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Should public opinion determine policy?

By Max Atkinson - posted Friday, 25 November 2016


The same idea of popular democracy has been a recurring theme in Australian debates over same-sex marriage, with the coalition insisting that the plebiscite is a special case, an exception to the principle that members of parliament are elected and paid to govern the nation, rather than a political choice inconsistent with that principle. No one, as yet, has explained the rationale for this special treatment.

However that may be the debate is, in the end, about the duty of an elected member, seen by most constitutional theorists as a choice between two theories of this role. According to the ‘representative’ theory of democracy the politician is an agent to serve the interests of the community. On the ‘delegate’ model, he or she is a servant who must do what the community wants.

The most famous exponent of the representative theory was the 18th century British conservative philosopher Edmund Burke, who said:

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It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living….Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

The representative model has been near-universal in practice, both in Westminster and Presidential systems. In day to day politics it sees a continuing tension between winning the support of a majority to get elected, and a belief that those elected must govern for all citizens, not just those who voted them in. It is why, after particularly divisive campaigns, it is common practice for the winner to re-affirm this commitment.

The ever-present risk of a ‘tyranny of the majority’ may well explain the preference for ‘representative’ over ‘direct’ systems of democracy, as in Swiss cantonments, where the public votes on legislative proposals. But there are also compelling practical reasons, such as the huge expense and the disruption of community life. This is quite apart from the need for expertise to understand the consequences, in order to assess the merits, of policies in contention.

However that may be, if we accept the theory of representative democracy as put by Burke, and if we do so because we believe the government must treat all citizens with equal concern and respect, we cannot say democracy means doing what the majority wants. We must say instead that democracy means the majority has the right to decide who makes the law, leaving open the question of what laws they should make. While this might seem an obvious and necessary distinction, many people, including politicians, find it difficult to grasp.

None of this, however, is a reason to dismiss plebiscites out of hand and many political systems now include ‘citizen’s initiatives’ to address issues ignored by the governing parties. These are now common in the American states, notably in California, where 17 ‘propositions’ were tacked onto the recent Presidential election. Depending on the numbers needed to initiate the process, they allow concerned groups to ensure politicians address the issues they raise.

These are a mixed blessing because they are vulnerable to the same lobbies, including corporate bodies and Political Action Committees which, in America, can shape policies to serve their interests by funding the election costs of members of congress, as well as high-intensity and very effective advertising campaigns. There is a useful discussion of these matters, with a summary of direct democracy movements, on Wikipedia.

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Australia, apart from those rare instances where a referendum is needed to change the Constitution, does not use plebiscites to decide which and how issues should be dealt with by the government, and the proposal to do this with same-sex marriage would not have been legally binding. There is, however, a good case for legislation, both state and federal, to permit citizens’ initiatives, with safeguards to protect against the distortions of big money.

This is needed to redress problems which cannot be resolved in ordinary, everyday politics because they serve the interests of one or both parties in a two-party system. Among these is a systemic distortion of the democratic process by political donations, mainly from big corporations. Other issues are the need for an independent inquiry to expose unfair and deceptive business practices, and for a Commonwealth version of ICAC, the NSW anti-corruption agency.

These proposals for reform through a more focused and more direct public involvement may not succeed, but they keep alive a practice of informed and reflective criticism which rests more on an appeal to shared community values than on the conflicts of interest which divide voters and parties. Is there any other way, one might ask, to avoid the polarisation which in America is now so extreme that reasoned discussion from shared values and empirical evidence is almost a lost cause?

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About the Author

Max Atkinson is a former senior lecturer of the Law School, University of Tasmania, with Interests in legal and moral philosophy, especially issues to do with rights, values, justice and punishment. He is an occasional contributor to the Tasmanian Times.

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