Why is the West different from the rest?

In what follows I outline briefly the centuries-long, tortuous and often fortuitous route by which “democracy” became established in the Western world.

The word “democracy” is used as shorthand to denote not just elections but the whole package of concepts, institutions and rules which are included in modern governance of a country such as Australia. Similarly, the “West” is shorthand for all those states/countries which have a form of governance derived from a common or civil law tradition of which the United Kingdom, the United States of America, France and Australia are representative examples.

Where from came “democracy”?

It is often asserted that democracy arose from the ancient Greeks and from Periclean Athens in particular. This is not so. In the fourth century BCE after the trial and death of Socrates democratic rule was severely criticised by prominent Greek philosophers such as Plato and Aristotle. Democracy, it was asserted, was rule by the mob. Thereafter, rule by popular franchise declined. It did not re-emerge in the West until relatively modern times.

The word “demos” does derive from Greek. It means “people”.

The Roman Republic had an unwritten but respected constitution. By convention this constitution was divided into a Senate, several legislative branches and an executive branch. The latter included the Tribunate which was charged with protection of the lives and property of ordinary people (the plebeians). Each governmental office was limited to a particular term: usually one year. Significantly, the Roman Republic incorporated notions of the separation of power as well as notions of “checks and balances” on power. It did not envisage the concept of judicial review.

The Republican ruling class was actively engaged in political and legal debate. Notions of republicanism, civil virtue and checks on the exercise of power were just some examples of topics that engaged Roman minds. It is not surprising that the usurpation of power by Caesar in 44 BCE, the decline of republicanism and Roman transformation into an Empire caused significant unrest.

At the end of the fifth century the Roman Empire disintegrated. City life declined and centralised authority ceased. Sovereignty became fragmented and dispersed. The empire had been divided into East and West for administrative and military purposes. Much of the heritage of the West disappeared although in the East it was continued in the Byzantine Empire with its capital at Constantinople.

The sole immediate beneficiary of ancient Greek and Roman civilisation was the Roman Catholic Church. Early controversies in the Church concerned the extent of papal authority. At stake was jurisdiction. Did the papacy have sole jurisdiction to govern over all Christendom?

Gelasius 1 (pope 492-496) wrote that “there are two powers by which this world is chiefly ruled - the pontifical and the regal”. Later popes did not follow the Gelasian formula. As centralised authority in the West continued to decline the papacy filled the vacuum. In the later Middle Ages the Papacy developed a theory of governance which incorporated Roman law particularly the concept that authority can derive from a principal source. Thus, according to The Dictatus Papae (1075) the Roman Pontiff alone is rightly to be called universal. Moreover, the Roman Pontiff according to this dictate had power to depose emperors.

In the late 11th and early 12th centuries Western society and law underwent fundamental change. Among other transformations was the re-emergence of cities, trade and commerce. As well there occurred what has been variously referred to as the Investiture Conflicts or the Papal Revolution. Very briefly what happened was as follows: secular rulers had appointed high officials of the church. The Papacy wanted to assert authority over all Christendom. Specifically, the papacy crossed swords with secular rulers over the question of appointments to bishoprics and abbeys. The Emperor, a secular authority, opposed the Papacy. This conflict raged between 1075 and 1122. The outcome of the struggle was that power of the Papacy was curtailed.

This conflict was resolved by the use of law. Thereafter there existed two Western sources of authority and two sources of law; one secular and the other ecclesiastical.

The influence of ecclesiastical law, other than in the Papal states, was henceforth primarily concerned with matters pertaining to the individual such as marriage, inheritance and so on whereas secular law developed constitutional principles which were concerned with public law such as the raising of levies and defence.

In 1066 feudalism was introduced into England. A fundamental idea of feudalism is that both a ruler and the ruled are bound by the law. Only a free man could enter a feudal relationship of vassalage and this relationship presupposed reciprocal obligations including feudal tenure and rights of private jurisdiction or “immunities”. In exchange for his military service a feudal knight expected justice from his lord. Accordingly, feudal kings and lords established courts which were vested with jurisdiction over land holdings, feudal service and so on. The notion of feudal reciprocity was pitted against autocracy as asserted by kings who claimed to rule by Divine Right. The Magna Carta is an example of a feudal agreement between a ruler and his feudal knights.

Feudalism, therefore, needs to be distinguished from serfdom which did not impose duties and obligations of justice on the landholder. Nor did serfdom conduce to the emergence of notions of inalienable rights to the ownership of private property.

The protection of property is a potent factor in the development of legal rights and the protection of those rights by institutions such as parliaments. Leading constitutional court cases in 17th century England predominantly concern challenges to the use of royal prerogative power to impose levies such as customs duties, excises and such like.

The English Civil War (1642-1646) pitted supporters of parliamentary rule against monarchists who supported the ancient theory of mixed government. The English theory of mixed government held that the presence in the legislature of the three estates of monarchy, aristocracy and people would prevent corruption of the constitution. In response to the royalist reliance on this theory supporters of parliament formulated another idea; the idea that government should presuppose a separation of powers.

Complaints against the Stuart monarchs included the levying of taxes without consent of parliament, veto of legislation and imposition of martial law.

