Representative Politics and the Limits of Law

May 30, 2019

In his second Reith lecture, “In Praise of Politics”, broadcast on Tuesday, Jonathan Sumption aims “to make the case for the political process, with all its imperfections.”  He develops a forceful argument for the capacity of representative politics to secure political legitimacy and elucidates, in sharp contrast, the limits of law as a technique to restrain majority rule.

Sumption is no radical democrat.  Even more than his first lecture (on which I commented elsewhere), this second lecture is at times ambivalent about democracy.  It opens with the premise that “In a democracy, the state… is ultimately in the hands of electoral majorities”, which gives rise to the dilemma of how to “control the potentially oppressive power of democratic majorities without undermining democracy itself”.  This framing obscures, it seems to me, the truth that control of the state by electoral majorities is not the default but is a hard-won, precarious political achievement.  Quite how this control should be exercised is obviously vital.  Democracy changes who it is that should govern, not what it is to govern.  The exercise of self-government should involve the people participating in government that is capable of securing the common good.

In a striking passage, Sumption says that “an important object of modern democratic constitutions is to treat the people as a source of legitimacy, while placing barriers between them and the direct operation of the levers of power.”  This is necessary, he says, “to contain the fissiparous tendencies of democracy; to counter the inherent tendency of democracy to destroy itself when majorities become a source of instability and oppression.”  I agree that the people are not well-placed to govern themselves directly and should instead be governed by way of representative institutions capable of reasoned choice.  This is how majorities exercise control.  The lecture’s argument that “all democracies have evolved methods of limiting or diluting the power of majorities” nicely upends expectations but also risks understating the moral force of political equality and the moral importance of the people having a share in their own government.

The lecture’s analytic foundation is the idea of legitimacy.  Sumption argues, rightly I think, that the state’s power turns on its perceived legitimacy – on the people’s willingness to comply without widespread use of force.  He takes legitimacy to be “a collective instinct that we owe it to each other to accept the authority of our institutions”, which depends in turn “on an unspoken sense that we are in it together”, to which a common history, language and culture are all highly relevant.  The point of the political process is to enable us to live together, in one political community, despite our conflicting interests and opinions.  It follows, I say, that fostering this political unity, and thus the capacity to act jointly despite sharp disagreement, is a weighty responsibility.

In a democracy, majority and minority disagree, but this is “transcended by their common acceptance of the legitimacy of its decision-making processes”.  For Sumption, however, majority rule itself “does nothing to accommodate our differences”, and a state in which “a bare majority takes 100% of the political spoils… would harbour large and permanently disaffected groups in their midst, who had no common bonds to transcend their differences with the majority… and would quickly cease to be a political community”.  There is something to this analysis, no doubt, but it also contains at least two questionable assumptions.  The first is that the division between majority and minority is deep and enduring, rather than temporary and fleeting.  The second is that the majority acts for itself, rather than acting for the common good which includes the interests of the minority.  Majority rule, as Sumption says, is a technique.  It can be abused and it can be abandoned.  But it is fully consistent with the priority of reasons (principles) rather than preferences.  And it has an obvious and justified attraction to any group that needs to and intends to make a decision together, namely that it treats all members as equals and is not biased in favour of the status quo.

The people should not govern directly and Sumption makes an eloquent case for representative politics.  Relying on Madison and Burke, he notes that a legislative assembly may be better placed than the people themselves to perceive the national interest, to avoid short-term thinking or surrender to sectional interests.  For Burke, Parliament’s responsibility to deliberate about the common good of the polity requires representatives to exercise judgment rather than to carry out instructions; this is a long way, rightly, from public choice theory.  Sumption stresses the virtues of political elites, who are duty-bound to reflect on where the national interest lies, which may depart from public opinion.  True, but note that of course public opinion is not static – politicians lead as well as follow – and public opinion is relevant to whether some course of action will be stable or effective.  The power of representative politics, Sumption argues, is that it enables robust action for the national interest “while at the same time accommodating the differences among our people”.  I agree.  And I share his view that political parties and their competition for parliamentary and electoral support are utterly vital to this end.  As he says, they have long been “powerful engines of national compromise and effective mediators between the state and the electorate”.

