In a previous blog I referred to the importance of style in democratic politics - qualities such as civility and moderation. (sept.14, 2018 post). It is President Trump's total disregard for such qualities that makes him so toxic to democracy in America.
This blog looks at two different qualities: coherence and congruity and, in particular, to their relevance to problems of ‘illiberal democracy’.
Background: the formal qualities of the law
In legal theory, a formal quality of the law, such as coherence, refers to the need for the values reflected in the rule of law to tie together with some of our general presuppositions about values in a democratic society. We expect the operations and judgements of the law to reflect broader background societal values, for example about penalising discrimination or incitement to violence. Coherence is about what we expect from the content of the law.
Congruence refers to a different formal quality about treatment under the rule of law. It is about what are sometimes called ‘interactional ‘, or, ‘relationship’ values, such as everyone being equal under the law. In democratic countries we expect different systems of authority to show the same respect for the person and to offer protection against arbitrary decisions. The law has a major role in ensuring congruence across the different systems.
With congruent values and procedures across systems of authority, we expect, for example, regulatory bodies to follow procedures that allow those effected by their decisions to have a chance to see and to comment on any new proposal. We expect regulatory bodies to act within the terms of their mandate from legislatures, to be transparent, and evidence based. We expect them to follow procedures congruent with the procedures of the law. In turn, we expect the law to play its part in ensuring such congruence.
Congruence can be seen as more narrowly about procedures. But coherence is procedural in a broader sense – it sets a standard about the content of the law that the procedures of the law must aim to meet.
These are not the only formal features of the law that are important. For example, it is important also that law is not made to be applied retroactively.
What is important about such formal qualities is that, taken together, they enable us to recognise the special characteristics of the law and help us to accept it as a system for social coordination that we can support. Because they help underpin our voluntary acceptance of the legal system, they help give it legitimacy.
A key feature of this kind of account of the legitimacy of a legal system is that it does not depend on an explicit process whereby citizens register their consent. For example, it does not require all cases to involve citizen juries, or for judges to be elected, or for the judgments of Supreme Courts to be ratified in referendums. Consent is conveyed through other means of conveying acceptance, such as a general inclination to voluntarily obey the law.
The incoherence of democratic politics
When we turn from the formal qualities of law in a democratic society to democratic politics itself, formal qualities such as coherence and congruence seem conspicuous by their absence.
Coherence is a quality far from everyday politics as we know it. Politicians give muddled messages; what they do in office is often very different from what they said they would do when campaigning; our democratically elected leaders are often incoherent in addressing matters of substantive importance for society (think Trump).
Procedures in democratic systems are also not always congruent with each other. Some countries favour the use of referendums, others do not. Some countries favour the power sharing features of ‘consociational’ forms of democracy; others prefer systems where majorities have more power. Some are decentralised, with devolved powers to regions or states; some are centralised.
When it comes to the legitimacy of democratic politics there is much greater emphasis on the value to be placed on the direct need for specific acts of consent; for electoral consent to a government and voter consent to a system of government and changes to it.
These are all good reasons why political theorists do not give much attention to procedural values, such as coherence and congruence, important for legal systems. Nevertheless, congruence was once in the 1980s the subject of extensive research by political scientists concerned with backsliding in democracies. At that time the concern was the possibility of backsliding in Germany. The time has come to pay attention again. .
Why pay attention
The main reason why contemporary democracies should pay more attention to formal qualities such as coherence and congruence is in relation to the growth of what are referred to as illiberal democracies. In illiberal democracies the consent of the majority is used to justify illiberal ends, such as the modification of constitutional, or judicial, constraints on power. It thus breaks the link with the broader narrative about the character of a democratic society. It also breaks the link with standards of treatment of people and interactional values in a democracy. Both coherence with the broader narrative and congruence with relationship values are lost.
Individual acceptance of authority
What the importance of consent in democratic politics shares with formal properties of the law in a democracy, such as coherence and congruence, is the rooting of legitimacy in the individual acceptance of authority. In politics, individual acceptance is tied to equal status in the voting booth, in the case of the law, acceptance is shown by a voluntary willingness to obey the law.
This common and shared basis for the legitimate exercise of authority cuts both ways. On the one side, if the law does not respect the political branch in a democracy and defer when appropriate, or, if on the other side, voter-based measures in illiberal democracies allows for the formal qualities of the law to be eroded, each is attacking a shared assumption that underpins their own legitimacy. In the long run, it is self-destructive of their own authority and legitimacy.