Two Conceptions of Democracy
If [Daniel] Lazare’s critique of the U.S. constitutional system depended entirely on his ideology-influenced misprisions of American political culture and American political history, then it would deserve to be dismissed. The most important aspects of Lazare’s critique, however, are based on a conception of democracy, which in theory (if not in Lazare’s own theory) has no necessary connection to the ideology of the socialist left.
Lazare never makes explicit his own conception of the ideal constitution. From his writings, it appears that his conception of the good constitution rests on two premises. The first is that a “demos” is a more or less coherent community. The second assumption is that relatively simple majoritarian institutions are the most adequate vehicles for the expression of the sovereign will of the demos. Lazare’s ideal constitution, it would seem, would establish a unicameral legislature in a unitary state, with a majority of the legislators free to abrogate the constitution and promulgate a new one whenever they chose to do so. This conception explains Lazare’s insistence that federal systems and complex constitutions are either deluded responses to groundless fears of majority tyranny or sinister contraptions devised by machiavellian elites to neutralize democracy. “Can a people divided and conquer itself?” Lazare write (p. 27). “Is stable self-government really to be achieved through self-fragmentation?” (p.27).
If this is a fair statement of Lazare’s views, as I believe it is, then Lazare belongs in the older and more influential of the two traditions of thinking about democracy. The oldest and most prevalent conception of democracy identifies it with the will, or in another version the interests, of a numerical majority. Most centrist liberal and progressive proposals for constitutional reform, along with those of the radical left, have been based on this assumption. 7 There is, however, a minority tradition in political thought, which questions the identification of democracy with majority rule. The nineteenth-century American theorist and South Carolina Senator John Calhoun, with his idea of “the concurrent majority,” is one of the key figures in this minority tradition. 8 So are twentieth century theorist of “consociational democracy,” like Arend Lijphart and Lani Guinier, most of whom are found on the center-left and share nothing in common with Calhoun except for a concern with the plight of numerical minorities.9
The consociational theory of democracy differs from the majoritarian theory in two key respects. First, unlike majoritarians, consociationalists take seriously the possibility that a given political community may be made up of two or more enduring, distinct communities defined by extra-political characteristics, such as regional, racial, or religious identities. The second difference follows from the first. Consociationalist theory rejects the assumption that simple majoritarian constitutional structures are necessarily the best. In countries with a complicated regional or ethnic make-up, complicated democratic instititutions may be necessary.
Concessions and Consensus
From the consociationalist perspective, a given constitution may be less important as a set of rules for the self-government of a majority than as what the philosopher John Gray calls a modus vivendi, a treaty among various groups, which may have a long history prior to that of the national or multinational polity in which they find themselves as a result of coercion or choice. In particular countries, particular compromises embedded in the constitution as a concession to this or that sub-national group will cause the constitution to deviate to a greater or lesser degree from the Platonic ideal of a democratic constitution. In some cases the deviations may be unjustifiable (like the concessions made to slave-owners or less populous states in the U.S. constitution). In other cases, though, the concession may be reasonable and legitimate—particularly if the alternative to an idiosyncratic constitution is not a simpler, more majoritarian constitution, but secession or other kinds of civil strife.
For many (though by no means all) majoritarian theorists, the purpose of democracy is to “express” the “will” of the more or less unitary “people”—a Rousseauian General Will that somehow (perhaps by mental telepathy) has formed apart from, and prior to, elections and debates among elected officials. For adherents of consociationalism, the purpose of democracy is not the expression of a pre-existing national will, but the formation of a consensus among sub-national groups—substantial minorities, as well as majorities. Elections, negotiations among parties within the legislature, negotiations among houses of a government with separation of powers, even negotiations between levels of government—all of these may be legitimate stages in the cobbling together of a political consensus. To oversimplify matters, it might be said that majoritarians see legislation as the product of a political consensus, whereas consociationalists see a political consensus as the product of the legislative process.