How does this analysis bear on the UK’s present political turmoil?  Sumption notes that there are serious arguments for and against leaving the EU but says they are irrelevant to his theme.  I am not sure he is right about this, but I understand why one might bracket them.  The arguments for leaving the EU are arguments about legitimacy, about who should govern and how they should be held to account.  The decline of political parties and public engagement in politics, which Sumption rightly laments, is related to EU membership, as the late Peter Mair argued in Ruling the Void.  The process by which the UK eventually came in June 2016 to decide to leave the EU confirms that while an elite consensus can keep major questions of political legitimacy off the political agenda for a time, party political competition can in the end force them back on the agenda.  The referendum was the technique our parliamentary democracy reasonably chose to attempt to settle this question.

However, Sumption’s main focus in this lecture is on the political aftermath of the referendum.  He notes that the two main parties have revised their previous support for membership of the EU, but that many people remain hostile to Brexit, such that one would “ordinarily expect the political process to produce a compromise not entirely to the liking of either camp, but just about acceptable to both”.  This has proven difficult precisely because the referendum bypassed the ordinary political process, obstructing compromise by producing “a result in which 52% of voters feel entitled to speak for the whole nation, and 48% do not matter at all.”  But pace Sumption the whole nation diddecide, by majority vote, to leave the EU.  There is room for compromise, certainly, about the terms on which the UK leaves but not on the question of whether to leave itself.

What Sumption welcomes as the return of politics in the last six months, with Parliament forcing “compromise on those who feel that the referendum entitles them to absolute outcomes”, I would say has instead been a failure to keep faith with the electorate.  Parliament should have approved the withdrawal agreement or supported withdrawal without an agreement.  Responsibility for this political debacle is widely shared, but the refusal of so many in public life to accept the legitimacy of the decision to leave the EU has been significant and ought to be scandalous.

While my analysis of our present troubles differs from Sumption’s, I admire his exposition of the virtues of representative politics.  The balance of his lecture considers the rise of law and elucidates “the limits of what law can achieve in controlling majorities, and the price to be paid if it tries too hard”.  In adjudicating disputes fairly and in accordance with settled law, courts help uphold the rule of law and instantiate reciprocity between rulers and ruled.  This does not involve or require authority to override government policy or Parliament’s lawmaking choices.  However, Sumption notes that in the last thirty years courts have increasingly deployed “a broader concept of the rule of law which greatly enlarges their constitutional role”.  They have asserted “a wider supervisory authority over other organs of the state” and “have inched their way towards a notion of fundamental law overriding ordinary processes of political decision-making” which has “carried them into the realms of legislative and ministerial policy.”  This is a claim to political power.

This new assertion of judicial power is starkly evident in Evans v Attorney General, Sumption argues, a case in which “The majority’s reason, however dressed up, was that they did not approve of the power that Parliament had on the face of it conferred on ministers”.  Like Sumption, and the two judges in dissent, I take this to have been a wholly unjustifiable decision, but a revealing one.  Evans is an example of a wider trend, a trend the lecture outlines vividly and to which it will hopefully draw public attention.  The risk, as the lecture notes, is that attention may focus simply on the outcome of judgments rather than on the problem of legitimacy.  Sumption makes clear that there is a problem: the expansive judicial approach “confers vast discretionary power on a body of people who are not constitutionally accountable to any one for what they do… [and] undermines the single biggest advantage of the political process”, which is its capacity to accommodate difference.  I would add that the trend also involves departure from settled law, undercutting the rule of law, which should discipline courts, and thus chipping away at the legitimacy of the judicial process itself.

Law is now politics by other means, Sumption says, but a means that is incapable of delivering the compromises that are necessary if we are to live together peacefully.  His adaptation of Clausewitz calls to mind Lord Justice Singh’s recent ringing statement of principle that “judicial review is not, and should not be regarded as, politics by another means”.  Sumption overstates for rhetorical effect the extent to which litigation is now simply politics, but likewise Lord Justice Singh’s statement of principle is alas often observed in the breach, and was uttered in a case in which, as he says, the claimants seemed to have forgotten it.  Not all judges are enthusiasts for a broader constitutional role.  How the tradition will develop, and whether it will resile from this role, turns in part on how judges and lawyers think about the political process and about the limits of law, as well as on whether parliamentarians and the public notice and object to the idea that litigation is simply politics by other means.  The power of this second Reith lecture, which I expect the lectures yet to come will supplement, is not only that it may alert the public to the rise of judicial power, but that it makes clear to all the illegitimacy of displacing representative politics with litigation.

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