After the Revolution of 1688 the House of Commons resolved that before filling the throne with a post-Jacobite dynasty it would secure the religion, laws and liberties of the nation.

The result was the Declaration of Rights 1689. This act proclaimed government in England henceforth to be a constitutional monarchy. It purported to declare the “Rights and Liberties of the Subject and Settling the Succession of the Crown”. It was not as all-embracing as the title would suggest. Rather, the Declaration concentrated on removing specific grievances. Importantly, maintenance of a standing army within the kingdom was subject to parliamentary approval. In 1694 the Triennial Act provided that parliament should meet every three years. Henceforth parliament was a necessary part of the constitution.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed …” with these stirring words begins the American Declaration of Independence of 1776

Adoption of the Constitution of the United States of America which followed the Declaration of Independence is a milestone in the Western development of constitutional government.

Between 1787 and 1788 several conventions attended by some 2,000 delegates were convened, the most important being the Philadelphia Convention. Uppermost in the minds of the delegates was avoidance of the pitfalls of English-appointed royal governors as well as a belief that monarchs and their ministers regularly threaten liberties of the subject. Their debates were informed by the writings of Hume, Locke, Voltaire and in particular by Montesquieu.

A union of the original 13 states was deemed necessary in order to pursue policies which took into account national interests. One of the foremost framers of the Constitution, James Madison, wanted to create a system without interference from the states, a system which would act directly on the people and that would emanate from the people. To that end it was asserted that legitimacy of the Constitution derived from the act of ratification. Adoption of the Constitution required ratification by the requisite nine of 13 states. This point needs to be stressed. Authority for the USA Constitution derives from no sovereign or transcendental power but by “we the people” who alone gave their ratification.

The ensuing Constitution was based on the doctrine of the separation of powers; it included an Executive, a Legislature with two houses, each to check the other and a Judiciary separate from the other branches of government.

The inclusion of the judiciary was a distinctive contribution by the USA framers to the development of Western notions of government.

Events in the USA were soon followed by revolution in France. That revolution spawned a great deal of theoretical writings about government although in practical terms unrest and upheaval rather than stable government ensued. The enduring legacy of the French Revolution was the belief in the equality of its citizens … liberty, equality, fraternity was its clarion call.

The Napoleonic Code was introduced into those countries occupied by France. This Code presupposed that all citizens were equal before the law.

When in the late 1890’s our Fathers of Federation met they already had before them various theories and more importantly realities of government upon which to draw. They eschewed the concept of the powerful executive implicit in the USA constitution. Rather they opted for a constitution based on the supremacy of parliament; a parliament based on the Westminster model of responsibility. The outcome of their deliberations was a compromise. The pre-existing states had to be accommodated because their ratification was a prerequisite. The framers followed the example set by their US counterparts and opted for an independent judiciary.

Accordingly, after 1901 government in Australia was characterised, as it still is, by a diffusion of power between states, localities and the commonwealth, a commonwealth legislature with powers limited by the constitution and a powerful independent judiciary. A judge of the High Court of Australia has security of tenure and action by both Houses of Parliament is required to remove such a judge. Parliament is described as “representative” which presupposed that constituents would vote at elections. In 1902 the Franchise Act, (Cth) gave the vote to women although not to Indigenous women.

Constitution Act, (Cth) 1901 is an act of the United Kingdom parliament and thus legitimacy of the Australian constitution is derived from the British Crown. This is not to say that the occasional judge of the High Court of Australia has not attempted to frame a theory of popular acceptance of the Constitution by means of the Conventions held in Melbourne and elsewhere.

In more recent years, in the 1970s and 80s in response to the accretion of power in large corporations as well as government bureaucracies, by a series of acts, administrative tribunals were established. The idea informing tribunals is to ensure relatively cheap access for the resolution of grievances arising out of consumer purchases, social security benefits and so on. In addition during those decades both federal and state parliaments enacted suites of legislation recognising rights of individuals to seek redress against discrimination of various kinds.

To sum up, it is clear from the above that what distinguishes the “West” is its slow evolution to a form of government which has responded to new challenges and situations; where the powers of government are limited by law; where the arbitrary use of force is curtailed; where Joe and Jean Bloggs cannot be deprived of their freedom to worship as they please, to vote as they please, to assemble not quite as they please and do a myriad other things including voting at regular elections.

Most important, indeed essential, for the development of constitutional government is for the state to be the sole agency that can legitimately exercise force. In Iraq and Afghanistan this is not so. Armed militias proliferate. Nor is there in such countries a concept of civil society or nationalism. Accordingly, voting tends to be along tribal, religious and/or ethnic lines.

Written constitutions without more can be equally ineffectual. In 1936 Stalin had a wonderful constitution promulgated replete with basic freedoms for the individual. But as is well known the existence of that constitution was no protection against the Stalinist purges of the late 1930’s. Similarly, even coming to power by legitimate means, as Hitler did in Germany in 1933, was no protection against his evil regime.

At the risk of labouring the point, a constitutional democracy is composed of many intersecting and interrelated components. It is also more than the some of its many parts. Each democracy presupposes a degree of stability, a basic national consensus, not least a tradition of rule by law as well as a diffusion of power among numerous state institutions. There is not one source of authority - there are many.