The emphasis that consociational democracy puts on consensus suggests that as a rule supermajorities should be preferred to simple majorities. A program enacted by a bare majority, against the bitter opposition of a near-majority, is likely to be lacking in legitimacy, in practice if not in theory. Nor is it that much more legitimate in theory, if one rejects the majoritarian fiction that fifty-one percent of a population speaks for the whole. Every numerical minority in a society cannot be placated. But no effect should be spared to coopt substantial minorities, if social peace hangs upon the result.
Consociational democrats are much more likely than majoritarians to view the constitutional polity as something fragile and in danger of “Balkanization” into lesser communities along subnational lines. The fact, noted above, that party systems in democracies tend to perpetuate and reinforce regional and ethnic and religious divisions within nations only strengthens the fear of consociated theorist that ill-designed democratic arrangements will exacerbate rather than avert civil strife.
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Consociationalism and Constitutionalism
If we think of constitutions as compromises among different groups living in the same territory, groups that may agree on little more than the desirability of continued co-existence, then we would not expect them to resemble one another closely, any more than we would expect a treaty between Britain and Iceland to contain most of the provisions of a treaty between Australia and Indonesia. As Adam Ferguson wrote, “Laws, whether civil or political, are expedients of policy to adjust the pretensions of parties, and to secure the peace of society. The expedient is accommodated to special circumstances…” 10 The irreducible diversity of constitutions reflects the irreducible diversity of nations and the regions, ethnic groups, linguistic communities and religious denominations into which the populations of the world’s states are divided.
Proponents of consociational democracy, then, tend to be very cautious about suggesting that only one or a few models of constitutional democracy are legitimate. Asked to devise an abstract blueprint for an unnamed democracy, most contemporary theorists of consociationalism would be likely to propose a parliamentary system with legislators elected by one or another method of proportional representation. But any consociational theorist worth his salt would probably reject the exercise, on the grounds that, as there are no generic countries, there can be no generic constitutions. In most circumstances, PR might be preferable to plurality voting. However, in countries where PR might lead to formation of parties along narrow regional, ethnic or religious lines, plurality voting might deter the direct translation of social difference into political conflict, by encouraging the coalescence of interests into two stable parties based on crosscutting alliances. Similarly, as a general rule, parliamentary democracy may be better than presidential democracy. But in newly-democratized countries with royal or dictatorial traditions, a quasi-regal president, invested by popular election with plebiscitary legitimacy, might be more effective than a prime minister or chancellor in imposing civilian authority on recalcitrant armed forces and bureaucracies.
With these qualifications in mind, it is possible to make some cautious generalizations about the suitability of different constitutional structures in light of the rival theories of democracy. The institutions best suited for the creation of a consociational “consensus” are not necessarily those best adapted to the expression of a majoritarian “will.”
The Spectre of Direct Democracy
The majoritarian theory of democracy itself comes in several versions. One, associated with Edmund Burke, holds that elected representatives should do what they believe is in the best interest of their constituents whether the constituents agree or not. This view is less influential than the “mandate” theory, according to which an “instructed” representative is bound to carry out the wishes of the majority that elected him. If the “mandate” is that of a party rather than an individual, the appropriate form is Westminster democracy, in which the winning party should face few constitutional restrictions in enacting a complex program which is assumed to have been endorsed, down to its details, by a majority (or, in some cases, a plurality) of the electorate. Taken to an extreme, the mandate theory would encourage the elimination of legislatures altogether, and their replacement either by direct democracy, in the form of referenda on particular issues, or elective dictatorship. (Something like this conclusion was drawn by early twentieth century U.S. Progressives, whose puritanical horror of legislative log-rolling led them to favor strong, “nonpartisan” executives, like city managers, as well as initiative and referendum).
For obvious reasons, the theory of consociational democracy emphasizes the primacy of a legislature (whether unicameral or bicameral) that reflects the diversity of legitimate interests in a complex and divided society in its very make-up. To be genuinely representative, a legislature must be sufficiently large, and it should be elected by methods that do not misrepresent the actual distribution of opinions, values and interests in the electorate (almost all theorists of consociational democracy prefer forms of proportional representation to the first-past-the-past or plurality voting system for this reason).
