Ordinary everyday democratic politics fails when people withdraw their consent to the way they are governed or no longer acquiesce to the system of law making. Consent involves active approval, acquiescence passive approval. This blog looks at the role of acquiescence and consent, why they might be being withdrawn and what to do about it.
Acquiescence and consent
In democratic theory democratic regimes rest on a basis of consent to the system of law making and to the wider constitutional framework. In practice, the opportunities for people to actually give their consent are very limited. They occur only at the time of founding a system of government, or at its restart or revision. Most people passively accept the system they are born into and grow up in. They acquiesce in what is already there or are simply indifferent or apathetic. The UK system has famously evolved through practice with a largely unwritten constitution, with little conscious design and without opportunities for explicit moments of constitutional consent to the framework as a whole.
Nevertheless, despite its infrequency in practice, the concept of consent remains important because consent can be withdrawn leading to a loss of regime legitimacy. Moreover, there is an important difference with the passivity of acquiescence. Acquiescence tends to rely on the outcomes of policy. If they are acceptable then people may go along with the system that produced them. Consent focuses as much or more on the processes that produce the policies – for example, whether the process is truly representative of interests and groups that need to be represented.
The EU provides an example of a system of government that relies largely on acquiescence. People give their consent to its goals and structures at the point of entry when there is likely to be a referendum on membership. Thereafter, the opportunities for referendums are limited and it is the outcome of policies that is stressed – for example the convenience of freedom of movement without internal barriers in the Schengen area, and the convenience of a single currency in the Euro area. The fact that policy change drives, and is a deliberate instrument to achieve institutional change with a political aim is largely ignored. People acquiesce in the EU’s changing institutional landscape because it is seen to produce good results.
The reason we need to think more about the distinction between acquiescence and consent is in response to a widespread perception that people are losing trust in their governments and that democracy is becoming increasingly fragile. Acquiescence seems to have become fragile but the opportunities to actively reaffirm consent are non-existent or even deliberately withheld.
Consent to what?
In constitutional theory consent can be given to three distinct components of a democratic system – to the framework as a whole; to the system of law-making it enshrines and to individual laws made under it.
The broadest form of consent is to the constitutional framework as a whole. Opportunities are rare. The US has not had such a moment since the end of the 18th century, amendments have been rare (17 since the Bill of Rights) and have not followed the route of calling a constitutional convention. In Europe, most countries date their constitution to the end of WW II or to the fall of Communism. The approval of membership in the EU is equivalent to another constitutional moment. Thomas Jefferson held that each generation should be asked to give their consent every 19 years. In practice generations pass without the opportunity.
The system of law making
Approval of the system of law-making is often wrapped up in approval of the system as a whole. But opportunities for consent are also involved when the voting franchise or system of voting is changed. In the UK the 2011 referendum on changing the voting system from ‘first past the post’ to a form of proportional representation was one such moment. The change to an alternative vote system was rejected. It is unclear whether this should be seen as an endorsement of existing and current practice or a dislike of a particular alternative out of different possible forms of P/R.
Consent is not usually required in respect of the making of individual laws. Differences of opinion about particular laws are to be expected in democracies. In majoritarian systems people know that the political party they support will not always form or be part of the government. They acquiesce when they join the opposition and await their turn to get back in government. The main exception is in the case where the legislative system requires a consensus for the passing of laws. Other exceptions occur when elections produce hung parliaments or when control of the two Houses of Congress is divided between the main parties and there is an incentive, or not, to reach a consensus in order to avoid a prolonged stalemate.
The symptoms of withdrawal
There are three types of reasons why peoples’ readiness to acquiesce may be becoming thin. They correspond to the distinctions about what people might consent to or acquiesce in.
Disagreements with outputs
One reason why people may no longer acquiesce in respect of particular legislative acts is when there is a prolonged period of legislation with which they do not agree and where the prospect of change to a different government is remote or non-existent. This is most likely to be associated with one party government.
Disagreement with system of law making
A second class of reason is when people no longer feel themselves truly represented, or what Hanna Pitkin referred to as feeling ‘present’ in the types of people who purportedly represent them in legislative bodies. There is perceived to be too large a gap between their sense of their own identity and the perceived identity of those that claim to represent them, their associations, feelings and interests. This applies when all parties in supposedly representative assemblies have shared characteristics at variance with how a significant part of the electorate sees themselves. Assemblies dominated by older, well-off, white, mainly male representatives from elite universities, self-congratulatory, complacent and wedded to traditional cultural mores no longer represent those who are not present.
In one sense this divide is not surprising. We live in a world where most people carry multiple identities and some may not be easily represented. But what is important is when the feeling of ‘non representation’ is compartmentalised or converts to what the American Founding Father referred to as ‘faction’. The Founding Fathers attributed ‘faction’ to propertied and commercial interest and reflecting wealth differences. In today’s world income and wealth differences remain one important source of faction. But there are other sources, including religion, ethnicity, highly charged personal ethics, defensiveness between groups, including immigrant groups, and different senses of who we, the collective, are or perceive ourselves to be as a social whole.
Disagreement with the system as a whole
A third class of reason is when people no longer support the system as a whole. In the UK people voted for Brexit on many dubious grounds and responded to false claims about the supposed advantages of exit. But the other side of the coin is that British politicians on both sides of the main party divide were reticent about talking about the EU in terms of its underlying aim to achieve ‘ever closer’ political union. The failure of British political leadership provided a vacuum where people could object to a system of government which had as its aim that more and more matters of political importance should be transferred to and decided in Brussels.
The erosion of consent to a system of government and the decline of people’s willingness to acquiesce in what is done in their name or by those who claim to represent them means that a democratic system becomes vulnerable to charismatic leaders who claim to fill the void and promise to ‘clear the swamp’. There are four main responses to reduce the risks of this happening.
The first is the time-honoured tradition of turning a blind eye to developments and to assume that the system will spontaneously revert to what it was and will muddle along in the way it previously has.
The second is to look to address some of the weaknesses in political processes, including the system itself, by political means. Political parties have within their own power the ability to select candidates who are more likely to be seen as representative. Cross party consensus or bipartisanship can be practiced informally without the need to change rules governing electoral systems or enforcing coalition government. Expenditures for elections can be checked by court decisions or by independent electoral commissions in order to reduce the influence of monied interests.
A more fundamental response is to change the constitutional rules themselves. The difficulty is practical. Those institutions with something, or much, to lose with rule changes will capture the process of change. They will oppose changes that diminish their position and try to turn change to their own advantage. Thus, on the whole neither of the two main parties in England are greatly in favour of altering the ‘first past the post’ voting system and favour alternating chances of power. In Brussels the Commission would oppose any attempts to transfer its first mover advantage enshrined in its right of initiative to the Council of Ministers.
Constitutional change by political means
A final route is to wait for that moment when political forces join together to agree on both changes that can be achieved by political means combined with limited constitutional changes. A moment of ‘punctuated’ constitutional equilibrium.
In today’s democratic or would be democratic world we cannot assume that the reasons why people no longer seem to acquiesce to what is done in their name or consent to systems that they feel no longer represent them are likely to miraculously vanish. Rule changes are needed.