Unlike any other term in our political vocabulary, “democracy” evokes entirely positive connotations. It is the political form of Western states, which we now take for granted, but it is also much more than that. Its richness is usually explored by political scientists, whereas public lawyers are much more at home with content-neutral concepts, such as “sovereignty”, “constitution”, and the “rule of law”. Interestingly, ConstitutionUK does not reference democracy amongst its values or principles, preferring instead the slightly more tangible “Principles of Representative Government” or “Protection of Freedoms“. But can democracy play a role in public law? Can it offer answers to complex constitutional issues? Where does it fit so far as thinking about a new constitution is concerned?
Answers to these questions are far from clear. Democracy is sometimes thought of as a form or method of government that tells us how powers are distributed amongst the different organs of state, and by what processes laws are made. In that sense, democracy does not determine a specific set of outcomes, but only provides the procedures by which those outcomes may themselves be negotiated. Yet, democracy is also associated with a particular kind of social order, i.e. a conception of society as it ought to be. This understanding draws on ideologically-charged values that range from basic civil and political rights (speech and assembly) to socio-economic rights (social welfare, housing), and beyond. Such a broad, diffuse, and open concept of democracy is not practical for public lawyers, who like their concepts cut and dried. In short, while nobody disputes the value of democracy, its meaning is lost amidst a variety of contrasting and competing positions.
How does democracy operate in relation to an issue that lies at its heart, namely the right to vote? Conor Gearty reminds us that the right to vote is “the most important of all the civil liberties possessed by an individual in a representative democracy“. So, what might democracy prescribe regarding a possible franchise extension to cover 16 and 17-year olds, and some serving prisoners? And is this the sort of thing that should be in a written constitution?
There are problems here that need to be addressed.
Labour leader Ed Miliband told activists at the Labour Party conference in Brighton in September 2013 that giving the vote to 16 and 17-year-olds would make them “part of our democracy”. And in Scotland, 16-year-olds will be able to vote in next year’s independence referendum. In contrast to these positions, the Conservative party opposes lowering the franchise age, and we should remember that 18 is the age adopted by most western democracies.
Yet any minimum age requirement (be it 16 or 18) is arbitrary, and voices are increasingly calling for its replacement by a procedural test for minimum electoral competence. Such a test would allow every citizen to exercise her right to vote as soon as she is willing and able to do so, regardless of age. There is a serious issue here for democracy. We should not ask, for instance, whether a majority of “the people” wish to adopt a minimum age for political inclusion. Instead, we should ask on what rational ground a 90-year old, who is infirm and suffers from dementia, should be allowed to vote, but not a 14-year old who is concerned about education, unemployment, or the environment.
In our minds we tend to correlate democracy with “the will of the people”. Yet contemporary theories of democracy do not aggregate the will of the people or of their representatives. They base their assumptions on a community of self-organising, free, and equal citizens, who have equal access to will-formation, and enjoy legally guaranteed civic self-determination.
These democratic assumptions have implications for prisoners’ voting rights. Should all serving prisoners be automatically disenfranchised, as is currently the case? One might argue that the right to vote is inalienable, and that there ought to be a presumption in favour of prisoners being granted the vote (save for those who committed the most heinous crimes). On the other hand, prisoners are clearly not “self-organising” or “free”, which is why they do not enjoy civil liberties, of which the right to vote is one. Arguably, then, democracy requires that prisoners are denied the right to vote: their loss of actual liberty reflects a loss of political independence. Incidentally, the disenfranchisement of minors (or women, or ethnic minorities) does not stand up to the same rational scrutiny: after all, all citizens and denizens enjoy their civil liberties, such as speech, assembly, and liberty, from the day they are born, not from the day they reach maturity – so why exempt minors from the right to vote?
Any attempt to design a new constitution for the UK must address three key elements, namely participation of the people, distribution of public power, and limitation of executive and legislative power. The three elements are interconnected: popular participation is not possible without civil liberties, which in turn are necessary to guarantee the proper exercise of public power. In the same way that the process of codifying the constitution compels us to reflect on the purpose of project (what exactly is a constitution for?), democracy forces us to consider the same aspects from a different angle. In this short piece we asked whether exclusion from the franchise can be justified under the conditions of rational discourse, such as liberty, rather than arbitrary criteria, such as age.
All this is to say that democracy can be a good guide for public law – and it would need to be developed further in a documentary constitution or an entrenched catalogue of basic rights. Admittedly, the democratic reference point renders the legitimacy of laws more complex. It no longer involves popular sovereignty alone, but also basic rights and liberties; not just formal participatory rights, but an inclusive process of opinion- and will-formation; and not just the negative, individualist view of freedom as non-interference, but the productive and public conception of non-domination in a free and equal society. Such complexity makes it tempting to side-step democracy. The challenge for ConstitutionUK, therefore, lies in finding new and imaginative ways of exploring democracy, and committing the UK to its legitimating conditions.
Dr Jo Murkens is a Senior Lecturer in LSE’s Department of Law. He was subsequently a researcher at the Constitution Unit, UCL, where he led the research on the legal, political and economic conditions and consequences of Scottish independence. He wrote his PhD thesis at the European University Institute, Florence, on Contested Constitutional Concepts: State, Constitution and Sovereignty in Germany and the United Kingdom, and the European Challenge. The thesis was awarded with a Special Distinction by the European Group of Public Law. He has taught at University College, King’s College, and Queen Mary College, and was called to the Bar in 2006.