetically stated half a century ago "that the knowledge of how to create consent will alter every political calculation and modify every political premise." (Lippmann Walter 1991, p. 248) The "creation of consent" will inevitably erode any effort to involve the people directly in a participatory system.11) Furthermore, even in a rather successful system that contains direct-democratic constitutional provisions (such as that of Switzerland), the shadow government of the "big lobbies" cannot be neutralized or eliminated.12)
Direct-democratic procedures as based on precise constitutional provisions degenerate into a mere façade if they are not anchored in a socio-economic framework compatible with the sovereign status of the citizen. (The normative level must generally correspond to the factual level if contradictions in the application of the model are to be avoided.) Democracy can only be practiced in an already "democratic" environment: A referendum, a people's assembly, etc., are meaningful only if exercised under democratic circumstances. This implies adequate education, free access to information, equality in economic opportunities, etc.13)
This is not the "vicious political circle" portrayed
by the advocates of oligarchic rule. It is the interdependence of political,
social, cultural, economic interactions present in any given society that
cannot be neglected if democracy is to be more than a set of formal procedures.
If these fundamental conditions for democratic decision-making do not exist,
a constitution with basic provisions of direct democracy has a merely legitimizing
function in the framework of an oligarchy shaped by economic interests.
The more adequate term for such a system would be plutocracy.
What practical conclusions arise from such an examination of the two rival theories of democracy in regard to the apparent dichotomy between constitution and political reality? Two basic maxims follow for the philosophical observer of actual politics who should not help merely to legitimize a given power structure (from which he may himself benefit) but should transcend it towards those normative principles that can be consistently formulated (all too often he understands himself as a minister in the original sense of the word, i.e. as a servant of the privileged holders of power):
(1) Don't take constitutional principles at face value! In whichever constitutional or normative framework, whether national or international, whether a Human Rights Charter or the UN Charter: the decisive point is always the specific implementation procedure. Only this process provides evidence as to whether a basic normative principle is meant to be just that or if it is simply a tool for the legitimation of contradicting economic and political interests.
(2) Look behind the discourse of legitimation of any polity! The old-fashioned "Ideologiekritik" should not be abandoned just because the ideological rivalry between East and West has faded away. This is what the philosopher and political thinker Noam Chomsky tries incessantly to teach us14) after the end of "ideological competition" between the advocates of so-called "liberal democracy" and socialist or participatory theories.
Ideological "honesty" on the part of the politically active citizens will finally necessitate the restructuring of a given constitution along the lines of formal consistency of its principles and compatibility of those principles with the respective socio-economic framework.15) This, of course, means the eradication of "useful" fictions from the constitution which so often merely serve to hide the real power constellations. Constitutional fictions are of vital importance for every "legitimation discourse"; they are used as a kind of sedativum, i.e. a tool to bring about the acceptance of the system established by the interest groups. The concepts of "representation", of the "totality of the people" (Volksganzes), of the volonté générale are such tools in the hands of the political élite and its intellectual allies or proxies.
In the light of this analysis any kind of triumphalism of a "New World Order-discourse" is totally inappropriate. (Köchler Hans 1993, p. 31) An ideological critique of Francis Fukuyama's dogma of the "liberal democracy" as a global political model is the duty of those who look behind the façade of formal democratic procedures, in particular of the electoral process. It in no way suffices to proclaim ideological dogmas and to write shining principles into one's constitution if the technicalities of their implementation do not receive equal attention. After all, it is their application alone that makes these principles meaningful. Each polity must prove its commitment to its principles, and must develop appropriate organizational mechanisms. (This is of particular importance for the validity of human rights: civil and political rights are only meaningful if they are based on fundamental social and economic rights for which adequate guarantees have to be given in any community that aspires to be democratic.)16) Any kind of false idealism has to be avoided because it merely helps create a public relations mechanism for a "democratic make-believe".17)
On the basis of the earlier pragmatic maxims a general maxim can be
formulated that may serve as a guideline for those who take the drafting
or amending (restructuring) of a constitution seriously: the ideally best
form of constitution is the system of rules if we may ironically allude
to John Stuart Mill's "ideally best form of government"
is realistic, not idealistic; that is precise, not vague in the formulation
of its basic normative principles and in its stipulations for their implementation
in a given political system. This kind of realism, as we have attempted
to describe it above, is to be distinguished from a false, misleading idealism
(which only creates false expectations). It will render the constitution
as a whole more credible and will make it easier for each citizen to freely
subject himself/herself to its authority.
To realize this alternative the concept of "free" representation (free mandate) must be replaced by the concept of the imperative mandate; a centralized state structure must be abolished in favour of power-sharing in a genuinely federalist system; and so on.
The practical consequence of such an effort at a universal ideological critique of our traditional concept of democracy and of its application in the constitution is short and simple:
Before we offer our ideological and political systems as models to be followed by other nations - let alone to be applied worldwide -, we must scrutinize them in regard to their logical consistency, normative credibility and practical applicability.